This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Aile Konutu Şerhi: Evin Habersiz Satılmasını Önlemek.
The family residence is the home the spouses live in together, and even where only one spouse is the registered owner it cannot be sold, mortgaged, or have its lease terminated without the other spouse's express consent (TMK art. 194). The protection arises automatically; but to be effective against third parties, registering the family residence annotation on the title matters greatly.
The home is registered in your spouse's name and the relationship is deteriorating. Can it be sold, mortgaged or the tenancy ended without your knowledge? TMK art. 194 addresses exactly that risk.
What the Protection Is
TMK art. 194/1: neither spouse may, without the express consent of the other, terminate the lease of the family residence, transfer it, or limit the rights over it.
This applies whoever is the registered owner. The owning spouse cannot sell, mortgage or create a usufruct without the other's consent.
The second paragraph balances it: a spouse who cannot obtain consent, or from whom consent is withheld without just cause, may seek the intervention of the judge. The protection is therefore not absolute; where there is just cause, the court may make an order in place of consent.
What counts as the family residence? The home the spouses chose to live in together and where they conduct their life. A summer house, a second home or an investment property does not fall within it.
Registering the Annotation
TMK art. 194/3: the spouse who is not the owner of the property designated as the family residence may ask the land registry to enter the necessary annotation on the register.
The annotation is not a condition of the protection — the consent rule in art. 194/1 applies without it. But it makes the protection far stronger against a third party acting in good faith.
Where there is no annotation, whether the buyer acted in good faith becomes a matter of proof. With it, the buyer cannot claim good faith at all.
Applying: to the land registry. The documents usually required are identity, the marriage certificate or civil status record, and evidence that the property is the family residence — a residence certificate, address record, utility bills.
If the land registry refuses, an order requiring the annotation may be sought from the family court, and that request can be made together with the divorce action.
| Transaction | Consent required? |
|---|---|
| Selling the home | Yes |
| Creating a mortgage over it | Yes |
| Granting a usufruct or right of habitation | Yes |
| Terminating the lease (where the spouse is tenant) | Yes |
| Gifting the home | Yes |
| Ordinary maintenance and repair | No |
| Letting the home | Assessed on the facts |
Even without an annotation, the transaction can be impugned if it is proved that the third party knew, or ought to have known, that the property was the family residence.
A Transfer Without Consent
A transfer made without the spouse's express consent is contrary to TMK art. 194.
The non-owning spouse may bring an action for cancellation of the title deed and re-registration in the former owner spouse's name.
What decides the case is whether the third party (the buyer) acted in good faith:
- With a family residence annotation on the register, the buyer cannot claim good faith and the transfer is cancelled.
- Without one, it must be shown that the buyer knew or ought to have known that the property was the family residence.
Facts that can be relied on in the second case: the buyer's closeness to the seller, a price far below market, and the family visibly living in the property when the buyer saw it.
An interim injunction must also be sought when the action is filed; otherwise the property can be transferred on during the proceedings.
If You Are Tenants
The protection is not confined to ownership.
TMK art. 194/4: where the family residence is provided by one spouse under a lease, the spouse who is not a party to the contract becomes a party to it by notice to the landlord, and is then jointly liable with the other.
This is a significant protection: a spouse not named in the lease reduces the risk of being removed from the home by giving that notice.
Moreover, the spouse who is a party to the lease cannot terminate it without the other's express consent.
Give the notice in writing and keep the record; a notarised warning notice is the safest route.
After Divorce
The protection lasts while the marriage lasts and ends when the divorce judgment becomes final.
But divorce brings a separate provision: under TMK arts. 240 and 254, on the liquidation of the property regime the surviving or the other spouse may, where the conditions are met, ask for ownership or a usufruct over the family residence to be granted to them against their participation claim.
The judge may also regulate the use of the home during and after the divorce for the protection of the children.
Claims relating to the family residence should therefore be made expressly in the divorce petition: registration of the annotation, an interim order regulating the use of the home, and allocation of the home on liquidation.
The protection applies without an annotation; but with one, the buyer cannot claim good faith and the transfer is cancelled. Without it, the burden of proving the buyer's bad faith falls on you. If the land registry refuses, the family court can order it.
Frequently Asked Questions
How do I register the family residence annotation?
The non-owning spouse applies to the land registry with identity, the civil status record and evidence that the property is the family residence. If refused, the family court can order it.
Is there no protection without the annotation?
There is; TMK art. 194 applies regardless. But without it the burden of proving the buyer's bad faith falls on the claimant.
My spouse sold the home without my consent.
Bring an action for cancellation of the title deed and re-registration — and always seek an interim injunction when you file.
We are tenants. Am I protected?
Yes. The spouse not party to the lease becomes a party by notice to the landlord, and the other spouse cannot terminate the lease without your consent.
Does the protection continue after divorce?
No, it ends when the divorce becomes final. But you may ask for the home to be allocated to you on the liquidation of the property regime.