What is a family residence and which properties are protected?
In what respect does a family residence differ from an ordinary residence?
A family residence is the residence in which the spouses carry on their shared life while the marriage continues and which is the actual centre of family life. The fact that title in the land registry belongs to only one of the spouses, that the property was acquired before the marriage, or that the separation-of-property regime applies between the spouses does not by itself remove the protection of TMK Art. 194. What the protection concerns is not the sharing of ownership but ensuring that family life in the residence is not endangered by unilateral dispositions.
What matters is not that the property is entered in the land registry as a "residence" but that it actually performed the function of a family residence on the date of the transaction. A residence used continuously and a summer house kept only for holiday or seasonal use are assessed differently. The existence of different address records for the spouses does not prevent an investigation of actual use, but it may make proof more difficult.
Can more than one property, or a building on a plot of land, be a family residence?
As a rule, the residence to be protected is the family's main and continuous centre of life. Where a residence stands on a parcel that appears in the land registry as "land," or where the same parcel also contains parts other than the residence, such as a workplace, warehouse or barn, the extent of the part used as the family residence must be determined. In its decision of 13.10.2021, E.2021/4627, K.2021/7256, the 2nd Civil Chamber of the Court of Cassation (Yargıtay 2. Hukuk Dairesi) emphasised that, rather than removing the mortgage on the whole of a mixed-use property, the part used as a residence must be determined by site inspection and sketch. Full text of the decision.
How does Article 194 of the Turkish Civil Code limit a mortgage?
Why is express consent required?
While TMK Art. 193 as a rule gives spouses freedom to enter into legal transactions, Art. 194 imposes a special limit with respect to the family residence. Under that provision, one spouse cannot, without the express consent of the other, transfer the family residence, terminate the lease of the family residence or restrict rights over the residence. A mortgage is a real security right: because it may lead to the residence being sold for cash if the debt is not paid, it significantly affects life in the family residence.
Being the debtor and being the mortgagor are different things. The express consent requirement is examined even where the family residence is given as security for the owner spouse's own debt as much as where it secures the debt of a third party, a company or a joint child. A mortgage created because of a loan used by a joint child does not automatically show that the other spouse gave consent.
Must consent be in writing, and is knowledge enough?
TMK Art. 194 does not lay down a general and absolute written-form requirement for the validity of consent. Nevertheless, the intent required must be directed at the specific mortgage transaction, express and unequivocal. That the spouse knew of the loan, went to the bank branch, that instalments were paid from the family budget, or that the spouse knew the debtor does not by itself amount to express consent to a mortgage. In practice, a written spousal consent form is the basic document showing the transaction and the scope of the consent; the authenticity and content of this document are also reviewed separately.
The complete absence of consent and which transactions the alleged consent covers are separate disputes. In particular for a maximum-amount mortgage, a general credit agreement and loans to be drawn in the future, the date and scope of the consent text and the mortgage record to which it relates are important.
What is the legal consequence of a mortgage placed without the spouse's consent?
Is the mortgage deleted from the land registry automatically?
The non-owner spouse whose express consent was not obtained may assert that a mortgage contrary to TMK Art. 194 is invalid and request its removal. However, the mortgage record is not deleted automatically. A legal act is needed, such as the creditor's duly made request for release/deletion or the entry of a court judgment in the register. Nor does bringing the lawsuit automatically stop enforcement proceedings begun by way of realisation of the mortgage.
The existence of the debt relationship and the validity of the mortgage created on the property must not be confused. Even when the mortgage is removed, the principal debt under the credit agreement and any suretyship or other security may continue to rest on separate legal bases. A mortgage dispute does not automatically end all of these obligations.
The decision of the Civil General Assembly of the Court of Cassation of 15.04.2015
Civil General Assembly of the Court of Cassation (Yargıtay Hukuk Genel Kurulu), 15.04.2015, E.2013/2-2056, K.2015/1201. In the dispute, the family residence, in which the joint children lived, had been given as security for a company loan. Against the Special Chamber's finding that the spouse was aware of the transaction, the Civil General Assembly stated that mere knowledge or an inference from the ordinary course of life would not replace express consent, and upheld the decision to insist on removal of the mortgage. The absence of a family residence annotation likewise did not by itself provide a basis for the validity of the transaction. Accessible full text of the decision.
The decision of the 2nd Civil Chamber of the Court of Cassation of 07.05.2024
2nd Civil Chamber of the Court of Cassation, 07.05.2024, E.2023/8582, K.2024/3209. The fact that the claimant spouse had signed a later mortgage document and was deemed to know of the first transaction did not by itself show the existence of express consent to the first mortgage, which was the subject of the action. The Chamber quashed the judgment, holding that the mortgage should be removed. This decision is important because it shows the distinction of consent between transactions. Accessible full text of the decision.
Can removal of the mortgage be requested if there is no family residence annotation?
The annotation does not create the family residence right; it declares an existing character
TMK Art. 194(3) gives the non-owner spouse the right to ask for a family residence annotation to be entered in the land register. In Court of Cassation practice the annotation is regarded as declaratory, not constitutive: a residence does not become a family residence because an annotation is entered; an annotation can be requested because it is a family residence. Therefore, even if there was no annotation on the date of the mortgage, removal of the mortgage may be requested if it is proven that the residence was the centre of family life and that the required express consent was absent.
However, neither "if there is no annotation, no problem arises" nor "without an annotation, all mortgages are certainly annulled" is correct. The family residence character of the property; the content of the signature, consent, land registry and loan documents; and any later transfer or enforcement steps are examined separately. These matters are elaborated in the second article of the series.
Can an application be made to the land registry directorate for an annotation?
Yes. Under TMK Art. 194(3), the non-owner spouse can apply to the land registry directorate. The evidence relating to the marriage, the land registry record and family residence status needs to be matched up. A request for an annotation does not automatically eliminate a mortgage created in the past. Entering the annotation and deleting the mortgage are separate acts with different consequences.
Who can request removal of the mortgage, against whom and where?
The non-owner spouse's right of action and the correct defendants
The person who requests removal of the mortgage on the basis of the protection in TMK Art. 194 is, as a rule, the non-owner spouse whose express consent was required at the time of the transaction. The owner spouse later having a mortgage that he or she created declared invalid by relying on this provision is not an exercise of the same right of action; if there is another ground of invalidity or a contractual ground, it is assessed separately.
The request for removal of the mortgage is directed against the mortgage creditor, who benefits directly from the real security right; whether the owner spouse should also be named as a party should be assessed together with the concrete claim as regards the transaction and the land registry record. Assignment of the receivable to an asset management company, a merger of the bank, or completion of an enforcement sale may change the identification of the defendant. The list of parties should not be drawn up by looking only at the bank named in the old credit agreement.
The competent and territorially competent court
In a dispute arising from TMK Art. 194, the family court has jurisdiction. In claims concerning removal of a real right over an immovable, the exclusive jurisdiction rule of HMK Art. 12 in favour of the court of the place where the immovable is located must be taken into account. Where the action is combined with an action for cancellation of title and re-registration, or where new owners arise later, the scope of the action and of jurisdiction is characterised separately.
How are the family residence and the absence of express consent proven?
Family residence status is determined as of the date of the transaction
The claimant spouse must assert and prove that the residence was really a family residence on the date the mortgage was created. The address on the date of the lawsuit alone may not be sufficient. The main evidence is as follows:
- The land registry record with its history, including all encumbrances and journal entry details; the official mortgage deed and the bank loan file.
- Marriage and population records, MERNİS residence records close to the transaction date, a municipal or police inquiry.
- Documents of actual living obtained lawfully, such as electricity, water, natural gas, maintenance fee and internet subscriptions, building management records, notifications and school records.
- Statements of witnesses who know of the use as a family residence by reference to the events and the period; where necessary, a site inspection 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 considered together the municipality's letter, the MERNİS link, a police inquiry in which the building management was also consulted, bills and official documents, and built its reasoning for quashing on the proof of the fact of the family residence. Accessible full text of the decision.
Who proves express consent?
Two stages are distinguished as regards proof. The spouse who asserts family residence status must establish that fact. After that, the creditor or the party who made the disposition, asserting that the express consent required for the mortgage was obtained, is obliged to prove the existence, authenticity and scope of the consent. It is not correct either that every case is to be accepted on a mere statement of "I did not consent," or that the entire burden of proof lies on the spouse whose consent was not obtained.
If the signature on the consent form is denied
When a spousal consent form is submitted to the file, the original of the document, the date on which it was drawn up, the signature and the scope of the security must be examined. Where the signature is denied, a specialist technical examination with comparison signatures becomes important. In its decision of 08.06.2026, E.2026/2302, K.2026/6250, the 2nd Civil Chamber of the Court of Cassation found the report of a single document examination and graphology expert insufficient and quashed the judgment on the ground that a report should be obtained from a qualified panel of experts. That decision did not rule that the signature was forged; it treated an incomplete expert examination as a ground for quashing. Accessible full text of the decision.
If the consent signature on the official mortgage deed is denied, a separate action may be needed
In its decision of 16.04.2025, E.2023/707, K.2025/240, the Civil General Assembly of the Court of Cassation dealt with the allegation that the writing and signature in the official mortgage deed drawn up at the land registry directorate did not belong to the claimant spouse. The Assembly quashed the decision to insist, stating that in assessing an allegation of forgery in an official deed under HMK Art. 208/4, the court must give a final period of two weeks for a separate action to be brought that also names the person or institution that drew up the deed as a party. This procedure should not be mechanically regarded as the same as the signature examination of the bank's private consent document. Whether the document is an official deed or a private document, and at what stage the forgery allegation is raised, should be determined at the preliminary examination. Accessible full text of the decision.
Do the bank's good faith or an existing loan debt make the mortgage valid?
The bank's reliance on the land registry annotation
The bank may argue that no family residence annotation appears in the land registry and that it acted in reliance on the register. Nevertheless, the mandatory nature of TMK Art. 194, the manner in which the property is used, the valuation/expert report, the bank employees' knowledge before the transaction and the conditions for applying TMK Arts. 1023–1024 are assessed together. The absence of an annotation does not create a mortgage transaction for which express consent is not required. The principle of reliance on the land registry in favour of third parties likewise does not afford unlimited protection in every specific case.
The effect of a genuine consent form with a defined scope
In its decision upholding the judgment, 2nd Civil Chamber of the Court of Cassation, 24.10.2024, E.2024/2796, K.2024/7865, accepted that the claimant spouse had consented, by a document dated 15.04.2014, to the mortgage dated 21.04.2014 that was the subject of the action under review. Loans drawn later under the same general credit agreement were assessed within the scope of the specific consent form and mortgage. It cannot be concluded from this decision that unlimited and abstract consent for all future transactions is valid in every case; the full text of the document and the specific security relationship are decisive. Accessible full text of the decision.
Do enforcement proceedings, divorce and death change the picture?
If proceedings to realise the mortgage have begun
If the creditor has requested realisation of the mortgage, the enforcement file, the valuation, the notice of sale, the auction and the notification records must be examined without delay, in addition to the land registry action. An action for removal of the mortgage does not by itself stop the proceedings or the auction. The subject of any request for interim legal protection, the competent court, the security and the current stage of enforcement are determined separately. If the sale has been completed, it may not be enough to settle for a result of "removal of the mortgage" alone; cancellation of title and re-registration and the rights of third parties may come into play.
If the divorce becomes final
Family residence protection depends on the existence of the marriage. The 2nd Civil Chamber of the Court of Cassation, 22.01.2026, E.2025/6377, K.2026/793, indicated that where the divorce judgment became final while proceedings were pending, the action for removal of the mortgage had become devoid of subject matter, and that, as regards costs, the parties' degree of being in the right on the date the action was brought should be assessed. A pending divorce case is not by itself finality. Accessible full text of the decision.
If the owner spouse or the non-owner spouse dies
Which spouse has died is a critical distinction. The 2nd Civil Chamber of the Court of Cassation, 28.04.2026, E.2025/9149, K.2026/4777, stated that the death of the owner spouse before or during the lawsuit does not by itself remove the legal interest of the surviving non-owner spouse in bringing an action against a mortgage created in the past without his or her consent. By contrast, the 2nd Civil Chamber of the Court of Cassation, 21.05.2024, E.2023/4693, K.2024/3686, concluded that on the death of the protected non-owner claimant spouse, the personal protection based on TMK Art. 194 does not pass to the heirs and the action becomes devoid of subject matter. The general statement that "if a spouse dies, the mortgage action always continues" is therefore not correct. Decision of 2026 · Decision of 2024.
A practical roadmap for removing the mortgage
- Fix the time of the transaction. Obtain the date of the mortgage, the journal entry number, the creditor, and the loan and security records.
- Prove the character of the residence on that date. Prepare the address, actual use, building management, bills and witnesses together.
- Examine the consent. Separate the absence of a document, whether the signature is genuine, express intent and the scope of the consent form.
- Find out the transfer and enforcement position. If there is a sale, an auction, a new owner or an assignment of the receivable, reassess the claim and the parties.
- Determine whether interim protection is needed. Bear in mind that lawsuit and enforcement applications do not automatically have the same results.
- Follow up the entry of the judgment in the land registry. Check the finality and enforceability of the court decision and that the deletion has actually been completed.
Conclusion
Creating a mortgage on the family residence without the spouse's express consent is a serious validity problem under TMK Art. 194. However, the assessment cannot be made merely on the marriage certificate or on the absence of an annotation in the land registry. Family residence status on the date of the mortgage, genuine consent specific to the transaction, the scope of the loan document, the bank's defences, the stage of enforcement and the later course of the marriage must be examined together. Besides the substance of the protection claim, requesting an interim measure in good time where the sale needs to be prevented, and following up the entry of the judgment in the land registry, are also important.
Frequently Asked Questions
What can I do if a mortgage is placed on the family residence without my spouse's knowledge?
If the property was the family residence on the date of the mortgage and your express consent was not obtained, removal of the mortgage can be requested in the family court on the basis of TMK Art. 194. First, the land registry and loan records, the evidence of use as a family residence and the current enforcement position should be examined.
Can I bring a lawsuit if there is no family residence annotation in the land registry?
Yes. The annotation is declaratory; it is not the sole constitutive element of the protection. Nevertheless, it must be proven with concrete evidence that the property really was a family residence on the date of the mortgage.
Does it change anything if my spouse mortgaged our home for a company loan?
The fact that the debt belongs to the company or to a joint child does not by itself remove the express consent requirement. However, if there is a consent form, which loan and mortgage transactions it covers is examined.
Does removal of the mortgage also wipe out the principal loan debt?
No. A mortgage is real security. The validity of the principal loan, suretyship and other obligations is assessed under separate legal relationships.
Can I ask for the mortgage to be removed while my divorce case is pending?
The fact that the divorce decision has not become final does not by itself end the protection of TMK Art. 194. However, if the divorce becomes final during the proceedings, important procedural consequences may arise, such as the action becoming devoid of subject matter.
Does an action for removal of the mortgage stop an enforcement sale?
No, not automatically. The stage of the enforcement file should be examined, and the conditions of interim protection and the necessary applications under enforcement law should be assessed separately.
Sources
1 — Turkish Civil Code No. 4721, in particular Arts. 2, 193, 194, 240, 652, 1023 and 1024; the Constitutional Court's Menşure İşler decision, which sets out legislation and case law.
2 — Code of Civil Procedure No. 6100, in particular Art. 12 and Arts. 389–393.
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, 13.10.2021, E.2021/4627, K.2021/7256; full decision.
6 — 2nd Civil Chamber of the Court of Cassation, 07.05.2024, E.2023/8582, K.2024/3209; full decision.
7 — 2nd Civil Chamber of the Court of Cassation, 24.10.2024, E.2024/2796, K.2024/7865; full decision.
8 — 2nd Civil Chamber of the Court of Cassation, 04.03.2025, E.2023/8051, K.2025/2339; full decision.
9 — 2nd Civil Chamber of the Court of Cassation, 21.05.2024, E.2023/4693, K.2024/3686; full decision.
10 — 2nd Civil Chamber of the Court of Cassation, 22.01.2026, E.2025/6377, K.2026/793; full decision.
11 — 2nd Civil Chamber of the Court of Cassation, 28.04.2026, E.2025/9149, K.2026/4777; full decision.
12 — 2nd Civil Chamber of the Court of Cassation, 08.06.2026, E.2026/2302, K.2026/6250; full decision.
13 — General Directorate of Land Registry and Cadastre, E-Terkin application and frequently asked questions.