Family Housing (The Saving Power on It is Limited by Law)
TC
JUDICIAL LAW
GENERAL ASSEMBLY
E. 2005/12-676
K. 2005/600
T. 26.10.2005
FAMILY RESIDENCE (THE SAVINGS AUTHORITY OVER IT IS LIMITED BY LAW – IT IS NECESSARY TO FOCUS ON THIS CLAIM OF THE COMPLAINANT, SINCE IT IS ALLEGED THAT THE COMPLAINING SPOUSE CONTINUES TO LIVE IN THIS PLACE WITH HIS CHILDREN)
THE PRESENCE OF A THIRD PARTY IN THE REAL ESTATE (ONE OF THE SPOUSES RESIDES IN THE IMMOVABLE PROPERTY AGAINST THE OTHER AND OF COURSE, EVEN IF THERE IS A DIVORCE, ONE OF THE SPOUSES IS NOT IN THE POSITION OF A THIRD PARTY RELATIVE TO THE OTHER, 276 OF THE CODE OF PRACTICE. THE PROVISION OF THE LAST ARTICLE OF THE ARTICLE (APPELLANT)
EVICTION OF REAL ESTATE SOLD OUTSIDE THE STATE (IT IS NECESSARY TO FOCUS ON THIS CLAIM OF THE COMPLAINANT, SINCE IT IS ALLEGED THAT THE EVICTED HOUSE IS USED AS A FAMILY APARTMENT AND THE COMPLAINING SPOUSE CONTINUES TO LIVE IN THIS PLACE WITH HIS CHILDREN)
COMPLAINT (SINCE IT IS ALLEGED THAT THE EVICTED HOUSE IS USED AS A FAMILY RESIDENCE AND THE COMPLAINING SPOUSE CONTINUES TO LIVE IN THIS PLACE WITH HIS CHILDREN, IT IS NECESSARY TO FOCUS ON THIS CLAIM OF THE COMPLAINANT – THE EVICTION OF THE REAL ESTATE. SOLD EXTERNALLY) 2004/M.276 4721/M.194
SUMMARY :
In the case, the immovable property subject to the eviction request was purchased by the creditor from the debtor externally and became the subject of the eviction commitment with the verbal agreement of the parties. while his wife and children lived there. Since the follow-up initiated by the creditor based on this release commitment has not been objected by the debtor and the follow-up has been finalized, it is possible to apply Article 276 / son of the Execution and Bankruptcy Law No. 2004.
As a rule, since one of the spouses resides in the immovable property against the other and depending on him – even if a divorce takes place – he is not in the position of a third party in accordance with the provision of article 276/last. EBL.
However, although this is the rule, this claim of the complainant should be emphasized, since it is alleged that the house subject to eviction is used as a family residence and the complainant’s wife continues to live in this place with her children.
According to Articles 194/1 and 194/3 of the Turkish Civil Code numbered 4721, family housing has a special position and importance and the saving authority is limited by law. If it is determined that the immovable property subject to the lawsuit and eviction is a family residence, it should be investigated whether these legal conditions have been met.
CASE :
At the end of the trial due to the “complaint” case between the parties; upon examination of the decision dated 29.01.2004 and numbered 2003/573-2004/60 on the acceptance of the complaint by the Ankara Tenth Enforcement Court, at the request of the opposing party / follow-up creditor Durdu, the Supreme Court Dec. 12. Law Office dated 29.11.2004 and numbered 20444-24666;
( … As is accepted in the ongoing case law of our Chamber, even if there is a divorce, one of the spouses, BEC m. 276/according to the provision of the last article, he cannot be considered as a third party against the lessor. If the spouses are against each other and, of course, reside in the same residence, the enforcement court should therefore decide to accept the complainant’s complaint under Article 194 of the Turkish Civil Code. according to the provisions of the article, it is not true. according to the law entered into force on 01.01.2002, it is also not correct for the court to conclude an incomplete examination without examining whether the house is a family residence in accordance with the last paragraph of the article in question and whether the woman is a party to the contract. …)
When the case was disrupted, the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
The decision of the General Assembly of Civil Law was examined and its necessity was discussed after it was understood that the decision to resist was objected to within the time limit and the documents in the file were read:
DECISION :
A- Summary of the Complainant’s Request:
12.09 The complainant’s lawyer. In summary, in the complaint petition dated 2003, Ferit, the wrecker of the slum where his client lived with his wife and two children, abandoned his wife and child while living with his wife and two children, and his client and children continue their lives. Ankara 14 to Münevver, the wife abandoned by the debtor because she lived with the help of neighbors. The divorce case filed by the Court of First Instance with file number 1998/12 has been rejected, and the complainant lives in the house whose eviction is requested.
Until the date of the case, Ferit had not even paid the alimony due by the court to his wife and children, and the person requesting release first initiated proceedings in Ankara Second Execution Directorate’s files numbered 2001/20672, Ankara Second Execution Directorate’s files numbered 2002/1833, Ankara Seventh Execution Directorate’s files numbered 2002/6748, but the proceedings in these files were canceled, Ankara Twenty-56 sample evacuation order was sent for the fourth time in file numbered 2003/2989.
Based on the document entitled the Eighth Enforcement Directorate release commitment letter, the enforcement directorate gave the complainant up to 15 days. 9.2003, since there is no rental relationship between the person requesting eviction and the eviction commitment, the enforcement directorate stated that it had requested the sending of 56 sample eviction Decrees. It was stated that it was contrary to the enforcement law by the enforcement directorate and the decision to cancel the initiated follow-up was requested.
In his testimony at the trial dated 18.11.2003, the complainant’s lawyer argued that the defendant’s defenses were unfounded and that his client had not received any money.
B-Summary of the Other Party’s Response:
The other party / debtor Ferit attended the hearing dated 18.11.2003 and claimed in his statement that he sold the place subject to the lawsuit to Durdu by taking 1.500.000.000 TL from himself and 1.500.000.000 TL from his wife (the client).
The counterparty /transaction creditor Durdu stated in the response petition that the shanty house subject to the lawsuit was previously registered in the name of Sahin, but was purchased by Ferit in the presence of a proxy on 20.05.1992. mukhtar and witnesses on the dates of 20.05.1992 and 17.09.2001. 2001, it was sold to him by Ferit with the approval of the headman, it legally belongs to him from that date, the client and the other client Ferit later divorced, they both married other people, the client lives at another address.
claimed that the situation could be determined at his newly married wife’s house by conducting reconnaissance if necessary, that the lawyer wanted to seize the place he had bought by pretending that his client had it, and that the client wanted to take the property. He stated that the place he bought by not leaving the house after the divorce was fuzuli shagil and his complaint was not sincere, he should be evicted and the real estate should be delivered to him empty.
In his testimony at the trial, he argued that the two parties sold it to him together and gave 3 billion money to Ferit and Münevver in the presence of witnesses.
C- Summary of the Local Court Decision:
Local Court
“The plaintiff’s case was deemed appropriate, the plaintiff was found to be justified in the lawsuits filed by the plaintiff in different authorities before, and the defendant party this time on the same grounds 3. the defendants Ferit and Durit actually arranged this deed of sale, our plaintiff Münevver and Ferit’s divorce was on 11.7.2003, this decision was finalized on 18.7.2003, and the deed of sale of the wreckage submitted by the defendant Durdu is dated 17.9.2001. the one who sold the wreckage there is only the Defendant Ferit, Münevver does not have a signature on the document stating that he received 1,500,000,000,000 TL, which is half of 3,000,000,000 TL, is not a party, and in this case, the following decision was reached with the acceptance of the plaintiff’s case by deeming it appropriate”
On this issue, the court decided to accept the complaint and cancel the enforcement proceedings.
D- Objection, Cancellation and Resistance Phase:
High Private Apartment upon the objection of the counterparty/execution creditor Durdu;
“…even if a divorce takes place, one of the spouses, BEYK m, because one of the spouses is confronted at home and is the subject of it. 276 /according to the provision of the last article, a third party cannot be counted against the lessor. the other one. For this reason, it is not correct for the enforcement court to decide on the acceptance of the complainant’s complaint. On the other hand, 194 of the Turkish Civil Code, which entered into force on 01.01.2002. under the conditions of the provision of the article, it is also not correct for the court to come to a conclusion with incomplete examination without examining whether the house is incomplete. the nature of the family residence and whether the woman is a party to the contract in accordance with the last paragraph of the article in question …”
The court overturned the decision on the grounds of overturning; and the court resisted the previous decision.
The resisting decision was appealed by the opposing party Stood.
E- Justification:
The request relates to a complaint made to the enforcement directorate.
The dispute, which came to the General Assembly of Jurisprudence through resistance, centers on the legal situation of the complaining spouse who lives with her children in a real estate that was sold in 2014 and is the subject of two eviction commitments. whether one of the spouses who filed for divorce between them before the execution proceedings should investigate the Decit of the real estate as a family residence by the court within the meaning of Article 194/1 of the Turkish Civil Code.
First of all, it is useful to explain the characteristics of the concrete event;
In the real estate subject to the eviction request and complaint, the title deed allocation document is on behalf of someone else and was purchased externally by the husband, the complaining woman and the counterparty/debtor husband and their children previously resided, due to a dispute between husband and wife, the husband bought the place externally and sold it to the execution creditor on Dec. 17.09.2001 and made eviction commitments on different dates, these commitments were subject to three separate contracts. execution proceedings were carried out, but the execution proceedings were canceled by the Execution Judges, and finally, it is understood from the scope of the file that the prosecution subject to the complaint was initiated.
A divorce case was filed by the opposite party/debtor husband on 20.05.2003 against the client woman who lived with her children in the house whose eviction was requested; while this case was ongoing, the opposite party/foreclosure creditor, who previously sold the house from his wife from outside, was given an eviction commitment dated 09.07.2003 and dated 01.08.2003 for the eviction of the house and divorce on 01.08.2003. the case was concluded with its acceptance on 11.07.2003.
The counterparty /execution creditor Durda, who received the immovable property and the eviction commitment from the complainant’s wife, initiated a lawsuit against the counterparty/debtor husband on 05.08.2011 with a request for “foreclosure and eviction” based on the eviction commitment. 2003 In the file numbered 2003/2989 of the Ankara Twenty-eighth Enforcement Directorate; for example.56 the eviction order was sent to the debtor by the enforcement directorate.
Eviction decision was notified to the debtor on 19.08.2003 and the debtor did not object, the follow-up was finalized and it was decided to make the eviction with the decision of the directorate dated 10.09.2003.
The client’s spouse, who lives in the real estate subject to the eviction decision and was informed of the transaction on 11.09.2003, when the foreclosure was made, filed an existing complaint and requested the postponement of the execution and cancellation of the trial.
The complainant claims that the debtor’s wife abandoned him and his children and resorted to this method to victimize themselves, and that he and his children are the owners of the real estate.
As explained, the immovable property subject to the eviction request was purchased externally from the debtor with the notice by the creditor and was subject to the eviction commitment with the verbal agreements of the parties while the spouse and children lived in it. The follow-up initiated by the creditor in accordance with this release commitment was not objected by the debtor and the follow-up became final.
With the Decertification of the case, the legal nature of the relationship between the parties to the case and the results of the finalised trial became the subject of discussion.
Therefore, there is a possibility that Article 276 / last of the Execution and Bankruptcy Code No. 2004 will be applied in the case subject to the complaint due to the finalization of the trial.
Here it is necessary to focus not on the relationship between the creditor and the debtor, but on the position of the complainant in front of them. Dec.
276 of the Enforcement and Bankruptcy Law No. 2004 entitled “In case of presence of third parties in the leased real estate”. article;
“If there is a person other than the tenant in the place to be evicted and he cannot show an official document indicating that he is justified in the occupation, he is evicted immediately.
However, if this person does not submit an official document, but declares that he resides in this place some time before the date of the contract he submitted to the office, and this declaration is confirmed by an investigation by the bailiff, in this case the officer will postpone the eviction and notify the examining authority within three days.
The competent authority listens to the parties and makes an eviction decision or decides that one of the parties must apply to the court within seven days. If an application is made to the court within this period, the procedure is carried out according to the outcome of the case. the provisions of Article 36 also apply here. The party that does not file a lawsuit is deemed to have abandoned its claim.
The debtor’s lineage and sub-lineage, husband or wife, blood and healthy relatives up to the second degree, business partners and other persons who are understood to reside in the residence in relation to the debtor will not be accepted as third parties in the application. of this article.”
This provision is included.
As it can be seen, as a rule, one of the spouses, even if a divorce occurs, is not in the position of a third party in accordance with the provision of the article, since he resides in the immovable property against the other and subject to him. EBL m. 276/the end.
However, although this is the rule, since it is claimed that the residence subject to eviction is used as a “family residence” and the complaining spouse continues to reside in this place with his children, the complainant’s claim should be emphasized.
Because in Article 194/1 of the Turkish Civil Code No. 4721 entitled “Family residence”;
“One of the spouses may not terminate the lease agreement for the family residence, transfer the family residence or limit the rights over the family residence unless the other spouse has explicit consent”;
In the legal justification of this article;
“With this article, Article 169 of the Swiss Civil Code. in accordance with article 193, in the legal proceedings of spouses. an exception is made to the general rule adopted in the article. The Article makes an exception to the principle of freedom of spouses in legal proceedings related to family housing, and it is accepted that some legal proceedings related to family housing depend on the consent of the other spouse.
The family residence is an area full of memories, where the spouses carry out all their life activities, direct their lives accordingly, experience bitter and sweet days. For this reason, legal actions that the spouses will take alone in relation to such an important asset may affect the important interests of the other spouse. As a result, the article makes the termination of the lease agreement, the transfer of the housing to others or the restriction of the rights over the housing in whole or in part and similar legal actions dependent on the consent of the other spouse. The article stipulates that if one of the spouses rents the family residence, the other spouse will become a party to the contract with notification.
With the amendment to the Swiss Civil Code by the Law of July 7, 1998, this issue is 121 on “consequences of divorce”. it is arranged in three paragraphs in the article. However, the spouse who is not a party to the rental agreement in our country can be victimized during the continuation of the marriage. For this reason, this provision has been considered within the scope of the marriage provisions.
It is possible for the other spouse to take the consent authority granted to him by the law from his spouse without a justified reason and to abuse his right in this way. In order to prevent this, the second paragraph of the article allows the spouse who needs consent to apply to the judge.”
This provision states that “a special position and importance has been given to the family residence and its saving authority has been limited by law. If it is determined that the immovable property subject to follow-up and eviction is a family residence, it will be necessary to investigate whether these legal conditions have been met.
Therefore, the court should first focus on this claim and investigate whether the complainant has a lawsuit filed to determine that this is a “family residence” and whether there is a determination issued by the family court; according to the result, if necessary, the complainant should be given the authority and opportunity to file a lawsuit with the family court to prove that the real estate to be evicted is a family residence, and a decision should be made accordingly.
The same principles were emphasized in the decision of the General Assembly of Jurisprudence dated 19.10.2005 and numbered 2005/12-652 and 2005/583.
The fact that the decision was made by conducting an incomplete review without taking into account the explained issues is contrary to procedure and law and requires overturning.
CONCLUSION :
It was unanimously decided on 26.10.2005 to refund the preliminary appeal fee if requested in accordance with the decision to overturn and Article 429 of the Code of Civil Procedure, with the acceptance of the appeals of the opposing party/creditor’s representative. the reasons shown above.
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