The disposal by one spouse of the dwelling that forms the centre of family life, without the knowledge or approval of the other, is among the foremost disputes causing serious loss of rights in practice. The Turkish Civil Code No. 4721 anticipated this risk and made dispositions over the family residence such as sale, gift and mortgage subject to the express consent of the other spouse. Transactions carried out contrary to this restriction may, where certain conditions exist, lose their legal validity.
The most frequent misconception in practice is the belief that a transaction is unproblematic because no family residence annotation appears in the land register. What is decisive, however, is not the entry in the register but whether the immovable is in fact the place where family life is carried on. Once this is proved, annulment of the transfer may arise even in the absence of an annotation.
In this briefing note we assess as a whole the boundaries of the concept of the family residence, the legal function of the spouse’s consent, the consequences of dispositions made without consent, the parties to the action, the procedure of the proceedings and the practical effects of the court’s decision.
The Concept of the Family Residence and Its Legal Character
The family residence is the immovable in which the spouses carry on their life together, spend their daily lives and which they use as the centre of family life. Whether a place acquires this character does not depend on its being registered as a family residence in the land registry; it is sufficient that family life is in fact carried on there.
With a view to protecting the family residence, the legislator has made the sale, transfer or mortgaging of this immovable by one spouse alone subject to the condition of the express consent of the other spouse. The family residence has thereby ceased to be an ordinary element of the estate addressed solely within the framework of the ownership right of the spouse registered on the title deed; it has been recognised as a value engaging the common interest of both spouses in terms of the protection of the family union.
Elements Required for an Immovable to Be a Family Residence
For an immovable to acquire the character of a family residence, certain fundamental elements are required to exist together. The courts assess these elements within the framework of the particular features of each dispute. In general the following conditions are sought:
- That the immovable bears the character of the centre in which the family’s vital activities are gathered
- That a marital union exists between the spouses and that life together is being carried on
- That the dwelling is the subject of a continuous rather than a temporary use
- That it can be established that family life is in fact spent in that immovable
Where these elements are present together, the immovable may be characterised as a family residence even if no family residence annotation appears in the land registry.
The Effect on the Action of the Absence of an Annotation
The absence of a family residence annotation in the register does not lead to the conclusion that the immovable is not a family residence. The annotation is not an instrument that creates the character of a family residence; it is a protective device that makes that character visible to third parties.
Accordingly, once it is proved that the immovable is in fact used as the family residence, the absence of an annotation does not preclude annulment of the transfer. That said, the absence of an annotation may gain importance at the stage where it is debated whether the third party who acquired the immovable is to be regarded as acting in good faith.
The Restriction on the Power of Disposal over the Family Residence
The power of disposal over the family residence is subject to far stricter rules than that over other immovables. In order to protect the family union and the spouses’ interest in shelter, the Turkish Civil Code No. 4721 has made significant dispositions over this dwelling subject to the approval of the other spouse. As a result of this regulation, the family residence has ceased to be property assessed solely within the scope of the ownership right of the spouse who owns it; it has been positioned as a common family value requiring protection.
For this reason one spouse may not sell, transfer, gift or mortgage the family residence without the express consent of the other. Transactions carried out contrary to the rule may under certain conditions be deemed invalid and annulment of the land registry entry may be sought.
The Consent Requirement under Art. 194 of the Turkish Civil Code
The fundamental restriction concerning the family residence is set out in Article 194 of the Turkish Civil Code No. 4721:
Turkish Civil Code No. 4721, Art. 194(1)
"Unless the express consent of the other spouse exists, neither spouse may terminate the lease agreement relating to the family residence, transfer the family residence, or restrict the rights over the family residence."
This provision is a rule of a mandatory character directed at the protection of the family residence. Indeed, in dispositions over the family residence such as sale, gift, mortgage and the like, it is obligatory to obtain the consent of the other spouse. Transactions carried out without consent are not accepted as legally valid and their annulment may be sought by way of an action.
The Legal Consequence of a Transaction Made Without Consent
Dispositions over the family residence carried out without the approval of the other spouse do not as a rule produce binding consequences as regards the spouse whose consent was not obtained. That spouse may bring an action seeking annulment of the transaction and rectification of the land registry entry.
The fate of such transactions is not, however, the same in every case. Where the immovable has passed to a third party in particular, whether that person acquired it in good faith relying on the land registry becomes decisive. If the third party is deemed to have acted in good faith, it may not be possible to order annulment of the land registry entry; in that event the claim may be converted into one for damages.
In What Form Must the Spouse’s Consent Be Given?
Since the validity of dispositions over the family residence depends on the consent of the other spouse having been obtained, the existence of that consent is a decisive element for the lawfulness of the transaction. The form in which consent is to be given is a topic frequently debated in practice and one that directly affects the outcome of the action.
The statute does not expressly require consent to be given in any particular form. In the practice of the Court of Cassation, by contrast, consent is required to be express, specific and such as to leave no room for doubt. For this reason obtaining the approval in writing, and if possible in official form, is of great importance in preventing disputes that may arise later.
The Requirement of Express and Written Consent
The approval given must be comprehensible and free from doubt. It is essential that it be specified to which immovable and to which transaction the consent relates; declarations of a general or vague nature are most often not considered sufficient.
For this reason obtaining consent in written form serves a critical function in practice. Written approval provides ease of proof in disputes that may arise subsequently and constitutes strong evidence as regards the validity of the transaction.
The Importance of Consent Given Before a Notary
In dispositions relating to the family residence it is not obligatory for consent to be obtained before a notary. That said, a declaration drawn up or certified by a notary is the most secure method in terms of legal certainty.
Consent given before a notary establishes, beyond doubt, that the consent genuinely exists, what its scope is and on what date it was given. This is why obtaining notarised consent is generally preferred in practice.
The Legal Consequence of Consent Given Subsequently
In some cases the spouse’s approval may also be given after the transaction has been completed. Consent given subsequently may render a completed transaction valid; however, that declaration must likewise be express and definite.
Indeed, an express declaration by the other spouse, after the sale has taken place, that they accept the transaction may enable the disposition to acquire validity. Conversely, where consent has not been clearly established or its existence is disputed, the transaction may be deemed invalid.
Which Transactions Are Invalid Without Consent?
Certain dispositions over the family residence may be regarded as legally invalid where they are carried out without the express approval of the other spouse. With a view to protecting the family residence, Article 194 of the Turkish Civil Code No. 4721 restricts one spouse from making significant dispositions over this immovable alone. For this reason, whatever the type of transaction, if it has been made without obtaining the consent of the other spouse its annulment may be sought:
- The creation of a limited right in rem over the family residence
- The sale or transfer of the family residence
- The mortgaging of the family residence
The common feature of these transactions is that they directly affect the use or the economic value of the dwelling; it is precisely for this reason that the legislator has made them subject to the approval of the other spouse.
The Parties to the Action for Annulment of Title Deed and Registration
In actions for annulment of title deed and registration brought on account of a transfer made without consent, the correct identification of the parties is decisive for the sound conduct of the process. As a rule the spouse whose approval was not obtained has the capacity of claimant; the person who acquired the immovable and the spouse who carried out the transaction are in the position of respondents.
If the immovable has been transferred to more than one person or has changed hands successively, the action must be directed against everyone concerned. Otherwise the action may be dismissed on the ground that the respondents are incomplete.
Who May Bring the Action?
The power to bring an action against dispositions made without consent belongs primarily to the spouse whose approval was not obtained. That said, in certain cases this power may also be exercised by other interested persons. The persons who may bring the action are as follows:
- The spouse in respect of whom the transaction was made without their approval
- The heirs, in the event of that spouse’s death
- Persons holding the capacity of guardian or trustee
- Other persons having a legal interest in the dispute
In particular, where the spouse whose consent was not obtained has died, the heirs may have recourse to an action with a view to protecting the rights relating to the family residence.
Against Whom Is the Action Brought?
An action for annulment of title deed and registration brought against a transfer made without consent is as a rule directed against the person who acquired the immovable. However, it may also be necessary for the spouse who carried out the transaction and for subsequent owners to be joined to the action. Within this framework the action may be brought against the following persons:
- The spouse who carried out the transfer
- The person who acquired the immovable
- Those holding rights in rem over the immovable
- Subsequent owners and other third parties
Cases Involving Mandatory Joinder of Parties
In some situations it is obligatory for the action to be directed against more than one person jointly. By way of example:
- If a mortgage or a limited right in rem has been created over the immovable
- If the immovable is the subject of shared ownership
- If the immovable has been transferred to more than one person
in these situations all the persons concerned must be joined to the proceedings.
Is There a Time Limit for Bringing the Action?
Since the requirement of the spouse’s consent for dispositions over the family residence is a mandatory rule, no statute of limitations or preclusive period is as a rule prescribed for the action for annulment of title deed and registration to be brought by the spouse whose approval was not obtained. Accordingly, the following circumstances do not on their own constitute grounds for dismissal of the action:
- That the spouse whose consent was not obtained has not brought an action for a long time
- That many years have passed since the transaction
- That the acquiring third party has been using the immovable in fact for many years
The Effect of a Divorce Action on the Time Limit
The pendency of a divorce action does not lead to the conclusion that the rights arising from the family residence come to an end automatically. So long as the marital union stands in law, the protection afforded to the family residence likewise persists.
For this reason the mere fact that a divorce action has been brought does not extinguish the power to bring an action for annulment of title deed. Conversely, the divorce decision becoming final and the spouses beginning to live separately in fact create a situation open to assessment as to whether the immovable retains the character of a family residence.
The protection of the family residence lapses in law where the marital union comes to an end through death or through a divorce decision becoming final:
- In the event of death: The protection of the family residence ends with the death of one of the spouses; from that stage onwards the rights of the surviving spouse arising from the law of inheritance, in particular the right of allocation under Art. 652 of the Turkish Civil Code No. 4721, come into play.
- In the event of divorce: As from the moment the divorce decision becomes final, the immovable loses the quality of a "family residence". Actions brought after that date can no longer be founded on the ground of the family residence but on the general provisions or on the liquidation of the matrimonial property regime.
The Course of the Proceedings
Actions for annulment of title deed and registration brought on account of a transfer of the family residence made without the spouse’s consent are among the actions founded on rights in rem relating to immovable ownership and are conducted within a particular procedural framework.
Courts with Subject-Matter and Territorial Jurisdiction
In disputes of this kind subject-matter jurisdiction as a rule belongs to the Civil Court of First Instance.
As regards territorial jurisdiction, the action must be brought before the court of the place where the immovable is situated. Since that court has exclusive territorial jurisdiction, if the action is brought elsewhere a decision of lack of jurisdiction may arise.
Request for an Interim Injunction
One of the most critical procedural steps in this type of action is preventing the immovable in dispute from being transferred to third parties. For this reason it is of great importance to request an interim injunction from the court when the action is brought or during the proceedings.
Where the claimant establishes the merits of their case on a prima facie basis, the court may order that an annotation prohibiting sale and transfer be entered in the land registry. This measure is an important protective device preventing the decision to be given from being rendered ineffective.
Proof and Evidence
In actions founded on the allegation that a transfer was made without consent, the claimant bears the burden of proving both the family residence character of the immovable and the absence of their own approval. The evidence most frequently relied on in practice is as follows:
- Witness accounts
- Land registry entries and the documents in the transaction file
- Civil registry records and documents relating to the marriage
- Electricity, water and natural gas subscription records
- Certificate of residence information and address registration system data
- Correspondence between the parties and other written documents
Assessing this evidence as a whole, the court determines whether the immovable bears the character of a family residence and whether consent existed.
Court Fees and Litigation Costs
Actions for annulment of title deed and registration brought on account of the transfer of the family residence without consent are as a rule subject to a proportional fee. For this reason, when the action is brought, the fee calculated on the value of the immovable must be paid. The following items may also arise in the course of the proceedings:
- Service costs
- Court-appointed expert fees
- Costs to be paid to witnesses
- On-site examination expenses
At the end of the proceedings these items are as a rule left to the party against whom judgment is given.
Attorney Fees
In these actions, at the end of the proceedings, an attorney fee payable by the opposing party is awarded in favour of the successful party in accordance with the Minimum Attorney Fee Tariff. The fee is calculated proportionally on the basis of the value of the immovable in dispute.
In addition, the attorney fee arising from the agreement between a party and their lawyer may also arise separately and may be claimed according to the outcome of the action.
Appellate Remedies
Against the decision of the first instance court, it is possible to have recourse to an appeal within 2 weeks of service of the decision.
As regards the decisions given as a result of the appellate examination, an appeal on points of law is available where the monetary threshold prescribed in the statute is exceeded.
The Outcomes of the Action
The court first examines whether the immovable bears the character of a family residence and whether the consent of the other spouse existed at the time of the disposition. Where these conditions are found to be met, the transaction is deemed unlawful and annulment of the land registry entry arises.
The outcome is not, however, always confined to annulment of the entry. In cases such as the immovable having passed to third parties and those persons being regarded as acting in good faith, annulment may not be possible; the action may be converted into a claim for damages.
Annulment of the Land Registry Entry
If it is established that the family residence was transferred without the spouse’s consent, the sale or transfer is deemed unlawful and annulment of the land registry entry created on the basis of that transaction may be ordered.
With the annulment of the entry, the transfer of ownership carried out unlawfully is set aside.
Registration of the Immovable in the Name of the Previous Owner
Where annulment of the land registry entry is ordered, the court orders the immovable to be registered anew in the name of the former owner spouse who carried out the transfer. The immovable thereby returns to the legal position existing before the transaction made without consent.
If the immovable is registered in the name of one of the spouses within the marital union, following annulment it is registered once again in the name of that same spouse. The aim here is not a change of ownership but the removal of the consequences of the unlawful transfer.
The Transaction Being Deemed Invalid
Dispositions made over the family residence without the spouse’s consent are not accepted as legally valid and are of a character capable of annulment. By ruling that these transactions are invalid, the court may set aside the legal consequences they have produced.
With such a decision the sale, gift or mortgage loses its legal value and the position between the parties reverts to the previous state, as if the transaction had never been made.
Claiming Damages
In some cases it may not be possible to order annulment of the land registry entry. In particular, where the immovable has passed to a third party who acquired it in good faith relying on the land registry, that person’s ownership right may be protected.
In this situation the spouse whose consent was not obtained may make a claim for damages with a view to compensating the loss suffered. The claim may be founded on the value of the immovable, on loss of use or on other pecuniary losses that have arisen.
Independent Legal Assessment
In actions for annulment of title deed and registration founded on the family residence there are two axes that determine the outcome: being able to establish that the immovable was in fact used as the family residence on the date of the transfer, and being able to rebut the acquiring third party’s claim of good faith. These two matters steer the entire process, from the structure of the statement of claim to the compilation of the list of evidence. Subscription records and address data documenting long-standing use in particular constitute concrete foundations that take precedence over witness statements.
The second critical dimension of the process is timing. Although no preclusive period is prescribed on account of the mandatory character of the rule, the immovable continuing to change hands may eliminate the practical outcome of the action. In a given dispute the following matters should be addressed as a priority:
- Requesting an interim injunction for an annotation prohibiting transfer in the land registry as soon as the action is brought
- Proving the family residence character as at the date of the transfer on the basis of documents
- Identifying at the outset the facts showing that the third party did not act in good faith (a close relationship, a price below market value, the speed of the transaction)
- Where the immovable has changed hands, joining all the owners in the chain to the action so as to eliminate the risk of incomplete respondents
- Assessing an alternative claim founded on the liquidation of the matrimonial property regime against the possibility of the divorce becoming final
- Structuring in advance the claim for damages and its basis for the scenario in which annulment is no longer possible
Independent Legal provides advisory and litigation services throughout the entire process, from the stage of interim measures to the enforcement of the decision, in disputes arising from the protection of the family residence.