Family Residence Annotation — Conditions, Registration and Legal Consequences

The family residence annotation: protection of the family residence under TMK Art. 194, the registration procedure, its legal consequences and the cancellation action, examined in detail.

The Concept of the Family Residence

The family residence is a concept governed by Article 194 of the Turkish Civil Code (TMK) No. 4721 and constitutes one of the important protective mechanisms of family law. The family residence is the dwelling in which the spouses live together and which forms the centre of family life. It is the place where the family is housed, where daily life is carried on and where the family union is maintained.

TMK Art. 194 prohibits the spouse holding rights over the family residence from carrying out certain acts of disposition over that dwelling without the express consent of the other spouse. The purpose of the provision is to secure the housing needs of the members of the family.

The protection under TMK Art. 194 applies for as long as the marital union continues. Where the marriage ends by death, the protection of Art. 194 may be replaced, where the conditions are met, by the rights under TMK Art. 240 in the liquidation of the matrimonial property regime and under TMK Art. 652 in the division of the estate.

Legal Basis of the Family Residence Annotation

TMK Art. 194/1 provides that a spouse may not terminate the lease relating to the family residence, transfer the dwelling or restrict rights over it without the express consent of the other spouse; Art. 194/2 provides for the judge's intervention where consent cannot be obtained or is withheld without just cause; Art. 194/3 entitles the non-owner spouse to request a family residence annotation on the land register; and Art. 194/4 provides that the non-tenant spouse becomes a party to the lease by notifying the lessor and is jointly and severally liable together with the other spouse.

Registering the Family Residence Annotation

The family residence annotation is an entry on the land register recording that the immovable has the character of a family residence. The following steps are taken to register the annotation:

1. Application

The non-owner spouse may apply to the land registry office where the immovable is registered and request registration of a family residence annotation. Although the documents required are determined by current land registry practice, the principal documents are as follows:

• Application petition
• Marriage certificate or civil registry extract
• A certificate from the local headman (muhtar) or another document showing that the dwelling is the family residence
• Land registry particulars of the immovable

2. Land Registry Office Procedure

The land registry office examines the application and the documents submitted. The statute confers on the non-owner spouse the right to request the annotation; as a rule, neither the other spouse's consent nor a prior court order is required. Nevertheless, the character of the immovable as a family residence must be established by documentary evidence.

3. Registration by Court Order

Where the annotation cannot be registered by direct application to the land registry office, registration may be secured by a court order upon application to the family court. In practice land registry offices may at times request additional documents or refuse the application; in such cases recourse to the courts becomes necessary.

Legal Consequences of the Family Residence Annotation

The owner spouse may not transfer the family residence or restrict rights over it without the express consent of the other spouse; a tenant spouse may not terminate the lease. Consent must be express for each specific transaction. The annotation notifies third parties of the property's character as a family residence and, as a rule, defeats any claim of good faith.

Where the lease was concluded by one spouse alone, the other spouse becomes a party to the contract by giving notice to the lessor. From that moment the notifying spouse is jointly and severally liable with the other spouse for the rental obligations. This is not a remedy arising only after an unauthorised termination has taken place; it may be exercised while the marriage and the family residence continue.

Removal of the Family Residence Annotation

The family residence annotation may be removed in the following cases:

• Joint application by the spouses
• The divorce judgment becoming final
• The death of one of the spouses; the effect of the death on the land register and on the surviving spouse's possible rights under TMK Art. 240 or Art. 652 is assessed separately.
• Loss of the dwelling's character as the family residence: where the spouses move to another dwelling, the annotation on the former dwelling may be removed
• Court order: where just cause exists, the annotation may be removed by court order

Transactions Carried Out in the Absence of an Annotation

The annotation is declaratory, not constitutive; the protection of the family residence applies between the spouses even without an annotation. If the immovable is transferred or mortgaged without consent, the non-owner spouse may seek a declaration that the transaction is invalid and cancellation of the land registry entry. However, whether the third party acquired a right in rem in good faith under TMK Art. 1023 — whether it knew of the family residence, or ought to have known with due diligence — is examined on the facts of the particular case. The presence of an annotation as a rule defeats a claim of good faith; the absence of an annotation neither automatically validates nor automatically invalidates the transaction.

Setting Aside Transactions Carried Out Despite an Annotation

A transaction carried out without the express consent of the other spouse despite the presence of a family residence annotation may constitute a breach of TMK Art. 194. Depending on the type of transaction, the non-owner spouse may seek cancellation of the land registry entry, restoration of the previous position, or deletion of the limited right in rem.

Action for Cancellation of the Land Registry Entry and Re-registration

This action is brought before the family court. The parties to the action are as follows:

• Claimant: the spouse whose consent was not obtained
• Defendants: according to the parties to the transaction and the land registry entry, the owner spouse and the third party who acquired the right in rem

The court assesses together the character of the dwelling as a family residence, whether express consent was given, the register correction sought and the legal position of the third party. If the claim is upheld, the terms of the judgment will vary according to the type of transaction, such as a transfer or a mortgage.

Burden of Proof

In an action for cancellation of the land registry entry, the claimant must prove that the dwelling is the family residence and that the transaction was carried out without their consent. Evidence such as civil registry records, water, electricity and natural gas subscriptions, a certificate from the local headman and witness statements may be used to establish the family residence.

Criteria for Identifying the Family Residence

The following criteria are taken into account in characterising a dwelling as the family residence:

Where the spouses have more than one dwelling, the one in which family life is predominantly carried on is accepted as the family residence. Dwellings devoted to temporary use, such as a summer house or a mountain cabin, are as a rule not treated as the family residence.

The Relationship Between the Family Residence and Matrimonial Property Regimes

The family residence is protected irrespective of the matrimonial property regime. Whichever regime applies — participation in acquired property, separation of property or separation of property with sharing — the protection over the family residence continues under TMK Art. 194. In the liquidation of the property regime, however, the question of to whom the family residence is to be allocated is assessed separately.

Under TMK Art. 240 the surviving spouse may, in order to be able to maintain their former way of life, request that a usufruct or right of habitation be granted over the dwelling belonging to the deceased spouse in which they lived together, set off against their participation claim and, if that is insufficient, with an additional payment. This right is subject to the conditions in the article; it is not a right set off against the inheritance share.

Creating a Mortgage Over the Family Residence

A transaction restricting rights over the family residence, such as a mortgage, requires the express consent of the other spouse. Where consent is absent, the non-owner spouse may seek cancellation of the entry or deletion. There is no absolute rule that the good faith of a bank or third party is never protected; the actual use of the dwelling, the valuation, address and loan documents, the parties' knowledge and TMK Art. 1023 are all assessed together.

Intervention of the Judge During the Marriage

Under TMK Art. 194/2, where consent cannot be obtained or is withheld without just cause, a spouse may request the intervention of the judge. Assessing the circumstances of the particular case, the judge may authorise the transaction or dismiss the request.

A request for the judge's intervention is made before the family court. The applicant spouse must establish concretely that consent could not be obtained or was withheld without just cause, and the reasons for the intended transaction.

Termination of the Family Residence Protection

As a rule the protection ends when the marriage ends or when the dwelling loses its character as the family residence. The protection may continue even where cohabitation has in fact ceased while divorce proceedings are pending. Upon death the surviving spouse may claim ownership, a usufruct or a right of habitation over the family residence under TMK Art. 240 in the liquidation of the property regime and, where the conditions are met, under TMK Art. 652 in the division of the estate. For deletion of the annotation, death, a final divorce judgment, loss of character and the land registry office's current document requirements are taken into account.

Problems Encountered in Practice

The problems most frequently encountered in practice concerning the family residence annotation are as follows:

• Obtaining documents for registration: the land registry office may at times request additional documents, and the procedure may be delayed.
• Existence of more than one dwelling: where the spouses have more than one dwelling, determining which is the centre of family life may be problematic.
• Dispute between the spouses: where one spouse objects to the registration or removal of the annotation, judicial proceedings may be required.
• Position of third parties: where no annotation exists, assessing the good faith of third parties can give rise to complex legal questions.

This content is for general information purposes only and does not constitute legal advice. For your specific legal problems you are strongly advised to obtain professional support from an attorney.

Frequently Asked Questions

Is the annotation a constitutive condition of the protection?

No; it is declaratory and affects the good faith of third parties.

How does the non-tenant spouse become a party to the lease?

By giving notice to the lessor, and with joint and several liability for the rental obligations.

Is a mortgage created without consent always deleted?

The third party's good faith and the concrete facts are examined.

Which provisions may apply upon death?

TMK Art. 240 in the property regime, and Art. 652 in succession where its conditions are met.