INTRODUCTION
The concept of 'family residence' introduced by the Turkish Civil Code No. 4721 ("TCC") is one of the most important institutions serving the purpose of protecting the family unity. This residence, which is owned by one of the spouses and where the family lives together, has a special protection pursuant to Article 194 of the TCC. Although this protection is reinforced by the annotation, disposals made on the family dwelling may have legal consequences even in the absence of an annotation. In this article, the conditions under which the other spouse may file a lawsuit for cancellation and registration of title deed in the sale of immovable property without a family residence annotation will be examined and evaluated together with the opinions in practice and precedent Court of Appeals decisions.
A. CONCEPT OF FAMILY RESIDENCE AND LEGAL BASIS
The family residence is the place where the spouses carry out all their life activities and fulfil basic family functions such as shelter, rest, and spending time together. Article 194/1 of the TCC reads as follows: "One of the spouses cannot terminate the lease agreement regarding the family dwelling, transfer the family dwelling or limit the rights on the family dwelling, unless the other spouse has explicit consent."
This provision stipulates the explicit consent of the other spouse in transactions such as the transfer of the immovable property that has the characteristics of family residence or the establishment of real rights on it. However, in practice, it is frequently encountered that the "family residence annotation" is not placed on this residence, which leads to malicious transactions.
B. REGISTRATION OF FAMILY RESIDENCE ANNOTATION ON TITLE DEED
Pursuant to Article 194/3 of the TCC; "The spouse who is not the owner of the immovable property allocated as a family dwelling may request the land registry office to make the necessary annotation regarding the dwelling in the land registry." In addition, Article 194/4 of the TCC states that "If the family dwelling is provided by one of the spouses by rent, the spouse who is not a party to the contract becomes a party to the contract by notifying the lessor and the spouse who notifies the lessor shall be jointly and severally liable with the other spouse."
The consent of the owner spouse shall not be sought for the annotation of family residence in the title deed. The non-owner spouse may request the title deed registry to annotate the immovable property as a family residence with the documents required for the annotation of family residence in the title deed.
It should be emphasised that the family dwelling is the place where the spouses carry out their living activities. The spouses conduct and manage the union of marriage together. Since the family union is broken after the divorce of the spouses, the family residence cannot be annotated after the divorce.
C. LEGAL PROTECTION PROVIDED BY THE FAMILY RESIDENCE ANNOTATION
Family residence annotation is a legal protection that prevents one of the spouses from selling the residence or establishing a restrictive real right on it without the consent of the other spouse. The family residence is the common living space of the spouses and the family union, and the owner spouse is prevented from unilaterally disposing of this living space. This situation primarily serves to protect the family unity and prevents the victimisation of family members such as non-owner spouse and children. Namely, if there is a family residence annotation on the immovable property, without the consent of the non-owning spouse;
- The family home cannot be sold,
- A usufruct right cannot be established on the family residence in favour of a third party.
- A right of residence cannot be established on the family residence in favour of a third party.
- Family residence cannot be rented out.
- The family residence cannot be donated to a third party.
- The family residence cannot be transferred with a maintenance contract until death.
In summary, the annotation of the family residence is a legal protection that restricts the property right of the owner spouse and prevents unilateral disposition without the consent of the other spouse. However, it should be noted that, although the legislator has restricted the disposal authority of the owner spouse through the annotation of the family residence in order to protect the family unity, this protection may be abused by the other spouse.
In this case, pursuant to Article 194/2 of the TCC, the spouse who cannot provide consent or whose consent is not given without a justified reason may request the intervention of the judge through a lawsuit. The court will make a decision by evaluating whether the spouse who does not give consent is justified or not.
D. THE STATUS OF THE SALES MADE WITHOUT A FAMILY RESIDENCE ANNOTATION AND THE LAWSUITS THAT THE NON-OWNER SPOUSE CAN FILE
As is well known, pursuant to the principle of reliance on the records in the land registry, the records in the registry are taken as basis in disposition transactions such as the sale of immovable property. When there is no annotation of the family residence on the title deed record of the property, the sale of the property may appear "secure" to third parties. However, in line with the case law of the Court of Appeals, if the spouse carrying out the sale does so without obtaining the consent of the other spouse, the outcome may vary depending on whether the buyer is considered to be "in good faith." Indeed, the decision of the 2nd Civil Chamber of the Court of Appeals, numbered 2014/14318 E. and 2015/3453 K., is as follows;
"Even if there is no annotation on the family dwelling, if the buyer knows or is in a position to know that the dwelling is a family dwelling, the consent of the other spouse is sought pursuant to Article 194 of the TCC; if there is no consent, a deed cancellation action may be filed."
Therefore, the spouse who is not aware of the sale transaction may file a lawsuit for cancellation and registration of the title deed if he/she proves that the immovable is a family residence and that the buyer acquired the immovable knowing this. In this case, the non-owning spouse is required to prove that the third party buyer is malicious, otherwise, the good faith and acquisition of the bona fide buyer who will purchase the immovable property that does not have a family residence annotation in the registry will be protected in accordance with the principle of trust in the registry.
In this case, the non-owner spouse should file a deed cancellation and registration lawsuit against the third party purchaser. In addition to the cancellation and registration of the title deed, if registration is not possible, a claim for compensation may also be raised. As a matter of fact, in the precedent decisions of the Court of Appeals, in cases where the family residence is transferred without the consent of the spouse, it is ruled that the disposition transaction is invalid against third parties who are not in good faith. For example;
- Court of Appeals, 2nd Civil Chamber, 2013/14318 E. – 2014/3654 K.:
"The consent of the other spouse is required for the transfer of the family residence. Even if there is no annotation in the land registry, if it is established that the immovable property is a family residence and the transferee knows or is in a position to know this, the transaction is invalid."
- Court of Appeals, 1st Civil Chamber, 2011/3427 E. – 2011/11525 K.:
"In cases where the family residence is transferred without the consent of the spouse, a lawsuit for the annulment and re-registration of the title may be filed against third parties who are not in good faith."
- Court of Appeals, 2nd Civil Chamber, 2017/5528 E. – 2018/8622 K.:
"It is established that the immovable property subject to the lawsuit was used by the spouse as a family residence, and the sale made without the express consent of the other spouse is invalid. It has been determined that the buyer was not in good faith. A decision for the annulment and re-registration of the title was rendered."
E. CONCLUSION
The family residence is not only an immovable property; it is a special living space where the spouses maintain their common life, where children grow up and family ties are strengthened. The protection mechanism introduced by Article 194 of the TCC aims to secure the rights of the non-owning spouse. Although this protection becomes more visible with the annotation of the family dwelling, the concept of family dwelling is also protected by the legal order in transactions without annotation.
In practice, transfers made without an annotation may cause negative consequences in terms of the right to family residence. Sales transactions made without the consent of the spouse are deemed invalid in cases where the buyer knows or should have known that the immovable is a family dwelling and may be subject to an action for cancellation. However, the most critical point to be considered here is that the burden of proof is on the claimant spouse. In other words, the non-owner spouse must prove both that the immovable property is a family residence and that the third party knows or should have known that the immovable property is a family residence. This process should be supported by witness statements, invoice records, settlement documents obtained from the registry office and similar evidence.
Although the decisions of the Court of Appeals have started to form a unity of jurisprudence at this point, it is still possible to encounter different interpretations and decisions in practice. Therefore, it is imperative to take certain measures at both individual and public level in order to prevent loss of rights.
Best Regards,
Kılınç Law and Consulting
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
