The Alleged Occupation and Its Application
The claim of occupation, which is one of the concepts of Enforcement Law, and the transactions subject to the complaint based on it are regulated under the title of non-foreclosure goods in Enforcement and Bankruptcy Law. Claim of homelessness constitutes an obstacle to the foreclosure and sale of the immovable property, which is in the status of non-foreclosure property, by the creditor.
82 Of the Enforcement and Bankruptcy Code. according to the article, housing that is suitable for the borrower’s situation is considered as property that cannot be foreclosed. What should be understood from the concept of suitable housing is a house that is suitable for the living conditions of the borrower, taking into account the borrower’s family and social life. In this case, this concept may vary depending on a person’s economic status, the number of people living at home, and their social status.
With the decision of the Constitutional Court dated 12.12.2019, it has been accepted that family housing is considered one of the non-confiscable goods, the existence of the right to respect for family life is accepted, the acceptance of the application and the confiscation of family housing are found unconstitutional, the concept of housing suitable for the situation is not only a right to housing needs, but also the protection of family unity should be evaluated in this context.
Although the decision was taken by a majority vote, this decision of the Constitutional Court will affect the trial in many concrete cases. This judicial decision, which sets a precedent, reveals that the protection of family life is one of the arguments that will affect the assessment of foreclosure, since the appropriate housing should not be clearly defined in accordance with the law and the borrower should be evaluated according to the living conditions.
The Effect of Mortgage on Claim Demand
In order for the borrower to file a foreclosure complaint about the immovable property that he previously mortgaged, the mortgage must be one of the mandatory established mortgages, such as a housing loan, a tradesman’s loan, an agricultural loan. Because the principle that a compulsory established mortgage will not constitute an obstacle to a foreclosure complaint stems from the fact that this mortgage constitutes the collateral of a loan issued for social purposes. In addition, mortgages established by the borrower’s free will prevent him from making a permanent residence claim in relation to this place. In the mortgage-based complaints of the borrower, the nature of the mortgage should be investigated first and the transactions should be carried out according to this research.
The borrower does not need to be using the foreclosed house in order to file a complaint with a housing claim. If the borrower has rented the real estate and lives in rented housing, he should not aim to enrich himself with rental income. If the borrower pays the rent arrears of the housing he uses with the rental income he receives, he will be able to file an occupation complaint.
The debtor must apply to the enforcement court at the location of the real estate within 7 days from the date he learns that a foreclosure has been placed on his residence and request that the foreclosure be lifted. 103 Of the Enforcement and Bankruptcy Code. according to the article, the debtor is deemed to have learned about the foreclosure from the date of notification to him. If the debtor does not apply to the enforcement court within 7 days despite this notification, he loses his right to appeal and the period becomes a reduced period.
As a result of the debtor’s application to the enforcement law court, the court may decide to lift the seizure by recognizing that the real estate is an irrevocable property based on the residence claim. However, this claim may not be accepted in all cases. Pays payable At the same time, the court may decide to sell the real estate by determining the necessary price for the debtor to acquire a house suitable for his/her situation, to pay the price to the debtor and to pay the remaining amount to the enforcement file.
What is important here is the borrower’s economic situation and living conditions. The court’s decision should be aimed at ensuring that the borrower acquires a home that will not reduce him to poverty, or to protect this housing.
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