The family residence appears in various aspects of our law. Recently, it has frequently come up due to disputes arising from rental agreements, but it has gained significant visibility in family law and has also found a place in inheritance law and enforcement law. In our legal system, it was introduced with the enactment of the Turkish Civil Code in 2002. This article will examine what constitutes a family residence, how to register it as such, the management of the family residence, the tenant’s right to register the family residence, and other related topics.
What is a Family Residence?
The law does not provide a specific definition for a family residence. However, the justification for Article 194 of the Turkish Civil Code describes a family residence as:
“A family residence is an area where the spouses carry out all their life activities, direct their lives accordingly, experience both happy and sad days, and is full of memories.”
The Court of Cassation defines a family residence as follows:
“A place where spouses conduct all their life activities, experience happy and sad days, and intensify their life activities.”
(Court of Cassation, 2nd Civil Chamber, 2005/16473 E., 2006/799 K.)
“A legal institution that ensures both parties’ right to live in the same residence, allocated for the continuation of their joint lives.”
(Court of Cassation, 4th Criminal Chamber, 2007/213 E., 2009/5127 K.)
From the Court of Cassation’s rulings and the law’s justification, the family residence can be summarized as a place where individuals continuously reside and carry out their life activities throughout the marriage.
Conditions for a Family Residence
Due to its special status, not every residence can be classified as a family residence. Certain conditions must be met for a place to be recognized as a family residence:
There must be a legally valid marriage between the individuals. The concept of a family residence provides legal protection for married couples. It does not apply to engagements or other types of relationships.
Only one residence can be the family residence. It is not possible for multiple properties where the couple lives at different times to all be considered family residences. In other words, there can only be one family residence. Secondary properties such as summer homes, hunting lodges, or winter homes cannot be family residences.
The residence must be the main center of living activities. This means the primary location where the majority of life activities occur. Temporary and short-term places like vacation homes or locations visited for short work periods do not qualify as family residences.
Ownership is not required for a family residence. The property can be owned, rented, or held under any other legal title such as usufruct or habitation. The essential element is that it is a place where the family’s joint life is established.
How to Register a Family Residence?
A family residence can be registered at the Land Registry and Cadastre Directorates or through the e-government portal. The necessary documents are as follows:
Application petition for family residence annotation
Marriage certificate
Turkish Republic ID card
Detailed population register
Passport photo
Family Residence Certificate from the local headman
Through the e-government portal (https://webtapu.tkgm.gov.tr/), an online appointment can be made for the application. However, signing must be done at the relevant Land Registry and Cadastre Directorate. After submitting your application, the documents will be reviewed by the institution, and you will be contacted if they are complete.
If the Land Registry Directorates reject your application, you can file a lawsuit to request the annotation of the family residence. There is no need to apply to the directorate before filing a lawsuit; you can directly file a lawsuit to request the annotation.
Tenant's Right to Register the Family Residence
As mentioned earlier, ownership is not a requirement for a family residence. Therefore, a tenant or their spouse can claim that the rented property is a family residence, making them a party to the rental agreement. By notifying the landlord, the rented property gains the status of a family residence, and both spouses become responsible for the obligations arising from the rental relationship. However, even if the rented property has the status of a family residence, it cannot be annotated in the land registry. Annotation is only applicable if one of the spouses owns the property.
For the status of a family residence to be legally recognized, annotation in the land registry is not required. The annotation is merely declaratory. In other words, a property does not become a family residence because it is annotated; it is annotated because it is a family residence. Even if annotated, if it does not have the characteristics of a family residence, legal proceedings can be initiated to determine this and remove the annotation from the registry.
After the declaration that the rented property is a family residence, the spouses cannot unilaterally waive their rights arising from the rental agreement, make changes to the agreement, or terminate the agreement. All transactions will require the consent of the other spouse.
Divorce Proceedings and Family Residence
The status of the family residence ends when a divorce is finalized. However, even if a divorce case is filed, the status of the family residence continues until the final decision. If the parties live in the property under a rental agreement and have not yet notified the landlord that it is a family residence, they can still gain the status of a family residence by notifying the landlord until the final decision in the case.
When the marriage ends in divorce, the use of the residence can be decided by the parties or by seeking the court’s intervention. The judge may decide that one of the parties will continue to use the residence. In some cases, the judge may allow the non-contractual spouse to use the residence, effectively amending the rental agreement.
Sale of Property with a Family Residence Annotation
A property with a family residence annotation can still be sold. However, due to the annotation in the land registry, the sale requires the consent of the spouse. If the property is sold despite the annotation, the spouse who did not consent can file a lawsuit for annulment and re-registration of the title deed.
However, many properties used as family residences do not have an annotation, making the sale possible. Yet, the non-consenting spouse can still file a lawsuit for annulment and re-registration of the title deed, claiming they were unaware of the sale. The court will then determine if the property meets the conditions of a family residence. If it is found to be a family residence, the sale will be annulled, and the family residence annotation will be registered.
Family Residence and Enforcement
An annotation of a family residence in the land registry does not prevent the forced sale of the property through enforcement proceedings. Even if there is an annotation, the property can be subject to seizure and sale due to the owner’s debts. The annotation alone cannot prevent these transactions.
However, due to the annotation, the spouse must be notified of the enforcement proceedings, and the notice must be served on the spouse. If the property is sold through enforcement without notifying the spouse, the auction can be annulled, and the process may have to start over. Therefore, the annotation does not prevent transactions but requires notification of the spouse, failing which legal actions like annulment of the auction and title deed re-registration can arise.
Family Residence and Eviction Undertaking
An eviction undertaking is a document signed by the tenant promising to vacate the rented property by a certain date. This document has enforceability and terminates the rental relationship. If the rented property is a family residence and this has been declared to the landlord, the eviction undertaking must be signed by both spouses. In other words, if it has been declared as a family residence, both spouses' consent is required for the termination of the agreement, and the eviction undertaking given by one spouse requires the consent of the other.
If the declaration of the family residence status is not made until the eviction undertaking is enforced, the eviction can proceed without the other spouse's signature or consent. However, if it was declared during the establishment of the rental relationship that the property would be a family residence, then no further declaration is needed, and the property is considered a family residence without additional declaration by the other spouse.
When giving consent for the termination of the agreement, the other spouse can provide their consent either before the termination notice or by approving it afterward. This consent must be explicit. General statements like “I consent to all transactions in the agreement” do not meet the requirement for explicit consent.
Court of Cassation Rulings
Summer homes are not family residences.
“...a summer home is acquired to meet the family’s vacation needs and does not have the continuity characteristic of a family residence.”
(Court of Cassation, 2nd Civil Chamber, 2003/3071 E., 2003/4352 K.)
Places where spouses do not reside together are not family residences.
“…Before their separation, the parties lived together in Ereğli. Their family residence is also in Ereğli. The house in question is in Konya, and since the parties did not live together in this house, it cannot be considered a family residence.”
(Court of Cassation, 2nd Civil Chamber, 2003/7164 E., 2003/8034 K.)
There is only one family residence.
“The family residence is a place where the spouses carry out all their life activities, experience happy and sad days, and intensify their life activities. There is only one family residence.”
(Court of Cassation, 2nd Civil Chamber, 2005/16473 E., 2006/799 K.)
A spouse cannot unilaterally terminate the agreement of a property that is a family residence.
“Article 194/1 of the Turkish Civil Code stipulates that a spouse cannot terminate the rental agreement related to the family residence, transfer the family residence, or restrict rights on the family residence without the explicit consent of the other spouse. This provision links the legal transaction freedom of the spouse appearing as the owner in the Land Registry to the participation and consent of the other spouse. The aim is to protect the family residence and related legal rights.”
(Court of Cassation, 2nd Civil Chamber, 2005/2547 E., 2005/7234 K.)
A spouse cannot unilaterally terminate the agreement of a property that is a family residence.
“Article 194 of the Turkish Civil Code explicitly states that a spouse cannot terminate the rental agreement related to the family residence, transfer the family residence, or restrict rights on the family residence without the explicit consent of the other spouse. This legal provision does not prevent the sale of the family residence in enforcement proceedings due to the debts of the spouse appearing as the owner in the Land Registry.”
(Court of Cassation, 12th Civil Chamber, 2009/21405 E., 2010/3267 K.)
The place where the parties lived together before separation is the family residence.
“…According to the proceedings and collected evidence, before the defendant husband left the house, the parties lived together in the property in question. After the defendant husband left, the plaintiff wife continued to live there with her son. Given this situation, it must be acknowledged that the property in question retains the status of a family residence.”
(Court of Cassation, 2nd Civil Chamber, 2015/26285 E., 2016/5033 K.)
If there are multiple independent sections, the location of the family residence must be determined.
“…The parties are still married, and the property in question, plot number 5297/5, is registered as land in the defendant's name in the land registry. It is confirmed by the case file that one floor of the two-story building on it is used as the family residence by the plaintiff and the children, while the other floor is rented. An on-site inspection must be conducted to determine the section used as the family residence, and the annotation should be placed limited to this section. The decision to place an annotation on the entire property without doing this is incorrect, and the ruling must be annulled.”
(Court of Cassation, 2nd Civil Chamber, 2009/15269 E., 2010/4734 K.)
Filing for divorce does not remove the family residence status of the common residence.
“With the filing of a divorce case, the residence where the parties lived together does not lose its status as a family residence.”
(Court of Cassation General Assembly, 2010/2-343 E., 2010/361 K.)
The family residence annotation does not prevent sale through enforcement.
“The provision in Article 194/1 of the Turkish Civil Code stating that the family residence cannot be transferred without the explicit consent of the other spouse only applies to voluntary transactions. Transfers through enforcement proceedings are not subject to this provision.”
(Court of Cassation, 2nd Civil Chamber, 2008/19669 E., 2010/1150 K.)
The fact that a property is registered as farmland does not prevent the placement of a family residence annotation.
“…The fact that the property is registered as farmland in the land registry does not prevent the placement of a family residence annotation. The court should limit the annotation to the portion used as a family residence based on an on-site inspection. The ruling must be annulled for failing to do so.”
(Court of Cassation, 2nd Civil Chamber, 2009/15766 E., 2009/2092 K.)
The spouse has become a party to the agreement for the property that is a family residence.
“In the specific case, it is observed that the spouse of the debtor notified the creditor that the property is a family residence, making the spouse a party to the agreement. The complainant, by law, becomes a party to the rental agreement as a tenant, and since the demand for eviction is an indivisible obligation, there is a mandatory joint follow-up among the tenants. The court should have given the creditor time to include the complainant as a debtor in the follow-up. If this was done, the complaint should have been rejected; otherwise, the complaint should have been accepted due to the lack of follow-up among all mandatory joint debtors.”
(Court of Cassation, 12th Civil Chamber, 2016/12341 E., 2017/3837 K.)
Consent must be explicit.
“Since the law speaks of ‘explicit consent,’ implied consent or consent inferred from certain behaviors that suggest approval of the transaction does not make the transaction valid.”
(Court of Cassation, 2nd Civil Chamber, 2010/21566 E, 2011/11368 K.)
A family residence annotation not based on joint intent is removed.
“…Based on the defendant's unilateral declaration, an annotation of ‘family residence’ was placed on the property in Kuşadası by the land registry office. The property was acquired as a ‘summer residence’ and used for that purpose. Before their separation, the parties lived in a house in Söke owned by the plaintiff (husband) and designated it as a family residence with their joint intent. Given the findings and the evidence, the property in Kuşadası should not be considered a family residence, and the annotation should be removed. The court’s decision to reject the request on unlawful grounds is incorrect.”
(Court of Cassation, 2nd Civil Chamber, 2011/20323 E., 2012/18869 K.)
Frequently Asked Questions
Can there be more than one family residence?
Due to its nature, the family residence is the place where the spouses continue their joint life, so there can only be one, not multiple.
Can a tenant make the rented property a family residence?
Yes, a family residence is the place where married individuals continuously reside and carry out their life activities, and since ownership is not a requirement, a rented property can be a family residence.
How long is the family residence protection valid?
The protection of the family residence continues as long as the marriage persists or until the parties move to another residence during the marriage.
How can a tenant declare the intention for a family residence?
The tenant’s spouse can declare the intention for a family residence by signing the lease agreement during its establishment or by sending a notice to the landlord through a notary later on.
Does a rented house become a family residence after marriage?
Yes, if the married couple continues to reside in the same house after marriage and notifies the landlord that it is being used as a family residence, they can benefit from family residence protections.
Is a vacating notice valid if given without my consent?
This depends. If the landlord knows that the property is a family residence, the notice is invalid. If the landlord does not know and is not expected to know, and no declaration was made, the notice is valid.
What can I do if my spouse sold our house without informing me and it was not annotated as a family residence?
You can file a lawsuit for the annulment and re-registration of the title deed. The family residence annotation is declaratory. If the buyer knew or should have known that the property was a family residence, the lack of annotation does not matter, and the sale can be annulled. Otherwise, if the annotation was absent, the buyer is considered in good faith, and the sale cannot be annulled.
Can we reclaim the house if my spouse sold it after filing for divorce without informing me?
As long as the marriage continues until the finalization of the divorce, the status of the family residence remains. Depending on the annotation status and the good faith of the buyer, a lawsuit for annulment and re-registration of the title deed may be possible.
Can a tenant annotate a family residence?
No, a tenant cannot annotate a family residence in the land registry. The tenant only has the right to declare the use of the property as a family residence by notifying the landlord.
Can a house with a family residence annotation be sold?
Yes, it can be sold. However, the spouse's consent is required for the sale to be valid and not subject to annulment.
Is there a fee for annotating a family residence?
No, there is no fee for annotating a family residence. The annotation of a family residence is exempt from all fees and costs.
Can a family residence be rented out?
Yes, it can be rented out with the spouse's consent. However, renting it out terminates the status of the family residence.
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