03 Feb When Does Family Housing Protection End?
4721 numbered Turkish Civil Code sayılı II. Article 194, titled. Family Residence Aile is as follows.
Lay Article 194- One of the spouses may not terminate the tenancy agreement regarding the family residence, transfer the family home or limit the rights to the family residence unless the other wife has clear consent.
A spouse who cannot provide consent or consent to it without justified reason may request the intervention of the judge.
The non-property owner of the immovable property, which is defined as family residence, may request the title deed of the title deed to be given to the land registry.
If the family dwelling is provided by rent by one of the spouses, the spouse who is not a party to the contract becomes the party of the contract with the notification to be made to the lessor and several spouses shall be responsible for the other. ”
The Court of Cassation in a case that is subject to a family residence, the right of the spouse and the right to transfer the rights of the spouse on the right of the other wife is bound by explicit consent (TMK m. 194). Without this consent, the saving for the housing is invalid. This invalidity may be extended during the marriage union, provided that this requirement is maintained by the spouse. If the marriage is terminated by death or divorce or cancellation decision, the protection provided by the Article 194 of the Turkish Civil Code to the a family residence konut ends and it is of the opinion that the other partner has gained validity from the moment the savings are made.
The SUPREME COURT 2. Legal Department 2016/10514 E., 2016/13563 K.
”CONTENT TEXT“
COURT: FAMILY COURT
DEFENDANT are: 1- TÜRKİYE HALK BANKASI A.Ş.
2nd- …
CASE TYPE: REMOVING THE POTENTIAL AND PLACEMENT OF FAMILY HOUSING
At the end of the reasoning of the case between the parties by the court given to the court, the number of the date and number of cases referred to the appeals, the documents were read and considered as necessary:
The case concerned the removal of the mortgage on the family dwelling in favor of the defendant bank and the request for the placement of a family dwelling on the title deed of the real estate without the consent of the other party by the beneficiary spouse (TMK m. 194).
The transfer of the family dwelling by the rightful spouse and the limitation of the rights on the housing depend on the explicit consent of the other spouse (Article 194). Without this consent, the saving for the housing is invalid. This invalidity may be extended during the marriage union, provided that this requirement is maintained by the spouse. If marriage is terminated by death or divorce or cancellation, the protection provided by the Article 194 of the Turkish Civil Code to the ”family residence mad ends and becomes effective as soon as the savings made without the consent of the other spouse. The defendant, the owner of the real estate subject to the case, died on 18.04.2013 in the continuation of the case. Since marriage ended with death, the subject matter of the case was lost to the real estate. Taking into account this situation, it is necessary to make a decision about kayd no decision to be made kayd about the remaining case and the judgment expenses and the attorney’s fee to be determined and appreciated by taking into consideration the rightfulness of the parties as of the date of the case; Deciding to place a commentary is not right, but it has to be disturbed.
CONCLUSION: The reason given for the reason shown above, the appeal of the appeal on the grounds of the request back to the investor, the decision of this decision within 15 days from the notification of the decision to open the way of decision was decided by majority. 05/10/2016
Dissenting Opinion
Plaintiff woman, the real estate registered in the name of the wife is the real estate subject to the lawsuit, without the explicit consent, the defendant bank in favor of the mortgage has been established, the execution of the mortgage bank by initiating the enforcement proceedings by specifying his wife and the bank against the mortgage in favor of the mortgage abolition and the real estate deed has filed a lawsuit for annotation of a family residence.
The local court, with the decision dated 12.09.2013, decided to dismantle the mortgage with the acceptance of the case and to include a commentary on the family housing for the land registry.
The decision was appealed by the defendant bank.
On the grounds that the defendant wife Mehmet died on 18.04.2013, the reasoned decision was communicated to the mature heirs and the inherited heiress Melih.
) A spouse may not terminate the lease agreement with the family residence, transfer the family home, or limit the rights to the family residence unless the other spouse has clear consent (TMK.m.194 / 1).
The surviving spouse may request the right of usufruct or residence to be deducted from the participation of the deceased spouse on the housing they live with, and if not enough, by adding the price; other regulations adopted by the goods regime are reserved (TMK.m.240 / 1). In the presence of justifiable reasons, the right of property of the surviving spouse or the deceased spouse may be granted the right to property on the property, rather than the right of residence or residence. (Tmk.m.240 / 3).
In the case of death of one of the spouses of the goods of household goods or if the spouses live together; the surviving spouse may ask for the right of ownership to be granted to them on the right of inheritance (TMK.m.652 / 1). If there are justifiable reasons, it may be decided upon the request of one of the surviving spouses or the other legal heir of the inheritance of the inheritance to grant the right of usufruct or residence. (Tmk.m.652 / 2).
The legal consequences of the termination of marriage due to the death of one of the spouses due to the termination of the divorce or annulment decision are different. Because, if the marriage ends in death, the right of inheritance of the surviving spouse is still continuing, and in Article 240 and 652 of the Turkish Civil Code, they have the right to be granted to the family home. If the marriage is terminated outside the death of one of the spouses, the surviving spouse does not have such rights.
The surviving spouse may not be required to file a lawsuit in order to exercise its rights under these regulations against other heirs. Because the surviving spouses and other heirs may divide the heritage according to the legal regulations without opening the case. If there is no consent division based on consent, the surviving spouse may also open a separate lawsuit against the other heirs at any time to exercise their rights.
For the reasons explained above, the nature of the family residence of the immovable subject to the case continues after the death of the spouse, who is the owner of the real estate, for the surviving spouse. The purpose of the law is to ensure that the surviving spouse continues its old life. Therefore, according to the explicit regulations in Articles 194, 240 and 652 of the Turkish Civil Code, it cannot be said that the protection provided to the family dwelling by the death of the owner has ended.
In the present case, the mortgage was established on 10.07.2009 while the marriage was in progress. It is understood that the applicant’s husband, the owner of the family dwelling, died during the continuation of the proceedings. As the marriage continued during the mortgage-related transaction, TMK.nun 194/1. According to the article, the non-owner of the non-owner, the mortgage facility was required to obtain clear consent. Even if there is no consensual opinion of the family dwelling in the title deed, even if the uninsured spouse has not received the explicit consent, the saving of the owner of the property is not void. (Similar nature, YHGK.un 15.04.2015 2013 / 2-2056 E.2015 / 1201 K. No. decision.)
According to the evidence collected, it is understood that the real estate subject to the case was the family residence. It has not been established that the husband of the family dwelling has no clear consent to the mortgage facility. In this case, mortgage-related savings are void. Such savings do not take place with the death of this saving partner.
If the enforcement proceedings initiated through the conversion of mortgage into cash continue, the immovable will be sold, the plaintiff woman will be deprived of the possibility of using her legal rights arising from the family dwelling and, in particular, et resuming her old life İp. Therefore, since the surviving spouse has the right to have the family dwelling in an unencumbered manner, the legal benefit continues in the case in respect of the request for the lifting of the mortgage. In this respect, the case was not subject.
In the case of the registration of the family dwelling on the title deed of the real estate, the case of the owner of the immovable property is limited. The defendant bank is not the addressee of this case. The heirs did not appeal the decision. The defendant bank does not have any legal benefit in appealing the decision to place an annotation on the land registry for the real estate. The appeal request is rejected in this respect.
However, it is not correct to have the power of attorney pay against the defendant bank because of the adoption of the case for the annulment of the family residence.
For these reasons, the appeal on the basis of the decision to remove the mortgage, the decision to put the annulment of family housing because of the adoption of the case of the defendant against the defendant bank in the case of the ruling fee to be detained, the appeal of the appeal of the decision to accept the case of family residence of the decision to refuse the legal benefit of the decision to be declined, the I do not agree with the opinion of the majority.
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