What is a Family Residence Annotation and How is it Placed in Turkish Law?
FAMILY RESIDENCE ANNOTATION
The family residence annotation provides significant benefits to the spouse who is not the owner of the property used as the family residence. The non-owner spouse can place a family residence annotation on the land registry. This request can be made at the land registry office. Once the family residence annotation is placed, the spouse who owns the property cannot carry out any transactions on this residence without the consent of the other spouse.
The family residence annotation can only be applied to properties that qualify as family residences. It should be noted that a family residence annotation cannot be placed on unregistered properties. Apart from this, it does not matter if the property registered in the land registry is listed as land, field, or plot.
WHAT IS A FAMILY RESIDENCE?
The concept of family residence is regulated in the Turkish Civil Code. As a rule, spouses jointly choose the residence where they will live. The family residence secures the housing needs of both spouses. In this context, the legislator aims to protect the marital union through the family residence institution. The aim is to prevent the spouse and children from being harmed by preventing the disposal of the family residence by either party with malice or thoughtlessness.
A family residence is a place suitable for continuous family life. As a rule, the family residence can only be one residence. It is not legally possible to designate two different residences separately as family residences. In this context, the family residence is singular. The designated family residence will maintain this status until the end of the marriage. Regardless of the marital property regime applicable between the spouses, this will not affect the nature of the family residence. There are significant legal consequences attached to the family residence in our laws. We will address these issues in our article.
CONDITIONS OF A FAMILY RESIDENCE
There are certain conditions that must be met for a residence to qualify as a family residence. These include:
– The spouses living in the residence must be legally married
– The residence must be jointly chosen by both spouses
– The family must spend their daily life in this residence
– The residence must be used in accordance with the law (occupancy based on personal or real rights)
Other conditions required for a family residence annotation are:
– The property for which the annotation is requested must qualify as a family residence
– The family residence must be owned by one of the spouses
HOW TO PLACE A FAMILY RESIDENCE ANNOTATION?
The family residence annotation can be placed in various ways. These include:
1. At the request of the spouse who owns the family residence
2. At the request of the other spouse who does not have rights in the family residence
3. At the joint application of both spouses
4. By court order
As can be seen from the above, the family residence annotation can be placed either through the land registry office or through the court.
1. PLACING A FAMILY RESIDENCE ANNOTATION THROUGH THE LAND REGISTRY OFFICE
The spouse who does not have rights in the family residence can go to the land registry office and place an annotation on the family residence. In this context, there is no need to file a lawsuit for a family residence annotation. Besides the non-rights-holding spouse, the spouse who owns the family residence can also place a family residence annotation. In this context, it is legally possible for both spouses to place a family residence annotation.
2. PLACING A FAMILY RESIDENCE ANNOTATION THROUGH THE COURT
The spouse who does not have rights in the family residence can request a family residence annotation through the court. It should be noted that you must first request a family residence annotation through the land registry office before applying to the court. If your request for a family residence annotation is denied by the land registry office for any reason, you can then apply to the court. According to the Supreme Court’s case law, if you do not document the negative result of the land registry office’s refusal to place a family residence annotation in your case file, your lawsuit will likely be dismissed for lack of legal interest.
As a rule, the spouse who owns the family residence cannot request a family residence annotation through the court. Because the opposing party in this lawsuit is the owning spouse. For a concrete example, if the house you have designated as the family residence belongs to your spouse and not you, only you can apply to place a family residence annotation on this residence through the court. The spouse who owns the house cannot request a family residence annotation through the court. Only the land registry office can accept the spouse’s request in this case.
IMPORTANCE OF PLACING A FAMILY RESIDENCE ANNOTATION
The family residence annotation has several functions that are of great importance for the marital union. We will briefly address the functions of the family residence. The functions of the family residence include:
1. Once the family residence annotation is placed, the spouse who owns the property cannot perform certain actions without the consent of the other spouse.
Without the consent of the other spouse, one spouse cannot:
– Terminate the lease agreement related to the family residence
– Transfer the family residence
– Restrict the rights over the family residence
– Establish a mortgage on the family residence
– The sale of the family residence can be annulled
2. If a third party acquires rights to the property with a family residence annotation without the consent of the other spouse, the good faith of third parties will not be protected.
In this context, not knowing that the purchased property is a family residence will not be protected by the legal system. The third party must endure this situation. If the family residence is annotated, the good faith of third parties is not protected. An unannotated family residence does not have this effect. For example, a family residence annotation does not prevent the sale. A house with a family residence annotation can be sold, but if there is no consent from the other spouse, the sale can be annulled. Whether the person who bought the house knew about this issue or not will not matter.
DOCUMENTS REQUIRED FOR PLACING A FAMILY RESIDENCE ANNOTATION
– Petition containing the request for a family residence annotation
– Document from the local authority confirming that the residence in question is a family residence
– Marriage certificate
– ID card and photocopy
– Passport-sized photograph
– Power of attorney if there is a representative
HOW TO REMOVE A FAMILY RESIDENCE ANNOTATION?
Just as it is possible to place a family residence annotation, it is also possible to remove the family residence annotation. As a rule, the family residence annotation will be automatically removed when the marriage ends. In this context, the family residence annotation will be removed in cases such as the death of one of the spouses or divorce. In other words, the family residence annotation can be removed while the marriage continues or when the marriage ends.
Removing the Family Residence Annotation While the Marriage Continues
You can also remove the annotation you placed on the family residence while the marriage continues. The family residence annotation can be removed in two different situations while the marriage continues. These include:
– The family residence losing its characteristics
– Acquiring a new family residence
Removing the Family Residence Annotation When the Marriage Ends
If the marriage has ended, the family residence will lose its function. In the event of the death of one of the spouses, the surviving spouse can remove the family residence annotation. In cases such as divorce or annulment of the marriage, the family residence annotation can be removed unilaterally.
For more information on placing or removing a family residence annotation, you can contact us.
EXAMPLES OF DECISIONS REGARDING FAMILY RESIDENCE ANNOTATION
“To place the annotation, it is sufficient for the property to be designated as a family residence and to belong to the other spouse. Placing a family residence annotation does not provide complete protection for the property. For example, the property with an annotation can be sold through compulsory execution due to the debts of the registered owner spouse. Therefore, the consent of the other partners is not required for the property to be designated as a family residence. Placing a family residence annotation on the other spouse’s share of the property does not prevent the other partners from exercising their rights related to the property arising from this partnership. The purpose of placing a family residence annotation is to restrict the disposal rights of the spouse who is registered as the owner of the property. In the specific case, the plaintiff spouse has a legal interest in restricting the disposal rights on the share of the defendant spouse, and there is no legal obstacle to placing a family residence annotation on this share. Therefore, the family residence annotation should be placed on the share of the defendant spouse, while…”
- 2nd Civil Chamber 2014/15235 E. , 2014/23110 K.
“In the specific case, the defendant spouse transferred the disputed family residence to the other defendant … and registered it in their name without obtaining the explicit consent of the plaintiff spouse. The plaintiff claimed in the lawsuit that the family residence was sold by the defendant spouse to the other defendant … and requested a family residence annotation to be placed on the disputed property and the cancellation of the property registration to be registered in the name
of the defendant spouse…. For the plaintiff’s lawsuit requesting a family residence annotation to be considered, the lawsuit for cancellation and registration of the property must be finalized. Otherwise, it is not legally possible to consider the lawsuit requesting a family residence annotation. Therefore, the lawsuit requesting a family residence annotation should be separated from the lawsuit for cancellation and registration of the property, and the property cancellation and registration lawsuit should be awaited, and a decision should be made according to the outcome…”
2nd Civil Chamber 2019/5110 E. , 2019/8865 K.
“If the marital union between the spouses ends with the death of the non-owning spouse, the property in dispute loses its family residence characteristic “on the date of death.” In other words, the annotation related to the family residence becomes “invalid” on the date of death. When the surviving owning spouse presents the death certificate of the non-owning spouse to the Land Registry Office, the family residence annotation is removed. There is no obligation to notify the heirs of the non-owning spouse about this removal. Since it is documented with an “official record,” the heirs do not have the right to object to the removal due to death.”
2nd Civil Chamber 2008/2990 E. , 2008/7349 K.
“According to Article 194/1 of the Turkish Civil Code No. 4721, “One of the spouses cannot terminate the lease agreement related to the family residence, transfer the family residence, or restrict the rights over the family residence without the explicit consent of the other spouse.” This provision limits the spouses’ capacity to act concerning the family residence, even if the annotation of the family residence is “not placed.” The limitation is brought not because the family residence annotation is placed, but because it already exists. Therefore, even if the family residence annotation is not placed in the land registry, the residence maintains its family residence characteristic. In other words, the residence does not become a family residence because the annotation is placed; instead, the annotation can be placed because it is a family residence. Therefore, when the family residence annotation is placed, the annotation has an “explanatory” rather than a “constitutive” nature.”
- 2nd Civil Chamber 2015/8084 E. , 2015/21529 K.
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Family Residence Annotation in Turkish Law
