A Transaction Performed Without The Spouse’s Express Consent Is Invalid Even Without A Family Housing Restriction
T.C.
COURT OF CASSATION
2nd CIVIL CHAMBER
CASE NO: 2016/6764
DECISION NO: 2017/6194
DATE OF DECISION: 05/25/2017
>> EVEN IF THERE IS NO FAMILY RESIDENCE NOTATION, ANY TRANSACTION CONDUCTED WITHOUT THE EXPRESS CONSENT OF THE SPOUSE IS INVALID
CASE: After hearing the case between the parties, the local court issued the above-mentioned ruling, which was appealed by the defendants. The documents were reviewed and the matter was discussed and considered:
The case concerns the request for cancellation of the title deed registration and the family residence annotation.
The plaintiff, who is not the owner, claims that the immovable property is a family residence and that the immovable property, which is a family residence, was registered in the name of the defendant without the “express consent” of the defendant, who is the owner, and has requested and filed a lawsuit for the cancellation of the title deed registration in the name of the defendant and for a family residence annotation to be made in the title deed registration.
The defendant… argued that there was no annotation in the title deed of the property in question stating that it was a family residence and that he acted in good faith, requesting that the case be dismissed.
The General Assembly of the Court of Appeals has adopted a new practice in “similar cases,” the reasoning for which is reproduced below in its entirety from case number 2013/2-2056, decision number 2015/1201, and the decision dated April 15, 2015. The new practice of the General Assembly of the Court of Appeals, which has also been adopted by our Chamber in similar cases, is fully endorsed by our Chamber in all precedent cases.
As clearly stated in the local court’s reasoning for resistance in the precedent decision of the General Assembly of the Court of Appeals, the limitation on the legal capacity of spouses under Article 194 of the Turkish Civil Code is not subject to the condition of placing or not placing a lien on the family home, nor does the good faith of the third party involved in the transaction have any significance.
According to Article 194/1 of the Turkish Civil Code No. 4721, “One spouse may not terminate the lease agreement for the family home, transfer the family home, or limit the rights over the family home without the express consent of the other spouse. This provision limits the legal capacity of spouses over the family residence where they live together, even if the family residence annotation has not been made. The limitation is imposed not because the family residence annotation has been made, but because it already exists. Therefore, even if the family residence annotation is not made in the land registry, that residence retains its status as a family residence. This is because the immovable property in question is a family residence even if no annotation is made. In other words, it is not a family residence because an annotation is made, but rather an annotation can be made because it is a family residence. Therefore, when a family residence annotation is made, the annotation made is not a “constitutive” annotation but an explanatory annotation.
The restriction introduced by the provision of the aforementioned article is “mandatory” in nature. Therefore, this right cannot be waived in advance, nor can it be eliminated by agreement between the spouses, and express consent can only be given for a “specific” transaction.
Although Article 193 of the Turkish Civil Code grants spouses freedom in their legal transactions with each other and third parties, Article 194 of the Turkish Civil Code introduces the rule that certain legal transactions of spouses relating to the family home are subject to the consent of the other spouse, thereby limiting the spouses’ freedom of legal transaction for the purpose of “protecting the family unit.” Accordingly, one spouse cannot terminate a lease agreement concerning the family home, transfer the family home, or limit the rights over the family home “without the express consent” of the other spouse. Based on this provision, the spouse who owns the family home cannot “unilaterally” impose a real right restriction, such as mortgaging the family home, in a manner that would make life in the family home difficult. This restriction can only be imposed “with the express consent of the other spouse.”
Article 194 of the Turkish Civil Code does not stipulate a specific form for the consent of the authorized spouse. Therefore, such consent may be given without any specific form, even verbally. However, as can be understood from the wording of the article, the consent must be “explicit.”
(Mustafa Alper GÜMÜŞ. New Provisions Introduced by the Turkish Civil Code; Vedat Kitapçılık, … 2007. Second reprint of the first edition, pp. 41-42).
In the specific case, the immovable property is the family residence, and the defendant spouse transferred the family residence in question to the defendants… During this transaction, the defendant spouse did not obtain the explicit consent of the plaintiff spouse.
Within the framework of the rules explained above, it is impossible to accept that a transaction carried out without the “explicit consent” of the spouse is “valid,” as clearly stated by the General Assembly of the Court of Appeals. In other words, it is imperative to accept that a transaction carried out without the spouse’s “express consent” is “invalid.”
Given this situation, the court should have evaluated the case in accordance with the legal regulations and principles adopted by the General Assembly of the Court of Appeals, as explained above, and decided to accept the case. Therefore, the written decision to dismiss the case is contrary to procedure and law and must be overturned.
CONCLUSION: The appealed judgment is REVERSED for the reasons stated above, the appeal fee shall be refunded to the payer upon request, and the right to appeal this decision within 15 days of its notification is reserved, with the decision made unanimously.
T.C.
COURT OF CASSATION
GENERAL ASSEMBLY OF CIVIL LAW
CASE NO. 2013/2-2056
DECISION NO. 2015/1201
DATE OF DECISION: 15.04.2015
>Whether or not there is a family residence annotation in the land registry, if other residences are transferred without the consent of the spouse or if a mortgage is placed on the residence, all these transactions are considered invalid due to the lack of the other spouse’s “explicit” consent.
Case and Decision: Following the trial concerning the “removal of the mortgage” between the parties, the decision dated 27.07.2011 and numbered 2011/29 E. 2011/964 K., issued by the Küçükçekmece 2nd Family Court, accepting the case, was reviewed at the request of the defendant T.V. Bank T.A.O.
“… There is no dispute that a mortgage was established on November 30, 2007, on the immovable property registered in the name of the defendant V…., who is the spouse of the plaintiff, and used as the family residence, to serve as collateral for the loan used by the non-litigant A…. Machine and Paint Industry Limited Company. The plaintiff and the defendant spouse M…’s joint children, M… and S…, are also among the partners of the company not involved in the lawsuit. M… and S… live in the property in question with the plaintiff and the defendant M…. Given that the mortgage was established to secure the loan used by the joint children living under the same roof as the plaintiff and defendant spouses, it would be contrary to the normal course of life for the plaintiff, who is the mother of M… and S…, to be unaware of the mortgage. Everyone must comply with the rules of good faith when exercising their rights and fulfilling their obligations. The legal system does not protect the manifest abuse of a right (TMK.md.2). The plaintiff cannot benefit from the protection provided by Article 194 of the Turkish Civil Code. While the case should have been dismissed, its acceptance with a written justification is not considered correct…”
The case was overturned by a majority vote and returned to the court, and after a retrial, the court upheld its previous decision.
APPELLANT: Representative of the defendant T.V. Bank T.A.O.
DECISION OF THE GENERAL ASSEMBLY OF JUSTICE
After the General Assembly of the Court of Appeals reviewed the case and determined that the appeal against the decision to uphold the previous ruling was filed within the time limit and after reading the documents in the file, the following was decided:
The case concerns a request to remove the mortgage on the family home.
The plaintiff’s representative stated that his client and the defendant have been married since June 15, 1982, that the property is registered in the name of the defendant spouse, that they have been living together with their children M…. and S…. since 1997, and that the property is a family residence within the meaning of Article 194 of the Turkish Civil Code (TMK) No. 4721. was mortgaged in favor of the defendant bank as collateral for a loan agreement signed between A….. Makine Boya San. Tic. Ltd. Şti. (not a party to the lawsuit) and the other defendant, T.V. Bankası T.A.O., without the plaintiff’s knowledge or consent. The plaintiff became aware of this situation following enforcement proceedings initiated by the defendant bank due to non-payment of the loan debt. The plaintiff claims that the defendants acted in bad faith and that the plaintiff did not expressly consent to the mortgage transaction. The plaintiff requests and sues for the removal of the mortgage on the family residence and the suspension of the sale of the immovable property in the enforcement proceedings without security.
The representative of the defendant T.V. Bank T.A.O. argued that the title deed of the property in question did not contain a note stating that it was a family residence and that the client bank acted in good faith, requesting that the lawsuit be dismissed.
The defendant M… did not participate in the proceedings despite the procedural notification.
The court ruled that the limitation on the legal capacity of spouses under Article 194/1 of the Turkish Civil Code is not contingent upon the existence or absence of a note regarding the family residence, that the good faith of third parties is irrelevant, and that the defendant spouse’s use of the family residence as collateral without the plaintiff spouse’s consent in this case constitutes a violation of Article 194/1 of the Turkish Civil Code. , and therefore the decision to accept the case and remove the mortgage on the family residence in question was overturned by the Special Chamber by a majority vote upon appeal by the defendant T.V. Bank T.A.O.’s representative for the reasons explained above.
The court upheld its initial decision to remove the mortgage based on the previous grounds.
The decision to uphold was appealed by the representative of the defendant T.V. Bank T.A.O.
The dispute brought before the General Assembly of the Court of Appeals concerns whether the fact that the mortgage was established to secure a loan used by the joint children living under the same roof as the plaintiff and the defendant who granted the mortgage means that the plaintiff was aware of the mortgage transaction and consented to it.
According to Article 194/1 of the Turkish Civil Code No. 4721,
“One spouse may not terminate the lease agreement for the family home, transfer the family home, or limit the rights over the family home without the express consent of the other spouse.”
This provision limits the legal capacity of spouses over the family residence where they live together, even if no family residence annotation has been made. The limitation is imposed not because a family residence annotation has been made, but because it already exists. Therefore, even if no family residence annotation is made in the land registry, that residence retains its status as a family residence. The restriction introduced by the provision of the aforementioned article is mandatory. Therefore, this right cannot be waived in advance, nor can it be removed by agreement between the spouses, and express consent can only be given for a “specific” transaction.
Although Article 193 of the Turkish Civil Code grants spouses freedom in their legal transactions with each other and third parties, Article 194 of the Turkish Civil Code introduces the rule that certain legal transactions of spouses relating to the family residence are subject to the consent of the other spouse, thereby limiting the spouses’ freedom of legal transaction for the purpose of protecting the “family union.” Accordingly, one spouse cannot terminate a lease agreement concerning the family home, transfer the family home, or limit the rights over the family home without the express consent of the other spouse.
Based on this provision, the spouse who is the owner of the family home cannot unilaterally limit the rights over the family home with a real right, such as mortgaging the family home, in a manner that would make life in the family home difficult. This restriction can only be made with the express consent of the other spouse.
Article 194 of the Turkish Civil Code does not stipulate a specific form of consent for the authorized spouse. Therefore, such consent may be given orally, without being subject to any specific form. However, as can be understood from the wording of the article, the consent must be “explicit” (GÜMÜŞ, Mustafa Alper, Türk Medeni Kanununun Getirdiği Yeni Şerhler? [New Restrictions Introduced by the Turkish Civil Code?], Vedat Kitapçılık, Istanbul 2007, Second Reprint of First Edition, pp. 41-42).
Although the mortgage does not directly prevent the right to use and reside in the family home, the express consent of the other spouse is required for the mortgage transaction due to the risk of the family home being disposed of through the malicious and fraudulent actions of the spouse who holds the right.
In the present case, the defendant spouse established a mortgage on the family residence in favor of the other defendant bank, and the defendant bank did not obtain the express consent of the plaintiff spouse during this transaction.
Within the framework of the rules explained above, it is also irrelevant that the mortgage transaction was established to serve as collateral for a loan used by the joint children living under the same roof as the plaintiff and defendant spouses. In this case, since Article 194/1 of the Turkish Civil Code requires the explicit consent of the spouse, it is impossible to accept that the transaction is valid.
During the deliberations of the General Assembly of the Court of Appeals, some members argued that accepting that the plaintiff spouse was unaware of the loan used by the joint children living under the same roof as the plaintiff and defendant spouses, and therefore of the mortgage transaction, was contrary to the normal course of life. However, for the reasons explained above, this view was not accepted by the majority of the Assembly.
Therefore, the court’s decision to accept the case based on the legal regulations and principles explained above and to uphold this decision is in accordance with the procedure and the law, and the decision to uphold the decision must be confirmed.
CONCLUSION: The defendant T.V. Bank T.A.O.’s attorney’s appeal objections are rejected, and the decision to uphold the ruling is APPROVED for the reasons explained above. The costs (13,637.70 TL), detailed below, shall be collected from the appellant. This decision was made by majority vote on 04/15/2015.