T.C
SUPREME
2.law office
MAINLY NO:2016/6764
DECISION NO:2017/6194
DATE OF DECISION:25.05.2017
EVEN IF THE FAMILY DOES NOT HAVE A RESIDENTIAL COMMENT, THE TRANSACTION MADE WITHOUT THE EXPRESS CONSENT OF THE SPOUSE IS INVALID
CASE: At the end of the trial between the parties, the verdict given by the local court, the date and number shown above, was appealed by the defendants, the documents were read and discussed as necessary and considered decisively:
The case concerns the cancellation of the title deed, the request for registration and interpretation of family housing.
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 real estate subject to the lawsuit is a family residence in the land registry, and that he has good intentions.
The General Assembly of the Law has adopted a new practice “on the basis of the 2013/2-2056 decision taken exactly in 2015/1201 and the decision dated 15.04.2015”, the justification of which is given below in “precedent cases“. The new practice of the General Assembly of the Law, which is also continued in similar cases, has also been adopted by our Department, and our Department agrees exactly with the following opinions of the General Assembly of the Law in all cases of precedent.
As clearly stated in the decision of the General Assembly of Precedent, the local court “on the grounds of resistance, the limitation imposed on the spouses’ actual driving license by the provision of Article 194 of the Turkish Civil Code does not depend on the condition that a comment is made to the family residence or not, nor does it matter whether the third party to the transaction is well-intentioned or not.
194/1 of the Turkish Civil Code No. 4721. according to the article, “One of the spouses may not terminate the lease agreement on the family dwelling, transfer the family dwelling or limit his rights to the family dwelling, unless the other spouse has express consent, although the family dwelling comment has not been placed with the provision of this article, the spouses’ actual driving licenses on the family dwelling where they live together have been limited. The restriction was introduced not because the family housing comment was placed, but because it already exists. For this reason, even if the title deed is not issued as a family residence, this residence has the property of a family residence. Because the subject of the lawsuit is family housing, even if the real estate is not annotated. It is not a family residence because it is annotated by the spouse, but rather it can be annotated because it is a family residence. For this reason, when the family residence comment is placed, the comment that is placed is not the “founder”, but the explanatory “comment”.
The limitation imposed by the provision of this article is of an “ordering” 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. By its provision, the field of freedom in the legal transactions of spouses with each other and third parties is recognized, but the Turkish Civil Code 194. by the provision of the article, the rule was introduced that some legal actions of the spouses related to the family residence are subject to the consent of the other spouse, and the freedom of legal actions of the spouses was limited in order to “protect the family unity”. Accordingly, one of the spouses may not terminate the lease agreement on family housing, transfer family housing and limit the rights to family housing, unless the other spouse has “Express consent”. Proceeding from this sentence, the wife, who is the owner of the family residence, cannot limit herself to one kind of “Single”, such as a mortgage of the family residence, which will make life in the family residence difficult. This limitation can be made “Only with the express consent of the other spouse”.
194 Of the Turkish Civil Code. the article does 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 orally, without being subject to a form. But, as can be seen from the wording of the article, the permission must be “Explicit”.
(Mustafa Alper SILVER. New Interpretations Introduced by the Turkish Civil Code; Vedat Bookshop, … 2007. From the First Edition to the Second, Just like Basi, p. 41-42).
In the concrete case, the immovable property is the family residence, and the defendant’s spouse is the subject of the lawsuit, the family residence is one of the defendants….he handed it over to A.During this process, the plaintiff spouse’s explicit consent 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 “Express consent” of the spouse is “Valid”, as is clearly stated by the General Assembly of the Law. It is obligatory to accept that the transaction made by the spouse “without the express consent” of the spouse is “Invalid”.
As such, the adoption of a refusal provision in writing is contrary to the procedure and the law, and required to be overturned, while the court must decide on the acceptance of the case by evaluating in accordance with the legal regulations and principles described above adopted by the General Assembly of the Law.
CONCLUSION: It was decided unanimously that the appealed decision would be OVERTURNED for the reason shown above, that the advance fee of the appeal would be returned to the depositor upon request, and that the way of correcting the decision would be open within 15 days of the notification of this decision. 25.05.2017
