According to the Turkish Civil Code No. 4721, “II. 194, entitled ”Family residence”. the item is shown below.
“Article 194- One of the spouses may not terminate the lease agreement on family housing, transfer family housing or limit the rights to family housing, unless the other spouse has express consent.
A spouse who cannot provide consent or has not been granted consent for no justifiable reason may request the intervention of a judge.
A spouse who is not the owner of immovable property designated as a family residence may request the land registry office to provide the necessary comment on the residence to the land registry.(1)
If the family housing is provided by one of the spouses for rent, the spouse who is not a party to the contract becomes a party to the contract with the notification he will make to the lessor, and the spouse who makes the notification becomes jointly and severally liable with the other. “
In an event that is the subject of a lawsuit to the Supreme Court, the transfer of family housing by the rightful spouse and the limitation of rights to housing depend on the explicit consent of the other spouse (TMK m. 194). The savings transaction made on housing without obtaining this consent is invalid. This invalidity can be asserted during the marriage union, provided that the spouse whose consent is required continues this qualification of housing. If the marriage has been terminated by death or by a decision of divorce or annulment, the article 194 of the Turkish Civil Code applies. the protection provided by the article “on family housing” also ends, and it is believed that the savings made without the consent of the other spouse take effect from the moment the transaction is made.
COURT OF CASSATION 2. LEGAL DEPARTMENT 2016/10514 E. , 2016/13563 K.
“text of jurisprudence”
COURT :FAMILY COURT
DEFENDANTS : 1- PEOPLE’S BANK OF TURKEY A.Sh.
2- …
TYPE OF CASE : CANCELLATION OF THE MORTGAGE AND ISSUANCE OF A FAMILY HOUSING COMMENT
At the end of the reasoning of the case between the parties, the decision given by the local court, the date and number shown above, was appealed, the documents were read and discussed as necessary and considered Dec:
The case concerns the request to cancel the mortgage on the family residence issued by the rightful spouse in favor of the respondent bank without the consent of the other spouse and to place a family residence comment on the title deed of the immovable property (TMK m. 194).
The transfer of family housing by the rightful spouse and the limitation of rights to housing depend on the express consent of the other spouse (TMK m. 194). The savings transaction made on housing without obtaining this consent is invalid. This invalidity can be asserted during the marriage union, provided that the spouse whose consent is required continues this qualification of housing. If the marriage has been terminated by death or by a decision of divorce or annulment, the article 194 of the Turkish Civil Code applies. the protection provided by the article “on family housing” also ends, and the savings made without the consent of the other spouse take effect from the moment the transaction is made. The defendant’s spouse, who is the owner of the real estate subject to the lawsuit, died on 18.04.2013 during the continuation of the lawsuit. Since the marriage ended in death, the immovable property subject to the lawsuit has lost its quality of being a family residence. Considering this issue, it is necessary to decide that there is “no room for a decision” on the case that remains without a subject, and to determine and evaluate the trial costs and the power of attorney fee, taking into account the cases of the parties as of the date of the case, while the decision to remove the mortgage on the real estate subject to the case and place a family residence comment on the land registry of the real estate was not correct and required to overturn.
CONCLUSION: It was decided by a majority vote that the appealed provision should be OVERTURNED for the reason shown above, the advance fee for the appeal should be returned to the depositor on request, within 15 days from the notification of this decision, the way to correct the decision will be open. 05.10.2016 (Wed.)
(Opposition)
POST, VOTE AGAINST
The plaintiff, a woman, which is the subject matter of the case registered in the name of his wife is the family home of the immovable, without explicit consent, the defendant in favor of the bank mortgage is established, the defendant initiated the enforcement proceedings are translated into the bank’s mortgage money to his wife and with the way in favor of the bank a lien on the property against the mortgage of the immovable and the removal of the family residence has filed a lawsuit for putting on record the deed commentary.
The local court, in its decision dated 12.09.2013, decided that “upon acceptance of the case, the mortgage should be removed (fekkine) and the family residence annotation should be placed in the land registry of the immovable property”.
The decision was appealed by the defendant bank.
Due to the fact that the defendant spouse Mehmet died on 18.04.2013, the appeal petition with a reasoned decision was notified to the adult heirs and to the registration of the non-adult heir Melih.
“One of the spouses may not terminate the lease agreement on family housing, transfer family housing or limit the rights to family housing, unless the other spouse has express consent” (TMK.m.194/1).
“The surviving spouse may request that the usufruct or residence right be granted to the deceased spouse in order for him to continue his former life by deducting that he will receive participation in the housing they live in together and adding a price if it is not enough; other arrangements accepted by the goods regime agreement are reserved” (TMK.m.240/1). “If there are justified reasons, the right of ownership over the dwelling may be granted instead of the right of usufruct or residence at the request of the surviving spouse or the legal heirs of the deceased spouse” (TMK.m.240/3).
“In case of the death of one of the spouses, if there are household items or housing in which the spouses live together among the Decommissioned property; the surviving spouse may request that he be granted property rights on them, which are equivalent to the right of inheritance (TMK.m.652/1). “In the presence of justified reasons, it may also be decided to grant usufruct or residence rights instead of property at the request of the surviving spouse or one of the other legal heirs of the heir” (TMK.m.652/2).
The legal consequences of a marriage ending with a divorce or annulment decision and ending with the death of one of the spouses are different. Because, in the event that the marriage ends in death, the surviving spouse’s inheritance rights remain, as well as 240 and 652 of the Turkish Civil Code. he has the rights granted to him in relation to family housing in the article. If the marriage ends except for the death of one of the spouses, the surviving spouse does not have such rights.
The surviving spouse may also not be required to file a lawsuit in order to exercise the rights contained in these regulations against other heirs. Because the surviving spouse and other heirs can divide the inheritance in accordance with the legal regulation without filing a lawsuit. If there is no division of inheritance on the basis of consent, the surviving spouse can always file a separate lawsuit against other heirs in order to exercise his rights.
For the reasons described above, the family housing nature of the real estate subject to litigation continues from the point of view of the surviving spouse even after the death of the spouse who is the owner of the real estate. The purpose of the law is to ensure that the surviving spouse continues his former life. Thus, 194, 240 and 652 of the Turkish Civil Code. according to the clear regulations in the articles, there can be no mention that the protection provided to the family residence was terminated with the death of the owner’s spouse.
In the current case, the mortgage was established on 10.07.2009, while the marriage was in progress. It is understood that the plaintiff’s wife, who was the owner of the family residence, died during the continuation of the trial. Since the marriage is in progress at the time of the mortgage-related transaction, TMK.nun 194/1. according to the article, the explicit consent of the non-owner spouse to the mortgage facility was mandatory. If the explicit consent of the non-owner’s spouse has not been obtained, even if there is no count’s comment on the family count in the title deed record of the family residence, the savings of the owner’s spouse related to the mortgage facility are invalid. (Of a similar nature , YHGK.on 15.04.2015 and 2013/2-2056 E.2015/1201 K. decision no. )
According to the collected evidence, it is understood that the real estate subject to litigation is family housing. It has not been proved that the plaintiff’s spouse, who is not the owner of the family residence, has explicit consent to the mortgage facility. In this case, the savings on the mortgage are invalid. Such a saving does not become valid with the death of the spouse who made this saving.
If the enforcement proceedings initiated through the cashing of the mortgage continue, the real estate will be sold, the plaintiff woman will be deprived of the opportunity to exercise her legal rights arising from the family residence and, in particular, to “continue her former life”. For this reason, the surviving spouse has the right to return the family residence to the estate without a mortgage, so his legal interest in the case also remains in terms of the request to remove the mortgage. From this point of view, the case has not remained without a topic.
The case of placing a family residence comment on the title deed of the immovable property tests the savings authority of the owner of the immovable property. The defendant bank is not the addressee of this case. The heirs did not appeal the decision. The defendant bank has no legal interest in appealing the decision to place a family residence annotation on the land registry of the immovable property. This aspect of the appeal request must be rejected.
However, due to the acceptance of the family residence comment case, it is not correct to judge the proxy fee against the respondent bank, and the provision must be overturned in this aspect.
For these reasons, the decision to approve the appealed provision in terms of the decision to cancel the mortgage, the decision on the power of attorney against the defendant bank due to the adoption of the family residence comment case, and the request for an appeal to accept the family residence comment case should be rejected due to the lack of legal benefits, while I disagree with the majority’s opinion that it should be overturned in writing.
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