How to Register a Family Residence Annotation?

For a family residence annotation to be registered, the immovable property in question must possess the characteristic of a family residence. So, what exactly is a family residence? The Turkish Civil Code (TCC) does not provide a definition for the concept of family residence. There is, of course, a reason why this concept is referenced in many laws, yet no definition is provided in any of them. Turkish Law attaches great importance to the institution of family. For this reason, restrictive definitions regarding this matter are avoided as much as possible. The filling of this gap has been left to practice and doctrine.

According to the definition established by the Court of Cassation, a family residence is a legal institution designated for spouses to continue their cohabitation, securing the right of both parties to reside in the same dwelling. In doctrine, many different definitions have been made. The common characteristics of these definitions are as follows:

• A legal marital union must have been established between the spouses.
• The residence chosen by the spouses must be used lawfully.
• The residence must have been made the center of life by the spouses and, under normal circumstances, must be suitable for protecting them from external dangers.
• The family's residence there must be based on a lawful reason. The residence should not be used for illegal activities.

It is also worth noting that the family residence annotation will only come into play if the spouse holds an ownership right over the residence. Other real rights have not been included in this scope; only the existence of an ownership right has been accepted in this context. In other words, limited real rights, including usufruct, superficies, etc., do not fall within this scope. Furthermore, the family residence significantly impacts property division in divorce proceedings.

The person requesting the registration of a family residence annotation and the person holding the ownership right must be officially married. This annotation can only be placed on immovable properties that qualify as a family residence and are registered in the land registry. A family residence annotation can only be placed on a single immovable property. This means that if a spouse owns more than one house, this annotation can only be registered for a single house that qualifies as a family residence.

It is also worth noting that the registration of this annotation in the land registry is not constitutive but declaratory. This means that even if you do not register this annotation in the land registry, the regulations concerning the family residence will find application in any disputes that may arise, provided that proof is furnished. However, there is significant benefit in annotating this matter in the land registry. This is because, in potential disputes, the good faith of third parties may be protected due to their unawareness of this annotation. For this reason, you may suffer a loss of rights.

The family residence annotation creates a dual effect. Firstly, with this annotation, the disposition authority of the spouse who holds the ownership right is restricted. This spouse will not be able to dispose of the family residence as they wish without obtaining the consent of the other spouse. On the other hand, if the annotation is registered in the land registry, third parties and the official will be aware of this situation. This will be important if there is no spousal consent during the disposition transaction. The request of the owner-spouse attempting to dispose of the immovable property without the consent of the other spouse must be rejected by the land registry official. Similarly, the good faith of a third party who proceeds with a transaction despite the existence of the annotation will absolutely not be protected.

A family residence annotation is registered in the land registry in two instances. One of these is by virtue of a court decision. In this case, the parties are not required to submit any additional documents. The court issuing the judgment will send a writ to the relevant land registry office, ensuring the annotation is registered in the land registry. Based on the court judgment, you can also make a request to the relevant land registry office in this regard. Additionally, there is a spouse's direct right to request arising from the law. Here, the spouse must go to the relevant land registry office, submit their application, and provide the necessary documents.

The required documents for a family residence annotation are as follows:

• A document obtained from the headman's office (muhtar) and, if applicable, the apartment management, stating that the dwelling is a family residence. Written statements of affirmation obtained from neighbors may also be useful in this regard.
• If deemed necessary by the relevant land registry office; a document from the cadastral directorate confirming that the immovable property declared in the title deed information is the same as the immovable property for which the annotation is requested.
• Marriage certificate or a population registration record showing that the person is married to the owner.
• Photo identification card and its photocopy. Also, a passport-sized photograph.
• Power of attorney, if the transaction is carried out by an attorney or representative.

Can a Family Residence Annotation be Placed on an Unoccupied House?

For the provisions regarding family residence to be applicable, the dwelling must serve as the center of life for the family. Therefore, designating any ordinary dwelling as a family residence is not lawful. A family residence is a dwelling jointly chosen and used by the spouses, where they regularly reside. A dwelling that is not considered the center of life for the spouses as mentioned, and is not actually inhabited, does not possess the characteristic of a family residence.

However, spouses may somehow register a family residence annotation in the land registry for immovable properties that do not possess this characteristic. Additionally, parties may claim that the immovable property subject to the lawsuit is a family residence. In such cases, the court must conduct a detailed investigation and ascertain the truth. Indeed, the decisions of the Court of Cassation are in line with this view. For instance, in one of its decisions, the Court of Cassation conducted an investigation into whether the immovable property subject to the lawsuit was actually used and determined that the dwelling was not actually inhabited. Thereupon, the relevant chamber of the Court of Cassation ruled that the said immovable property, even if it had a family residence annotation in the land registry, could not be considered a family residence. As can be seen from this, the immovable property on which a family residence annotation is to be placed must be actually and continuously used.

Can the Sale of a House Without a Family Residence Annotation Be Annulled?

Even if a person is the owner, the ability to enter into a sale or promise-to-sell agreement concerning a house that qualifies as a family residence is contingent upon the spouse's consent. So, what happens if the family residence annotation has not been registered in the land registry? Here, the question of whether the rights of the third party involved in the transaction will be protected will arise. This issue is quite contentious in doctrine. The Court of Cassation's view on this matter has changed over time. It would be beneficial for you to consult a real estate lawyer specializing in this field.

Some scholars in doctrine argue that in the absence of a family residence annotation in the land registry, sales made to third parties without valid consent from the spouse are valid. Their rationale is that the third party involved in the transaction was unaware of the situation, could not have known, and therefore their good faith should be protected.

Other scholars in doctrine argue that such a sale would be invalid. The rationale of these scholars is that the legal provision does not explicitly state that good faith will be protected. Furthermore, another reason is that the legislator regulated this article with the aim of protecting the right to housing. The right to housing is a fundamental right directly protected by the Constitution. Therefore, the protection of a fundamental right takes precedence over the protection of the good faith of third parties. Otherwise, the spirit of the legal provision would be violated.

In its earlier decisions, the Court of Cassation chose to protect the third party involved in a sale transaction due to their good faith, and to validate the disposition transaction, even if the family residence annotation was not present in the land registry. Indeed, this situation is clearly seen in a 2006 decision of the Grand Chamber of Civil Cases of the Court of Cassation. In this way, the acquisition of real rights by a good-faith third party is protected. The Grand Chamber of Civil Cases of the Court of Cassation changed its opinion in a 2015 decision. Therefore, looking at the current situation, the Court of Cassation has ruled that the good faith of a third party transacting with the owner-spouse of a family residence will be protected even if there is no family residence annotation. As can be seen, the Court of Cassation no longer requires an annotation in the land registry for the protection of a family residence. If the immovable property in question is actually a family residence, it is under primary protection by law. This means that if a family residence is sold without the spouse's consent, the spouse can file a lawsuit for cancellation of the title deed and have the sale annulled.

Does a Family Residence Annotation Prevent Sale?

The presence of a family residence annotation in the title deed record of an immovable property does not prevent its sale. However, in this case, the person acquiring the immovable property is presumed to know that the property is used as a family residence. If such a sale is made without spousal consent, the spouse whose consent was not obtained will be able to file a lawsuit to cancel the title deed.

Can a Family Residence Be Seized?

If an enforcement proceeding has been initiated against you and you have not objected to the payment order, this enforcement proceeding will become final. Subsequently, the seizure of houses under your ownership will come into question. So, will the situation change if one of these houses is a family residence? The institution of family residence, protected by Article 194 of the TCC, does not create absolute immunity, and situations may arise where the rights of third parties are given precedence. Article 194 will come into play in cases of voluntary transfer by the spouse holding ownership. A seizure is an involuntary transfer transaction. Therefore, the seizure of a family residence is not prevented by this article. Indeed, the decisions of the Court of Cassation are in this direction. Here, a complaint by the other spouse is not possible. The debt is personal, and the ownership belongs to the debtor. Article 82 of the Enforcement and Bankruptcy Law mentions assets and rights that cannot be seized. The family residence has not found a place here. However, the debtor's modest dwelling is listed among the assets that cannot be seized. The house to be seized may both be a family residence and qualify as a modest dwelling. In this case, that house cannot be seized. However, this is not due to it being a family residence, and only the debtor spouse can assert this.

The situation where the debtor's spouse can file a complaint regarding the non-seizability of a family residence has also been subject to examination by the Constitutional Court. The aggrieved spouse wished to resort to legal action, but their lawsuit was procedurally dismissed due to lack of active legal standing. Thereupon, the citizen pursued an individual application to the Constitutional Court. In its examination, the Constitutional Court found that the rejection of the debtor's spouse's objection on the grounds of lacking active legal standing constituted a violation of the right to respect for family life.

Can a Family Residence Annotation Exist in Co-ownership?

Spouses may hold a family residence under co-ownership. Article 223 of the TCC stipulates that one spouse cannot dispose of their share in a co-owned residence without the consent of the other spouse. This situation will only find application if there is a regime of participation in acquired property between the spouses. However, Article 194 of the TCC, which regulates family residence, is regulated among general provisions. Therefore, it can be applied without being subject to such a limitation. Here, spouses will be able to request the registration of a family residence annotation on the co-owned property of the other spouse from the relevant land registry office. At this point, if one of the spouses engages in a legal transaction that transfers or creates a risk of transfer of the family residence, the provisions regarding family residence will apply identically to the other spouse. Furthermore, for transactions that do not require spousal consent, Article 223 of the TCC will find complementary application. For example, in the case of a lawsuit for the dissolution of co-ownership, the other spouse will have a right of pre-emption.

How Many Years is a Family Residence Annotation Valid For?

As a rule, a family residence annotation placed on an immovable property in the land registry remains valid throughout the marital union. For this reason, the family residence annotation will not lose its effect after a certain period. For the annotation to lose its effect, the marital union must terminate, or certain circumstances leading to its termination must occur during the marriage. The annotation will lose its effect if the marriage terminates due to circumstances such as divorce, death, a declaration of absence, or a decision of annulment of marriage. In summary, it is not possible to specify a fixed duration for the effect of the annotation.

What Happens to the Family Residence After Divorce?

We have stated that the family residence annotation ceases to exist upon the termination of the marriage. Divorce is also one of the circumstances leading to the termination of marriage. Therefore, we can state that with divorce, the dwelling loses its characteristic as a family residence. The spouse who holds the ownership right over the immovable property in question will be able to request the unilateral removal of the family residence annotation by submitting the final court decision to the relevant land registry office. In the event of death, the annotation will automatically lose its effect.

Apart from this, it is necessary to examine what happens in the event of annulment of marriage or during divorce proceedings. According to the established jurisprudence of the Court of Cassation, even if the parties request the removal of the family residence annotation during the lawsuit, this annotation cannot be removed. The reason for this is that it is uncertain whether a decision for divorce or annulment of marriage will be rendered. The condition of a final and conclusive decision is sought, taking into account the potential hardship to the parties. Otherwise, difficult or impossible to remedy adverse situations may arise.

How is a Family Residence Annotation Removed?

In addition to the termination of marriage, it is also possible to remove the family residence annotation from the land registry in the presence of certain circumstances during the continuation of the marriage. Here, the removal of the annotation will come into question in the presence of two situations. The first of these is the immovable property losing its characteristic as a family residence. Another situation is the acquisition of a new family residence. However, in the presence of these situations, it is not possible for the land registry official to remove the family residence annotation ex officio.

If such a cancellation is to be made, the owner-spouse will be able to directly request the cancellation of the annotation in the title deed from the relevant land registry office. However, here the owner-spouse must concretely prove and present their claim for the removal of the family residence annotation. Furthermore, if the annotation was placed as a result of the other spouse's request, this spouse will also be able to request the removal of the annotation. According to the view of some scholars in doctrine, a family residence annotation placed by a court decision must also be removed by a court decision. However, it should be stated that no such obligation is imposed by the legislation. You can ask us your questions about the family residence annotation topic below.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy