Family Home Annotation: What It Is, How to Register and Remove It

While the marriage continues, the home in which the family lives together cannot be sold, donated or mortgaged without the other spouse’s express consent, even if it is registered in the land registry in the name of one spouse only. This protection derives from Article 194 of the Turkish Civil Code (TMK); the family home annotation (aile konutu şerhi) makes that protection visible to everyone by having it entered in the land register. No lawsuit is needed for the annotation; applying to the land registry office is enough. In this article we explain step by step how the annotation is registered, what it does in sales and mortgages, which action can be brought against a sale made by a spouse without the other’s knowledge, and what becomes of the annotation during and after divorce.

What is a family home, and what does TMK 194 protect? #

The family home is the home where the spouses carry on all their life activities together and where they regularly live. According to the practice of the Court of Cassation (Yargıtay), there is only one family home; a summer house used at weekends, a mountain cabin or a second flat that has been let out does not benefit from this protection. It does not matter in whose name the property is registered in the land registry or whether it was bought before or after the marriage: a home that is personal property can also be the family home.

Under TMK art. 194, unless the other spouse has given express consent, one spouse cannot:

• terminate the lease relating to the family home,
• sell, donate or otherwise transfer the home,
• restrict the rights over the home; for example, create a mortgage, a usufruct or a right of residence, or enter into a promise-to-sell agreement.

The law does not prescribe any special form for consent, but for ease of proof it is preferred in practice for consent to be given before the land registry officer or by a notarised letter of consent (muvafakatname). If the other spouse withholds consent without just cause, or if consent cannot be obtained (for example, if the spouse’s whereabouts are unknown), the owner spouse may ask the judge for a decision that takes the place of consent (TMK art. 194/2).

How is a family home annotation registered? #

Under the third paragraph of Article 194 of the Code, the spouse who does not own the home may ask the land registry office (tapu müdürlüğü) directly for the necessary annotation to be entered in the land register. No court decision is required and the owner spouse’s permission is not sought. Under Circular No. 2014/4 of the General Directorate of Land Registry and Cadastre (TKGM), the owner spouse, or both spouses together, may also apply; this is particularly useful for an owner spouse with more than one home to make clear which property is the family home.

Applying step by step #

1. Obtain the property details: Province, district, neighbourhood, block (ada), parcel and independent unit number. These details can be found in the land registry information on e-Devlet (the e-Government portal), an old title deed or property tax records.
2. Prepare the documents: Under the Circular, a residence certificate obtained from the civil registry directorate or from e-Devlet (MERNİS) and a civil registry record extract showing marital status are required. An identity card and a recent photograph should also be brought.
3. Resolve any address mismatch: If the address in MERNİS does not match the block/parcel details in the land registry, a document showing that the home is used as the family home is obtained from the neighbourhood headman’s office (muhtarlık), the municipality, the building management or the cadastre directorate.
4. Submit the application: The application is made in person or through a representative to the land registry office responsible for the property. In practice, a pre-application can be made through Web Tapu on e-Devlet, and you may be called to the office for the signing stage.
5. Registration and notification: The annotation is entered in the annotations column of the land register with its date and journal number. If the application came from the non-owner spouse, the owner spouse is notified of the outcome.

Cost: The TKGM Circular states that, since the Fees Law contains no tariff for this transaction, the request is dealt with without charging any fee or revolving fund charge. If you have the transaction carried out by a lawyer, only the power of attorney and the lawyer’s fee are involved.

If the land registry office rejects the application (for example, because it considers that the home is not the family home), an action for the annotation may be brought before the family court (aile mahkemesi); where there is no family court, the civil court of first instance hears it in that capacity. A home without a land registry entry can also be the family home, but because it has no title deed no annotation can be entered for it. Nor can an annotation be entered on a home belonging to a third person (for example, the father-in-law’s home) or on the bare ownership of a property subject to a usufruct.

If the home is held in shared ownership in the land registry, the annotation is entered on the owner spouse’s share. If a mortgage, attachment or injunction has already been registered on the property, under the Circular the annotation is still entered once the applicant spouse accepts that these entries exist, and the mortgage and attachment creditors are notified. The annotation does not extinguish those rights created before it; for that reason, before applying it is useful to check the home’s current entries in the land registry information on e-Devlet to see the extent of the risk.

Effect of the annotation: sale, mortgage and the third party acting in good faith #

The annotation does not create family home status; it reflects an existing situation in the land registry. In other words, even without an annotation the home is the family home and the consent requirement applies. What makes the difference is the position of the person who buys the home or takes a mortgage over it. The land register is open to everyone, and no one may claim to be unaware of an entry in the register (TMK art. 1020). Once the annotation is entered, a buyer or bank cannot say “I did not know it was a family home”; the land registry office also requires the other spouse’s consent for transfers and mortgages.

What changes with and without the annotation? #

The debate over the buyer’s good faith #

In sales made when there is no annotation, the dispute centres on whether the buyer acted in good faith. According to the settled approach of the Assembly of Civil Chambers of the Court of Cassation (Yargıtay Hukuk Genel Kurulu), where there is no annotation, the acquisition of a person who did not know and could not be expected to know that the property was a family home is protected under the principle of reliance on the land register (TMK art. 1023). By contrast, a person who knew or was in a position to know the situation cannot claim good faith. For example, there are decisions in which a bank that sent a valuer before granting a loan and established that the family was living in the home was not regarded as acting in good faith, on the ground that it had not acted like a prudent merchant. In legal scholarship there is also a strong view that a person dealing directly with the spouse should not be protected at all, even without an annotation. The way to remove this uncertainty is to have the annotation registered in advance.

Transactions the annotation does not cover #

The limits of the annotation must also be known: under the Circular, the annotation makes transactions the owner spouse carries out of their own free will subject to the other spouse’s consent; it does not prevent transactions outside the owner’s will, such as registration by court order, attachment, interim injunction and sale through enforcement. Whether the home can be attached is assessed separately under the rules on exemption from attachment in enforcement law.

If it is sold without consent: action for annulment of title and re-registration #

If you learn that your spouse has sold, donated or mortgaged the home without your consent, you may bring an action for annulment of title and re-registration (tapu iptal ve tescil davası) based on the invalidity of the transaction. The action is brought jointly against the owner spouse and the person who acquired the home (the bank, in the case of a mortgage). In the practice of the Court of Cassation, these actions are heard by the family court because they arise from family law. If the action succeeds, the sale is annulled and the property is registered again in the owner spouse’s name; the home does not pass into the ownership of the claimant spouse. In a mortgage case, the court orders the mortgage to be removed.

While the case is pending, the first step to prevent the home from being sold again is to ask for an interim injunction to be entered in the land register. If the buyer turns out to have acted in good faith, the home may not be recoverable; in that case the sale price and the value of the home are taken into account in the division of property. Transfers made with the intention of reducing the participation claim (katılma alacağı), and gratuitous dispositions made without consent within the year before the end of the matrimonial property regime, are among the values added to the calculation (TMK art. 229). For the general workings see our action for annulment of title and re-registration guide, and for the calculation our division of property in divorce guide.

The annotation and interim measures while a divorce case is pending #

Filing for divorce does not end the marriage; until the judgment becomes final, the home keeps its family home status. For this reason a family home annotation can also be requested from the land registry office while the case is pending, and the annotation is not deleted for as long as the divorce case continues. One spouse leaving the home when the case is filed does not, on its own, end that status either.

When the case is filed, the judge of their own motion takes interim measures concerning the spouses’ accommodation and maintenance, the management of their property and the care of the children for the duration of the case (TMK art. 169). In practice the following may be requested in this context:

• Leaving the home for the use of one spouse and the children for the duration of the case,
• Deciding, together with interim maintenance (tedbir nafakası), who will cover the household expenses,
• An injunction annotation preventing transfer of the property in order to protect the property division claim.

Leaving the home to one spouse for the duration of the case also, as a rule, prevents compensation for unlawful occupation (ecrimisil) from being claimed from that spouse; for the position after the divorce becomes final, see our article on the action for compensation for unlawful occupation. If the spouses convert the case into an uncontested divorce, the protocol should state clearly who will keep the home, who will pay the loan and when the annotation will be removed; otherwise, after the judgment becomes final, the owner spouse can have the annotation deleted alone, and the other spouse’s expectations regarding the home are left to a matrimonial property case. The general course of the case is explained in our contested divorce process guide.

Removing the annotation after divorce #

The protection is tied to the marital union. Once the divorce becomes final, no annotation can be registered any more, and an existing annotation can be removed. Under the TKGM Circular, deletion is mainly carried out in the following cases:

• At the request of the non-owner spouse who had the annotation registered,
• Upon submission of a final divorce or annulment of marriage judgment, at the unilateral request of the owner spouse, if the judgment contains no provision on keeping the annotation,
• At the request of the owner spouse, if it is documented that the spouses have acquired a new family home and an annotation has been entered for that home,
• On the death of one of the spouses, at the request of the surviving spouse,
• By a court decision ordering the annotation to be removed.

If the family has moved while the marriage continues and the other spouse will not agree to removing the annotation, the owner spouse may ask the family court to delete the annotation by proving that the home is no longer the family home. The other spouse is notified of deletions carried out unilaterally.

A rented family home: TMK 194 and TBK 349 #

If the family lives in rented accommodation, the protection concerns the lease rather than the land register. The tenant spouse cannot terminate the lease without the express consent of their spouse; if consent cannot be obtained or is withheld without just cause, a decision may be requested from the judge (Turkish Code of Obligations, TBK art. 349/1). The spouse who did not sign the lease becomes a party to it by a notification to the landlord and becomes jointly and severally liable with the other spouse for the rent (TMK art. 194/4).

This notification is of great practical importance: after it, the landlord must send the notice of termination, and the default notice with a payment deadline in case of non-payment of rent, separately to the tenant and to the tenant’s spouse (TBK art. 349/2). For a spouse at the divorce stage, sending the notification through a notary is safe for proof against the risk of being evicted by a termination made without their knowledge. For the landlord’s eviction rights, see our article on ways to evict a tenant.

How is it proved that the home is the family home? #

For the application at the land registry office, the residence record is usually sufficient. However, in an action against a sale without consent or in a dispute over removing the annotation, whether the home was actually the place where the family lived on the date of the transaction is contested. The main evidence used is:

• Civil registry information showing the address registration of the spouses and children,
• Electricity, water, natural gas and internet subscriptions and consumption amounts,
• The children’s school enrolment, family doctor and neighbourhood headman’s records,
• A letter from the building management, maintenance fee payments and testimony of neighbours,
• The bank’s valuation report and photographs (in mortgage disputes).

The address registration alone is not regarded as conclusive evidence; even if the registration is elsewhere, the place where the family actually lives is what counts. A spouse having left the home, or the spouses living apart, does not automatically end the home’s status as the family home; what is really decisive is whether the marital union and the family’s life in that home continue.

Fictional example: The spouses and two children live in a flat bought during the marriage in the husband’s name. When the spouses begin living apart, the husband sells the flat to an acquaintance. Even though there is no annotation in the land registry, if the wife proves with witnesses and records that the buyer lived in the same building and knew that the children were still living in that home, the sale can be annulled and the flat registered again in the husband’s name. Had there been an annotation in the same file, the sale would never have gone through at the land registry.

Brief summary #

1. The home the family lives in cannot be sold or mortgaged without the other spouse’s express consent, whoever it is registered to (TMK art. 194).
2. A family home annotation is requested from the land registry office without filing a lawsuit and without the owner spouse’s permission; under the TKGM Circular no fee or revolving fund charge is collected.
3. If there is an annotation, the buyer and the bank cannot claim good faith; if there is none, the acquisition of a third party acting in good faith may be protected.
4. The annotation does not prevent attachment or sale through enforcement.
5. After a sale without consent, an action for annulment of title and re-registration is brought before the family court; the home returns to the owner spouse’s name, and an interim injunction should be requested before the case.
6. An annotation can be registered while a divorce case is pending and is not removed; with a final divorce judgment, the owner spouse can have the annotation deleted alone.
7. In a rented home, the spouse who is not a party to the lease can become a party by notifying the landlord.

For situations that need to be assessed together with divorce, maintenance, custody and division of property, you can review our family and divorce law page.