Article 194 of the Turkish Civil Code No. 4721, titled “II. Family Residence,” is as follows:
“Article 194- Unless the other spouse provides explicit consent, one of the spouses cannot terminate the lease agreement regarding the family residence, transfer the family residence, or restrict the rights over the family residence.
The spouse who cannot obtain consent or from whom consent is withheld without a justified reason may request the intervention of the judge.
The spouse who is not the owner of the real property allocated as the family residence may request the land registry directorate to issue the necessary annotation regarding the residence in the land registry.
If the family residence is provided through a lease by one of the spouses, the spouse who is not a party to the contract becomes a party to the contract upon notification to the lessor and shall be jointly and severally liable with the other spouse.”
In a case subject to a lawsuit, the Court of Cassation held the opinion that the transfer of the family residence by the owner spouse and the restriction of rights over the residence are subject to the explicit consent of the other spouse (TCC Art. 194). A dispositive transaction regarding the residence made without this consent is invalid. The spouse whose consent is required may assert this invalidity during the continuation of the marriage union, provided that the residence maintains this status. If the marriage has ended due to death, divorce, or annulment, the protection provided by Article 194 of the Turkish Civil Code to the “family residence” also ends, and the dispositive transaction made without the other spouse’s consent gains validity from the moment it was made.
T.C. COURT OF CASSATION 2nd CIVIL CHAMBER
Basis No: 2016/10514 Decision No: 2016/13563 Date: 05.10.2016 “CASE PRECEDENT”
SUBJECT: Removal of mortgage and issuance of family residence annotation.
DECISION: The lawsuit concerns the request for the removal of the mortgage placed on the family residence in favor of the defendant bank without the consent of the other spouse, and the issuance of a family residence annotation on the title deed of the property (TCC Art. 194).
The protection provided to the “family residence” ends if the marriage terminates due to death, divorce, or annulment. The owner spouse [Name] died on 18.04.2013 during the proceedings. Since the marriage ended by death, the property in question has lost its status as a family residence. Considering this matter, a decision of “non-suit” (karar verilmesine yer olmadığı) should have been rendered regarding the lawsuit that became moot. Therefore, the decision to remove the mortgage and issue an annotation was incorrect and required a REVERSAL.
DISSENTING OPINION (SUMMARY): The dissenting judge argues that the legal consequences of the termination of marriage by death differ from divorce. Under TCC Articles 240 and 652, the surviving spouse has rights (such as usufruct or right of habitation) to maintain their former lifestyle. Therefore, the protection of the family residence does not end with death. Since the mortgage was established without explicit consent during the marriage, it is void. This invalidity does not become valid upon the death of the spouse who made the transaction. Thus, the legal interest of the surviving spouse in returning the property to the estate without a mortgage continues.