Family Home Annotation

Family Home Encumbrance – Lawyer in Izmir

A family home restriction is a restriction that prevents spouses from independently disposing of a property designated as the permanent residence of their family.

Turkish Civil Code’Article 19 of the Turkish Civil Code defines the location of the family home as "place of residence." Accordingly, a place of residence is the place where a family resides with the intention of staying permanently. Properties where spouses reside occasionally (such as summer houses or country houses) are not considered family homes. For a property to be considered a family home, a marital union must exist, and the spouses must reside in that property continuously. Therefore, properties inhabited by couples who are not legally married do not qualify as family homes.

Article 194 of the Turkish Civil Code provides for specific regulations and restrictions regarding the dwelling where the family resides. Article 194- Neither spouse may terminate a lease agreement concerning the family home, transfer ownership of the family home, or restrict rights over the family home without the explicit consent of the other spouse. A spouse who cannot obtain consent or is denied consent without a valid reason may request the intervention of a judge. The spouse who is not the owner of the immovable property designated as the family home may request the land registry office to add the necessary annotation regarding the residence to the land register. If the family home is provided by one spouse through a rental agreement, the spouse who is not a party to the contract becomes a party to the contract by notifying the landlord, and the notifying spouse becomes jointly and severally liable with the other spouse.

When renting a property registered as a family home in the land registry, the crucial point to consider is having the registration removed or obtaining the consent of both spouses. Any transaction made on a family home without the consent of one spouse is invalid. The spouse whose consent was not obtained can file a lawsuit for the annulment of the transaction. In this context, according to Article 194 of the Turkish Civil Code, if one spouse terminates a lease agreement concerning the family home without the explicit consent of the other spouse, a lawsuit for a declaration of invalidity can be filed. If the family home is transferred, a lawsuit for the annulment and registration of the title deed registered in the name of a third party and its registration in the name of the spouse who is the owner can be filed. If the rights over the family home are restricted, a lawsuit for the annulment of these restrictions can be filed.

As seen in the article:

• Neither spouse can terminate a lease agreement concerning the family home without the explicit consent of the other spouse.
• Even if someone owns the title deed to a family home, they cannot sell the property or restrict any rights to it.
• If a spouse is not the owner of a property designated as a family home, they may have a note registered in the land registry indicating that the property is a family home.

With this annotation, the spouse who owns the immovable property cannot sell or transfer the family home, enter into a lease agreement, or establish any rights over the family home without the consent of the spouse who is not listed as the owner in the title deed. This regulation restricts the property rights of the owning spouse. On the other hand, if the spouse does not consent without a valid reason, the owning spouse can request the intervention of a judge for the transaction. To benefit from the rights over the immovable property, there must be a family home annotation in the title deed. Otherwise, if the buyer is acting in good faith, the sale will be valid.

How to Add a Family Home Annotation?

A person who wants to have a family home annotation added to the title deed of a property that is a family home:

• Petition requesting the placement of a family home annotation.,
• A population registration certificate showing that the person is married to the property owner.,
• Marriage certificate,
• A document to be obtained from the local headman's office stating that the property for which the request is being made is a family home.,
• Residence certificate,
• Original and photocopy of identity card.,

After preparing all these documents, to avoid any risks, we recommend contacting the land registry office you will be visiting and inquiring whether any additional information or documents are needed for the process. The land registry office will be informed that the property is a family home and that this fact should be recorded in the land registry. The land registry director will then process the request and add the entry "Family home" to the annotations section of the property's title deed.

How to Remove Family Home Annotation?

The protection of the family home will continue throughout the marriage. During this period, this protection will not be affected by the choice of property regime. Family home protection will end upon the dissolution of the marriage (divorce, death, separation). In case of divorce, if there is no agreement between the parties, the statutory property regime will take its place. If the family home is rented, the judge will decide which spouse will reside in the family home based on socio-economic status. The annotation will be removed according to the judgment resulting from the divorce case. If there is no explicit provision for its removal, the request for removal of the annotation will be rejected by the land registry office.

In the event of death, the surviving spouse's rights are inheritance and participation in the family home. If the surviving spouse has sufficient inheritance and participation rights, they can request that these rights be offset and that they be granted ownership rights over the family home. They can also request usufruct and habitation rights, after offsetting any outstanding claims. The family home annotation can also be removed if the spouses move out. Both spouses must apply for this. If the spouses do not remove the annotation after moving out, the rights holders have the right to file a lawsuit for its removal.

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