Explanations regarding the family residence
In this article, we explain the family residence, a subject that is frequently debated between spouses and gives rise to disputes.
The family residence is regulated in Articles 194, 197, 240, 254, 255, 279 and 652 of the Turkish Civil Code (No. 4721).
What is a family residence?
The Court of Cassation Assembly of Civil Chambers defines the family residence as follows: "The family residence is a space full of memories where the spouses carry out all their life activities, which shapes the way they live and where they share good days and bad. For this reason, legal transactions carried out by one spouse alone concerning such an important asset may affect the significant interests of the other spouse."
What are the spouses' rights and responsibilities regarding the family residence?
First, without the explicit consent of the other spouse, neither spouse may terminate the lease agreement for the family residence, transfer the family residence or restrict the rights relating to the family residence.
A spouse who cannot obtain consent, or who is refused consent without just cause, may request the intervention of the court.
A spouse who is not the owner of the immovable property designated as the family residence may request that the necessary annotation regarding the residence be entered in the land register.
If the family residence has been leased by one of the spouses, the spouse who is not a party to the contract becomes a party by notifying the landlord, and the spouses become jointly and severally liable.
How long does family residence status last?
Under Article 194 of the Turkish Civil Code (No. 4721), regardless of the matrimonial property regime between the spouses, the family residence rules apply from the moment a residence is designated as the family residence by the spouses' mutual intention until the decision ending the marriage (for example, a divorce decision) becomes final. In other words, the restriction on the family residence continues even while a divorce case between the spouses is pending. The spouses may end a residence's status as the family residence by agreement.
The family residence rules do not apply to engaged couples or to couples living together without being married.
What are the characteristics of a family residence?
- *There must be only one family residence,
- *It must be the place actually lived in,
- *It must be used continuously,
*The residence must be used on the basis of a valid personal or real right.
Two important points are worth noting here. First, the place to be designated as the family residence does not necessarily have to be an independent unit according to the land registry record. For example, a property that appears as land in the title deed but has a house on it should also be accepted as a family residence. Second, if a place is used both for professional purposes and as a residence (such as a home office), it should be considered a family residence.
It should also be noted that secondary residences such as summer houses, highland houses, mountain cabins, timeshares, caravans, shacks and hotel rooms are not considered family residences.
Which court has jurisdiction over lawsuits and disputes concerning the family residence?
The Family Court has subject-matter jurisdiction over lawsuits for a declaration that a place is a family residence, for entering a family residence annotation, for removing a family residence annotation, for annulment and re-registration of title deed and annulment of sale based on family residence status, and for removal of a mortgage on the family residence. Where there is no Family Court, the Civil Court of First Instance has jurisdiction acting as a Family Court. Venue is determined by the place of residence of either spouse.
In lawsuits based on family residence status, such as annulment and re-registration of title deed, annulment of sale and removal of a mortgage, the lawsuit must be filed against the person who appears as the owner in the land registry and against the mortgagee.
Family Residence
The concept of the family residence in general
First, for an immovable property to be considered a family residence, there must be a marriage and the spouses must live in the residence continuously. The family residence rules do not apply to engaged couples or to couples living together without being married. The family residence is regulated in Articles 194, 197, 240, 254, 255, 279 and 652 of the Turkish Civil Code (No. 4721).
The family residence is defined in the preamble to Article 194 of the Turkish Civil Code. Accordingly, the family residence is "a space full of memories where the spouses carry out all their life activities, which shapes the way they live and where they share good days and bad." Based on the preamble to the Turkish Civil Code, the definitions in legal doctrine and the definitions of the Court of Cassation, the family residence can be defined as the shared home that legally married spouses have made the center of their life together, which third parties can easily recognize as such from the outside, and whose loss would harm the right to shelter.
In this respect, the family residence is clearly very important. Because of this importance, carelessly disposing of the family residence during the marriage, making it the subject of transactions that restrict ownership and use rights, or transferring it to third parties when the marriage ends may cause serious difficulties. Moreover, legal transactions carried out by one spouse alone concerning such an important asset may affect the significant interests of the other spouse. For all these reasons, the law imposes certain restrictions on legal transactions concerning the family residence.
What are the spouses' rights and responsibilities regarding the family residence?
Under Article 194 of the Turkish Civil Code:
"Without the explicit consent of the other spouse, neither spouse may terminate the lease agreement for the family residence, transfer the family residence or restrict the rights relating to the family residence.
A spouse who cannot obtain consent, or who is refused consent without just cause, may request the intervention of the judge.
A spouse who is not the owner of the immovable property designated as the family residence may request (phrase added by Article 44 of Law No. 6518, effective February 19, 2014) "from the land registry office" that the necessary annotation regarding the residence be entered in the land register.
If the family residence has been leased by one of the spouses, the spouse who is not a party to the contract becomes a party by notifying the landlord, and the notifying spouse becomes jointly and severally liable with the other spouse."
As the provision shows, the family residence is of great importance to the spouses. For this reason, the law prevents spouses from carrying out legal transactions concerning the family residence on their own. To prevent one spouse from acting alone, the other spouse who is not the owner of the property can go to the land registry office and request that the necessary annotation be entered for the property. Once this annotation is entered in the title deed, the owner spouse can no longer carry out transactions on the property alone. This is called a family residence annotation.
If the family residence was obtained by one spouse through a lease rather than a purchase, the other spouse who is not a party to the lease becomes a party to the contract, jointly and severally liable with the other spouse, by notifying the landlord that they are the tenant's spouse and that the property is the family residence.
Legal transactions concerning the family residence are possible only with the other spouse's consent. Therefore, even if the residence that qualifies as the family residence is owned by one of the spouses, it can be sold, transferred, donated or exchanged only with the consent of the other spouse. Likewise, if one spouse holds a limited real right in the residence such as usufruct, a right of habitation or a building right, and the family lives in the residence on that basis, this right can be transferred only with the other spouse's consent. In addition, the spouse who owns the family residence cannot alone establish limited real rights such as usufruct, a right of habitation, a building right or a pledge without the other spouse's consent. This is because these rights, either from the moment they are established or later, would fully or partially prevent the family from using the residence. The law contains no provision on the form of consent. It may be written or verbal. However, for transactions at the land registry, it must be in writing. Transactions carried out despite the other spouse's objection or without their consent are invalid.
How long does family residence status last?
Under Article 194 of the Turkish Civil Code (No. 4721), regardless of the matrimonial property regime between the spouses, the family residence rules apply from the moment a residence is designated as the family residence by the spouses' mutual intention until the decision ending the marriage (for example, a divorce decision) becomes final. As a rule, the residence retains its family residence status until the marriage ends. It loses this status if the spouses permanently move out, if they agree to end its status as the family residence, if the marriage ends through divorce, annulment or death, or if the residence ceases to exist. Where the marriage ends in divorce, the restriction on the family residence continues even while the divorce case between the spouses is pending, and the residence loses its status only when the divorce decision becomes final.
What are the characteristics of a family residence?
- There must be only one family residence
- It must be the place actually lived in,
- It must be used continuously,
The residence must be used on the basis of a valid personal or real right.
Two important points are worth noting here. First, the place to be designated as the family residence does not necessarily have to be an independent unit according to the land registry record. For example, a property that appears as land in the title deed but has a house on it should also be accepted as a family residence. Second, if a place is used both for professional purposes and as a residence (such as a home office), it should also be considered a family residence.
It should also be noted that secondary residences such as summer houses, highland houses, mountain cabins, timeshares, caravans, shacks and hotel rooms are not considered family residences. The family residence must be a primary residence that the spouses have made the center of their living space and in which they live continuously.
Which court has jurisdiction over lawsuits and disputes concerning the family residence?
The Family Court has subject-matter jurisdiction over lawsuits for a declaration that a place is a family residence, for entering a family residence annotation, for removing a family residence annotation, for annulment and re-registration of title deed and annulment of sale based on family residence status, and for removal of a mortgage on the family residence. Where there is no Family Court, the Civil Court of First Instance has jurisdiction acting as a Family Court. Venue is determined by the place of residence of either spouse.
In lawsuits based on family residence status, such as annulment and re-registration of title deed, annulment of sale and removal of a mortgage, the lawsuit must be filed against the person who appears as the owner in the land registry and against the mortgagee.