TC
SUPREME
2.Law Office
ORIGINAL NO.: 2016/6764
DECISION NO:2017/6194
DECISION DATE: 25.05.2017
EVEN IF THE FAMILY DOES NOT HAVE A RESIDENT COMMENT, THE TRANSACTION MADE WITHOUT THE EXPLICIT CONSENT OF THE SPOUSE IS INVALID
SITUATION: At the end of the trial between the parties, the Decrees given by the local court, the date and number of which are shown above, were appealed by the defendants, the documents were read and discussed as necessary and finally decided:
The case is related to the cancellation of the title deed, the request for registration of the family residence and its interpretation.
The plaintiff filed a lawsuit with the request for cancellation of the title deed by analyzing the family name in the land registry records, claiming that the immovable property owned by the spouse of the family residence and the immovable property, which is the essence of the family residence, was registered in the title deed on behalf of the defendant…… “without consent” by the defendant’s wife, and requested the eviction of the residence.
Defendant……., defended the dismissal of the case by stating that there is no indication that the real estate subject to the lawsuit is a family residence in the land registry records, that it is in good faith.
The General Assembly of the Law adopted a new application ”based on the decision dated 15.04.2015 with the decision numbered 2013/2-2056 taken on the exact date of 2015/1201“ and the justification is given below in the ”precedent decisions”. The new application of the General Assembly of the Law, which has been continued in similar cases, has also been adopted by our Department, and our Department agrees exactly with the following opinions of the General Assembly of the Law in all precedent decisions.
As clearly stated in the Decision of the Court of Cassation, the local court stated, “on the grounds of resistance, Article 194 of the Turkish Civil Code. the restriction imposed on the actual driving licenses of spouses by the provision of the article does not depend on whether comments should be made to the family residence, nor does it matter whether the third party making the transaction has good intentions.
194/1 of the Turkish Civil Code No. 4721. according to the article, “One of the spouses may not terminate the lease agreement on the family residence, transfer the family residence or limit their rights on the family residence unless the other spouse has explicit consent, even if the family residence has not been annulled by the provision of this article, the actual driving license of the spouses on the family residence where they live together has been limited.
The restriction was introduced not because the family housing annotation was put, but because it is already available. Therefore, even if it is not regulated as a family residence in the deed, this residence has the property of a family residence. Because the subject of the case is family housing, even if the immovable property has not been annotated. Since it is annotated by the spouse, it is not a family residence, on the contrary, it can be annotated since it is a family residence. For this reason, when the family housing annotation is put, the comment is not the “founder”, but the explanatory “annotation”.
The limitation imposed by the provision of this article is of a “mandatory” nature. Therefore, this right cannot be waived in advance or eliminated by the agreement of the spouses, and explicit consent can only be given for a “specific” transaction.
193 Of the Turkish Civil Code. according to the provision of article 194 of the Turkish Civil Code, the freedom of spouses in legal transactions with each other and with third parties is recognized, but 194 of the Turkish Civil Code. with the provision of the article, the rule that some legal actions of spouses related to family housing are subject to the consent of the other spouse has been introduced and the freedom of legal actions of spouses has been limited in order to “protect family unity”.
Accordingly, one of the spouses may not terminate the lease agreement of the family residence, transfer the family residence and limit the rights over the family residence unless there is an “Explicit consent” of the other spouse. Based on this sentence, the spouse, who is the owner of the family residence, cannot limit himself to a single “Single” type, such as a mortgage for a family residence, which will make life difficult in a family residence. This limitation can be made “Only with the explicit consent of the other spouse”.
194 Of the Turkish Civil Code. the article did not provide a form of validity for the authorized spouse’s permission. Therefore, the permission in question can be given even verbally, without being subject to a form. However, as can be seen from the wording of the article, the permission must be “Explicit”.
(Mustafa Alper GÜMÜŞ. New Interpretations of the Turkish Civil Code; Vedat Kitabevi, … 2007. From the First Edition to the Second Edition, Just Like Basi, p. 41-42).
In the concrete case, the immovable property is the family residence, the subject of the case is the defendant’s wife, and the family residence is one of the defendants…this is A.he has transferred to .During this procedure, the explicit consent of the plaintiff spouse was not obtained by the defendant spouse.
Within the framework of the rules described above, it is not possible to accept that the transaction made without the “Explicit consent” of the spouse is “Valid”, because it is clearly stated by the General Assembly of the Law. It is obligatory to accept that the transaction made by the spouse without his /her “explicit consent” is “Invalid”.
Therefore, the acceptance of the rejection provision in writing is contrary to the procedure and the law and must be overturned, and the court must decide on the acceptance of the case by evaluating it within the framework of the legal regulations and principles adopted by the General Assembly of the Law above.
CONCLUSION: It was unanimously decided to OVERTURN the appealed decision for the reason shown above, to return the pre-appeal fee to the depositor if requested, and to keep the path of correcting the decision open within 15 days from the notification of this decision. 25.05.2017