Summary:
According to Article 82/12 of the Turkish Enforcement and Bankruptcy Law, a debtor’s “suitable” dwelling cannot be seized. Whether a dwelling is suitable for the debtor’s circumstances is determined according to the debtor’s social status at the time of seizure and the needs of the debtor and their family. The term “family” here includes those living under the same roof as the debtor and those whom the debtor is obligated to support. The Enforcement Court should have the necessary cost for the debtor to acquire a suitable dwelling for themselves and their dependents determined by expert appraisers. If the value of the seized property exceeds this amount, the court should order its sale, and the amount necessary for the dwelling with the characteristics specified above should be left to the debtor from the sale proceeds, with the remainder paid to the creditor. Properties exceeding these criteria, and dwellings with rooms and halls exceeding reasonable dimensions and containing elements essential for habitation, are contrary to the purpose envisioned in the article. The debtor’s position and status do not require them to reside in a more opulent dwelling than those specified above.
Republic of Turkey
Supreme Court
8th Civil Chamber
Case No: 2013/13232
Decision No: 2014/1002
Date of Decision: 23.1.2014
Upon the defendant’s request for appellate review of the above-mentioned court decision within the prescribed time limit, the file related to this matter was sent from the local court to the Chamber. After hearing the report prepared by the Examining Judge and reviewing all the documents in the file, the matter was considered and deliberated upon:
DECISION
In the enforcement proceedings initiated by the creditor, the debtor claimed that his house, suitable to his circumstances, had been seized and requested the lifting of the seizure. The court accepted the complaint of non-seizability and decided to lift the seizure. The judgment was appealed by the creditor’s attorney.
Article 82/12 of the Enforcement and Bankruptcy Law… According to the relevant article, a debtor’s “suitable” dwelling cannot be seized. Whether a dwelling is suitable for the debtor’s circumstances is determined according to the debtor’s social status at the time of seizure and the needs of the debtor and their family. The term “family” here includes those living under the same roof as the debtor and those whom the debtor is obligated to support. After the Enforcement Court has the necessary amount for the debtor to acquire a suitable dwelling for themselves and those mentioned above determined by experts, if the value of the seized property exceeds this amount, it should be ordered to be sold, and the amount necessary for the dwelling with the characteristics specified above should be left to the debtor from the sale price, with the remainder paid to the creditor. Places exceeding these criteria in terms of quality and characteristics, and dwellings that do not include a reasonable number of rooms and a hall and contain the necessary elements for habitation, are contrary to the purpose envisioned in the article. The debtor’s position and status do not require them to reside in a more opulent dwelling than that specified above.
In the specific case, the Ödemiş Enforcement Court requested an expert assessment of the value of the property in question and a suitable dwelling for the debtor. The report, which formed the basis of the court’s decision, stated that the value of the dwelling in question, consisting of 3 rooms and 1 living room, was 75,000.00 TL. It also stated that 75,000.00 TL was the amount necessary for the debtor to acquire a more modest dwelling suitable for his circumstances, including his two children and mother, and that the dwelling in question was a suitable dwelling for the debtor. The court found this report sufficient and decided to accept the complaint and lift the attachment.
A social and economic status investigation, conducted by the court through the police, revealed that the debtor is a Bağ-Kur (self-employed) retiree with a pension of 620.00 TL, and that his mother, with whom he lives, receives a pension of 650.00 TL from her deceased husband.
Among the witnesses heard in court, Semiha Çavdır, the debtor’s mother, stated that houses in their neighborhood were worth approximately 40,000.00 TL. Considering these points together, it is deemed incorrect to rely on the expert report. Because it has been determined that the debtor’s mother, with whom he lives, receives a retirement pension, she is not obligated to support him. Furthermore, according to the mother’s testimony, the house in question, where the debtor lives, is worth approximately 40,000.00 TL, and similar houses in the area are also valued at this amount.
Therefore, the court must reassess the value of both the seized property and a smaller, more modest residence in a different neighborhood, keeping in mind that the primary objective in enforcement law is to ensure the creditor receives their due. If the value of the seized property is less than its actual value, the court should have ruled that the seized property be sold and the debtor be paid the necessary amount to purchase a suitable home, and that the sale price should not be less than the amount required for the debtor to purchase a suitable home. However, the judgment rendered in writing, based on an incomplete investigation and an inadequate report, is incorrect.
CONCLUSION: The appeal of the creditor’s representative is accepted, and the judgment is REVERSED for the reasons stated, in accordance with Article 366 of the Enforcement and Bankruptcy Law and Article 428 of the Code of Civil Procedure No. 1086, by way of Article 3 of the Provisional Provisions of the Code of Civil Procedure No. 6100. The parties may request a correction of the judgment within 10 days of the notification of the Supreme Court Chamber’s decision, in accordance with Articles 388/4 (Article 297/ç of the Code of Civil Procedure) and 366/3 of the Enforcement and Bankruptcy Law. The decision was made unanimously on January 23, 2014.