T.C.
JUDGMENT
GENERAL ASSEMBLY OF LAW
E. 2005/12-676
K. 2005/600
T. 26.10.2005
– FAMILY RESIDENCE (THE POWER OF DISPOSITION OVER IT IS RESTRICTED BY LAW – SINCE IT IS CLAIMED THAT THE COMPLAINANT SPOUSE STILL CONTINUES TO LIVE IN THIS PLACE WITH HIS CHILDREN, IT IS NECESSARY TO FOCUS ON THIS ALLEGATION OF THE COMPLAINANT)
– PRESENCE OF A THIRD PARTY IN THE IMMOVABLE PROPERTY (ONE OF THE SPOUSES RESIDES IN THE IMMOVABLE PROPERTY AGAINST AND SUBJECT TO THE OTHER, EVEN IF THE DIVORCE IS REALISED, HE/SHE IS NOT IN THE POSITION OF THE THIRD PERSON IN ACCORDANCE WITH THE PROVISION OF ARTICLE 276/LAST ARTICLE OF THE CODE OF PRACTICE -APPELLANT)
– EVICTION OF IMMOVABLE PROPERTIES SOLD OUT OF STATE (SINCE IT IS CLAIMED THAT THE HOUSE SUBJECT TO EVICTION IS USED AS A FAMILY RESIDENCE AND THE COMPLAINANT’S WIFE STILL CONTINUES TO LIVE IN THIS PLACE WITH HER CHILDREN, IT IS NECESSARY TO FOCUS ON THIS ALLEGATION OF THE COMPLAINANT)
– COMPLAINT (SINCE IT IS CLAIMED THAT THE HOUSE SUBJECT TO EVICTION IS USED AS A FAMILY RESIDENCE AND THE COMPLAINANT SPOUSE STILL CONTINUES TO LIVE IN THIS PLACE WITH HIS CHILDREN, IT IS NECESSARY TO FOCUS ON THIS ALLEGATION OF THE COMPLAINANT – EVICTION OF THE REAL ESTATE SOLD EXTERNALLY) 2004/M.276 4721/M.194
SUMMARY : In the case, the immovable property subject to the eviction request was purchased externally from the debtor of the proceeding by the creditor of the proceeding and was subject to an eviction commitment with the verbal agreements of the parties while the spouse and children were living in it. Since the proceeding initiated by the creditor based on this eviction commitment was not objected by the debtor and the proceeding was finalised, it is possible to apply Article 276/last of the Enforcement and Bankruptcy Law No. 2004.
As a rule, since one of the spouses resides in the immovable property against and subject to the other -even if the divorce takes place-, he/she is not in the third person position in accordance with Article 276/last of the EBL.
However, although this is the rule, since it is claimed that the house subject to eviction is used as a family residence and the complainant spouse still continues to live in this place with her children, this claim of the complainant should be emphasised.
Pursuant to Articles 194/1, 194/3 of the Turkish Civil Code No. 4721, the family dwelling has a special position and importance and the authority to dispose of it is restricted by law. If it is determined that the immovable property subject to the proceedings and eviction is a family residence, it should be investigated whether these legal requirements have been fulfilled.
LAWSUIT : At the end of the trial held due to the “complaint” case between the parties; Upon the request of Durdu, the counterparty/appellant, for the examination of the decision dated 29.01.2004 and numbered 2003/573-2004/60, which was given by (Ankara Tenth Execution Court) regarding the acceptance of the complaint, with the decision of the 12th Civil Chamber of the Court of Cassation dated 29.11.2004 and numbered 20444-24666;
( … As adopted in the ongoing jurisprudence of our Chamber, even if divorce occurs, one of the spouses cannot be considered as the third person against the lessor in accordance with the provision of Article 276 / last article of the BEC, since one of the spouses resides in the residence against and subject to the other. It is not correct for the enforcement court to decide to accept the complainant woman’s complaint for this reason. On the other hand, in the conditions of Article 194 of the Turkish Civil Code, which entered into force on 01.01.2002, it is also not correct to conclude with incomplete examination without examining whether the house is a family residence and whether the woman has become a party to the contract in accordance with the last paragraph of the said article… )
The case was reversed and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
After it was understood that the decision of the General Assembly of Civil Chambers was appealed in due time and the papers in the file were read, the necessity was discussed:
DECISION : A- Summary of the Complainant’s Request:
The complainant’s attorney dated 12.09. 2003 dated 12.09.2003; Ferit, the debris dealer of the shanty house in which his client is in possession and residing with his wife and two children, left the shanty house with his wife and two children, his client and his children have been living with the help of neighbours, the divorce case filed by the debtor against his wife Münevver, who was abandoned by the debtor, with the file numbered 1998/12 of the Ankara Fourteenth Civil Court of First Instance, has been rejected and the complainant has been living in the house requested to be evicted until the date of the lawsuit and is still in possession, Ferit did not even pay the alimony to his wife and children which was bound by the court, the eviction requestor first started proceedings in the files numbered 2001/20672 of Ankara Second Execution Directorate, numbered 2002/1833 of Ankara Second Execution Directorate, numbered 2002/6748 of Ankara Seventh Execution Directorate, but the proceedings in these files were cancelled, 56 sample eviction orders were sent for the fourth time in the file numbered 2003/2989 of Ankara Twenty-eighth Execution Directorate based on the document titled eviction commitment letter, the execution directorate gave the complainant until 15. 9.2003 to evacuate the squatter until 15.9.2003, since there is no tenancy relationship between the evacuation requestor and the evacuation commitment, the enforcement directorate stated that sending 56 sample evacuation orders by the enforcement directorate is contrary to the enforcement law and asked for a decision to cancel the proceedings initiated.
In his statement at the hearing dated 18.11.2003, the complainant’s attorney defended that the defendant’s defences were false and that his client did not receive any money.
B- Summary of the Response of the Other Party:
The counterparty/debtor Ferit attended the hearing on 18.11.2003 and in his statement; he defended that he himself received 1.500.000.000.000 TL and his wife (the complainant) received 1.500.000.000.000 TL and sold the place subject to the lawsuit to Durdu.
In his reply petition, Durdu, the counterparty/transaction creditor, stated that the shanty house, which is the subject of the lawsuit, was previously registered in the name of Şahin, but was purchased by Ferit on 20.05.1992 in the presence of the mukhtar and witnesses, and on 17.09.2001, it was purchased by Ferit in the presence of the mukhtar and witnesses. 2001, it was sold to him by Ferit with the approval of the mukhtar’s office, it has legally belonged to him since this date, the complainant and the other complainant Ferit divorced later, both of them married other people, the complainant lives at another address in the house of his newly married wife, He claimed that the situation could be determined by discovery if necessary, that the attorney wanted to take possession of the place he bought by showing his client as possessor and the complainant wanted to take possession of the place he bought by not leaving the house after the divorce, that he was a fuzuli şagil and that his complaint was not sincere, and that he should be evicted and the immovable property should be delivered to him as empty.
In his statement at the hearing, he defended that the two parties sold the property to him together and that he gave 3 billion money to Ferit and Münevver in the presence of witnesses.
C- Summary of the Local Court Decision:
Local Court
“The plaintiff’s lawsuit has been deemed appropriate, the plaintiff’s previous lawsuits filed by the plaintiff in different authorities have been deemed justified, the defendant party has pursued this time for the third time on the same grounds, and in fact the defendants Ferit and Durdu have issued this bill of sale in collusion, because the divorce of our plaintiff Münevver and Ferit was on 11.7.2003, this decision was finalised on 18. 7.2003, the deed of sale of the debris submitted by the defendant Durdu is dated 17.9.2001 and it is understood that it is only the defendant Ferit who sells the debris there, and that Münevver does not have a signature on the document stating that she received 1.500.000.000.000 TL, which is half of 3.000.000.000 TL, and that she is not a party, and in this case, the plaintiff’s lawsuit has been deemed appropriate and the following judgement has been reached with its acceptance”
On the grounds that; the court decided to accept the complaint and to cancel the execution proceeding.
D- Appeal Phase, Reversal and Resistance:
Upon the appeal of the counterparty / enforcement proceeding creditor Durdu, the Supreme Special Chamber
“… even if the divorce takes place, since one of the spouses resides in the apartment against and subject to the other, they cannot be considered as the third person against the lessor in accordance with the provision of Article 276 / last article of the BEC. It is not correct for the enforcement court to decide to accept the complainant woman’s complaint for this reason. On the other hand, in the conditions of Article 194 of the Turkish Civil Code, which entered into force on 01.01.2002, it is also not correct for the court to conclude with incomplete examination without examining whether the house is a family residence and whether the woman has become a party to the contract in accordance with the last paragraph of the said article…”
The court reversed the judgement on the grounds that it was reversed; and the court resisted the previous judgement.
The resisting judgement was appealed by the other party Durdu.
E- Justification:
The request is related to the complaint against the execution office.
The dispute that came before the General Assembly of Civil Chambers by way of resisting; the complainant wife, who lives with her children in the immovable property sold and subject to two eviction commitments by the man, one of the spouses who had a divorce case between them before the execution proceedings, what will be the legal position of the woman in the proceedings initiated against her husband by the buyer of the commitment and whether the court should investigate the nature of the immovable property as a family residence within the meaning of Article 194/1 of the Turkish Civil Code.
Firstly, it is useful to explain the characteristics of the concrete case;
In the immovable property subject to the eviction request and the complaint, the title deed allocation certificate was in the name of someone else and was purchased externally by the husband, the complainant woman and the counterparty / debtor husband and his children were previously residing, and due to the dispute between the husband and wife, the husband purchased this place externally and sold it to the judgement creditor on 17. 09.2001 dated 17.09.2001 dated Deed of Sale of Wreckage and gave evacuation commitments on different dates, although these commitments were subject to three separate enforcement proceedings, the enforcement proceedings were cancelled by the Enforcement Judges, and finally, it is understood from the scope of the file that the proceeding subject to the complaint at hand was initiated.
A divorce case was filed by the counterparty/debtor husband on 20.05.2003 against the complainant woman, who was residing with her children in the house requested to be evicted; while this case was continuing, an eviction commitment dated 09.07.2003 dated 01.08.2003 regarding the evacuation of the house was given to the counterparty/follow-up creditor who had previously sold the house externally from the husband on 01.08.2003, and the divorce case was concluded with acceptance on 11.07.2003.
Durdu, the counterparty/enforcement creditor who received the immovable property and the eviction commitment from the husband of the complainant woman, initiated proceedings against the counterparty/debtor husband on 05.08.2003 in the file numbered 2003/2989 of Ankara Twenty-eighth Execution Directorate against the counterparty/debtor husband based on the eviction commitment with the request of “seizure and eviction”; Ex.56 eviction order was sent to the debtor by the execution directorate.
The debtor, to whom the eviction order was served on 19.08.2003, did not object and the proceeding became final and the eviction was decided to be carried out with the decision of the directorate dated 10.09.2003.
The complainant spouse, who lives in the immovable property subject to the eviction order and who was informed about the proceeding on 11.09.2003 when the seizure was made, filed the present complaint and requested postponement of the execution and cancellation of the proceeding.
The complainant claims that the debtor spouse abandoned her and her children and that she resorted to this way to victimise them and that she and her children are the owners of the immovable property.
As explained, the immovable property subject to the eviction request was purchased externally by the enforcement creditor from the enforcement debtor and was subject to an eviction commitment with the verbal agreements of the parties while the spouse and children were living in it. The proceeding initiated by the creditor based on this eviction commitment was not objected by the debtor and the proceeding was finalised.
With the finalisation of the proceeding, the legal nature of the relationship between the parties to the proceeding and the results of the finalised proceeding became the subject of dispute.
Therefore, in the case subject to the complaint, there is the possibility of application of Article 276 / end of the Execution and Bankruptcy Law No. 2004 with the finalisation of the proceeding.
Here, it is not necessary to dwell on the relationship between the creditor and the debtor, but on the position of the complainant against them.
Article 276 of the Execution and Bankruptcy Law No. 2004 titled “If there is a third party in the leased real estate”;
“If a person other than the tenant is found in the place where eviction is requested and cannot show an official document that he is justified in occupation, he shall be evicted immediately.
However, if this person cannot show an official document, but declares that he has been occupying the place since a time before the date of the contract submitted to the office and this declaration is confirmed by the investigation to be made by the bailiff at the place, the officer postpones the eviction and notifies the review authority within three days.
The authority, after hearing the parties, orders eviction or decides that one of the parties must apply to the court within seven days. If an application is made to the court within this period, action shall be taken according to the outcome of the case. The provisions of Article 36 shall also apply here. The party who does not file a lawsuit shall be deemed to have waived its claim.
The debtor’s progeny and descendants, husband or wife, relatives by blood and marriage up to the second degree, business partners and other persons who are understood to reside in the dwelling house in relation to the debtor shall not be considered as third parties in the application of the provisions of this article.”
It contains the provision.
As it is seen, as a rule, since one of the spouses resides in the immovable property against and subject to the other – even if the divorce takes place – he/she is not in the third person position in accordance with the provision of Article 276/last of the EBL.
However, although this is the rule, since it is claimed that the residence subject to eviction is used as a “family residence” and the complainant spouse still continues to reside in this place with her children, this claim of the complainant should be emphasised.
Because, in Article 194/1 of the Turkish Civil Code No. 4721 titled “Family residence”;
“One of the spouses cannot terminate the lease agreement regarding the family dwelling, transfer the family dwelling or limit the rights on the family dwelling unless the other spouse has explicit consent”;
In the legal justification of this article
“With this article, in accordance with Article 169 of the Swiss Civil Code, an exception to the general rule accepted by Article 193 in the legal transactions of spouses is included. The Article provides an exception to the principle of freedom of spouses in legal transactions related to the family dwelling and thus, it is accepted that some legal transactions related to the family dwelling are subject to the consent of the other spouse.
The family residence is an area full of memories where the spouses carry out all their life activities, direct their lives accordingly, live bitter and sweet days in it. For this reason, the legal actions taken by the spouses alone in relation to such an important asset may affect the important interests of the other spouse. As a result, the article makes the termination of the lease agreement, the transfer of this dwelling to others or the full or partial limitation of the rights on the dwelling and other similar legal transactions dependent on the consent of the other spouse. The article stipulates that if one of the spouses rents the family dwelling, the other spouse becomes a party to the contract with a notification.
With the amendment made to the Swiss Civil Code by the Law dated 7 July 1998, this issue is regulated in three paragraphs in Article 121 on the “consequences of divorce”. However, in our country, the spouse who is not a party to the lease agreement may be victimised during the continuation of the marriage. For this reason, this provision is discussed under the provisions of marriage.
It is possible for the other spouse to withhold the consent authorisation granted to him/her by the law from his/her spouse without a justified reason, and to abuse his/her right in this way. In order to prevent this, the second paragraph of the article authorises the spouse who needs such consent to apply to the judge.”
This provision shows that “the family dwelling has been given a special position and importance and the authority to dispose of it has been restricted by law. If it is determined that the immovable property subject to the proceedings and eviction is a family residence, it will be necessary to investigate whether these legal requirements have been fulfilled.
Therefore, the court should firstly focus on this claim and investigate whether the complainant has a lawsuit filed for the determination that this place is a “family residence” and whether there is a determination made by the family court; according to the result, if necessary, the complainant should be given the authority and opportunity to file a lawsuit to the family court to prove that the immovable to be evicted is a family residence and a decision should be made accordingly.
The same principles were emphasised in the decision of the General Assembly of Civil Chambers dated 19.10.2005 and numbered 2005/12-652 main and 2005/583 decision.
The fact that the judgement was established with incomplete examination by ignoring the explained issues is contrary to the procedure and the law and requires reversal.
CONCLUSION : With the acceptance of the appeal objections of the counterparty/creditor’s attorney, it was unanimously decided on 26.10.2005 to return the pre-appeal fee if requested, in accordance with the reversal decision and Article 429 of the Code of Civil Procedure for the reasons shown above.
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