The family residence is one of those concepts referred to in various legislative provisions but not defined in the text of the Turkish Civil Code No. 4721. In the statement of reasons accompanying the Code, the concept is described as “the place of emotional value in which the spouses carry out all their life activities, shape their lives accordingly and live through their bitter and happy memories”. A similar approach is seen in Swiss law; the Swiss Civil Code likewise does not draw the boundaries of the concept by means of a precise definition.
The place of the concept within our legal order was established by the Turkish Civil Code No. 4721, which entered into force in 2002. With that enactment, the family residence and the family residence annotation entered the range of institutions relied upon not only by family law but also by the law of succession and enforcement law. The thinking behind the institution is that the place in which the spouses conduct their shared life, establish their daily order and accumulate their common memories should be kept apart from other immovable property.
Leaving the definition flexible is a deliberate choice. Since every family’s way of life, financial means and social environment differ, the qualities carried by the residence also vary from case to case. Looking to the circumstances of the specific case, rather than to a fixed definition, allows disputes to be resolved in a manner closer to equity. In this briefing note we address the framework of the concept, the protections afforded to the residence, and the processes for placing an annotation on the land registry record and for its deletion.
What Is a Family Residence?
The Framework of the Concept
The family residence may be described as the place in which the spouses live together during the marriage, around which they organise their daily lives, and which forms the focus of family life. What is in issue is not merely a building; the subject is a living space that occupies a privileged position as regards its legal consequences and that at the same time carries emotional value.
Although the Code contains no binding definition, both the practice of the Court of Cassation and legal doctrine interpret the concept as the residence in which the spouses conduct their shared life.
The Statutory Basis of the Regulation
The provisions on the subject are gathered in the Turkish Civil Code No. 4721. The decisive one among them is Article 194 of the Code:
Turkish Civil Code No. 4721 Art. 194
“Neither spouse may terminate the lease agreement relating to the family residence, transfer the family residence or limit the rights in rem over it without the express consent of the other spouse.”
The purpose of the provision is to prevent the residence from being disposed of by the will of a single spouse. The spouse holding the status of owner may not deal with the residence without the knowledge and approval of the other; the transfer of the immovable to third parties by unilateral transactions is thereby prevented.
The other provisions connected with the family residence are as follows:
- Turkish Civil Code No. 4721 Art. 240 concerns the protection of the residence at the stage of the liquidation of the matrimonial property regime.
- Turkish Civil Code No. 4721 Art. 279 regulates the division of the residence among the heirs for the purposes of the law of succession.
- Enforcement and Bankruptcy Act No. 2004 Art. 82 contains the limits imposed on the attachment of the family residence.
The Criteria for Treating an Immovable as a Family Residence
Not every immovable benefits from this status. The case law of the Court of Cassation and legal doctrine establish that an immovable will be accepted as a family residence where the following criteria are met together:
- That the residence is used jointly within the marital union,
- That the spouses live there on a continuous basis,
- That the economic and social life of the family is gathered around this place,
- That the social relations of the family members are established around this residence,
- That the status is afforded to only one residence of the spouses,
- That more than one immovable cannot be accepted as having this quality at the same time.
Where it is disputed between the parties whether the immovable carries the quality in question, the matter may be established by a court decision. In the proceedings, a conclusion is reached by assessing together such evidence as the land registry record, witness statements, and subscription and invoice records.
The Importance of the Family Residence and the Legal Protection Afforded
Its Value for the Spouses
Because it is the place in which the marital union is actually lived out, the family residence carries particular weight for the spouses. This space, in which children are raised, the daily order is established and a shared culture of living is formed, constitutes the economic, social and emotional centre of the family.
The importance of the residence for the spouses may be read in three respects. In terms of economic security, the residence, by being preserved from loss through the unilateral transactions of one spouse, forms a support for the other spouse and the children. In terms of the social and psychological bond, it is a place that stands at the centre of the memories accumulated throughout the marriage and that gives family members a sense of security. In terms of the protection of pecuniary and non-pecuniary rights, the provisions relating to the residence were developed in order to prevent the spouse in the economically weaker position from being placed at a disadvantage.
The Protective Instruments Provided by the Code
The family residence is protected by complementary instruments provided through the Turkish Civil Code No. 4721 and related legislation.
No Disposal Without the Consent of the Spouse (Turkish Civil Code No. 4721 Art. 194)
Turkish Civil Code No. 4721 Art. 194 prohibits the making of unilateral transactions over the family residence. Accordingly, transactions such as the sale, mortgaging or transfer of the residence may not be carried out by the will of the owner spouse alone.
The outcome does not change even if ownership of the immovable belongs to only one of the spouses; unless the approval of the other spouse is obtained, no transaction may be made over the residence.
Protection of the Residence in the Liquidation of the Matrimonial Property Regime (Turkish Civil Code No. 4721 Art. 240)
Since the regime applicable between spouses by law is the regime of participation in acquired property, the fate of the residence in the event of divorce or death is separately secured.
Under Turkish Civil Code No. 4721 Art. 240, the surviving spouse may request that a right of ownership over the residence be granted where no agreement can be reached with the heirs. If the residence was acquired by one of the spouses, priority is given at the liquidation stage to the other spouse continuing to live there.
Limitation of Attachment (Enforcement and Bankruptcy Act No. 2004 Art. 82)
Article 82 of the Enforcement and Bankruptcy Act No. 2004 draws a number of limits as regards attachment for the purpose of protecting the family residence. The aim is to prevent the residence from being lost, and the family from being harmed, because of the personal obligations of the debtor spouse. That protection is nevertheless not absolute; under certain conditions the attachment of the residence may still arise.
Attachment on account of the personal debts of the debtor spouse
If the debt subject to the proceedings arose not for the common needs of the family but for the debtor’s own expenditure, the other spouse may object to the proceedings and prevent the attachment of the residence. Conversely, if it is proved that the loan was used for the joint expenses of the family, the attachment may be regarded as lawful.
Attachment for a personal debt as contrary to equity
Even if only the debtor spouse appears as owner on the land registry, the other spouse’s right to shelter in the residence is protected. According to the practice of the Court of Cassation, an immovable bearing a family residence annotation may not be attached without the consent of the other spouse. If attachment proceedings have been commenced, that spouse may object to the transaction and request the court to lift the attachment.
How Is a Family Residence Annotation Registered?
The family residence annotation is a protective instrument that prevents the owner spouse from carrying out a sale, transfer or mortgage transaction without the approval of the other. With the annotation, the family residence quality of the immovable is reflected in the land registry and dispositions made without consent become ineffective.
The procedure is not complicated in practice; either spouse may apply to the land registry directorate and have the annotation entered.
Documents to Be Submitted with the Application
The following documents are expected to be made ready for an application to the land registry directorate:
- Request petition: A written application showing that the entry of the annotation is sought.
- Title deed: The record establishing that the immovable belongs to one or both of the spouses.
- Population registry extract or marriage certificate: Required in order to document the marital relationship between the spouses.
- Certificate of residence or electricity, water and similar subscription records: Requested in order to show that the immovable is in fact used as the family residence.
- Identity document (Turkish identity card or passport): Submitted for verification of the applicant spouse’s identity details.
The Authorities to Which the Application Is Made
A request for the annotation may be directed to two separate authorities. As a rule, the application is made to the land registry directorate where the immovable is registered. Where the quality of the immovable needs to be established because no annotation appears on the land registry record, the route of applying to the family court for a decision is taken.
The Course of the Process and Points to Be Observed
The annotation process generally proceeds through the following stages:
- Completion of the documents: Before the application, the documents listed above must be prepared in full.
- Application to the land registry directorate: The request is submitted to the land registry directorate of the place where the immovable is located. The application may be made in person or through a lawyer by power of attorney.
- Examination and registration of the annotation: The directorate assesses whether the immovable carries the quality of a family residence; if the conditions are satisfied, a “family residence annotation” is entered on the record.
- Updating of the record: Once the annotation has been entered, the land registry record is renewed and from that point transactions such as a sale, a mortgage or the termination of a lease agreement may not be carried out without the consent of the spouse.
The matters that should not be overlooked in practice are as follows:
- An annotation may not be requested for an immovable that is not registered in the land registry; the protection operates only in respect of residences recorded in the register.
- If the immovable is not registered in the name of one of the spouses, a determination of its family residence quality must first be sought from the court.
- Once the annotation has been entered on the land registry, the spouse who is the sole owner of the immovable may not carry out transactions over the residence without the approval of the other.
- The deletion of the annotation from the register likewise depends on the joint will of the spouses or on a court decision.
How Is a Family Residence Annotation Removed?
Although the annotation is a safeguard preventing unilateral disposal of the immovable, it is not permanent. It may be deleted from the register where the spouses make a joint request or where the court so decides.
Behind a request for deletion there usually lies a divorce, the death of one of the spouses, or the fact that the immovable is no longer used as the family residence. If one of the spouses opposes the request for removal, the dispute is taken to court. The judge reaches a conclusion by examining whether there are legal and factual grounds justifying the removal of the annotation.
The Conditions Required for Deletion
The removal of the annotation depends on the occurrence of certain legal and factual situations:
- Agreement of the spouses: If the parties have agreed on deletion, both spouses must apply jointly to the land registry directorate.
- Termination of the marriage: The annotation may be removed where the divorce decision becomes final or where one of the spouses dies. Since the rights over the residence following a divorce will be shaped in accordance with the provisions on the matrimonial property regime, deletion is most often made subject to a court decision.
- Loss of the quality: If it is established that the immovable is no longer used as the family residence, deletion may be sought from the court. The spouses settling at another address, or the immovable being allocated to commercial activity, may be given as examples of this situation.
- Deletion by judicial decision: If one of the spouses does not consent to the removal of the annotation, an action is brought before the family court with territorial jurisdiction. The court may decide in favour of deletion after investigating whether the immovable continues to carry the quality of a family residence.
Independent Legal Assessment
What is decisive in family residence disputes is not the position of the immovable on paper but how it is actually used. The absence of an annotation on the land registry record does not automatically remove the protection; the existence of an annotation, however, appreciably lightens the burden of proof, particularly against a third party’s defence of good faith. Reflecting the quality of the residence in the register therefore ensures that one is prepared for any disputes over sale, mortgage or attachment that may arise later.
For the process to be conducted soundly in practice, we recommend that the following matters be observed:
- Compiling in advance the subscription, residence and invoice records showing that the immovable is in fact used as the family residence
- Where the residence is not registered in the name of one of the spouses, obtaining a determination of its quality from the court before requesting the annotation
- In files where there is a risk of attachment, documenting whether the debt arose personally or for the joint expenses of the family
- Where divorce proceedings have begun, planning the request for the annotation together with the liquidation of the matrimonial property regime
- Where deletion of the annotation is sought, preparing concrete evidence supporting the loss of the residence’s quality
Independent Legal provides advisory services and conducts litigation in claims relating to the determination of a family residence, annotations, annulment of title deeds and the lifting of attachments.