The family residence does not have to be owned by one or both spouses, and it is accepted that real estates used by a lease agreement (or another legal transaction granting the right of use) also have the nature of a family residence. If the subject of the lease agreements is a family residence, the lease agreement cannot be terminated without the consent of the spouse who cannot be a tenant, in accordance with Article 349 of the Turkish Code of Obligations. The family residence also provides the spouse, who is not a party to the agreement, the opportunity to become a party to the agreement by notifying the lessor, in accordance with Article 194 of the Turkish Civil Code.
The loss of this nature of real estates with the nature of a family residence occurs in the event of death or the finalization of the divorce or annulment decision, which are cases of termination of the marriage. Therefore, in the event of divorce of the spouses, the real estate loses its nature of a family residence. In this case, the real estates used by a lease agreement will also lose their nature of a family residence due to divorce. The problem here arises from the fact that if the spouse who is a party to the lease agreement terminates the lease agreement in the event of divorce, the consent of the other spouse is not required since the family residence status is lost due to the divorce. In clearer terms, a spouse who is not a party to the lease agreement but wants to continue living in the same real estate after the divorce cannot prevent the other spouse from terminating the lease agreement. The criterion sought for termination of the lease agreement in a family residence is the existence of the title of ‘spouse’. Since the title of spouse is lost with the divorce, the spouse who is not a party to the lease agreement cannot benefit from the security provided by the family residence legally.
There is no regulation in our law regarding the status of the real estate used as a family residence after the divorce. Therefore, the spouse who could not become a party to the lease agreement until the divorce decision becomes final cannot prevent the other spouse from terminating the lease agreement with the finalization of the decision and is forced to leave the residence. If he continues to use the residence, he becomes an unjust possessor and has to pay unjust occupation compensation.
In practice, the Court of Cassation, by applying Article 276/4 of the Enforcement and Bankruptcy Law, which regulates the presence of a third party in the rented real estate, has ruled to protect the spouse who does not have the status of tenant after divorce. According to Article 276/4 of the Enforcement and Bankruptcy Law; The debtor’s lineage and lineal kinship, wife or husband, blood and in-law relatives up to the second degree, business partners and other persons who are understood to reside in the property of the debtor as subjects are not considered third parties in the application of the provision of this article. However, with divorce, the spouses lose the status of husband and wife and therefore are not included in the scope of this provision. There are opinions in the doctrine stating that until a clear regulation is made on the subject, Article 254/4 of the Turkish Civil Code should be applied. According to Article 254/4 of the Turkish Civil Code regarding the regime of shared property separation; If the spouses are living in a rented house, the judge may decide that the spouse who is not a tenant should stay in the house if necessary. In this case, the necessary arrangements to secure the rights of the lessor arising from the contract are decided ex officio together with the annulment or divorce decision. In our opinion, it is more reasonable to protect the spouse who is not a party to the lease agreement by applying the provision in question. However, the Court of Cassation refuses to apply Article 254/4 of the Turkish Civil Code in its decisions.
Based on the gap in the law, we find it useful to touch upon how this issue is resolved in comparative law. According to the Swiss Civil Code, the spouse who is not a party to the lease agreement can take over the lease agreement in its entirety by court order. The spouse who is currently a tenant is jointly and severally liable for the rent with the transferee for a certain period of time despite the transfer. The transfer of the agreement is carried out by court order, independently of the parties’ wills, and the consent of the parties to the agreement is not required[1].
According to the German Civil Code, the lease agreement regulates the possibility of transferring the agreement to the spouse who is not a party to the lease agreement in the event of divorce through two different methods: the spouses notifying the lessor together or the finalization of the housing allocation decision made directly by the court. When the conditions sought in the provision are met, the spouse who has the right to benefit from the family home after the divorce becomes the sole tenant of the apartment through succession. Here, the spouse’s tenancy right arises as a result of a special succession arising from the law. Therefore, the agreement continues to exist with all its provisions except for the change of person; The rental price, the duration of the contract, the rights and obligations of the parties are not affected by the succession. In the German law regulation, unlike the regulation in the Swiss Civil Code, there is no additional joint liability for the spouse who leaves the lease contract. However, the lessor is granted the right to terminate within one month of being informed of the succession[2].
Our suggestion is to eliminate the legal gap in question, which arose as a result of regulations made without taking into account the status of the family residence after divorce, in the light of the regulations in comparative law, by resorting to legal regulation.
[1] Özlük, Betül. “AİLE KONUTUNUN KİRA SÖZLEŞMESİ İLE SAĞLANMASI HALİNDE BOŞANMANIN SÖZLEŞMEYE ETKİSİ”. Medeni Hukuk Dergisi 1, sy. 1 (Ocak 2024): 69-95, s.92.
[2] Özlük, Betül. “AİLE KONUTUNUN KİRA SÖZLEŞMESİ İLE SAĞLANMASI HALİNDE BOŞANMANIN SÖZLEŞMEYE ETKİSİ”. Medeni Hukuk Dergisi 1, sy. 1 (Ocak 2024): 69-95, s.92.