What is the legal basis of an action for removal of a mortgage on the family residence?
What does TMK Art. 194 protect?
Article 194 of the Turkish Civil Code aims to prevent one spouse from transferring the family residence, or restricting rights over it, without obtaining the other spouse's express consent. The owner's freedom of disposition over the residence is limited by statute so that the family can continue living in it. Because a mortgage is a real right that can lead to the residence being sold by compulsory enforcement if the debt is not paid, it is examined within this framework.
Family residence status is not dependent on a land registry annotation alone. However, the fact that the marriage continues and the property is a "residence" does not mean that every mortgage is invalid. It must be shown whether actual use as a family residence, and express consent specific to the transaction, existed on the date of the mortgage.
The consequence for the bank and the debtor
Removal of the mortgage is not the same as the loan debt disappearing altogether. What is in dispute is the validity of the real security in the mortgage agreement; claims arising from the credit agreement, suretyship or other pledges may continue to exist on their own legal grounds. For this reason, an action for removal of the mortgage must not be confused with claims for release from the debt, a negative declaratory action, objection to enforcement proceedings, annulment of the auction, or cancellation of title and re-registration.
Who may bring the action, and against whom?
As a rule, the claimant is the non-owner spouse
Under TMK Art. 194, the person who benefits directly from the special protection is the spouse who does not own the family residence and whose express consent was required for the mortgage transaction. The view that this person cannot bring an action because he or she has no ownership share is incorrect; the statute grants the right precisely to the non-owner spouse. On the other hand, the owner spouse who created the mortgage personally objecting to his or her own transaction relying solely on this special protection is a separate matter. As regards the owner spouse, defects of intention, lack of authority or other grounds of invalidity of the mortgage, if any, may be assessed separately.
The mortgage creditor and the owner spouse as parties
First, the current mortgage creditor shown in the land registry, whether the loan receivable has been assigned, the transfer of the mortgage to another legal entity and in whose name the property is currently registered must be determined. It is essential that the creditor who benefits directly from the mortgage is a party to the action. Whether to include the owner spouse in the legal relationship and to name other interested persons as parties is decided by assessing the claim in hand and whether the land registry record changed during the proceedings. If a third-party owner or auction purchaser has arisen later, the parties and the relief sought are re-examined.
Because choosing the wrong party can create a procedural problem before the merits are reached, the land registry encumbrances and the bank and enforcement files should be completed as far as possible before the action is brought.
In which court and where is the action brought?
Competent court: the family court
In a dispute arising from TMK Art. 194 over removal of a mortgage on the family residence, the competent court is the family court under Art. 4 of Law No. 4787. In places without a separate family court, the relevant court of first instance for civil matters (asliye hukuk mahkemesi) may sit as the family court. The dispute is not automatically moved to the commercial court of first instance merely because the mortgage secured a commercial loan; it matters in the legal characterisation that the right asserted arises from family residence protection.
Territorially competent court: where the immovable is located
For claims concerning removal of a real right over an immovable, the exclusive jurisdiction of the court of the place where the immovable is located under HMK Art. 12 is taken into account. If there are additional claims, such as cancellation of title and re-registration, or more than one immovable, jurisdiction and the type of action must be examined separately. The court's subject-matter and territorial jurisdiction should not be determined merely by the parties' places of residence.
Is mandatory mediation required before bringing the action?
For a family-law dispute under TMK Art. 194 concerning removal of the mortgage on the family residence, there is no general and independent mediation requirement as a condition for suing. However, if the action is brought together with different legal claims, the nature of each claim must be examined separately. A written application to the bank may help resolve the dispute; but the mere fact that an application has been made does not stop preclusive periods or enforcement periods.
The time limit for suing and the importance of the transaction date
Is there a special short time limit for suit under TMK Art. 194?
TMK Art. 194 does not lay down a general special preclusive time limit for suit of 7, 15 or 30 days running from the date the mortgage became known. However, it cannot be concluded from this that "the action can always be brought." The mortgage, the period during which the family residence character continued, legal interest, a change of ownership and the consequences of the end of the marriage are considered together. In addition, the sale and auction steps in the enforcement file have their own periods for applications; an action for removal of the mortgage does not stop these periods automatically.
The mortgage date, the date of learning and the date of the action should be recorded separately
For substantive law, family residence character and the required consent are examined as of the moment the mortgage was created. For interim protection and enforcement, the dates of learning of the mortgage, the payment order, the valuation, the notice of sale and the auction notification serve different functions. Merging these in the petition's account of dates may create a serious procedural risk.
What facts and claims should the petition contain?
Material facts and legal grounds
The petition should clearly state the land registry details of the property, between which dates it was used as the family residence, the date the mortgage was created and its journal entry number, the mortgage creditor, the debt for which the security was created, whether the claimant spouse gave express consent, and any objections concerning the consent document. Significant facts, such as the state of the marriage, a divorce case, death, a move or an earlier sale, must not be concealed.
Although the scope of the relief sought is determined according to the specific case, on the basis of family residence character and the absence of express consent the petition seeks removal of the mortgage created on a specified date and under a specified journal entry number; where necessary, a family residence annotation in the land register and, where appropriate, an interim injunction; if the property has been sold, the correct register claim is assessed separately. A temporary injunction requested from the court and the principal judgment are not framed as the same claim.
What happens if the appropriate claim is not framed?
Using an abstract formulation such as merely "a declaration that the mortgage is void" may leave unclear what result will be produced in the land registry. For the purposes of the judgment and registration, it must be specific from which immovable and record the mortgage right is to be removed. If the mortgage creditor changes or the property passes to someone else at the auction, the adequacy of the original claims is reassessed. The procedural options in the HMK and the rules on joinder of parties are taken into account as regards situations arising during the proceedings.
What evidence should be gathered?
Land registry, loan and mortgage documents
- The land registry record with its history, the official mortgage deed, the journal entries for creation and amendment, and any family residence annotation application and earlier annotation records.
- The credit agreement, general credit agreement, drawdown and payment records, the bank's expert/valuation reports, and correspondence with the bank.
- The original of the spousal consent form, the date on which the document was drawn up, the wording by which the specific mortgage was authorised, the signature and comparison documents.
- Documents on assignment of the receivable, transfer to an asset management company and any change of mortgage creditor.
Evidence showing that the family residence was in use on the date of the transaction
- MERNİS and population records; municipal door-numbering and address records; a police inquiry; building management and apartment records.
- Electricity, water, natural gas, subscription and maintenance fee documents; notifications or records of family life that are concrete and decisive for the relevant period.
- Witnesses who know the use first-hand; for mixed-use properties or properties that appear as land in the land registry, a site inspection, sketch and expert examination.
In its decision of 04.03.2025, E.2023/8051, K.2025/2339, the 2nd Civil Chamber of the Court of Cassation (Yargıtay 2. Hukuk Dairesi), taking together the municipality's letter, MERNİS, the police/building management report and the bills, quashed the judgment as regards family residence character. Full text of the decision.
The burden of proof is assessed separately for two different facts
The claimant spouse must show that family residence character existed on the date the mortgage was created. If the mortgage creditor or another defendant defends on the basis that express consent was obtained, it must prove the existence and scope of the consent. If there is a consent document whose signature is disputed, the dispute may require technical expert examination. The 2nd Civil Chamber's decision of 08.06.2026, E.2026/2302, K.2026/6250, quashing the judgment, is important in that it considered an examination by a qualified panel of experts necessary rather than being satisfied with a single-person report. Full text of the decision.
The HMK Art. 208/4 distinction for an allegation of forgery in an official deed
Is the claimant denying the signature on the private spousal consent form drawn up by the bank itself, or the consent writing and signature in the official mortgage deed drawn up by the land registry directorate? This distinction can directly affect the procedure. In its decision of 16.04.2025, E.2023/707, K.2025/240, the Civil General Assembly of the Court of Cassation (Yargıtay Hukuk Genel Kurulu) accepted that, because of an allegation of forgery of an official deed, HMK Art. 208/4 should be applied and the claimant should be given a final period of two weeks to bring a separate forgery action naming the person or institution that drew up the deed as a party as well. This period is not a general time limit for suit that the statute grants for every mortgage action; it is a procedural period tied to a specific interim ruling of the court. Express consent must not be presumed without the alleged forgery being properly assessed. Accessible full text of the decision.
How should interim injunctions and enforcement proceedings be managed?
For what purpose can an injunction be requested?
If the conditions of HMK Art. 389 et seq. are met, an interim injunction aimed at preventing acts that would make it difficult to obtain the right or cause serious harm may be requested over the immovable in dispute. The request should be framed with concrete evidence showing the risk of sale and consistent with the right to be protected. The court decides on security, the scope of the injunction and the manner of its implementation. Submitting the request or bringing the action does not mean that the injunction has been granted.
If an injunction annotation has been ordered, it must be separately checked whether it has actually been entered at the land registry directorate. Preparation of the court's letter does not in itself prove that the annotation appears in the register.
What changes if the sale, auction and registration take place?
While compulsory enforcement by way of the mortgage continues, the procedures and periods in the Enforcement and Bankruptcy Law for notification, notice of sale, valuation and auction steps must be examined separately. A family residence action does not suspend these processes automatically. If the sale has been completed and the residence has been registered in someone else's name, merely deleting the mortgage may not be possible or sufficient; cancellation of title and re-registration, TMK Arts. 1023–1024, the good faith of the persons concerned and the finalised auction steps are assessed together.
In its decision Constitutional Court, Menşure İşler, Application No. 2020/23865, 04.03.2026, the Court set out case law widely in the context of a dispute over the family residence and a compulsory sale based on the mortgage. However, in that individual application the Constitutional Court did not find a violation of the right to property on the merits, and held the relevant complaints inadmissible for non-exhaustion of remedies. This decision cannot be presented as an "automatic cancellation of title" ruling; it shows the need to exhaust the remedies for protection of property in the correct order. Access to the Constitutional Court decision.
In what circumstances do Court of Cassation decisions change the outcome of the action?
A mortgage created without express consent: the approach favouring removal
The Civil General Assembly of the Court of Cassation, 15.04.2015, E.2013/2-2056, K.2015/1201, did not treat the joint children's company loan having been secured, and the assumption that the claimant spouse was aware of the transaction, as equivalent to express consent. Full text of the decision. The 2nd Civil Chamber of the Court of Cassation, 07.05.2024, E.2023/8582, K.2024/3209, did not find sufficient the treatment of a signature on a later mortgage document as express consent to the earlier mortgage in dispute. Full text of the decision.
Where consent exists: dismissal of the action is possible
In the specific case in which an earlier-dated consent form relating to the specific mortgage existed, the 2nd Civil Chamber of the Court of Cassation, 24.10.2024, E.2024/2796, K.2024/7865, upheld the judgment dismissing the action for removal of the mortgage. In addition to whether a consent document exists, the document's link to the same mortgage and the scope of the loan are decisive. Full text of the decision.
If the divorce judgment becomes final during the proceedings
The 2nd Civil Chamber of the Court of Cassation, 22.01.2026, E.2025/6377, K.2026/793, stated that in a case where the parties' divorce judgment became final while the action for removal of the mortgage was pending, the action should be treated as devoid of subject matter, and that litigation costs and the attorney's fee should be assessed according to who was in the right on the date the action was brought. The decision took as its basis not the bringing of a divorce action but the finalisation of the divorce. Full text of the decision.
The death of the owner spouse and the death of the non-owner claimant spouse are different
The 2nd Civil Chamber of the Court of Cassation, 28.04.2026, E.2025/9149, K.2026/4777, emphasised that the death of the owner spouse after the creation of the mortgage does not by itself end the surviving spouse's legal interest in bringing the action, and quashed the regional court's judgment of dismissal. Full text of the decision. By contrast, the 2nd Civil Chamber of the Court of Cassation, 21.05.2024, E.2023/4693, K.2024/3686, accepted that in the case of the death of the non-owner claimant spouse requesting family residence protection, this personal right does not pass to the heirs and the action becomes devoid of subject matter. Full text of the decision.
These decisions show that whether the parties are alive, whether the marriage continues and whether the land registry record has changed must be monitored not only at the outset but at every stage throughout the action.
How is the mortgage removed from the land registry after judgment?
A court judgment and the deletion step are not the same stage
The court ordering removal of the mortgage is an important stage; but the transaction cannot be regarded as actually completed unless the mortgage is deleted from the current land registry record. The finality and enforceability of the judgment and the transaction documents to be applied by the land registry directorate must be investigated. In the explanations on the General Directorate of Land Registry and Cadastre's (TKGM) E-Terkin, deletion procedures are arranged according to a court judgment or a notification by the authorised creditor. Removal with the consent of the creditor bank and the route of deletion based on a contested court judgment are different. TKGM E-Terkin explanation.
What should be checked when the action concludes
- Whether the mortgage record has really been deleted in the land register, and the date and journal entry details of the transaction.
- Whether the judgment affects the whole of the mortgage, or only the part determined to be the family residence.
- By what step and at what stage the judgment will be taken into account in pending enforcement files.
- Where there is a new owner, a mortgage creditor or heirs, the scope of application of the judgment as regards the persons concerned.
- The litigation costs awarded, the opposing party's attorney's fee and any refunds of fees/security.
Even if the action has been brought, or a favourable judgment obtained, the practical outcome of the dispute is not secured until the final step has been completed in the land registry and in the relevant enforcement records.
Conclusion
An action for removal of a mortgage placed without the spouse's express consent on the family residence cannot be prepared merely by reciting TMK Art. 194. The correct claimant and defendants, subject-matter and territorial jurisdiction, family residence evidence as of the transaction date, the authenticity of the consent form, the scope of the loan and security, interim protection suited to the danger of enforcement and the land registry steps after judgment must be planned together. In particular, the divorce becoming final, which spouse has died, or a compulsory sale may change the procedural outcome of a claim that appeared well founded at the outset.
Frequently Asked Questions
Which court is competent in an action for removal of a mortgage?
In an action for removal of a mortgage brought because of family residence protection arising from TMK Art. 194, the family court is competent. The exclusive jurisdiction rules concerning the real right over the immovable must also be taken into account.
Is there a 15-day time limit for an action for removal of a mortgage?
TMK Art. 194 does not lay down a general special preclusive period of 15 days for this action. However, enforcement proceedings and auction steps may have different, sometimes short, periods; the matter should be assessed without delay.
Is it mandatory to send the bank a notice before suing?
There is no requirement in every case to send the bank a notarised notice before bringing an action based on TMK Art. 194. Even so, a written application may be useful for obtaining the mortgage and consent documents and for a peaceful resolution of the dispute.
Does bringing the action stop the enforcement sale of the residence?
No. Interim measures to prevent the sale and applications under enforcement law are assessed separately. Merely submitting the petition, without a court decision, does not cause the sale to stop automatically.
What happens if the divorce becomes final during the action?
According to the 2026 decision of the 2nd Civil Chamber of the Court of Cassation, in the case examined, the finalisation of the divorce left the action for removal of the mortgage devoid of subject matter. As regards costs, the position as to who was in the right on the date the action was brought was considered.
Can the surviving spouse bring an action when the owner spouse dies?
The 2026 Court of Cassation decision accepted that the death of the owner spouse does not automatically validate a transaction made in the past without express consent, and that the surviving spouse's legal interest in bringing the action may continue. The death of the non-owner claimant spouse produces a different result.
Is the matter finished once the judgment removing the mortgage is issued?
No. The court's judgment must be entered in the land registry, and it must be verified with a current land registry extract that the mortgage record has actually been deleted. If there is an enforcement file, the consequences there must also be followed up separately.
Sources
1 — Turkish Civil Code No. 4721, in particular Arts. 2, 193, 194, 240, 652 and 1023–1024.
2 — Code of Civil Procedure No. 6100, in particular Arts. 12, 208/4, 389–393 and the provisions on remedies; Art. 4 of Law No. 4787 on the Establishment, Duties and Trial Procedures of Family Courts.
3 — Civil General Assembly of the Court of Cassation, 16.04.2025, E.2023/707, K.2025/240; HMK Art. 208/4 and the allegation of forgery of an official deed; full decision.
4 — Civil General Assembly of the Court of Cassation, 15.04.2015, E.2013/2-2056, K.2015/1201; full decision.
5 — 2nd Civil Chamber of the Court of Cassation, 07.05.2024, E.2023/8582, K.2024/3209; full decision.
6 — 2nd Civil Chamber of the Court of Cassation, 24.10.2024, E.2024/2796, K.2024/7865; full decision.
7 — 2nd Civil Chamber of the Court of Cassation, 04.03.2025, E.2023/8051, K.2025/2339; full decision.
8 — 2nd Civil Chamber of the Court of Cassation, 21.05.2024, E.2023/4693, K.2024/3686; full decision.
9 — 2nd Civil Chamber of the Court of Cassation, 22.01.2026, E.2025/6377, K.2026/793; full decision.
10 — 2nd Civil Chamber of the Court of Cassation, 28.04.2026, E.2025/9149, K.2026/4777; full decision.
11 — 2nd Civil Chamber of the Court of Cassation, 08.06.2026, E.2026/2302, K.2026/6250; full decision.
12 — Constitutional Court, Menşure İşler, Application No. 2020/23865, 04.03.2026, inadmissibility decision for non-exhaustion of remedies; link to the decision.
13 — General Directorate of Land Registry and Cadastre, E-Terkin and frequently asked questions.