What Is a Family Home Annotation in Turkey? How to Record It and How It Affects a Sale

1. What is a family home?

The Civil Code does not define "family home". It provides that the spouses choose their home together (Civil Code art. 186 [1]). The family home is the dwelling where the spouses live their shared life and which they have made the centre of their lives. What matters is how the home is actually used, not what the register says.

Terms:

• Annotation (şerh): An entry on the title register that makes a particular situation affecting the property visible to everyone.
• Owner (malik): The person registered as the owner of the property.
• Express consent: A spouse's clear and unambiguous approval of a specific transaction. Silence, or failing to object after learning of a transaction, is not express consent in itself.

The protection applies when the home belongs to one of the spouses or is rented by one of them.

2. Is there protection without an annotation?

Yes. The Code states generally that the owner spouse cannot transfer the family home or restrict rights over it without the other spouse's express consent; it does not make this protection depend on an annotation (art. 194(1)). Not having an annotation does not mean your spouse can sell the home without your consent.

The difficulty concerns third parties who buy the home or take a mortgage over it. A person who acquires ownership or another right in rem (such as a mortgage) relying in good faith on the register is, as a rule, protected (Civil Code art. 1023 [1]). A person who knew or should have known that an entry was wrongful cannot rely on it (art. 1024), and a person who failed to exercise the care required by the circumstances cannot claim good faith (Civil Code art. 3 [1]).

• With an annotation: No one can claim to be unaware of an entry on the land register (art. 1020(3)). A buyer or mortgagee cannot argue that they did not know the property was a family home.
• Without an annotation: Whether a third party's good faith is protected has long been debated. According to a dissenting opinion attached to the Constitutional Court's Emine Göksel judgment, the Plenary Civil Chamber of the Court of Cassation adopted in 2015 an approach requiring proof that the other spouse expressly consented to the owner spouse's transactions concerning the family home (Official Gazette, 8 April 2020, issue no. 31093 [2]). The issue is still debated in legal writing, and the outcome may depend on the facts.

3. How is a family home annotation recorded?

Who can apply?

The spouse who is not the owner of the property used as the family home (art. 194(3); Land Registry Regulation art. 17(2) [3]). The marriage must still exist; once a divorce becomes final, the applicant is no longer a "spouse" and this route is no longer available.

Where do you apply?

The annotation is requested directly from the land registry office (tapu müdürlüğü); no court case is needed. A 2014 amendment made this explicit in the Code (art. 194(3), wording added by Law no. 6518, art. 44).

Which documents are needed?

Under the Land Registry Regulation, the following are required for a family home annotation (Land Registry Regulation art. 49(1)(c) [3]):

• A certificate of residence (yerleşim yeri belgesi) from the central civil registration system or the civil registry office,
• A civil registry record showing marital status (nüfus kayıt örneği).

An identity check is also carried out at the application (Regulation art. 18). The Regulation lists the documents for this annotation under the heading of "annotations prohibiting disposal", and the annotation is entered in the annotations column of the register (arts. 46 and 49). It is advisable to confirm the current application channel, appointment process and any costs with the relevant land registry office.

If the land registry refuses

The land registry office rejects a request it finds non-compliant, stating its reasons and where and within what time limit an objection can be made. An objection to the rejection can be filed with the regional directorate to which the office belongs within fifteen days of notification, and an objection to the regional directorate's decision can be filed with the General Directorate of Land Registry and Cadastre, again within fifteen days of notification (Land Registry Regulation art. 26 [3]).

If the spouses disagree as to whether the property is the family home, court proceedings become relevant. Cases arising from the family law book of the Civil Code are heard by the family court; where there is no family court, by the civil court of first instance designated by the Council of Judges and Prosecutors (Law no. 4787 arts. 2 and 4 [4]).

Special situations

• Domestic violence: At the request of a person protected under Law no. 6284, the family court judge may order, as a protective measure, a family home annotation on the title register if the Civil Code conditions are met (Law no. 6284 art. 4(1)(c) [5]).
• During divorce proceedings: The marriage continues until the divorce judgment becomes final, so the annotation can still be requested.

4. How does the annotation affect a sale?

Sale, gift and mortgage

Without the other spouse's express consent, the owner spouse cannot transfer the family home (sale, gift, etc.) or restrict rights over it (mortgage, usufruct, etc.) (art. 194(1)). The consent requirement comes from the Code itself; the annotation does not prohibit a sale, it only shows everyone on the register that the other spouse's express consent is required for a sale or mortgage. If the spouses decide together, the home can be sold.

The Code does not prescribe a particular form for consent; it requires consent to be "express". To avoid problems of proof later, it is important that consent is given in writing and in connection with a specific transaction.

If the spouse refuses consent without good reason

A spouse who cannot obtain consent, or who is refused consent without good reason, may ask the judge to intervene (art. 194(2)). For example, if the owner spouse wants to sell the home to move to another city for work and buy a new family home there, and the other spouse objects without a valid reason, the family court can be asked to decide. The court assesses whether the refusal is based on a good reason in light of the circumstances of the case.

If the home is sold or mortgaged without consent

A transfer or restriction made without consent breaches the rule in art. 194. In practice, the non-owner spouse may bring an action for cancellation of the title and re-registration against a transfer made without their consent, or an action for removal of the mortgage against a mortgage granted without it. In these cases, whether the third party's good faith is protected depends, as explained above, on whether there was an annotation and on the facts. Art. 194 sets no specific time limit for these actions; however, developments such as the end of the marriage may affect the outcome, so it is useful to have the situation assessed by a lawyer.

Seizure and enforcement sale

Art. 194 restricts transactions that the owner spouse makes voluntarily. Seizure of the home in enforcement proceedings started by a creditor for one spouse's debt is not subject to this rule, and a family home annotation on the register does not prevent seizure by itself. However:

• A home suitable to the debtor's circumstances cannot be seized. This exception does not apply if the debt arises from the price of the home itself. If the home is worth more, it is sold and the part of the proceeds needed for the debtor to obtain a suitable home is left to the debtor (Enforcement and Bankruptcy Law art. 82 [6]).
• The non-owner spouse must also be able to object. The Plenary of the Constitutional Court held that rejecting, for lack of standing, a complaint by the non-owner spouse against the seizure of a family home registered in the other spouse's name violated the right to respect for family life. Where the seized home is a family home, the assessment of a "suitable home" must take into account the social and economic situation of the debtor and the debtor's family, not only the debtor (Constitutional Court, Emine Göksel (Plenary), App. No. 2016/10454, 12/12/2019 [2]). The judgment was given by majority.
• Time limit: A complaint against an act of the enforcement office must, as a rule, be filed with the enforcement court within seven days of learning of the act (Enforcement and Bankruptcy Law art. 16 [6]).

5. What if the home is rented?

If the family home is rented, no annotation is entered on the title register; protection works through the tenancy:

• The tenant spouse cannot terminate the lease without the other spouse's express consent (Code of Obligations art. 349 [7]).
• The spouse who is not a party to the lease becomes a party by notifying the landlord, and is then jointly and severally liable with the other spouse (Civil Code art. 194(4)).
• After that notice, the landlord must send any notice of termination and any payment warning with a termination threat separately to the tenant and to the spouse (Code of Obligations art. 349(3)).

6. When and how is the annotation removed?

Family home protection depends on the marriage. When a divorce judgment becomes final or one spouse dies, the marriage ends and the protection under art. 194 ends too. The home may also lose its family home status in situations such as the family moving out permanently.

An entry on the register is removed (terkin), as a rule, at the request of the person who benefits from it, or on the decision of a competent authority or court (Land Registry Regulation art. 69(1) [3]). So the spouse in whose favour the annotation was recorded can ask the land registry to remove it. For applications by the owner after divorce or death, it is necessary to check in advance with the land registry which documents (for example a divorce judgment with a certificate of finality, or a death record) will be required. If the spouses disagree, removal is possible by court decision.

Who keeps the home after a divorce is decided not by the family home rules but by ownership and the rules on liquidating the matrimonial property regime.

7. Hypothetical example

This example is entirely hypothetical. A and B are married and live with their two children in a flat registered in A's name. B applies to the land registry with a certificate of residence and a civil registry record showing marital status, and a family home annotation is recorded. A year later, A wants to move to another city for work and finds a buyer for the flat. Because the flat is the family home, the sale requires B's express consent; the annotation also shows this to the buyer and the land registry. B refuses. A applies to the family court, arguing that a home for the family will be bought in the new city and that B's objection has no good reason. The court assesses the situation of the parties and the children and decides whether B's refusal is justified.

8. Frequently asked questions

Can I record a family home annotation if the home is registered in my father-in-law's name?

The annotation under art. 194 covers a home belonging to one of the spouses. If the home belongs entirely to a third party, no annotation under this article is provided for. Rights to stay in the home are then assessed separately, based on any tenancy or arrangement for its use.

Can we record an annotation on our summer house too?

The Code does not list types of homes; the test is whether the home is used as the centre of the family's life. Whether a summer or weekend house used for only part of the year meets this test is assessed by how the family actually uses it; if there is a dispute, the court decides.

Can my spouse sell the home while divorce proceedings are pending?

The marriage continues until the divorce judgment becomes final, so the consent requirement in art. 194 continues to apply during the proceedings. In addition, the judge hearing the divorce takes interim measures of its own motion concerning the spouses' housing and the management of their property for the duration of the case (Civil Code art. 169 [1]).

What happens to the home we lived in if my spouse dies?

If the estate includes the home the spouses lived in, the surviving spouse may ask to be given ownership of it, set off against their inheritance share; where there are good reasons, a usufruct or right of residence may be granted instead of ownership (Civil Code art. 652 [1]). There is a similar rule under the participation in acquired property regime (art. 240).

Do I need to tell my spouse before applying for the annotation?

The Code does not require the owner spouse's consent for the annotation; the non-owner spouse can apply alone (art. 194(3)). However, the Code requires the land registry to notify interested parties of transactions made without their knowledge (Civil Code art. 1019 [1]).