CONCEPT OF AN APPROPRIATE HOME
The concept of an appropriate home is understood as a residential space that can meet the housing needs of individuals according to local customs and traditions, such as an apartment, detached house, or shared ownership of these properties [1].
The concept of an appropriate home refers to a dwelling that can sustain the social life and housing needs of the debtor and their family at a minimum level.
Whether a residence qualifies as an appropriate home for the debtor is determined based on their social life and needs. Engaging in certain activities or residing in a specific location does not necessarily require the debtor and their family to live in a more luxurious dwelling than the criteria we mentioned. It should be noted that the term “family” here should be interpreted broadly and includes individuals who live with the debtor and for whom the debtor is responsible for their care [2]. For example, the concept of family includes the debtor’s son, daughter-in-law, and adult children who live with them.
After evaluating whether a residence meets the criteria for an appropriate home for the debtor, if it is determined that the debtor has made luxury choices rather than opting for a modest home that suits their social life and needs, the debtor will not be able to claim immunity from execution and the Enforcement Court will assess and determine a home suitable for the debtor’s situation.
In cases where the debtor claims immunity based on the concept of an appropriate home, they can also make a claim of residence even if the property they own is not solely owned by them [3].
If the debtor has multiple residences, they can make a claim of residence for the seized property. The existence of multiple residences does not prevent making this claim [1].
Restricting the concept of residence to a single property in cases where an appropriate home is mentioned may lead to unfair situations. The Execution and Bankruptcy Law (İİK) does not have any limitations regarding restricting the claim of residence to a single home. In situations where a single home is not sufficient to meet the needs of the debtor and their family, it may be possible to leave both homes in their possession [1]. For the debtor to make a claim of residence for both homes, both properties must be evaluated as appropriate homes. If one of these homes allows for luxury instead of modesty, the debtor will not be able to make a claim of residence for both properties [2].
A debtor can waive the immunities of properties and rights that are not subject to seizure based on the provisions of the law. However, Article 83/a of the İİK invalidates prior waiver agreements regarding properties and rights that are partially subject to seizure. Therefore, the right to waive immunity from execution for an appropriate home can only be exercised during or after the seizure. This is because it cannot be expected that the debtor can fully anticipate the consequences of the waiver before the execution proceedings, and this situation may lead to irreversible outcomes for the debtor. Thus, the legislator protects the debtor from making erroneous decisions [1]. When determining the debtor’s appropriate home, the criteria considered are not solely based on the debtor but also take into account the individuals who may be included in the concept of family and their needs. Although the evaluation considers the family members and their needs, the right to claim residence is only granted to the debtor according to the Supreme Court [1].
A waiver of immunity agreement cannot be made until the execution proceedings. Therefore, a waiver made during the execution stage does not affect pending enforcement proceedings. Similarly, a waiver of immunity from execution only affects the debtor and the creditor for whom the waiver is made [2].
If an immovable property that is not subject to seizure is indeed seized, and the debtor does not file a complaint against the seizure within the complaint period, it is considered that the debtor has implicitly waived the seizure. It is accepted that this invalid seizure becomes valid when the right to complaint is not exercised [3].
EFFECTS OF ESTABLISHING A MORTGAGE ON THE APPROPRIATE HOME OF THE DEBTOR
The General Assembly of Civil Chambers of the Court of Cassation, in a decision it rendered [1], stated that if a debtor establishes a mortgage on their appropriate home, they cannot claim residence rights in enforcement proceedings initiated by other creditors. The Court of Cassation, while justifying its decision, stated that for a debtor who has consented to the establishment of the mortgage, the mortgage will not be lifted and if the mortgaged property is sold, they cannot claim residence rights. Accordingly, the Court of Cassation considers the debtor who has consented to the mortgage as a debtor who has accepted the sale of the property, and therefore considers the establishment of the mortgage as a prior waiver of residence rights.
In another decision by the 12th Civil Chamber of the Court of Cassation [1], it is stated that the establishment of a mortgage on a house cannot be considered an absolute waiver of residence rights. It is emphasized that the reasons for the establishment of the mortgage should be investigated and based on that, a decision should be made whether the establishment of the mortgage implies a waiver of non-enforceability.
The Court of Cassation has recently made a distinction based on whether the mortgage is mandatory or not in terms of its effect on non-enforceability. In cases where the mortgage is established as a mandatory measure, such as housing loans, commercial loans, agricultural loans, the Court of Cassation has issued a decision [2] stating that the debtor can claim residence rights. This is because collateral in loans given for social purposes is determined as a mandatory mortgage, and since this mortgage is not under the control of the debtor, it is intended to prevent the potential hardships that may arise if the claim of non-enforceability is allowed.
In another decision [3], the Court of Cassation states that if the established mortgage is lifted before the commencement of enforcement proceedings, the debtor can claim non-enforceability, and the removal of the mortgage does not prevent this.
STRUCTURES THAT CAN BE CONSIDERED AS APPROPRIATE HOMES ACCORDING TO COURT OF CASSATION DECISIONS
The fact that the debtor’s house, which they have classified as a residence, is located on a property registered as a land in the land registry does not prevent the claim of residence rights [1]. The fact that the immovable property owned by the debtor is not suitable for housing, is in ruins or dilapidated does not prevent the claim of non-enforceability [2]. If the debtor does not have any other real estate registered in their name, it is possible to claim residence rights for the ruined or dilapidated structure, even if it is not suitable for living [1]. In connection with this situation, it is not necessary for the debtor to physically occupy the house in order to claim residence rights [2]. The Execution and Bankruptcy Law (EBL) considers adequacy for residence sufficient for claiming residence rights and does not require the condition of actual use of the residence [3].
In order to make a claim of non-enforceability for a residence, it is not necessary for the immovable property to be fully completed [4]. The debtor can claim residence rights for an unfinished house. The Court of Cassation did not find it correct to reject the claim of residence rights made for a house under construction in one of its decisions [5].
In order to be able to assert residence rights for immovable properties owned by the debtor that have the characteristics of summer houses or vineyard houses, it is sufficient for these structures to be suitable for residence. The Court of Cassation has accepted the claim of residence for a debtor’s summer house in one of its decisions [6], and it did not require the condition of permanent residence. In another decision [7], the Court of Cassation stated that the vineyard house in the immovable property registered as a vineyard does not constitute an obstacle to claiming residence rights. It even ruled that in the case of the same immovable property being shared, the debtor can claim residence rights based on their share.
It has been stated that a residence that can meet the needs of the debtor and their family can be considered an appropriate home. At the same time, it is not necessary for this house to be registered in the land registry in order to make an objection of non-enforceability [8]. The Court of Cassation has not required the registration of the residence in the land registry and has issued a decision [9] stating that a claim of residence can be made for a structure built with the purpose of a shanty.
The fact that a residence is also used as a workplace does not deprive the structure of its claim of residence. If the debtor uses the seized property both as a residence and a place of business, this does not prevent them from claiming non-enforceability. For example, if a part of the debtor’s house is used for residential purposes and the other part is closed as a grocery store, the debtor can still make a claim of residence [1]. In one of its decisions [2], the Court of Cassation found it erroneous that a determination of the appropriate home that the debtor could take after the sale of the dairy farm used by the debtor and their family for housing purposes was not made, and from this, we understand that the Court of Cassation also states that a claim of residence can be made even in cases where a residence and a place of business are used together.
ASES WHERE NON-EXECUTABILITY CLAIM CANNOT BE ASSERTED
In Article 82/13 of the Execution and Bankruptcy Law (İİK), the exceptions listed in paragraphs 2, 3, 4, 5, 7, and 12 of Article 82, which pertain to non-executable goods, are conditioned upon the debt not arising from the proceeds of these goods. In other words, it is implied in this paragraph that in order for the debtor’s listed goods to be exempt from execution, these goods must belong to the debtor. If the debt arises specifically from the sale proceeds of these goods, the debtor cannot assert that these goods are non-executable against the creditor. The debt must be specifically derived from the sale proceeds of the goods. However, in a scenario where the debtor may have obtained this goods based on a debt owed to the creditor, even if the debt is owed to the creditor, the debtor can still claim non-executability for the exempt goods on the grounds that the debt did not arise from the sale proceeds of the non-executable goods. If there is a sales promise agreement regarding a residence between the debtor and the creditor, and if the creditor initiates an enforcement proceeding based on the violation of this sales promise agreement, and if the debtor has not transferred the residence subject to the sales promise to the creditor despite the full or partial payment of the price of the residence to the debtor, the debtor cannot claim non-executability based on the residence subject to the sales promise.
If the debtor constructs a residence on a seized land, the debtor cannot claim non-executability for this residence. The Court of Cassation has stated in a decision that when the land is seized, the debtor’s power of disposal is restricted, and therefore, if the debtor constructs a residence on the seized land, the debtor cannot claim non-executability for this residence.
PROCEDURE FOR ASSERTING RIGHT OF RESIDENCE
Only the debtor can assert the right of residence. Other individuals besides the debtor are not granted this right. Although it is argued in doctrine that family members of the debtor should also benefit from this right, the Court of Cassation has ruled in a decision that the right of residence can only be asserted by the debtor.
The claim of right of residence must be made to the enforcement court to which the enforcement office is affiliated.
According to Article 16 of the İİK, the complaint must be filed with the enforcement court within seven days from the date the grounds for the complaint are learned. Therefore, the claim of right of residence must be made within seven days from the debtor’s knowledge of the seizure of the residence. If the debtor fails to make the claim of right of residence within seven days, the debtor will be deemed to have waived the right of residence, but this applies only to the specific enforcement proceedings, and the debtor can still continue to exercise this right for other proceedings.
[1] BULUT, Uğur, “Establishing Mortgage on Debtor’s Suitable House and Waiver of Non-Enforceability”, Journal of Dokuz Eylül University Faculty of Law, Year: 2012, Volume: 12, Special Issue 2010, (pp. 1073-1103), p. 1076.
[2] ÖZBAKIR, Senem Ö., “Non-Enforceability of Debtor’s Suitable House (Claim of Residency – Article 82/12 of the Execution and Bankruptcy Law)”, Master’s Thesis, Istanbul, Kadir Has University Institute of Social Sciences, 2010, p. 11.
[3] KAÇAK, Non-Enforceability, p. 53.; UYAR, Execution Seizure, p. 660.
[4] ÖZBAKIR, Senem Ö., “Non-Enforceability of Debtor’s Suitable House (Claim of Residency – Article 82/12 of the Execution and Bankruptcy Law)”, Master’s Thesis, Istanbul, Kadir Has University Institute of Social Sciences, 2010, p. 17.
[5] KURU, Permissible Seizure Items, p. 306.; POSTACIOĞLU, Principles of Execution Law, p. 361.
[6] ÖZBAKIR, Senem Ö., “Non-Enforceability of Debtor’s Suitable House (Claim of Residency – Article 82/12 of the Execution and Bankruptcy Law)”, Master’s Thesis, Istanbul, Kadir Has University Institute of Social Sciences, 2010, p. 19(fn.48) [7] POSTACIOĞLU, Principles of Execution Law, p. 415.
[8] 12th Civil Chamber of the Court of Cassation, 08.02.2005, 24990/2109.
[9] BULUT, Uğur, “Establishing Mortgage on Debtor’s Suitable House and Waiver of Non-Enforceability”, Journal of Dokuz Eylül University Faculty of Law, Year: 2012, Volume: 12, Special Issue 2010, (pp. 1073-1103), p. 1083.
[10] POSTACIOĞLU, Principles of Execution Law, p. 415.
[11] General Assembly of Civil Chambers of the Court of Cassation, 22.10.1969, 714/779 (BULUT, p. 1087).
[12] 12th Civil Chamber of the Court of Cassation, 17.03.1992, 9817/3227 (BULUT, p. 1088).
[13] Court of Cassation 12th Civil Chamber, Case No. 2014/35489, Decision No. 2015/2994, Date: 17/02/2015.
[14] 12th Civil Chamber of the Court of Cassation, 11.03.2008, 2031/4651.
[15] UYAR, Execution Seizure, p. 659.
[16] POSTACIOĞLU, Principles of Execution Law, p. 360.
[17] Court of Appeals, Decision Date: 20.10.1952, Official Gazette Issue: 3985, Court Decision: 4208 (ÖZBAKIR, p. 23).
[18] POSTACIOĞLU, Principles of Execution Law, p. 360.
[19] ÖZBAKIR, Senem Ö., “Non-Enforce