NOTE: To file a residence complaint, the debtor does not have to personally occupy the residence registered in their name, and even renting it out does not preclude such a request.
TRNC
COURT OF APPEALS
8TH CIVIL DIVISION
E. 2015/16312
K. 2017/15346
D. 15.11.2017
At the end of the hearing in the case discussed above, the Court ruled to dismiss the case. Upon the appeal of the judgment by the plaintiff’s attorney, the Chamber reviewed the case and considered its merits.
DECISION: The debtor’s attorney declared that the seized property was the debtor’s residence, appropriate to his situation, and requested that the seizure be lifted pursuant to Article 82/12 of the Enforcement and Bankruptcy Code.
The court dismissed the complaint on the grounds that the debtor’s daughter, …., was living as a tenant in the disputed property, and therefore, the debtor’s claim of residence did not fall within the scope of Article 82/1-12 of the Enforcement and Bankruptcy Code. The debtor’s attorney appealed the decision.
According to Article 82/12 of the Enforcement and Bankruptcy Code, the debtor’s “suitable” home cannot be seized. Whether a home is suitable for the debtor’s situation is determined based on the social status of the person concerned at the time of the seizure and the needs of the debtor and their family. The term “family” here includes the debtor’s dependents living under the same roof. After the Enforcement Court has had experts determine the cost required for the debtor to provide a suitable home for their needs, which is necessary for their accommodation, if the value of the seized property exceeds this value, it must be sold. The amount of the sale price required for the residence specified above must be paid to the debtor, and the remainder must be retained in the enforcement file. Places exceeding these criteria, including rooms and halls exceeding reasonable dimensions and containing essential elements for residence, outside of a dwelling, are contrary to the purpose envisioned in the article. Housing prices in the most modest neighborhoods should be taken into account when making the assessment.
In this particular case, the Court rejected the debtor’s non-seizable complaint due to the presence of a tenant on the property. Pursuant to Article 82/12 of the Enforcement and Bankruptcy Code (EBL), it is not necessary for the debtor to personally occupy the dwelling registered in their name in order to file a residence complaint, and even renting it out does not preclude them from making this request.
In this case, in light of the principles explained above, the Court’s decision to reject the complaint based on written justification, when the merits of the matter should have been examined, is inappropriate. RESULT: It was unanimously decided on 15.11.2017 that the appeal of the debtor’s attorney was accepted and the Court’s decision was REVERSED for the reason explained above, pursuant to Article 428 of the Civil Procedure Code No. 1086, by referring to Article 366 of the Enforcement and Bankruptcy Code No. 6100 and Temporary Article 3, that the parties may request a correction of the decision against the decision within 10 days from the notification of the Supreme Court of Appeals Chamber decision in accordance with Article 366/3 of the Enforcement and Bankruptcy Code, and that the advance fee, if requested, be returned to the appellant.