Even If the Family Is Not in the City of Residence, the Transaction Made Without the Explicit Consent of the Spouse Is Invalid Supreme Court Decision

T.C
SUPREME
2.law office
MAIN NUMBER: 2016/6764
DECISION NO: 2017/6194
DECISION DATE: 25.05.2017

>> EVEN IF THERE IS NO FAMILY HOUSING ANNOTATION, THE TRANSACTION MADE WITHOUT THE EXPLICIT CONSENT OF THE SPOUSE IS INVALID

LAWSUIT: At the end of the trial between the parties, the verdict given by the local court, the date and number of which are shown above, was appealed by the defendants, the documents were read and Decisively discussed and considered:

The case is related to the cancellation of the title deed registration and the request for the annotation of the family residence.

The plaintiff spouse malik family home real estate and immovable of the family home the inherent malik by the defendant’s wife “without consent” the defendant…… citing that the name had been registered in accordance with the defendant…… with the cancellation of the title deed in the deed record family name analysis has prosecuted and demand the release of residence.

The defendant…… defended the rejection of the case by stating that there is no comment that the immovable property subject to the case is a family residence in the land registry, and that he has good intentions.

The General Assembly of Jurisprudence has started a new application with the ”2013/2-2056 basis, 2015/1201 decision and the decision dated 15.04.2015“, the justification of which is set down below in “precedent cases”. The new practice of the General Assembly of Law, which is also carried out in similar cases, has also been adopted by our Department, and our Department agrees exactly with the following opinions of the General Assembly of Law in all precedent cases.

The local court in the decision of the General Assembly of Precedent Law stated that “as clearly stated in the justification for resistance, the restriction imposed on the spouses’ driver’s license by Article 194 of the Turkish Civil Code is not bound to the condition that an annotation is placed on the family home or not, and it does not matter whether the third person who is the party to the transaction is in good faith or not.

194/1 of the Turkish Civil Code No. 4721. according to the article, “One of the spouses cannot terminate the lease agreement related to the family home, transfer the family home or limit the rights over the family home, unless the other spouse has express consent, although the annotation “family home” has not been placed by the provision of this article,”the spouses’ capacity to act on the family home where they live together is limited. The restriction was introduced not because the family residence annotation was placed, but because it already exists. For this reason, even if the title deed is not annotated as a family residence, that residence carries the property of a family residence. Because the subject of the lawsuit is the family residence, even if the immovable property is not annotated. It is not a family residence because it is annotated with a spouse’s speech, but on the contrary, annotation can be placed because it is a family residence. For this reason, when the annotation of the family residence is put, the annotation is not the “founder” but the explanatory ’annotation’.

The limitation imposed by the provision of the said article is of a “mandatory” nature. Therefore, this right cannot be waived in advance, nor can it be eliminated by agreement of the spouses, and explicit consent can only be given for a transaction that is “specific”.

Article 193 of the Turkish Civil Code. With its provision, the area of freedom of spouses in legal transactions with each other and third parties is recognized, but the Turkish Civil Code 194. with the provision of the article, the rule that some legal transactions of spouses related to family housing depend on the consent of the other spouse has been introduced and the freedom of legal transactions of spouses has been limited for the purpose of “protecting family unity”. Accordingly, one of the spouses cannot terminate the lease agreement on family housing, transfer family housing andlimit rights over family housing, unless the “explicit consent” of the other spouse is found. Based on this sentence, the spouse who is the owner of the family home cannot limit himself to a “stand-alone” in-kind pod, such as mortgaging the family home, in such a way as to complicate life in the family home. This limitation can be made ”Only with the explicit consent of the other spouse”.

194 Of the Turkish Civil Code. the article did not provide for a form of validity for the permission of the authorized spouse. For this reason, the permission in question can be given even verbally, without being subject to a form. However, as can be understood from the wording of the article, the permission must be “Explicit”.
(Mustafa Alper GÜMÜŞ. New Comments Introduced by the Turkish Civil Code; Vedat Bookmaking, … 2007. From the First to the Second Edition, p. 41-42).

In the concrete case, the immovable is the family residence, and the defendant’s spouse is the family residence subject to the lawsuit from the defendants….he turned it over to .During this procedure, the explicit consent of the plaintiff spouse was not obtained by the defendant spouse.

Within the framework of the rules described above, it is impossible to accept that the transaction made without the “Explicit consent” of the spouse is “Valid”, as clearly stated by the General Assembly of Jurisprudence. It is obligatory to accept that the transaction made “Without the explicit consent” of the spouse is “Invalid”.

As such, while the court should have decided to accept the case by evaluating it in accordance with the legal regulations and principles described above adopted by the General Assembly of Jurisprudence, establishing a refusal provision in writing is contrary to the procedure and law and required to overturn it.

CONCLUSION: It was unanimously decided to OVERTURN the appealed judgment for the reason shown above, to return the appeal advance fee to the depositor upon request, and to correct the decision within 15 days from the notification of this decision, so that the way to correct the decision is open. 25.05.2017

T.C
YARHITAY
GENERAL ASSEMBLY OF LAW
THE MAIN NO.2013/ 2-2056
DECISION NO.2015/ 1201
THE DATE OF THE DECISION.15.04.2015

>Whether there is a family residence annotation in the deed or not, if the other residence is 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 “explicit” consent of the other spouse.

Case and Decision: At the end of the trial due to the “Decommissioning of the mortgage” case between the parties, Küçükçekmece 2. The date given by the Family Court for the acceptance of the case is 27.07.2011 and 2011/29 E. 2011/964 K. the examination of the numbered decision is one of the defendants T.V. Bank T.A.O. upon request by the deputy, the Supreme Court 2. The date of the Civil Chamber is 15.10.2012 and is 2011/23336 E. 2012/24471 K. with Ref No.;

“… Of the defendants who are the plaintiff’s wife V…..on the immovable property registered in the title deed in the name of and used as a family residence on 30.11.2007 out of court A…. There is no dispute when a mortgage is established to constitute the collateral of the loan used by the Machinery and Paint Industry Limited Company. Among the partners of the Decommissioned company, the plaintiff and the defendant spouse M….the joint children of M… and S…. there are also. M…. and S….., the plaintiff and defendant in the immovable subject of the lawsuit M…. he sits with her. According to the fact that the mortgage transaction was established to provide collateral for the loan used by the joint children living under the same roof with the plaintiff and the defendant spouse, M… and S….the fact that the plaintiff, who is the mother of, does not know about the mortgage transaction goes against the usual course of life. Everyone must comply with the rules of honesty when exercising their rights and fulfilling their debts. The legal order does not protect the obvious abuse of a right (Art.2 of the Turkish Civil Code). The plaintiff’s claim is subject to Article 194 of the Turkish Civil Code. it is not possible for him to benefit from the protection in his substance. While the case should have been dismissed, its acceptance with written justification was not considered correct … ”

the case was overturned with a majority of votes on the grounds and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.

APPELLANT: T of the defendants.V. Bank T.A.O. attorney

DECISION OF THE GENERAL ASSEMBLY OF LAW

The law was examined by the General Assembly and after it was understood that the decision to resist was appealed during the period and the papers in the file were read, the necessity was discussed:

The case is related to the request to cancel the mortgage on the family home.

The plaintiff’s attorney stated that his client and the defendant have been married since 15.06.1982, the defendant is registered in the title deed on behalf of the spouse and their joint children since 1997 M…. and S….. 194 of the Turkish Civil Code (TMK) No. 4721. the immovable property, which is a family residence in the sense of the article, is outside the case, except for the knowledge and consent of the client by the defendant’s spouse A….. Machine Paint Industry. Tic. Ltd. Şti. with the other defendant T.V. Bank T.A.O. the loan agreement signed between the bank as collateral for a mortgage in favour of the defendant, whether he was on loan delinquency enforcement proceedings initiated without prior mutual consent of the defendant that they were aware of the situation on the defendant they’re twisted, your client clearly the absence of consent, the mortgage process, citing the removal of the mortgage on the family’s residence and demanded that he stop the sale of the land being unsecured in enforcement proceedings, and has been the case.

Defendant T.V. Bank T.A.O. the attorney defended the dismissal of the case by stating that there is no comment that the immovable property subject to the case is a family residence in the land registry, and that his client is in good faith of the bank.

The defendant M…., did not participate in the proceedings despite the procedural notification made.

According to the Court, TMK 194/1. annotation in the article or put in family housing capacity to act of the spouses not to put the condition imposed is not connected to because of the third person does not have any importance whether intentioned or not, the plaintiff in the case at hand without the consent of the spouse, the wife of the defendant as shown by the mortgage of the family home that are contrary to the case of TMC’s 194/1 substance to bet the mortgage on the family’s residence in the case with the adoption of the decision on the abolition of the defendant T.V. Bank T.A.O. upon the appeal of his deputy, it was overturned by the Special Chamber with a majority of votes for the reasons described above.

The court resisted the first decision on the cancellation of the mortgage on previous grounds.

The decision to resist, defendant T.V. Bank T.A.O. he has been appealed by his attorney.

According to the fact that the mortgage transaction was established to serve as collateral for the loan used by joint children living under the same roof with the plaintiff and the defendant who gave the mortgage, the dispute before the General Assembly of Civil Law is collected at the point of whether this issue means that the plaintiff is aware of the mortgage transaction and has consented to this transaction.

194/1 of the Turkish Civil Code No. 4721. according to the article,

“One of the spouses cannot terminate the lease agreement on the family dwelling, transfer the family dwelling or limit the rights over the family dwelling, unless there is the explicit consent of the other spouse.”

Although there is no annotation on the family residence with the provision of this article, the acting licenses of the spouses on the family residence where they live together are limited. The restriction was introduced not because the family residence annotation was placed, but because it already exists. For this reason, even if the title deed is not annotated as a family residence, that residence carries the property of a family residence. The limitation imposed by the provision of the said article is of a mandatory nature. Therefore, this right cannot be waived in advance, nor can it be eliminated by agreement of the spouses, and explicit consent can only be given for a transaction that is “specific”.

TMK’s 193. although the area of freedom of spouses in legal transactions with each other and third parties is recognized with Article 194 of the TMK. with the provision of the article, the rule that some legal transactions of spouses related to family housing depend on the consent of the other spouse has been introduced and the freedom of legal transactions of spouses has been limited in order to protect the “family unity”. Accordingly, one of the spouses cannot terminate the lease agreement on family housing, transfer family housing and limit rights over family housing, unless there is the explicit consent of the other spouse.

Based on this sentence, the spouse who is the owner of the family home cannot limit the life in the family home to one real right alone, such as mortgaging the family home, in a way that will make life difficult. This limitation can only be made with the explicit consent of the other spouse.

TMK’s 194. the article did not provide for a form of validity for the permission of the authorized spouse. For this reason, the permission in question can be given even verbally, without being subject to a form. However, as can be understood from the wording of the article, the permission must be “open” (GÜMÜŞ, Mustafa Alper, The New Comments Introduced by the Turkish Civil Code? Vedat Kitabcılık, Istanbul 2007, From the First Edition to the Second Edition, 41-42 sh.).

Although the mortgage does not directly prevent the right to use and reside in the family home, the explicit consent of the other spouse to the mortgage transaction is essential due to the abusive and collusive transactions of the rightful spouse and the danger of disposing of the family home.

In the concrete case, the defendant spouse has established a mortgage on the family home subject to the lawsuit in favor of the other defendant bank, and the explicit consent of the plaintiff spouse was not obtained by the defendant bank during this transaction.

Within the framework of the rules described above, it also does not matter that the mortgage transaction was established to serve as collateral for the loan used by the joint children living under the same roof with the plaintiff and the defendant spouse. In this case, since Article 194/1 of the TMK seeks the explicit consent of the spouse, it is impossible to assume that the transaction performed is valid.

During the General Assembly meetings of law, a portion of the mortgage process that led to the formation of the members, the wife of the plaintiff and the defendant and therefore the use of children under the same roof with joint sitting mortgage loans from the process of accepting the plaintiff’s wife is unaware of the nature of life is contrary to that suggested that if you have been, also, for the reasons described above, this view had been adopted by a majority of the board.

In such a case, the court should decide to accept the case by evaluating it in accordance with the legal regulations and principles described above, and resisting this decision is in accordance with the procedure and the law, and the decision to resist should be approved.

CONCLUSION : Defendant T.V. Bank T.A.O. with the rejection of the appeals of the deputy, the decision to resist was APPROVED for the reasons described above, the fee written below (13.637, 70 TL) was decided to be taken from the appellant, with a majority of votes on the day of 15.04.2015.

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