Non-confiscation of the house (residence) in accordance with the state of the debtor
As a rule, the seizure and sale of all property and rights that express a material value belonging to the debtor is possible, with the aim of ensuring that the creditor receives what he receives. However, due to both humanitarian considerations and public order considerations, some of the debtor's property was exempted from confiscation so that he could continue his own life and the life of his family. The property and rights in the IQ82 were considered inalienable on the basis that the debtor and his family were made poor and ultimately left in need of state social assistance and that the debtor could continue his economic existence.
Haline Appropriate House Concept
So what is necessary to understand from the house in accordance with this situation that the legislator has mentioned? When determining the house appropriate to the situation of the debtor, the house that is suitable for the status of the debtor must be understood as a house that is suitable for the debtor itself, but also that of the debtor himself, but that of the debtor and his family, and has minimum conditions suitable for their financial and social situation. A house that more than meets the needs of the debtor and his family and exceeds the minimum size according to their social situation can be foreclosed and sold on condition that the amount of a house that is suitable for its price is given to the debtor.
According to paragraph 12 of Article 82 of the Civil Code, the “house in accordance with the status of the debtor” cannot be confiscated, the purpose of its arrangement, the purpose of this arrangement is to continue the existence of the dwelling, which constitutes the roof of the unity and integrity of the family, and to ensure the continuity of family unity and unity, even if it is under debt burden. Deprivation of the possibility of housing during the difficult period faced by the debtor would be contrary to human rights and the principle of the social state. For this purpose, the law regulates the basis that the residence of the debtor and his family cannot be confiscated.
Procedures and Principles to be Followed in the Foreclosure of Halin Munasip Evin
According to the Supreme Court, the executive director does not have the discretion regarding the objection to the property made by the debtor at the time of foreclosure, and the principal must carry out the foreclosure procedure. In this case, what the debtor whose house is foreclosed must do is, at the request of the creditor, transfer the foreclosure imposed by the executive director to the relevant inspection authority through a complaint (bailiff treatment).
Complaint of Officer Claiming Haline Münasip ev (Residency)
In which the claim for residence is not attached to the bailiff who carried out the foreclosure procedure, but to the bailiff to the bailiff will have to be done. An application to the bailiff office will not bring results. Therefore, the debtor must apply to the enforcement civil court through a complaint within the time limits specified in the law from the moment he learns or receives a notice of collateral. Otherwise, the creditor will be able to proceed with the foreclosure proceedings and carry out the sale of the house.
Who Has the Right to Claim Residency (Right of Complaint)
The right to complain against a foreclosure action with a claim for residence should be exercised not only by the debtor of the pursuit, but also by other family members living in the dwelling, and especially the other spouse. In the teaching, it is recognized that in the event of confiscation of property and rights that cannot be confiscated in whole or in part, both spouses and other family members can file a complaint of inviolability. Because the institution of insolvency was brought in not only for the purpose of protecting the debtor, but also for the purpose of protecting the debtor's family.
Resolved in Complaints
Although the complaint is not a lawsuit in the technical sense, it must be addressed to the creditor (defendant) party. So here the plaintiff will be the debtor, and the defendant will be the creditor.
Complaint Duration
In accordance with Article 16 of the HİK article 16, the claim of residence will also have to be made within seven days from the date of foreclosure. That is, from the day the debtor learns of the foreclosure or from the day it is notified to him 7 days They have to go through the complaint route.
Authorized Enforcement Mercii
If the foreclosure process on real estate has been directly executed by the main enforcement office, the enforcement court will be competent in the place where the actual proceedings are carried out. However, in practice, said infringements are in some cases made by instruction, that is, by the way we call estinabe. In this case, the complaint about the residence is filed with the bailiff court, where the order is written, in other words, the enforcement office where the order is written.
Various Supreme Court Decisions Relating to the Claim of Residency
General Assembly of the Supreme Court of Justice 2017/12-1138E.2017/868K. 26.4.2017T.
Pursuant to paragraph 12 of paragraph 1 of Article 82 of the Code of Civil Procedure, the debtor's “proper” house may not be confiscated. Whether a dwelling is suitable for the state of the debtor is determined by the social situation of the named person at the time of foreclosure and the needs of the debtor and his family. The term “family” here is in the broadest sense and includes persons who live under the same roof with the debtor, to whom he is dependent. After the bailiff court has ascertained to the experts the necessary price to provide the debtor with the appropriate housing for the condition that is required to be housed together with the aforementioned, if the value of the confiscated place is greater than that, it must be decided to sell it, and the amount necessary for the dwelling whose qualities are determined above the sale price must be left to the debtor, must be paid to the creditor. With the qualification and premises in the household exceeding these criteria, places outside a dwelling that include rooms and halls of reasonable dimensions and which contain mandatory items for residence are contrary to the purpose provided for in the article. The duty and title of the debtor do not require him to reside in a more magnificent dwelling than the one set out above.”
12. HD 2006/23100 E.2007/822 K. “... According to Article 82/12 of the Supreme Court, the debtor's “proper” house cannot be confiscated. Whether a dwelling is suitable for the status of a debtor is determined by the social situation of the person named at the time of foreclosure and the needs of the debtor and his family. The term “family” here is in the broadest sense and includes persons who live under the same roof with the debtor, dependent on him. After the bailiff court has ascertained to the experts the necessary price to provide the debtor with the housing in accordance with those mentioned, if the value of the confiscated place is greater than that, it must be decided to sell it, and the amount necessary for the dwelling whose qualities are determined above the sale price must be left to the debtor, it must be paid to the creditor. With the qualification and premises in the household exceeding these standards, covering rooms and halls exceeding reasonable dimensions, and places other than a dwelling containing mandatory items for residence, are contrary to the purpose prescribed in the article. The duties and attributes of the debtor do not require him to reside in a more magnificent dwelling than the one set out above...” confirms this point in his ruling.
12. HD 31.1.2005 2005/2976 E.2005/6893 K. Decision No. “Parcel No. 1859, which was decided to lift the foreclosure of the house court, filed in the residential appeal, is also contained. In the report of the expert, it is stated that the house is provided with minimum conditions. For the stated reason; whereas it is necessary to decide on the acceptance of the habitation claim regarding the house, it is incorrect to refuse the claim of habitation with a bet, since the house is kept separate and in writing is not suitable for the residence of a family for which the house is sheltered, it is incorrect to refuse the claim of residence with a bet.” and to meet the need for housing of places such as shelters, vineyards, etc. It is indicated that it will be considered a suitable home if it is convenient.
In determining the right house, the social, economic situation of the debtor, and how many people live in the house should be taken into account. The fact that the debtor is forced to live in a slum cannot be deducted as a result of the sale of the house that cannot be considered a house, and the decisions of the Supreme Court are also in this direction.
12.Civil Chamber of the Supreme Court Basis: 2013/17428 Decision: 2013/25793
Pursuant to paragraph 1 of Article 82 of the HR, the debtor's “proper” house cannot be confiscated. Whether a dwelling is suitable for the state of the debtor is determined by the social situation of the named person at the time of foreclosure and the needs of the debtor and his family. The term 'family' here is broadly understood to include dependents living under the same roof with the debtor. After the bailiff court has ascertained to the experts the necessary price to provide the debtor with the appropriate housing for the condition that is required to be housed together with the aforementioned, if the value of the confiscated place is greater than that, it must be decided to sell and the amount necessary for the dwelling whose qualities are determined above the sale price must be left to the debtor, must be paid to the creditor.
With the qualification and premises in the household exceeding these criteria, places outside a dwelling that include rooms and halls of reasonable dimensions and which contain mandatory items for residence are contrary to the purpose provided for in the article. The duties and attributes of the debtor do not require that he himself reside in a more magnificent dwelling than that established above.
12.Law Office Essa O.2006/3949 Decision No.2006/6960
After it has been established in Article 82/12 of the LLK that the debtor's house cannot be foreclosed, the same article states that only if the value of the house is greater than the value of the house is sold and sold by confiscation to be left to the debtor”. Once the value of the real estate subject to the residence complaint has been discovered in the court district and the price that the debtor can buy a house at the time of discovery and the price that corresponds to the debtor's condition, if this amount is less than the value of the loss, the price necessary to sell and buy the house in accordance with the debtor's condition, the payment of the surcharge to the creditor, the debt of the sale It is necessary to decide that it should be carried out not less than the amount that the house can afford.
8th Judicial Office of the Supreme Court 2015/10269 E. 2017/11873 K. 02.10.2017 T.
Pursuant to Article 82/12 of the Code of Civil Procedure, the debtor's house “in accordance with its status” cannot be confiscated. Whether a dwelling is suitable for the state of the debtor is determined by the social situation of the named person at the time of foreclosure and the needs of the debtor and his family. The term “family” here covers persons who live under the same roof with the debtor, dependents. After the bailiff court has ascertained to the experts the necessary price to provide the appropriate housing for the condition that is required for the debtor to reside together with the aforementioned, if the value of the confiscated place is greater than that, it must be decided to sell and the amount necessary for the dwelling whose qualities are determined above the sale price must be given to the debtor, the remainder of the execution It should be left in the file. With the qualification and premises in the household that exceed these criteria, places other than a dwelling that includes rooms and halls of reasonable dimensions and includes mandatory items for residence are contrary to the purpose stipulated in the article. When evaluating housing prices in the most modest districts should be taken as a basis.
As can be seen above, it has gained stability and stability in the Jurisdictions of the Supreme Court and the Decisions of the Supreme Court, in accordance with the provision of HIR 82/12, the debtor's house is not confiscated in any way.