Request For Removal Of Family Residence Restriction
..FAMILY COURT
PLAINTIFF :
ATTORNEY :
DEFENDANT :
SUBJECT :
EXPLANATIONS :
We are the attorneys for the plaintiff in accordance with the attached power of attorney.
The defendant, on behalf of the principal, has registered the property located in .. Province, . District, .. Neighborhood, .. Block, .. Parcel, registered in the land registry on behalf of the principal. The Family Residence Annotation was entered on November 23, 2010, with the daily number … (ATTACHMENT-1). The defendant has placed the Family Residence Annotation on the immovable property in an unjust and malicious manner. Since the residence has lost its family residence status, the restriction must be removed. As follows:
A family residence is defined as a movable or immovable property that is suitable for use as a residence and is permanently selected by spouses to meet the “need to live together in one place” required for the continuation of the marital union.
The defendant .. filed for divorce on October 20, 2009, with the Antalya .. Family Court under case number 2009/.. E., and the case is still ongoing. After filing for divorce, the defendant left the shared residence and began living in another house. If the defendant’s residence is still registered at the shared residence address, an inspection will reveal that the house is empty and no one is living there.
The property in question has lost its characteristic of being the residence continuously chosen by the family to meet their daily living needs and to fulfill their need for shared accommodation, due to the defendant/spouse filing for divorce, leaving the shared residence, living in another house, and the family residence being the only one.
Furthermore, the property in question is a property that was inherited by the plaintiff, who is the representative, together with the other legal heirs (his mother and brother) on January 29, 2010, as a result of his father’s death. The plaintiff has become the owner of only 3/8 of the property through inheritance. Pursuant to Article 194 of the Turkish Civil Code, for a family residence to be registered as such in the land registry, it must belong to one of the spouses. Even if a property owned by a third party is used as a family residence by the spouses, a family residence notation cannot be entered in the land registry in a manner that restricts the third party’s ownership rights over the property. However, a family residence notation may be entered on the inheritance share provided that the spouse resides in the house in which they hold a share through inheritance.
While each spouse has the right to manage, use, and dispose of their personal property and acquired property within legal limits, the defendant’s registration of a family residence note on the property is an act of bad faith aimed at causing distress to the plaintiff and other co-owners of the property (the plaintiff’s mother and sister) and to prevent them from exercising their rights to dispose of the property.
Since the property in question was inherited by the defendant and, according to the Turkish Civil Code, property acquired through inheritance is classified as personal property, it cannot be divided. and the defendant’s divorce case is ongoing, we request that, if deemed necessary, Your Honour’s Court decide to suspend this case until the divorce case is concluded.
For the reasons explained above, the defendant has filed for divorce, the fact that he has left the shared residence, the fact that he does not reside in the house where the family residence annotation has been made, and the fact that the family residence is the only one, the fact that the property has lost its family residence status, the fact that only a certain share of the property has been transferred to the plaintiff through inheritance, the fact that the property acquired through inheritance falls under the category of personal property and cannot be divided, each spouse having the right to freely dispose of their own personal property, and the property not being wholly owned by the plaintiff, but also belonging to third parties (other heirs), and the family residence restriction on the property being removed due to the other rights holders’ authority to dispose of the property being limited, it has become necessary to file this lawsuit.
EVIDENCE:
The title deed of the independent section (..) on the .. floor of the residence registered in the .. District, .. Neighborhood, .. Block, .. Parcel, where the family residence restriction was imposed (APPENDIX-1), Certificate of Inheritance (APPENDIX-2), Antalya ..Family Court 2009/.. E. file, the parties’ residence certificates, witness statements, and all other legal evidence.
CONCLUSION-REQUEST:
For the reasons stated and to be considered ex officio, with our other legal rights reserved;
We request that the Family Residence Restriction imposed on the independent residential unit located at Antalya Province, .. District, . Neighborhood, .. Block, .. Parcel, …Floor (..) be lifted,
and the litigation costs and attorney’s fees to be borne by the defendant, we hereby request a decision on behalf of our client.
With respect. February 23, 2011
Plaintiff’s Attorney