The General Assembly of the Supreme Court of Justice ruled that in the event of the death of one of the spouses, the status of the family residence of the house together cannot be eliminated.
In Konya, without their consent bank debt because of the house where he lives mortgages a woman who was put, the abolition of the mortgage and its housing “Family Residence Commendation” filed a lawsuit to be placed.
While the case was ongoing, the woman's husband died. The local court ruled that due to the death of the spouse during the trial, the real estate at issue in the case lost the status of a family residence, and the request for a family residence charter to be placed in the title deed was inadmissible. However, the local court removed the mortgage on the house, noting that when establishing a mortgage on the real estate at issue in the case, the woman did not know, that her explicit consent was not received, and that the bank also knew that the dwelling was a family residence.
The 2nd Judicial Chamber of the Supreme Court, which heard the file on the appeal of the defendant bank, overturned the decision of the local court. In the decision of the apartment, it was concluded that, according to the fact that the marriage ended with death, the property subject to the case had lost its status as a family residence. Therefore, it is necessary to decide on the outstanding case that “there is no room for decision”, while it was stated that the decision to abolish the mortgage was considered the reason for disruption.
The Konya 4th Family Court, on the other hand, resisted in its first decision on the grounds that the real estate would be sold at the end of the enforcement proceedings and that the plaintiff could not exercise the legal rights arising from the family residence of the spouse, on the grounds that the property would be sold at the end of the enforcement proceedings and that the plaintiff could not exercise the legal rights arising from the family residence.
Upon appeal of the decision to resist, the case came to the agenda of the General Assembly of the Supreme Court of Justice.
The board overturned the decision to resist by a majority vote, on the grounds that “it is necessary to comply with the decision to dissolve the private circle, while resisting it in the previous resolution” was contrary to procedure and law. The General Assembly of the Law ruled that there was no room to decide on the case, which remained uncontested due to the death of the spouse.
Against this decision of the General Assembly of the Law, the plaintiff woman filed a request for correction of the decision.
The board reconsidered the file upon request. This time, the dispute was examined whether the protection granted to the family residence due to the death of the spouse will end, whether the status of the family residence will continue and whether the case will remain uncontested according to the conclusion reached here.
The General Court of Law, having accepted the plaintiff spouse's request for rectification of the decision, overturned its previous decision and found the decision to resist in place. He sent the file to the 2nd Judicial Office for consideration of appeal objections on the merits. This decision of the General Assembly became the final verdict on the case.
According to the Turkish Civil Code, the reasons of the General Assembly stated that although the family residence is not reserved, the actual driving rights of spouses on the family residence with which they live together are limited, and the limitation is imposed not because the family residence is reserved, but because the dwelling has the status of a family residence.
For this reason, it was noted that even if the title of family residence was not granted the designation of a family residence, it was noted that this dwelling would have the property of a family residence, it was noted that this right could not be waived in advance, nor could it be eliminated by agreement of the spouses.
On the grounds that the spouse who owns the family dwelling cannot restrict the family dwelling alone with the same right in such a way as to complicate the life of the spouse in the family dwelling, it was emphasized that this limitation can only be done with the explicit consent of the other spouse.
In the explanatory statement, it was stated that these principles were adopted in the same way in the previous decisions of the General Assembly of Law.
According to the Turkish Civil Code, in the event of the death of one of the spouses, the spouses may request the recognition of the right of ownership inherent in the inheritance of the surviving spouse over the dwelling where they live together, with these provisions of the Law the same right to share the inheritance if the marriage is terminated by death, the surviving spouse has the same right to share the inheritance if the marriage ends with death. It was explained that efforts were made to maintain the protection of family housing, which was eliminated by providing the possibility of requesting.
Chain of protection for the benefit of the spouse
In the justification, it was emphasized that the protection imposed on family housing starts when the spouse is alive and continues after the death of the spouse, that is, the Law establishes a chain of protection for the benefit of the non-owner spouse in relation to the family residence.
In the concrete case, on the grounds that a mortgage was placed on the house at the time of the lawsuit, the plaintiff argued that the mortgage was invalid, included the following determinations:
“It is clear that this mortgage transaction is invalid if, as alleged, explicit consent has not been obtained. In cases where it is recognized that there is no valid transaction, the death of the owner's spouse cannot be considered to give legal validity to this transaction. By another account, a process that is dead cannot be resurrected. Then the surviving spouse has the rights specified in the title of heir. The legal interest of the plaintiff woman, which existed at the time of filing the case, continues even after the death of the spouse during the trial. In addition, there is still a mortgage that is claimed to be invalid. For these reasons, it is impossible to say that the case remains without issue, although the marriage ended in death. A contrary opinion will result in the sale of the real estate by enforcement without allowing to investigate whether the plaintiff is right in his case, which in turn will lead to gross violations of rights.”