Establishment of a Family Homestead in Turkish Law

FAMILY HOMESTEAD

A family homestead is established with the condition that it is for the residence or operation of the individual or their family. The primary purpose of establishing a family homestead is to meet the livelihood and professional needs of family members. Upon the establishment of the family homestead, the rightful owner is obligated to reside in this property, although exceptions can be agreed upon. In practice, while family residences often benefit from various protections through annotations, the protection offered by a family homestead is more effective and comprehensive. Once a property is designated as a family homestead, it cannot be seized, mortgaged, sold through execution, or rented out. Thus, establishing a family homestead ensures the family’s economic security against potential financial disruptions.

The legislator has stipulated that only certain properties can be designated as a family homestead. These include:

1. Residences

2. Properties suitable for agriculture or industry

These properties, along with their annexes, can be turned into a family homestead. It should be noted that the size of the residence or property must not exceed what is necessary for the normal livelihood and sheltering of a family. This criterion is considered regardless of any liens or the owner’s other properties.

HOW IS A FAMILY HOMESTEAD ESTABLISHED?

A property cannot attain the status of a family homestead without a court decision granting permission for its establishment. A court decision is required to establish a family homestead. Accordingly, the owner of the property intended to be established as a family homestead must first apply to the court. The court will call certain individuals, whom we will mention below, to raise objections within 2 months and will announce this matter. If there are no objections or if the objections are unjustified, the court will permit the establishment of the family homestead.

For a family homestead to be established, the court decision must be annotated in the land registry and announced.

THE NECESSITY OF COURT PERMISSION FOR ESTABLISHING A FAMILY HOMESTEAD

The judge will examine whether certain conditions have been met and identify any obstacles to giving a positive decision. If the following conditions are met, the judge will allow the establishment of the family homestead. These conditions include:

1. The property must be suitable for residence, agriculture, or industry

2. No objections to the establishment of the homestead by third parties

3. Even if objections are raised, it is determined that these objections are unjustified

4. Proof that the interests of creditors who raised timely objections are no longer relevant

5. Removal of any liens or seizures on the property

As mentioned above, if there are liens or seizures on the property intended to be established as a family residence, the owner must first remove these. Generally, a property cannot be turned into a family homestead without removing any liens or seizures. In some cases, the owner’s debt may be scheduled in favor of the objecting or lien-holding creditor. In this case, the debtor wishing to establish the homestead can make an immediate payment and remove this obstacle. The judge will consider this situation ex officio.

THE REQUIREMENT OF ANNOTATION OF THE DECISION TO ESTABLISH A FAMILY HOMESTEAD

If the judge permits the property to be established as a family homestead, this decision must be annotated. The family homestead cannot be established without this annotation. The court decision related to the permission must be annotated in the land registry. With this annotation, the owner’s right to dispose of the family homestead is removed. Simultaneously, the land registry is closed to further transactions. Thus, the property designated as a family homestead can no longer be transferred or mortgaged. The court will also announce this.

RESULTS OF ESTABLISHING A FAMILY HOMESTEAD

– Properties designated as family homesteads cannot be transferred, mortgaged, or rented out.

– Compulsory enforcement cannot be applied to the family homestead and its annexes.

PREVENTING THE ESTABLISHMENT OF A FAMILY HOMESTEAD

The owner must apply to the court for the property in question to be designated as a family homestead. The judge ensures there is no dispute regarding the designation of this property as a family homestead to make a positive decision on this application. Therefore, the judge gives certain individuals time to raise objections. If these individuals raise objections within this period and these objections are found justified, the establishment of the family homestead can be prevented. Generally, these individuals are called to raise their objections within two months through a court announcement. The individuals who can prevent the establishment of a family homestead include:

1. Creditors

2. Individuals whose rights may be adversely affected by the establishment of the family homestead

3. Individuals whose claims are secured by a mortgage on the property

4. Creditors with seizures on the property

These individuals must raise their objections, if any, within 2 months following the court’s announcement. The 2-month period is a preclusive period, and if it is missed, the right to object to the establishment of the family homestead is lost. If the judge finds that the objections raised are justified, this will be considered, and the decision will be made accordingly.

INCLUDING THIRD PARTIES IN THE FAMILY HOMESTEAD

The legislator also allows certain individuals to be included in the family homestead by court decision. Generally, these individuals must need to be included in the family homestead due to poverty and must not have any circumstances preventing their acceptance. These individuals include:

– The owner’s ancestors

– The owner’s descendants

– The owner’s siblings

These individuals can be accepted into the family homestead by court decision. Individuals who do not have this qualification, such as aunts, uncles, and nephews, cannot legally be included in the family homestead. It should be noted that a court decision is required for this process.

APPOINTMENT OF A MANAGER TO THE FAMILY HOMESTEAD

If the owner falls into financial distress and cannot pay their debts, the court appoints a manager to manage the family homestead. The appointment of a manager to the family homestead requires the owner to be in financial distress. Otherwise, there is no need to appoint a manager. The appointed manager by the court is responsible for managing the homestead in accordance with its purpose and in the interests of the creditors.

TERMINATION OF THE FAMILY HOMESTEAD

A family homestead can be terminated during the owner’s lifetime or automatically upon the owner’s death.

Upon the Owner’s Death

Generally, the status of the family homestead ends with the owner’s death. However, it is possible to arrange otherwise. In this context, if a testamentary disposition is made regarding the transfer of the property designated as a family homestead to the heirs, the status of the family homestead will continue after the owner’s death. However, if no such arrangement is made, the status of the homestead will end. If there is no such disposition, the annotation related to the homestead in the land registry will be deleted upon the owner’s death.

During the Owner’s Lifetime

If the owner wishes to terminate the family homestead during their lifetime, they must first prepare a petition requesting the deletion of the record in the land registry and submit it to the court. Generally, the court announces this request and waits for 2 months from the date of the announcement for any possible objections. If no objections are raised or if the raised objections are found unjustified, the court will permit the deletion of the record in the registry. Thus, as with the establishment of the family homestead, a court permit is required for its termination.

 

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