Aile Konutu Üzerinde Tesis Edilebilecek Hukuki İşlemler ve Aile Konutu Şerhi

Abstract

The concept of family home was first included in Turkish Law with the Article 194 of Turkish Civil Code numbered 4721 (TCC) which is based on the principle of equality of spouses. Actually, aforesaid Article 194 related to family home is one of the exceptions of the Article 193 which accepts in principle the spouses’ freedom of legal transaction that is a point on which the Code numbered 4721 differentiates from the former code. Indeed, there are exceptions, as required by the principle of family protection, to the main rule which regulates that the each spouses may enter into legal transactions with the other or with third parties unless the law provides otherwise. One of these exceptions is the provision under Article 194 related to family home.

In order not to leave the housing right of the other spouse and children, if any, to the mercy of the spouse who seems as the right holder over the family home, the law-maker provides with the Article 194/1 of the TCC that without the consent of the other spouse, the family home cannot be transferred, the tenancy agreement concerning the family home cannot be terminated and the rights over the family home cannot be restricted. Second paragraph of the same Article provides that the spouse who seems as the right holder over the family home may seek judicial interference if the consent of the other spouse cannot be obtained or the other spouse refuses to give consent without good cause. Pursuant to the relevant provisions, it is clear that certain legal transactions established without the consent of the other spouse will not be valid. The legal description of the restrictions provided by the Article 194/1 of TCC is controversial.

Under the Article 194/3 of the TCC, it is stated that the spouse who is not registered as the owner at the land registration may request from the directorate of land registry to include family home annotation at the land registration page of the family home which belongs to the other spouse. The source Swiss Civil Code includes a similar provision. The function of the family home annotation provided by the aforesaid provision constitutes a doctrinal matter of debate. Particularly, there is a controversy at the issue whether the bona fide third person’s acquisition of a real right, who has a legal transaction with the spouse registered as the owner of the family home, will be protected or not in the case that there is no family home annotation at the land registration. The majority opinion properly adopted in literature is that the bona fide third person who has a legal transaction with the spouse registered as the owner of the family home cannot acquire real right even if there is no family home annotation at the land registration.