It has been made possible for family residence to be considered under joint ownership without a court decision by Art. 46 of the Bill Proposal prepared for the Ministry of Family and Social Policies and sent to the Grand National Assembly of Turkey quite a while ago. In other words, one member of the married couple might obtain a restriction on its behalf on the title deed even though he/she does not own the title.
With the Bill Proposal, in the third clause of Art. 194 headlined Residential Building of the Civil Code; the statement of “from department of land registry” has been added after “obtaining the restriction”. In the previous version of the Article, it has been stated that, “the spouse who is not the owner of the residential building can demand a restriction to be put on the house.” The new regulation states the transaction for obtaining a restriction to be executed by Department of Land Registry.
This change of Bill can be summarized as follows: one of the spouses who wish to obtain a restriction on the family residence in joint use can go to the Department of Land Registry for this transaction. However, Art. 194 of the current Civil Code, already authorizes spouses for obtaining a restriction onto the title deed.
Court decision is not necessary
The reasoning behind the Art. 46 of the Bag Bill Proposal which consists of the regulation is: one of the spouses can obtain a restriction to the title deed, but Department of Land Registry ask for a court decision even if it is not necessary in practice and this regulation has been made for preventing this problem.
Course of Events
Head Department of Land Registry and Cadastre, after the Civil Code has given authority to spouses in 2001, issued a circular letter and stated that court decision shall not be asked for restricting title deed records for residential buildings. Thereafter, this circular letter has been brought to State Council which has granted a motion to suspend the execution of the new implementation. Afterwards, the decision has been brought to the Court of Appeals and Supreme Court Assembly of Civil Chambers and they stated in their decision dated on 28.10.2011 numbered 2011/2 that spouses who does not hold the title of the house shall not need a court decision to put restriction on the title deed.
The amendment of the article
The new amended Article of the Civil Code is as follows:
II. Family Residence
Article 194- One of the spouses shall not terminate the rental contract, assign the family residence or limit the rights on it without having express content of the other spouse. The spouse who cannot gain consent or is not given consent without a valid ground shall ask for a judge’s intervention. The spouse who does not hold the title of the house allocated as the family residence building shall demand a restriction from DEPARTMENT OF LAND REGISRTY. If the residential building has been provided by one of the spouses via a rental contract, the spouse who is not a party of the contract shall become party by a notification to the Renter that he/she will also be a party of the contract and both of them would be responsible.