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Family home annotation, is an annotation entered in the land register for immovable property designated as the family home. The institution of the family home, regulated for the first time in the Turkish Civil Code No. 4721, aims to protect the housing rights of the family (particularly women and children) in social life. In this article, we examine the concept of the family home and its elements, how the annotation is entered, the special cases in the circular, the legal effect of the annotation and its removal.
Currency note
This article was prepared on the basis of the legislation and practice in force on the date of publication. The documents required for an annotation application and the regulation and circular provisions referred to in the article may have changed since then. You are advised to consult a lawyer for the current position.
Looking at the family home beyond its legal meaning, we can say first of all that it is where a family takes shelter, seeks happiness and peace, and integrates socially into its surroundings. On the other hand, acquiring a home by purchase or by renting will be a financial burden for the family. For all these reasons, the legislator has introduced a number of rules so that the home is not easily disposed of and the family’s right to housing is protected.
The family home is not expressly defined in the law; we arrive at a number of definitions from the legislative rationale of the provision and in the light of practice.
According to one of these definitions; aile konutu, is a legal institution set aside for the spouses to continue their common life and safeguarding the right of both parties to live in the same home.
The family home is generally regulated in Art. 194 of the Turkish Civil Code.
“A spouse may not, without the express consent of the other spouse, terminate the lease agreement relating to the family home, transfer the family home or restrict rights over the family home. A spouse who cannot obtain consent, or who is refused consent without just cause, may request the intervention of the judge. A spouse who is not the owner of the immovable property allocated as the family home may request the land registry directorate to enter the necessary annotation relating to the home in the land register. Where the family home has been secured by one of the spouses by way of lease, the spouse who is not a party to the agreement becomes a party to it by notifying the lessor, and the notifying spouse becomes jointly and severally liable with the other.”
Turkish Civil Code, Art. 194
As is clear from the provisions of the article, it is laid down that matters concerning the residence used as the family home are subject to the consent of the spouses. Furthermore, entering an annotation in the land register for the exercise of this right has turned it into a relative right with reinforced effect, creating a favourable position for the other spouse. In this way, the acquisitions of a bona fide person are also prevented under the principle of reliance on the land registry.
For a home, the place where people live, to be a family home, both the persons living there and the home itself must have certain characteristics. First, the persons living there must form a family union. In the Turkish legal system, the concept of family is tied to a formal marital union; therefore, a religious marriage (imam nikahı) or cohabitation does not constitute a family.
The family home must be a single home. Where persons within a marital union own more than one dwelling, immovables such as summer houses, mountain houses and the like are secondary dwellings. Only one of them may be the family home. If all of them were regarded as family homes, the result would be that all residential immovables belonging to the family union would be placed under protection. For the family home to have that status, it must be used on the basis of a right in rem or a personal right.
In brief, the article lists the elements of the family home as follows:
Aile konutunun sona ermesi
The institution of the family home comes to an end as a result of one of the grounds on which the marital union ends, since there is no longer a spouse to exercise this right. If an annotation has been entered in the land register, its effect also ends with the end of the marriage. Furthermore, spouses who continue their life within the marital union may, by mutual consent, remove the family home status from that home.
Either spouse may request that a family home annotation be entered, or both may act jointly to have it entered. As stated above, by spouses we mean persons within a formal marital union. However, where the marriage is voidable (butlan), since the transactions carried out until the annulment of the marriage are deemed to have been carried out by spouses within the marital union, persons in that situation may also request that the annotation be entered. The spouse requesting the annotation need not be the owner.
In respect of the home on which the annotation is to be entered, one of the spouses must hold a right in rem or be the owner. The annotation cannot be entered in respect of a leased home. Under Circular No. 1756 (2014/4), a family home annotation may be entered in respect of a right of usufruct. According to the circular, the spouse of the person in whose favour the right of usufruct exists is authorised to request the annotation.
Who may apply?
Either spouse or both together may apply; if the marriage is voidable, the spouses may also apply until the marriage is annulled. The applying spouse need not be the owner.
Hangi konuta konulabilir?
It may be entered on a home owned by one of the spouses or over which one of them holds a right in rem; it cannot be entered in respect of a rented home. Under the circular, it may also be entered in respect of a usufruct.
In the independent situations described above, the family home annotation may be entered in the land register upon a direct application to the land registry directorate by the persons entitled to request it.
Article 49 of the Land Registry Regulation, concerning “documents required for annotations prohibiting the right of disposal” specifies in sub-paragraph (c) the documents required for a family home annotation. The documents required under the provision are “a certificate of residence obtained from the central civil registration system or the civil registry directorate and a civil registry extract showing marital status” and the circular in question also sets out detailed rules on these documents. In the last sentence of Article A/2 of the circular, “Where the block/parcel details in the land register of the immovable on which the family home annotation is to be entered need to be matched with the residence data obtained through MERNİS, a document evidencing the situation must be obtained from institutions such as the municipality, the mukhtar’s office, the cadastre directorate, the building management or LİHKAB (licensed surveying and cadastral engineering offices).” it is thereby stated that the home specified as the place of residence in the regulation must match the MERNİS (Central Population Administration System) records.
In the order described in the article, the application process consists of the following stages:
Under the TCC, the place of residence is the place where a person lives with the intention of remaining permanently. However, owing to a person’s profession, their place of residence and the place allocated as the family home may differ. Indeed, there is nothing to prevent each spouse from having a different residential address. A person may even register their MERNİS record at the address of any home they own. Particularly where elections fall in the summer months, people register their MERNİS record in the summer-house area and vote at that address. Because of such situations, since the MERNİS address and the residential address cannot be matched as required by the circular, problems will arise in entering a family home annotation. Therefore, following a request, the request should not be rejected as a result of a comparison with MERNİS records, the applicant should not be forced to change the MERNİS record, and the request should be granted by obtaining documents from other institutions showing that the property is the family home. Of course, here again it is important whether the request is made by the owner spouse or whether the other spouse is exercising his or her right. Since the place where the family lives may be more valuable, the owner spouse may have contemplated this situation with the aim of restricting the other spouse’s right by having the MERNİS address in a summer house, mountain house or similar. However, it should not be forgotten that in practice and in legal doctrine, secondary dwellings such as summer houses, mountain houses and highland houses are not accepted as family homes.
Article A/4 of the circular provides for special situations, as follows;
Special cases under Article A/4 of Circular No. 1756 (2014/4)
| Bent | Durum | Annotation |
|---|---|---|
| 4.a | A family home actually located on immovable property classified as a plot, field, vineyard, garden, etc. | Entered (with documentation or a determination report) |
| 4.b | The owner of a home shown in the land register as an annex structure being named in the ownership field | Entered on their share |
| 4.c | Application by the spouse of a usufruct beneficiary | Entered on the usufruct |
| 4.ç | Immovable property subject to restrictions such as attachment, injunction, mortgage, etc. | Entered if the applicant accepts the existence of the restrictions |
| 4.d | Homes such as summer houses and mountain houses | Entered if a certificate of residence is submitted |
| 4.e | Immovable property belonging to third parties | Not entered |
| 4.f | Bare ownership of immovable property subject to a usufruct | Not entered |
According to sub-paragraph 4.a; “Where, although the nature of the immovable subject to the annotation is not suitable for allocation as a family home, it is documented by the municipality or the mukhtar’s office that a family home actually exists on an immovable in the nature of a plot, field, vineyard, garden or the like, or the home is identified on site and recorded in a report by the cadastre directorate/LİHKAB, the family home annotation must be entered in the register (without forcing the persons concerned to change the type of the property).” Here, since the property is not registered as a dwelling in the land register, there may be families who in fact live as home owners on properties appearing as plots, vineyards and the like. If the persons living there are joint possessors of the structure, a family home annotation may be entered. Moreover, these persons cannot be compelled to change the plot’s designation to a dwelling. Since the designations listed in the circular are given by way of example, a request for a family home annotation should likewise be accepted in respect of immovables designated as business premises or warehouses, following a determination and report by the relevant institutions.
According to sub-paragraph 4.b; “Where the owner of a home recorded in the land register as a structure (muhdesat) is named in the ownership column, the family home annotation must be entered on that share.” In such a case, there may be a building-type structure on a plot. Condominium ownership or construction servitude may not have been established over this building. However, if the person holds a share in that immovable and is also the owner in respect of the structures, the request to enter a family home annotation should be accepted. Indeed, the Cadastre Law, in Article 19/2, provides on this matter “Where there are structures on an immovable belonging to a person other than its owner or to one of its co-owners, these shall be shown in the declarations column of the record and the register, stating their owner, type, date of construction and ground of acquisition.” as its provision.
According to sub-paragraph 4.c; “Where the spouse of the person in whose favour a right of usufruct exists over the immovable so requests, the family home annotation must be entered on the right of usufruct.” As is known, for a family home annotation to be entered, one of the spouses must hold ownership of the immovable. However, the circular found it necessary to regulate this situation among the special situations in respect of limited rights in rem. A right of usufruct grants its holder the right to use and enjoy the property. However, the holder may transfer the exercise of this right to third parties. On the other hand, the right of usufruct does not pass to heirs, nor can the right be transferred in its entirety. Seen from this perspective, it is not apparent what protective purpose the entry of a family home annotation serves. The holder may voluntarily waive the right or have it deregistered. For this reason, the need arose to regulate this matter by the circular. Ultimately, if a family home annotation is entered on the home on the basis of this right, the holder will neither be able to grant the right of use to another person without the spouse’s consent, nor be able to deregister the right of usufruct without the spouse’s consent. Finally, although not included in the circular, it is legally useful to take this situation into account in respect of the right of habitation and the right of superficies as well, since these rights are subject to the same criteria as the right of usufruct.
According to sub-paragraph 4.ç; “For immovables subject to restrictions such as attachment, injunction, mortgage and the like, the family home annotation must be entered if the person requesting it accepts the existence of the annotations/mortgage on the immovable (excluding interim injunctions relating to the family home annotation).” Here, making the entry of the family home annotation conditional on the other spouse subsequently ratifying these restrictions and the annotations on the immovable is contrary to the legal institution protected by Article 194 TCC. It should not be forgotten that the family home annotation is declaratory, not constitutive. Therefore, owing to the invalidity of dispositions made without the other spouse’s consent, from the time the property acquires family home status, in respect of the matters protected under Article 194 TCC, the other spouse may take legal action. Furthermore, the other spouse’s consent is not required for transactions such as attachment and injunction, as referred to in the provision, which are carried out by way of compulsory enforcement and come into being independently of the owner spouse’s consent. There is therefore no legally protected position in this respect. With regard to a mortgage, however, a restriction imposed without consent from the time the property acquires family home status is subject to the other spouse’s consent. Moreover, a right laid down in the law cannot be restricted by a circular. Accordingly, the other spouse cannot be compelled to accept other annotations in order for a family home annotation to be entered.
According to sub-paragraph 4.d; “Since the family home refers to the premises where the spouses carry out all their living activities and which they use for the purpose of regular residence, dwellings acquired for occasional or weekend use, such as summer houses and mountain houses, do not fall within the scope of Article 194 of the Turkish Civil Code; nevertheless, where a certificate of residence is submitted, the family home annotation must be entered.” Information on this matter has been given above.
According to sub-paragraph 4.e; “Since the Turkish Civil Code No. 4721 contains no provision on the registration of a family home annotation on immovable property belonging to third parties, no family home annotation should be recorded on such immovable property.” The institution of the family home imposes restrictions in certain cases on the spouses’ ability to carry out legal transactions. That being so, it would be inappropriate to enter a family home annotation on a home owned by a third party on the basis of a limited right in rem or a personal right held by one of the spouses. In the case of the limited rights in rem referred to above, a family home annotation entered is valid only to the extent of the limited right in rem. There can be no question of restricting the third-party owner’s right of disposal. Moreover, neither the law nor the circular provides that a family home annotation may be entered on a home on the basis of a personal right.
According to sub-paragraph 4.f; “For immovables subject to a right of usufruct, since the bare owner has no right of use and enjoyment for the duration of the right of usufruct, the family home annotation must not be entered on the bare ownership.” If a spouse establishes a right of usufruct over an immovable he or she owns, the right of use and enjoyment will naturally rest with the holder of the right. This is inconsistent with the existence of a family home, since for a home to be allocated as the family home the spouses must be living in it together. It is therefore not possible to enter a family home annotation on bare ownership.
Under Article A/5 of the circular; “Pursuant to Article 194 of Turkish Civil Code No. 4721, a spouse may not, without the express consent of the other spouse, transfer the family home or restrict rights over the family home. A spouse who cannot obtain consent, or who is refused consent without just cause, may request the intervention of the judge. Since the article makes certain legal transactions relating to the family home subject to the other spouse’s consent, transactions which the owner spouse may voluntarily carry out and which result in the transfer of the family home 78 (sale, donation, etc.) or which restrict the rights over the home (mortgage, promise to sell, usufruct, habitation, lease annotation, etc.) may be carried out only if the consent of the non-owner spouse can be obtained; whereas transactions carried out independently of the owner’s will (registration by court order, compulsory sale, attachment, injunction, etc.) may be carried out without the spouse’s consent” the restriction of rights subject to the spouse’s consent described here is a feature not only of the annotation but of the institution of the family home itself.
Transactions requiring the spouse’s consent
Transactions that the owner spouse may voluntarily carry out and that result in a transfer (sale, gift, etc.) or restrict the right over the home (mortgage, promise to sell, usufruct, right of habitation, lease annotation, etc.).
Transactions not requiring the spouse’s consent
Transactions carried out independently of the owner’s will (registration by court judgment, compulsory sale, attachment, injunction, etc.).
The other spouse’s consent is required for transactions subject to the owner spouse’s will. Therefore, the other spouse’s consent is not required for transactions carried out independently of the owner’s consent, such as attachment and compulsory sale. As stated above under the special situations, there is no legal benefit in the circular stating otherwise in respect of something which the statutory provision does not protect.
Furthermore, where there is a family home annotation, in the light of the principle of reliance on the land registry and the principle of publicity of the land registry, is the good faith of the counterparty to a disposition made by the owner protected where no annotation exists? Where there is no family home annotation according to the land registry records and the person is not in a position to know that the immovable is allocated to the life of the seller and his or her family, that person’s good faith is protected. However, if the person was in a position to know, even in the absence of an annotation, the other spouse has the right to remedy the situation by bringing an action for rectification of the land register on the ground of unlawful registration.
Where there is an annotation
Where an annotation exists, since the land registry official will be aware of it during the sale transactions at the land registry, the sale cannot be completed without the spouse’s consent.
This matter is laid down in Article A/7 of the circular. Accordingly;
Notification obligation
The duty to notify lies with the land registry official.
Deregistration takes place in two ways. As is clear from the text of the circular, first, the persons entitled to request the entry of the annotation are also entitled to request its deregistration. Second, deregistration takes place as a result of the immovable losing its family home status. These matters are regulated in Article A/6 of the circular.
Cancellation by authorised persons
Persons authorised to request the entry of the annotation are also authorised to request its removal; however, the spouse who owns the immovable property cannot request removal alone.
Cancellation due to loss of status
The owner spouse who proves that the immovable property has lost its character as the family home may request removal alone in the cases listed in the circular.
The institution of the family home aims to protect the other spouse and any children within the family union. For this reason, although the spouse owning the immovable is entitled to request the entry of the annotation, he or she cannot alone request its deregistration. In this respect, the circular is framed in line with the purpose of the institution of the family home. According to the circular;
Where the characteristics that the immovable must have under the law cease to exist, the owner spouse may alone request deregistration if he or she proves this. The circumstances in which such status is lost are set out in the circular as follows;
Since the family home annotation makes the other spouse’s consent mandatory for transactions dependent on the request of the spouse who owns the property, and does not prevent transactions not dependent on a request, such as the enforcement of a court decision or a compulsory sale, and since the legal consequences of other annotations and mortgages are accepted when the family home annotation is requested, the family home annotation may be removed by a letter from a court or enforcement office.
In its decision of 29.04.2010, E. 2009/19307, K. 2010/8577, the 2nd Civil Chamber held;
“The defendant’s waiver of the action previously brought for the entry of a family home annotation does not remove the family home status of the immovable and does not constitute res judicata for actions to be brought subsequently.”
2. Hukuk Dairesi, 2009/19307 E. 2010/8577 K., 29.04.2010
In its decision of 16.1.2013, E. 2012/7316, K. 2013/785, the 2nd Civil Chamber held;
“In sales made through compulsory enforcement, the claimant spouse cannot benefit from the protection provided in Article 194 of the Turkish Civil Code.”
2. Hukuk Dairesi, 2012/7316 E. 2013/785 K., 16.1.2013
In the decision of the Assembly of Civil Chambers dated 15.04.2015, Docket No. 2013/2-2056, Decision No. 2015/1201;
“Even if no family home annotation has been entered, the spouses’ capacity to act in respect of the family home in which they live together is restricted. This right cannot be waived in advance, nor can it be removed by agreement between the spouses, and express consent can only be given for a ‘specific’ transaction. No form is prescribed for the validity of the spouse’s consent. Such consent may be given without being subject to any form, even orally. In the present case, the defendant spouse established a mortgage over the family home in dispute in favour of the other defendant, the bank, and during this transaction the defendant bank did not obtain the express consent of the claimant spouse. It is immaterial that the mortgage was established to secure a loan used by the joint children living under the same roof as the claimant and the defendant spouse. It is impossible to accept that the transaction is valid. Although during the deliberations at the Assembly of Civil Chambers some members argued that it would be contrary to the ordinary course of life to accept that the claimant spouse was unaware of the loan used by the joint children living under the same roof as the claimant and the defendant spouse, which gave rise to the establishment of the mortgage, and therefore of the mortgage transaction, this view was not adopted by the majority of the Assembly. The request for removal of the mortgage must be granted.”
Hukuk Genel Kurulu, 2013/2-2056 E. 2015/1201 K., 15.04.2015
Related page: Divorce Lawyer in Ankara — uncontested and contested divorce, custody, maintenance and division of property
Related legislation: Turkish Civil Code No. 4721 (mevzuat.gov.tr)
It is an annotation entered in the land register for immovable property designated as the family home; under Art. 194 of the TMK, the non-owner spouse may request the land registry directorate to enter this annotation. The article states that authorised persons may have the annotation entered by applying directly to the land registry directorate.
Either spouse, or both spouses together, may make the request; the requesting spouse need not be the owner. According to the article, even if the marriage is voidable, the spouses may request the annotation until the marriage is annulled.
Makalede şerhin kiralanan bir konut bakımından konulamayacağı, şerh için eşlerden birinin malik olması veya ayni hakka sahip olması gerektiği belirtilmektedir. Kira ile sağlanan aile konutunda ise TMK m.194’e göre sözleşmenin tarafı olmayan eş, kiralayana bildirimle sözleşmenin tarafı hâline gelebilir.
Under Article 49 of the Land Registry Regulation, a residence certificate and a civil registry record showing marital status are required. Where the block/parcel details of the immovable need to be matched with MERNİS residence data, supporting documents are obtained from institutions such as the municipality, the mukhtar's office, the cadastral directorate, the building management or LİHKAB (licensed survey and cadastre engineering offices).
According to the article, the annotation is declaratory rather than constitutive, and the requirement of spousal consent is a feature of the family residence institution, not of the annotation. The Assembly of Civil Chambers decision cited in the article also states that, even without an annotation, the spouses' capacity to act regarding the family residence is restricted.
According to the Circular, spousal consent is not required for transactions taking place independently of the owner's will, such as registration by court judgment, compulsory sale, attachment or interim measures. The decision dated 16.1.2013 cited in the article also states that in sales carried out through compulsory enforcement the spouse cannot benefit from the protection of Article 194 TMK.
Cancellation takes place at the request of persons authorised to have the annotation registered, or when the immovable loses its status as the family residence. According to the Circular, cancellation may be requested upon death, a final judgment of divorce or annulment of the marriage, a court decision ordering cancellation, or proof that an annotation has been registered on a new family residence.
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