The residence in which the marital union is actually maintained is not treated in our law as an ordinary immovable. Regardless of which spouse it is registered to in the land register, this immovable ceases to be an asset that the owner may dispose of at will, because it constitutes the centre of the family’s life. Article 194 of the Turkish Civil Code No. 4721 provides that the spouse who appears as owner on the register may carry out transactions in the nature of a sale, a mortgage or a letting only with the express approval of the other spouse. The purpose of the provision is to prevent the shared living space from being taken away by a single will and to secure the spouses’ interests in that space.
The limitation in question does not depend solely on an entry made in the land registry. The family residence quality of the immovable may also be established by looking at how it is actually used. The settled practice of the Court of Cassation accepts that the rights arising from this quality may be asserted against third parties even where no annotation appears on the register. The owner spouse therefore may not freely transfer the immovable on the ground that there is no annotation on the record; even transfers made to purchasers who appear to be in good faith may be held ineffective upon the objection of the other spouse.
In this briefing note we address the scope of the protection the family residence affords to the non-owner spouse, the provisions on which that protection rests, how it operates in practice, and the means by which it may be asserted against third parties.
The Family Residence Annotation and Its Registration on the Land Registry
The family residence annotation is an entry that makes visible in the land register that an immovable is used as the place where the spouses live together. Once this entry is made on the register, the owner spouse is prevented from making dispositions such as a sale or a mortgage while leaving the other spouse out of account.
No complicated procedure is prescribed for registering the annotation. Either spouse may apply to the land registry directorate with the relevant documents — above all the marriage certificate and a certificate of residence showing that the immovable is lived in — and have the annotation entered.
The Limit of the Power of Disposal Over a Residence Owned by a Spouse
Being a shared living space narrows the power of unilateral disposal over the family residence. The spouse appearing on the register in the capacity of owner may not exercise that power without obtaining the approval of the other. The transfer of the residence, the surrender of its use to another person, or the restriction of the rights over it, is possible only where the wills of both spouses come together.
This regulation, which aims to protect family unity and shared life, is an exceptional provision that interferes even with the right of property. That said, if the other spouse withholds approval despite the existence of a justified reason, the owner spouse is not powerless; that spouse may apply to the court and seek the judge’s authorisation. The court reaches a conclusion by examining whether the attitude of the spouse withholding approval rests on a justified ground.
Below we address in turn the principal transactions that may not be carried out unless express consent is obtained.
Sale of the Residence
The spouse appearing as owner on the register may not transfer the family residence without the approval of the other spouse. This point also forms the basis of actions for annulment of title deed founded on the family residence. A sale transaction made without consent is ineffective and its annulment may be sought. By contrast, if there is no family residence annotation on the land registry and the purchaser acquired the immovable in good faith without knowing of this quality, it is possible that the transfer will retain its validity.
Creation of a Usufruct or Right of Habitation in Favour of a Third Party
Nor is it possible for the owner spouse to create a usufruct or a right of habitation (residence) in favour of another person without obtaining the approval of the other spouse. A usufruct denotes the surrender to another person of the power to benefit from the immovable; a right of habitation is the registration on the land registry of a particular person’s power to dwell in that immovable. Since both rights directly affect the use of the residence, neither may be created without the approval of the other spouse.
Letting the Residence
The owner spouse may not make the family residence the subject of a lease agreement without seeking the express approval of the other spouse. Where such an agreement is made, the other spouse has the right to bring an action seeking the annulment of the transaction. In order to prevent the settled order of the family from being disrupted, the judge may hold the letting invalid and set the agreement aside.
Transfer by a Contract of Maintenance Until Death
The type of contract under which a person transfers ownership of an immovable to the other party in return for being cared for is the contract of maintenance until death. The transfer of the family residence to a third party by the owner spouse in this way is not valid unless the permission of the other spouse exists. Where such a contract is concluded, the other spouse may object to the transaction and request its annulment.
Gift
The transfer of an asset to another person without any expectation of consideration is characterised as a gift. The gifting of the family residence has likewise been made subject to the approval of the other spouse. Gifts made without obtaining approval may be annulled upon the application of the other spouse.
Protection Where the Family Residence Is Obtained by Lease
The safeguard relating to the family residence is not confined to immovables owned by one of the spouses; residences obtained by way of lease are also subject to a special regime. Article 194 of the Turkish Civil Code No. 4721 and Article 349 of the Turkish Code of Obligations No. 6098 prevent one spouse from being solely decisive over the lease relationship in immovables leased as a family residence.
Turkish Civil Code No. 4721 Art. 194 – The Family Residence
“…..If the family residence has been obtained by lease by one of the spouses, the spouse who is not a party to the agreement becomes a party to it by notification to the lessor, and the spouse giving the notification becomes jointly and severally liable with the other.”
Turkish Code of Obligations No. 6098 Art. 349 – The Family Residence
“In immovables leased for use as a family residence, the tenant may not terminate the lease agreement without the express consent of his or her spouse.
If it is not possible to obtain that consent, or if the spouse withholds consent without a justified reason, the tenant may request the judge to give a decision on the matter.
Where the spouse who is not the tenant acquires the status of party to the lease agreement by giving notification to the lessor, the lessor is obliged to notify the tenant and the spouse separately of the notice of termination and of any period for payment attached to a warning of termination.”
Termination Made Subject to the Joint Will of Both Spouses
Article 194 makes it clear that the power to bring the lease agreement to an end is not exclusive to the spouse whose signature appears on the agreement. The spouse holding the status of tenant may not terminate the agreement unless the express approval of the other exists. A declaration of termination made by one spouse alone produces no legal effect; the lease relationship continues without interruption.
Becoming a Party to the Agreement and Joint and Several Liability
Under the same provision, even where the lease relationship was established in the name of a single spouse, the spouse whose name does not appear in the agreement may become a party to it by a notification directed to the lessor. Upon the notification being received, that spouse too takes the position of tenant and becomes jointly and severally liable for the rent. Its counterpart in practice is this: where one spouse withholds payment, the lessor may direct the claim to the other spouse as well.
Preventing Bad-Faith Terminations During Separation
One of the situations frequently encountered in practice is that of a spouse who leaves the home at the stage of separation attempting to bring the lease agreement to an end in bad faith. In order that those left behind — above all women and children — should not be placed at a disadvantage, the legislator has denied validity to terminations of this kind. If one of the spouses withholds approval and there is no justified reason, the termination cannot be effected unless a court decision is obtained.
To draw together the limitations imposed in family residences obtained by way of lease: the spouse whose name does not appear in the agreement may acquire the status of a party by giving notification to the lessor and may share the liability; it is not possible for the tenant spouse to proceed to termination without the express approval of the other; and the way has been closed to a spouse who leaves the residence during divorce or separation proceedings placing the other in difficulty by a bad-faith termination. By contrast, the lessor does not need to obtain the approval of the spouses in order to exercise a right of termination. All these rules arise from the thinking that family unity and, in particular, the economic security of the spouses should be protected.
Is an Annotation Compulsory in Order to Benefit from the Protection?
The entry of the annotation on the land registry is declaratory rather than constitutive in character. Whether an immovable is regarded as a family residence is not made dependent on the existence of an entry on the register. For that reason the immovable acquires this status and the legal protection continues to exist even where no annotation has been placed at all.
On the other hand, the presence of the annotation on the register appreciably reinforces the effect of the protection against third parties. It can be decisive in particular where the annulment of sales, mortgages and similar transactions made by the owner spouse without obtaining approval comes into question.
The Advantages Provided by Registration of the Annotation
- Effect against third parties: Thanks to the annotation appearing on the record, those wishing to acquire the immovable learn from the outset that they are faced with a family residence and are obliged to structure their transactions accordingly. The owner spouse may not carry out a sale, a mortgage or any other disposition without securing the approval of the other.
- Elimination of the defence of good faith: Where an annotation exists on the register, it is not possible for persons who purchase the immovable or have a mortgage created over it to argue that they acted in good faith. Where there is no annotation, a third party may protect the rights acquired by asserting that he or she was unaware that the immovable was a family residence.
The Duty to Investigate Even Where No Annotation Exists
The 2nd Civil Chamber of the Court of Cassation, in its judgment dated 22.09.2021, Merits No. 2021/5337 and Decision No. 2021/6414, concluded that the consent of the spouse must be investigated even where no annotation appears on the register:
“…According to the manner in which the allegation is advanced, the action is not directed at the invalidity of the contract of surety regulated in Article 584 of the Turkish Code of Obligations No. 6098, but concerns the removal of a mortgage placed on a family residence without consent being obtained, as regulated in Article 194 of the Turkish Civil Code No. 4721. Whereas the court ought to have investigated whether the immovable subject to the action is a family residence and whether consent existed, collected all the evidence, assessed it as a whole and given a decision in accordance with the outcome, the dismissal of the action on the ground that there was no annotation stating that it was a family residence was not found to be correct and has necessitated reversal.”
The conclusion to be drawn from the decision is clear: it is unacceptable for courts to set the family residence protection aside merely on the basis that there is no entry on the register. Even where there is no annotation, whether the immovable in fact carries the quality of a family residence must be investigated during the proceedings.
Protecting Rights Where There Is No Annotation
The absence of an entry on the register does not mean that transactions made without approval will go unaddressed. In that situation the course open to the spouse consists of the following elements: proving that the immovable is in fact used as the family residence, bringing an action against sale, mortgage or transfer transactions made without approval, and requesting the court to set that transaction aside.
The absence of the annotation nevertheless makes the burden of proof heavier; the likelihood of third parties relying on a defence of good faith also increases appreciably in that event.
Actions Available Against Dispositions Made Without Consent
Article 194 of the Turkish Civil Code No. 4721 requires dispositions over the family residence to be made by the joint will of both spouses. A transaction made by the owner spouse without the express approval of the other may be regarded as legally invalid, and recourse to the courts may be had for its annulment.
| Transaction made without consent | Court to be applied to | Claim to be advanced |
|---|---|---|
| Termination of the lease agreement | Civil Court of Peace of the place where the family residence is located | Determination of the invalidity of the termination and a ruling that the lease relationship continues |
| Sale of the family residence | Civil Court of First Instance of the place where the immovable is located | Annulment of title deed and registration |
| Creation of a mortgage over the residence | Civil Court of First Instance | Deletion of the mortgage |
| Creation of a usufruct or right of habitation in favour of a third party | By way of an action for annulment of title deed | Removal of the right in question |
| Letting the residence to a third party | Civil Court of Peace | Eviction of the tenant |
Each heading in the table is attached to a different legal consequence according to the nature of the transaction. Since a sale made without approval is invalid, the correction of the land registry record may be sought; likewise, because a mortgage created without consent produces no legal effect, its deletion from the register may be requested. As regards limited rights in rem created in favour of a third party, the route of annulment of title deed is taken, while in the case of lettings made without approval the removal of the tenant from the immovable comes into question. In the case of a unilateral termination of the lease agreement, the claim is directed at a determination that the relationship never came to an end.
Independent Legal Assessment
Although disputes relating to the family residence appear to arise from a single land registry transaction, in practice they proceed intertwined with matters such as divorce, the liquidation of the matrimonial property regime and acquisitions by third parties. For that reason, when and with what evidence the family residence quality of the immovable is to be established is the most decisive technical element of the process. The absence of an annotation does not remove the protection; it does, however, shift the centre of gravity of the evidential exercise to actual use.
In determining the road map in a specific file, we recommend that the following matters be assessed as a priority:
- Compiling in advance the records showing that the immovable is in fact used as a shared living space (residence, subscriptions, school records and neighbours’ statements)
- Establishing whether an annotation exists on the land register and, if necessary, making an application for registration without delay
- Where a transfer or mortgage transaction has been made, arguing on the basis of concrete data whether the third party can be regarded as acting in good faith
- Determining clearly in the statement of claim whether the claim is for annulment of title deed and registration, for deletion of the mortgage, or for eviction
- Where a lease relationship is in issue, making timely use of the possibility of becoming a party to the agreement by notification
- Not overlooking the route of obtaining the judge’s authorisation where the attitude of the spouse withholding approval does not rest on a justified ground
Independent Legal provides advisory services and conducts litigation in disputes arising from the family residence concerning annulment of title deed, the lifting of mortgages and eviction.