Family residence; it refers to the residence where the husband and wife, who are officially married, live together. The house where people live in unqualified uniones does not have this title. Without the intention of living continuously, the houses that the spouses do not regularly live together, such as the summer house or chalet they use in certain periods, cannot be considered as family residences. In the justification of the Turkish Civil Code, the definition of family housing was made as “a place full of memories where spouses carry out all life activities, guide their lives accordingly, live in bitter and sweet days”. Apart from the justification of the Civil Code, there is also a definition in the circular of the General Directorate of Land Registry and Cadastre regarding family housing on 11.06.2002 and numbered 2002/7, Turkish Civil Code No. 4721, and family housing is defined as “the place where spouses carry out all life activities and use them for regular settlement purposes” in article I/3 of the relevant circular.
Spouses have the right to live in more than one place. However, there is no more than one house that can be designated as a family residence. Family housing is, as a rule, the only residence and is protected by the marriage union process. In our law, it has provided a number of protections to the spouse who lives in the residence, which is designated as a family residence, but is not financial. One of these protections is the deed to the family residence. With the family housing provision to be made, the savings powers on the property are limited without the consent of the non-owner spouse, and when the “family housing provision” is placed after the application of the non-owner with the sherh; the spouse will no longer be able to make any savings on the deed.
The family residence is regulated in Article 194 of the Turkish Civil Code. In the regulation made in article 194 of the TMK; One spouse may not terminate the lease on the family residence, transfer the family residence or limit the rights to the family residence unless the other spouse has express consent. The requirement contained in the provision that binds the savings related to the family residence to the consent of the other spouse may only apply to transactions that depend on the will of the spouse who owns it. The contents of the concept of family housing and residence differ.
In article 12 of Article 82 of the Law on Non-foreclosure goods and rights of the Law on Enforcement and Bankruptcy, it is regulated that the house that is in accordance with the debtor’s state cannot be foreclosed. In the continuation of Article 82, if the value of the house is too high, it is foreseen that it can be sold to the borrower for the amount that can be taken from the price to the borrower. However, in the second paragraph of the article, it is stated that this exception is exclusive in the case that the debt does not arise from the price of this item. If the family residence is foreclosed due to the debt of the indebted owner,the spouse, that residence will also be covered by section 82 of the Bankruptcy Act. Article 12. If the debtor’s home is in accordance with the debtor’s position, the debtor and his family, in particular, will be able to provide protection for the other spouse, even if the aforementioned provision, which can be claimed as a claim of inability to foreclose by the borrower’s spouse, in other words, can be claimed as a residence. However, the source of the claim of non-foreclosure here is not that the property is a family residence, but that it is a debtor and a home that is in keeping with his family.
For this reason, it is possible to convert the property, which is a family residence, into foreclosure and money according to the provisions of the Executive and Bankruptcy Law and the consent of the other spouse is not required. That is the view of the Supreme Court;
Supreme Court 12. In the declaration of the Law Office no. 04.05.2006 T, E. 5829 K. 8852; “Article 194 of the Turkish Civil Code contains the provision that ‘One of the spouses cannot terminate the lease on the family residence, transfer the family residence or limit the rights to the family residence unless the other spouse has express consent’. This legal arrangement does not prevent the sale of the family residence as a result of an enforcement follow-up by the creditors due to the debt owed by the borrower who owns it in the land registry.”
1- Supreme Court 12. In the decision of the Law Office dated 17/12/2012 and numbered E.2019/4497, K.2019/7050;
“In accordance with paragraph 12 of Article 82 of the Law No. 2004, the debtor’s ‘state-of-the-way’ house cannot be foreclosed. Whether a residence is suitable for the debtor’s condition is determined according to the social situation of the named one at the time of foreclosure and the needs of the borrower and his family. The term ‘family’ here is broadly used to refer to the dependents who live under the same roof as the debtor. After the administrative court determines the price required for the borrower to provide the residence in accordance with the aforementioned housing, it should be decided to sell the confiscated place if it is more than that and the amount required for the residence, which has the qualifications above the sale price, should be left to the borrower, the rest should be paid to the beneficiaries.”
2- Supreme Court 12. In the decision of the Law Office dated 8/4/2006 and numbered E.2006/5585, K.2006/8228;
“Upon the finalization of the follow-up initiated by the creditor , the debtor’s property was foreclosed. The presence of family housing in the land registry of the aforementioned property does not prevent its foreclosure. Therefore, there is no legal way for the debtor to file a complaint of residence with a bet that the embarrassment is the family residence. While it is necessary to decide to dismiss the residence complaint of the debtor’s wife, who is not a party to the proceedings by the court, due to animosity, the examination of the merits of the matter and the acceptance of the complaint are inaccurate.”
Council of State 4. “When measures such as the characteristics of the building, the family structure of the borrower, the number of individuals residing in the residence, their social position and needs are evaluated together, it is decided that the only house that is determined to be in accordance with the debtor’s condition cannot be foreclosed due to tax debt,” the agency ruled.
As a matter of fact, in the Decision of the Constitutional Court dated 08.04.2020 and application number 2016/10454, he stated that the residence that is in line with the state in which the family lives cannot be foreclosed. In this decision, he emphasized the concept of “home that is in its state” in terms of foreclosure. The decision of the Constitutional Court; it is not a family housing-oriented decision. In this decision, the concept of a house that is in its state; It is stated that it should be interpreted with the assurances regarding the right to respect for family life stipulated in Articles 20 and 41 of the Constitution. Subsequently, it is stated that the concept of a suitable house should be understood in the form of housing suitable for the social and economic situation of not only the borrower but also the borrower and his family when the confiscated house is a family residence. In this decision, he argued that in the interpretation of the concept of suitable housing, not only the borrower, but also the form of housing suitable for the social and economic situation of the borrower and his family should be understood; it has been stated that the house necessary for the life of the family cannot be foreclosed.
Not every family residence has to be a home that is also the right home for the borrower. The nature of non-foreclosure is not dependent on the nature of the family residence. In terms of Supreme Court decisions, if the family residence is foreclosed due to the debt of the indebted owner wife, then that residence, at the same time, will be the first. In the sense of article 12 of Article 82, the debtor and his family will be able to provide protection for the other spouse, especially because of the aforementioned provision that can be claimed as a residence by the borrower’s spouse. However, the source of the claim of non-foreclosure here is not that the property is a family residence, but that it is the home that is indebted and in keeping with the family. Not every family residence has to be a home that is also the right home for the borrower. The nature of non-foreclosure is not dependent on the nature of the family residence. Therefore, it would be unlawful to say that every family residence is irrevocable.
To say that not every family residence can be foreclosed here would be a misconception and undermine trust in legal and commercial life. Because there’s another creditor we’re ignoring. Creditors must protect their rights.
Therefore, it is wrong to say that the family residence cannot be foreclosed in every case. In fact, the constitutional court says that if the debtor’s home is also a family residence, the non-indebted spouse can claim non-foreclosure. But even if the non-indebted spouse claims non-foreclosure if it is a luxury residence that exceeds the family residence, the sale of this house is still desirable, the borrower is given enough to live the minimum life and the rest is paid to the creditor.
