What is Family Residence? What are the Rights of Spouses on the Family Residence and the Lawsuits They Can File?

1. The Concept of Family Residence

The concept of "family residence" was introduced to Turkish Law with the Turkish Civil Code No. 4721 (TCC) which entered into force on January 1, 2011. Although it is a new institution in Turkish Law, it can be said that the family residence has a much more important place in the Turkish family structure than in other countries. As defined in the preamble of the TCC, the family residence is a place where the family lives together, where the spouses carry out all their life activities, which directs the lives of the people in the family, where bitter and sweet days are experienced, has various memories, and is used for regular settlement.  In order to be able to talk about a family dwelling, there must first be a family that has come together through a formal marriage union. This family must live together in a place called a dwelling. In order for a dwelling to be a family dwelling, it is not obligatory for the spouses to own the dwelling together. In addition, a family dwelling may also be referred to as a dwelling used under a lease agreement.  In the event that the marriage is terminated due to death, divorce, annulment of marriage, etc., since the marriage union will end, the family residence qualification of the place will end. However, there are rights granted to a spouse in the liquidation of the property regime after divorce and to the surviving spouse in the process of sharing the inheritance of the deceased spouse regarding the family residence.

2. Rights and Protections Provided by the Family Residence to the Spouses and the Family

The family dwelling is one of the most important assets of the common life of the spouses. The attachment of persons to the dwelling is legally protected in all legal systems. Even if it is owned by only one of the spouses, family members have joint possession of the family dwelling, in other words, the family dwelling is used by all family members. For these reasons, the family residence provides certain rights and protections to the spouses and other members of the family. 

Within the scope of these rights; one of the spouses cannot transfer the family dwelling to others without the express consent of the other spouse as per Article 194 f.1 of the TCC, cannot restrict the rights on the family dwelling in the title deed (establishing mortgages and pledges, etc.), cannot rent the family dwelling and cannot terminate the lease agreement.

Pursuant to Article 194 f.2 of the TCC, the spouse who is not the owner of the dwelling used as a family dwelling may request the land registry office to place the necessary family dwelling record (annotation) in the land registry, and if the family dwelling is provided by lease; the spouse who is not a party to the lease agreement may request the lessor of the dwelling pursuant to Article 194 f.3 of the TCC. The spouse who is not a party to the lease agreement becomes a party to the lease agreement by notifying the lessor in accordance with Article 194 f.3 of the TCC, and the spouses become jointly and fully responsible for the lease agreement, and the lessor is obliged to make a written notification to the spouses separately in order to terminate the lease agreement for reasons other than non-payment of the rent. In addition, according to the provisions of Article 194 f.1 of the TCC and Article 349 f.1 of the TCO, one of the spouses cannot give an eviction commitment alone regarding the family dwelling they have been renting.

After the death of one of the spouses; the surviving spouse may be granted the right to benefit, residence or ownership rights over the family dwelling in accordance with the provisions of Article 240 f.3, Article 279 f.2 and Article 652 f.2 of the TCC. After the divorce, the spouses may agree on who will stay in the family residence in accordance with Article 254 f.1 of the TCC. The spouse who obtains the right to stay in the family residence may request this right to be recorded in the land registry. If the spouses cannot reach an agreement, according to Article 254 f.2 of the TCC, the judge shall decide to allocate the family dwelling to one spouse, taking into account the conditions specified in the provision. In his/her decision, the judge determines the period of staying in and using the family dwelling and notifies the land registry office of his/her decision for registration in the land registry. According to Article 254 f.3 of the TCC, unless the judge decides otherwise, the right to stay in and use the family dwelling shall expire at the end of the specified period.  Pursuant to Article 254 f.2 of the TCC, if there is a change in the situation of the spouse staying in and using the family dwelling before the expiration of the periods determined by the judge, the other spouse may request the judge to reconsider the decision made pursuant to Article 254 f.3 of the TCC.

3. Lawsuits that can be filed against the Family Residence

The family dwelling is protected by law in consideration of the values it protects for the family. Sometimes disputes may arise between spouses in the exercise of rights protected by the provisions of the law. The judge's intervention is required to resolve the dispute. In such cases, the judge's intervention in the dispute is ensured by some lawsuits regarding the family residence.

a. Family Residence Determination Case

If there is a dispute between the spouses as to whether the residence is a family residence or not, the intervention of the family court judge may be requested. The spouse who files a lawsuit for the determination of whether or not the family dwelling is a family dwelling must have a legal interest in filing the lawsuit according to Article 106 f.1 of the CCP. The decision of the 2nd Civil Chamber of the Court of Cassation dated 04.05.2015 and numbered 2015/9142 K. also supports this situation. If one of the spouses is dead at the time of filing the lawsuit, the spouse who will file the lawsuit should file a lawsuit against the heirs who have rights over the estate, as stated in the decision of the 2nd Civil Chamber of the Court of Cassation dated 23.01.2012 and numbered 2012/858 K.

b. Action for the Judge's Intervention on the Explicit Consent for the Family Residence

In the event that one of the spouses fails to obtain the consent of the other spouse for transactions such as mortgage, lease, etc. on the family residence, or in the event that the other spouse abuses the power to give consent granted to him/her by the law without a justifiable reason, the spouse whose consent is not given may request the intervention of the family court judge in accordance with Article 194 f.2 of the TCC. The non-consent of the spouse may be voluntary or involuntary. In addition, according to Article 349 f.1 of the TCO, if it is not possible for the spouse who wants to terminate the lease agreement to obtain the explicit consent of the other spouse or if the spouse whose explicit consent should be obtained does not give consent without a justified reason, the spouse may request the judge to make a decision according to Article 349 f.2 of the TCO. If the family court judge deems the request for intervention justified, he/she may decide to authorize the spouse who wants to perform the legal transaction to perform the legal transaction subject to the lawsuit alone.

c. Action for Cancellation of the Transfer of the Family Residence

According to Article 194 f.1 of the TCC, one of the spouses cannot transfer the family dwelling without the express consent of the other spouse. According to the decision of the Court of Cassation General Assembly of Civil Chambers dated 15.04.2015 and numbered 2015/1201 K., it is not possible to accept that the transfer made without the explicit consent of the spouse is valid. Despite the clear provision of the law and the case law of the Court of Cassation, if one of the spouses transfers the family residence without obtaining the explicit consent of the other spouse, the spouse who does not have explicit consent may file a lawsuit against the transferring spouse together with the person to whom the transfer is made for the annulment of this transfer. As a result of this lawsuit, the judge may decide to annul the transfer made in the absence of explicit consent, if the marriage union continues. According to the decision of the 2nd Civil Chamber of the Court of Cassation dated 14.03.2012 and numbered 2012/5744 K., the transfer of the family residence without the explicit consent of the spouse is sufficient for annulment if the marriage union continues. If the marriage union has ended due to annulment, divorce or death, the judge cannot annul the transfer. 

d. Annulment of the Restriction of Rights on the Family Residence

According to Article 194 f.1 of the TCC, the spouse who is the owner of the family dwelling may limit the rights on the family dwelling by obtaining the explicit consent of the other spouse (establishing mortgage and pledge, etc.). Despite the explicit provision of the law, if one of the spouses limits the rights on the family dwelling without obtaining the explicit consent of the other spouse, the spouse who does not have explicit consent may file a lawsuit against the transferring spouse together with the person to whom the transfer was made for the annulment of this transaction. As a result of this lawsuit, the judge may decide to annul the transaction made in the absence of explicit consent if the marriage union continues. If the marriage union has ended due to annulment of marriage, divorce or death, the judge cannot decide on the annulment of the transaction.

e. Annulment of the Termination of the Lease Agreement Regarding the Family Residence

Pursuant to Article 194 f.1 of the TCC and Article 349 f.1 of the TCO, one of the spouses may not terminate the lease agreement regarding the family dwelling, conclude a sublease agreement or transfer the lease right to another person without the express consent of the other spouse. Despite the explicit provision of the law, if one of the spouses terminates the lease agreement regarding the family dwelling without obtaining the explicit consent of the other spouse, the spouse who does not have explicit consent may file a lawsuit against the terminating spouse together with the beneficiary of the termination of the agreement for the annulment of this transaction. As a result of this lawsuit, the judge may decide to annul the transaction made in the absence of explicit consent if the marriage union continues. If the marriage union has ended due to annulment of marriage, divorce or death, the judge cannot decide on the annulment of the transaction.

f. Family Residence Annotation (Registration) Case

Pursuant to Article 194 f.3 of the TCC, if the ownership of the family dwelling belongs to one of the spouses, the other spouse may request the necessary annotation regarding the dwelling in the land registry.  The lawsuit for the annotation of the family residence may be filed for two reasons. Firstly, a dispute between the spouses regarding the fact that the residence is a family residence can be cited as a reason. Before the end of the marriage union, the non-owner spouse may request a family residence annotation for a residence that is owned by one of the spouses and is actually lived in by the non-owner spouse. The second reason may be the failure of the Land Registry Office to carry out the transaction even though there is no dispute between the spouses. For this reason, in order to file a lawsuit, it must be documented that the Land Registry Office did not perform the transaction. According to the decision of the 2nd Civil Chamber of the Court of Cassation dated 15.06.2015 and numbered 2015/12633 K., unless it is documented that the Land Registry Office has not legally and de facto fulfilled the request for the annotation, the non-owning spouse has no legal interest in requesting the annotation of the family residence through a lawsuit. 

g. Action for Removal of the Family Residence Annotation 

The removal of the annotation on the family dwelling can be requested during the continuation of the marriage, as well as at the end of the marriage, if the conditions are met. In order to request the removal of the annotation on the family residence during the marriage, the residence must have ceased to be a family residence. In order to remove the annotation on the family dwelling when the marriage union ends, the dwelling must cease to be a family dwelling with the end of the marriage union. When removing the annotation on the family dwelling, the provisions applicable at the time of the annotation must be applied.

h. Annulment of the Collusive Transfer of the Family Residence

The family residence can also be disposed of by pretending that it is being sold without actually being sold. Such a transfer of the family residence is called a collusive transfer. The spouse who is not the owner of the family dwelling has a legal interest in filing a lawsuit for the annulment of the collusive transfer. The non-owner spouse may file a lawsuit for the annulment of the collusive transfer due to the existing legal interest. The fact that the spouses are not divorced does not prevent the examination of the lawsuit filed for the annulment of the collusive transfer. 

i.  Action for Prevention of Seizure of Family Residence

The action for the prevention of alienation regulated under Article 683 f.2 of the TCC may also be filed on the grounds that a dwelling is a family dwelling. Spouses may file an action for the prevention of alienation in order to prevent an unjustified attack on their property rights over the family dwelling.

In conclusion, as stated in our Constitution, the family is the foundation of Turkish society and is based on equality between spouses. The State is obliged to take the necessary measures and establish the necessary organization for the peace and welfare of the family and especially for the protection of the mother and children. In order to fulfill its obligations for the protection of the family, the State has included the institution of family residence in the legal arrangements it has made and has taken measures to protect the family residence. 

Note: This article was also published on the Torun Law Office website. Other articles by the author can be found at STRASAM and www.torunhukukburosu.com.