Usufruct and Right of Habitation: Creation in the Land Registry, Bare Ownership, Rental Income, Inheritance, Deletion and Legal Remedies

What Is Usufruct? What Powers Does It Confer?

Legal nature of usufruct under Article 794 of the Turkish Civil Code

Under Article 794 of Law No. 4721, the Turkish Civil Code (TMK), usufruct is a limited real right that can be created over movables, immovables, rights or a patrimony. Unless otherwise provided, it gives the holder the authority to benefit fully from the object. This authority does not mean that ownership passes to the holder. The owner retains those powers of ownership that are not restricted by the usufruct, while the usufructuary exercises the powers of use and enjoyment that the right confers.

Where the right is created over an immovable, its recording in the land registry is essential for determining the legal position vis-à-vis third parties. The usufructuary may live in the dwelling and, depending on the conditions, may let the immovable and draw its fruits. However, the object, duration and any limitations of the right are decisive.

How does usufruct restrict ownership?

While the usufruct subsists, the bare owner remains the owner of the immovable. However, to the extent that the powers of use and of generating income fall within the usufruct, the owner cannot exercise them independently. The boundary between the usufructuary's rights and the owner's acts of disposition must be examined through the official transaction and the land registry record.

Is usufruct created only over a house?

No. Article 794 TMK also allows usufruct over movables, rights and a patrimony. By contrast, the main purpose of this article is the creation and consequences of usufruct over an immovable and the right of habitation. Usufruct over company shares and securities is subject to separate special rules; in that respect it is connected to the firm's article on company shares.

What Is the Right of Habitation (Sükna)?

Use as a dwelling under Article 823 TMK

The right of habitation gives the holder the authority to use a building, or a part of it, as a dwelling. Article 823 TMK expressly provides that this right cannot be transferred to another person and does not pass to heirs. Unless the law provides otherwise, the provisions on usufruct apply to the right of habitation to the extent that they are appropriate.

It involves a narrower use than usufruct: the general purpose of the right of habitation is not to earn commercial rental income from the immovable but to meet the holder's housing needs. Unlike usufruct, the right of habitation does not, in general, give the holder the authority to let the house to a third party and collect the rent.

Can the holder live there with family members?

Under Article 824 TMK, the scope of the right of habitation is determined by personal needs. Unless it is expressly stated that the right is reserved to the holder alone, the holder may live there with his or her family and household. If the right of habitation covers only one part of the building, use of the areas intended for common use also comes into question.

Limiting the right of habitation to a particular flat, floor or room

Where the agreement creates the right over a particular section rather than the whole dwelling, the area of use must be clearly defined. How the common areas of an apartment building, the entrance, the staircase, the lift and ancillary costs are to be shared must be determined according to the circumstances of the case. Vague descriptions of the section may later give rise to disputes over eviction or use.

Against whom can the right of habitation be asserted?

A right of habitation that has been properly created and registered over an immovable is a real right. Even if the owner changes, the new owner cannot disregard the right unless its scope has been exhausted or a ground for termination has separately arisen. The eviction of the holder of a right of habitation cannot automatically be demanded merely because the owner has changed.

The personal nature of the right of habitation and the bar on leaving its use to another

The non-transferability of the right of habitation under Article 823 TMK restricts not only the passing of the real right to another person in the land registry, but also leaving the personal use connected with housing needs to a third party as an independent source of income or as a power to let. By contrast, Article 824 TMK allows the holder to live with his or her family and household unless it is expressly stated that the right is reserved to the holder alone. A family member living together with the holder is not the same as the holder leaving the house and handing it over for a third party's independent use.

Obstruction of the right of habitation and access to the dwelling

Where the owner changes the locks, prevents entry to the dwelling, unlawfully narrows the area of use or in practice prevents the use of common areas, these acts may give rise to claims for the prevention of encroachment (elatmanın önlenmesi) and, where necessary, interim legal protection, depending on the content of the right of habitation. The section the holder is entitled to use, the scope of the common areas, the land registry entry and the actual state of use must be assessed together. A dispute within the family does not in itself terminate a registered right of habitation.

Differences Between Usufruct and the Right of Habitation

Practical consequence: If a person wants to continue living in the house but may later wish to let it and earn income, a right of habitation may not provide the same security. The choice should be made according to the person's real needs and the long-term consequences of the right to be created.

How Are Usufruct and the Right of Habitation Created in the Land Registry?

The constitutive effect of registration and the official transaction

Article 795 TMK provides that usufruct over an immovable is created by registration in the land registry. The rules on registration apply to the right of habitation as well, in a manner appropriate to its nature. It cannot be assumed that an oral agreement between the owner and the holder, or a privately signed document alone, takes the place of the creation of a real right in the land registry. The legal ground of the transaction, the required official form, and the capacity and authority of the parties must be checked.

Reserving the usufruct when ownership is transferred

Transferring full ownership of the immovable and then creating a usufruct, and transferring ownership as bare ownership with the usufruct reserved, may in result produce a similar balance of use. Nevertheless, the order of the transactions, the tax consequences, the intention of the parties and the wording of the title deed must be carefully assessed.

Usufruct or the right of habitation for more than one person

Where there is more than one holder, the official deed should make clear whether the rights are to be exercised jointly, by shares, for fixed periods or in a particular order. What happens to the position of the other holder on the death of one is determined by the arrangement in the agreement and by the land registry; it cannot be assumed that a new usufruct that was never created arises automatically on death.

Power of attorney, capacity and the risk of intra-family transactions

In land registry transactions, the requirement of special authority for representation and capacity to carry out legal transactions are important. Particularly where elderly people make transfers to their children, allegations of simulation by the deceased (muris muvazaası), lack of capacity or abuse of a power of attorney may later arise. Reserving the usufruct does not by itself eliminate any of these.

Leaving the exercise of the usufruct to a third party: Article 806 TMK

The usufruct itself and the exercise of the right are not the same legal authority. A usufruct in favor of an individual is tied to the person and ends on death; on the other hand, under Article 806 TMK, unless the agreement provides otherwise and the nature of the situation does not require personal use, the authority to exercise it may be left to a third party. Letting the immovable to earn income is one example of how this difference appears in practice. By law, the owner may also assert his or her own rights directly against the person who has taken over the use.

Transferring the exercise does not create a new usufruct

The transfer of exercise is not the registration of a new, independent usufruct in the land registry, nor a transaction that extends the duration of the right. The death of the original holder, or another ground for termination, also has consequences for the legal basis of the third party's use. Nevertheless, the fate of a valid lease concluded in the particular case is examined separately. The transfer of the authority of exercise must not be confused with the express rule of non-transferability in Article 823 TMK as regards the right of habitation.

How is the remaining right determined when one of several holders dies?

That two or more persons may hold a usufruct or a right of habitation over the same immovable does not mean that on a death the whole of the right automatically passes to the survivor. Whether the rights were created jointly, by independent shares or areas of use, or for fixed periods is determined from the official deed and the land registry. The scope of the right that ends on one person's death must be distinguished from the right that remains valid in favor of the survivor. The existence of a surviving holder does not in itself extend the term of a right created in favor of the deceased.

What Is Bare Ownership? Which Transactions May the Owner Carry Out?

Powers of the bare owner

The bare owner is the registered owner of the immovable, but cannot exercise the powers of use and enjoyment limited by the usufruct or right of habitation in a way that infringes the real right. The legal consequences of acts of disposition based on ownership are assessed while protecting the holder's registered right.

Can the bare owner sell the immovable to a third party?

Bare ownership encumbered by a usufruct or a right of habitation can, as a rule, be the subject of a sale. The sale does not, on its own, terminate the registered usufruct or right of habitation. The new owner faces the existing real burden. Statements that the buyer can move into the immovable immediately or collect rent are a source of dispute where they are not compatible with the right entered in the land registry.

Ranking of rights in mortgage, attachment and compulsory sale

The ranking among pledges, attachments and other encumbrances created before or after the usufruct or right of habitation may change the outcome. For this reason, merely saying that "there is a usufruct entry" does not complete the security analysis; the registration date and rank of the entry and the law of enforcement must also be examined separately.

What measures may the owner request against unlawful use of the usufruct?

Under Article 807 TMK, the owner may object to a use of the usufruct object that is unlawful or inconsistent with its nature. The owner cannot arbitrarily take back the immovable while the usufruct continues, but may demand that the limits of the power of enjoyment be observed and that the substance of the immovable be preserved. The alleged breach must be proved in concrete terms.

The bare owner's right to demand security: Article 808 TMK

An owner who proves that his or her rights are endangered may demand security from the usufructuary. The danger is assessed, for example, on the basis of the likelihood of serious damage to the nature of the immovable or of a concrete risk to an interest that deserves protection. However, Article 809 TMK provides an important exception: no security can be demanded from a donor in gifts made with the usufruct reserved to the donor. This exception should not be overlooked in intra-family transactions in which bare ownership is transferred by gift.

If security is not provided, a trustee is not appointed automatically

Under Article 810 TMK, if the usufructuary does not provide security within a reasonable time, or continues the unlawful use despite the owner's objection, the judge of the civil court of peace (sulh hâkimi) may, until a new decision is made, remove the usufructuary's possession and entrust the object of the right to a trustee (kayyım) to be appointed. This result does not mean that the real right itself ends automatically. The request is assessed on the basis of the concrete risk, the notices given, the period granted, the usage records and the necessary judicial decision.

The right to request an official inventory by a notary: Article 811 TMK

The owner and the usufructuary may at any time request that a notary draw up an official inventory of the objects of the usufruct, the costs to be shared. This may have evidentiary value, particularly as regards the present condition of the building, fixtures and fittings, wear caused by ordinary use, and the restitution and damages claims the parties may later assert. The official inventory is not an absolutely conclusive means that replaces the parties' photographs, records of findings, invoices, payments and technical reports. What matters is the date to which the items shown in the inventory relate and which objections the other party has raised.

Who Is Entitled to Rental Income? Who May Let the Property?

The usufructuary's claim to rental income

The rental fruits of the immovable, as a rule, fall within the scope of the usufructuary's authority of use and enjoyment. In the reasoning accessed from the decision of the 6th Civil Chamber of the Court of Cassation (Yargıtay) dated 02.11.2015, E.2015/6314, K.2015/9270, importance was attached to the usufructuary's right to demand rent. However, the parties to the lease, the payment dates, earlier payments and notices given to the tenant are decisive in the particular case.

If the bare owner signed the lease

In this case, the lease relationship, the authority of representation, the date on which the usufruct was created and the person to whom the tenant paid must be examined together. It cannot be concluded that being the bare owner retains the authority to collect rent in every situation. If there is a dispute between the right holders, written notice to the tenant and, where necessary, deposit options may be considered.

If the usufructuary dies while the tenancy continues

Usufruct ends on the death of an individual holder. However, it cannot be said that death automatically eliminates all the consequences of an existing tenancy; the continuation of the lease, the change of party, rent claims that have fallen due and the question of which period belongs to whom are examined separately. Notices that prevent the tenant from paying the wrong person are important.

Can the holder of a right of habitation let the house?

The object of the right of habitation is use as a dwelling. The holder cannot use the personal authority of habitation granted to him or her as an ordinary right to rental income. The non-transferability of the personal right and the provision of Article 824 TMK on living together with family and household must not be confused.

Apportioning rental income between the beginning and the end of the usufruct

Article 805 TMK provides that for interest on capital and other periodic income, the criterion is the period between the beginning and the end of the usufruct. For rent claims on immovables, by contrast, the parties to the lease, the payment period, maturity, the dates on which the usufruct was created and ended, to whom earlier payments were made and the relevant provisions of the law of obligations must be considered together. The mere fact that rent is collected after the usufructuary's death does not by itself determine the period to which the income belongs.

The tenant's payment to the previous owner and notice

As regards the tenant, the change of the right holder, the payment dates and the performances already made are important. A dispute over to whom the rent must be paid must be examined through the lease, the notices and the payment records together with the usufruct entered in the land registry. Automatic rules that could lead to a second payment for the same period must be avoided. Where the conditions are met, protective routes such as deposit or preservation of evidence may be considered.

Maintenance, Repairs, Taxes, Insurance and Other Costs

Exercise of the usufruct and sharing of costs

Articles 803–812 TMK regulate matters such as the usufructuary's duty of care, the preservation of the property, ordinary maintenance, operating costs and security. The usufructuary must preserve the economic substance of the property and perform the usual duties of use and maintenance. A distinction must be made between ordinary costs and extraordinary works aimed at preserving the value of the property.

The difference between ordinary maintenance and substantial repair

Daily use and ordinary maintenance costs are not the same as the structural renovation of a building or a necessary major repair. Who bears which cost is determined by the law, the agreement, the cause and the nature of the work. It is not legally safe to place all major repair costs automatically on the usufructuary.

Costs of the holder of the right of habitation: Article 825 TMK

If the right of habitation gives the holder the use of the whole building or section, the repairs and renewals necessary for its preservation and ordinary maintenance are borne by the holder. If the holder uses the dwelling together with the owner, maintenance and repair costs are borne by the owner. These two different statutory situations must be clearly distinguished.

Dues and the relationship with condominium ownership

For apartment dues, common expenses, debts arising from condominium ownership and obligations under the management plan, the external relationship and the internal relationship between the owner and the right holder may differ. The Condominium Ownership Law (Kat Mülkiyeti Kanunu), the management plan and the relevant land registry records must be examined together. Responsibility for payment as between the right holder and the management cannot be determined by a single general statement.

Property tax, insurance and title deed fee

Tax liability, the fee base, the valuation of usufruct and bare ownership, and whether the transaction is for value or free of charge are assessed separately under the specific tax legislation. A fixed percentage valuation rule should not be used as the current market value criterion in every sale of immovable property. Fee and revolving fund amounts should be verified against the tariff in force on the date of the transaction.

Ordinary maintenance, important repairs and notice to the owner: Article 812 TMK

The usufructuary is obliged to carry out the repairs and renewals necessary for the preservation and ordinary maintenance of the property. Where more important works or measures are required, the usufructuary must notify the owner and allow them to be carried out. If the owner refrains from carrying out the necessary works, the usufructuary may, under the conditions in the law, have them carried out on the owner's account. In exercising this authority, the necessity of the work, its cost, prior notice and documentary evidence are important.

Taxes, operating costs and other obligations of the owner: Article 813 TMK

Article 813 TMK places on the usufructuary, as a rule and for the duration of the usufruct, the ordinary maintenance and operating costs, the interest on debts that the object of the usufruct secures, and taxes and levies. For certain taxes paid by the owner, an obligation of reimbursement in the internal relationship may also arise under statutory conditions. The same article also regulates the principle that other obligations belong to the owner and the exceptions in the law. For this reason, general statements that all costs fall on one party are wrong.

Interest on debts and insurance in the usufruct of a patrimony: Articles 814–815 TMK

Article 814 TMK provides a special obligation as to the interest on the debts of a patrimony where the object of the usufruct is not a single immovable but a patrimony. Where the circumstances justify it, the usufructuary may request to be released from this obligation; in that case, the usufruct continues over the part remaining after the debts have been paid. The scope of this provision must not be confused with the general usufruct over an immovable.

Article 815 TMK regulates the usufructuary's obligation, where good management requires it according to local custom, to take out insurance in favor of the owner and, under the stated conditions, to pay the insurance premiums. It therefore cannot be said that every usufructuary must unconditionally take out all insurance, or that there is no insurance obligation at all. The policy, the insured property, the risk and the payment records must be checked in the particular case.

Construction, substantial renovation and altering the nature of the immovable

The existence of the usufruct does not give the holder the authority to alter the economic substance and physical character of the property without limit. For substantial structural interventions and zoning transactions, the scope of the real right, the owner's intention, public-law permits, the Condominium Ownership Law and building legislation must be assessed together. The distinction between ordinary maintenance and renovation subject to a project is determined by repair invoices, photographs, permit documents and, where necessary, a technical expert examination.

How Do Usufruct and the Right of Habitation End?

Death of the holder

Under Article 797 TMK, a usufruct in favor of an individual ends on death. Article 823 TMK expressly provides that the right of habitation does not pass to heirs. The holder's death does not give his or her heir the authority to hold the same real right in the same dwelling.

Expiry of the term and renunciation of the right

For rights created for a fixed term, the expiry of the term or the holder's valid renunciation brings termination and deletion procedures into play. Deleting the entry in the land registry and the ground that terminates the right in substantive law are not the same transaction. Article 796 TMK distinguishes the cases in which deletion ends the right and those in which the owner acquires the authority to demand deletion.

Duration of usufruct held by legal entities

Under Article 797 TMK, a usufruct in favor of legal entities may last at most one hundred years; the agreed period, the termination of the entity's existence and the relevant special conditions are assessed together. The rule on termination by death that applies to individuals is not applied to legal entities in the same way.

Destruction of the immovable, expropriation and insurance proceeds

Under Article 798 TMK, the owner is not in every case obliged to repair property that has been so damaged that it can no longer be used. Whether the usufruct continues over substitute values such as insurance or expropriation compensation is assessed under a special provision. It should therefore not be assumed that, for a demolished building or an expropriated immovable, the right ends completely and leaves no economic counterpart.

The difference between the termination of the right and a request for deletion

Article 796 TMK distinguishes the event in which termination arises directly as a consequence of substantive law from the event in which the owner must request deletion of the land registry entry. When an individual usufructuary dies, the right as a rule ends at the moment of death; however, removing the entry from the registry may require a separate administrative procedure. This distinction is particularly important in purchase, credit and sale transactions.

If one of several usufructuaries dies, the scope of deletion

When an application is made with a death certificate, the point to examine is not the whole of the land registry entry but the scope of the right created in favor of the deceased. A right created independently in favor of the survivor is not deleted automatically because of the other's death. The holders' entitlements, shares, terms and the provisions of the official deed are compared.

Deletion of Usufruct and Right of Habitation from the Land Registry

Which documents are required for deletion?

The application and the types of documents vary according to the ground of termination, such as death, expiry of term, renunciation or a final court judgment. The holder's death can be verified through the population and other competent records. The current document and application procedure of the relevant land registry directorate (tapu müdürlüğü) is decisive for the transaction.

What can the owner do after a death?

If the usufructuary has died, the owner may, with the necessary evidence, request deletion of the entry in the land registry. That the entry still appears in the registry although the right has ended in substantive law may create a practical obstacle in later sale and credit transactions. It is important to verify the deletion application against a current registry extract.

Can the owner have the entry deleted unilaterally while the holder is alive?

Where the right continues, the owner cannot obtain deletion by a unilateral act merely because he or she no longer wants the right. The form of any renunciation, the holder's intention, and the conditions for a lawsuit or statutory termination are investigated. In land registry transactions, the declaration of authority and intention that terminates the parties' rights must be made properly.

Return of the immovable after termination: Article 799 TMK

When the usufruct ends, the holder is obliged to return the object of the right to the owner. Where the person has died, whether those who continue to use the immovable in practice have another legal basis must be investigated separately. At handover, the keys, the area actually used, the existing furnishings and the condition of the immovable should be documented as far as possible.

Liability for damage, ordinary wear and additions: Articles 800–801 TMK

Under Article 800 TMK, the usufructuary is liable for the destruction or loss of value of the property unless he or she proves that the damage did not result from his or her own fault; by contrast, losses in value caused by ordinary use do not give rise to liability. The manner and duration of use, the earlier condition and the cause of the damage should be assessed with an expert.

Article 801 TMK provides that, for expenses, renewals and additions that the usufructuary made without being obliged to, he or she may claim compensation on termination of the right under the provisions on agency without authority (vekaletsiz iş görme). Under the statutory conditions, removal of the additions may also come into question. That an expense has been incurred does not mean that it will be reimbursed in full in every case.

Which evidence should be examined on return?

The official inventory at the time of creation, the handover record, photographs and video recordings, repair and renovation invoices, bank payments, management records, expert examinations and what witnesses directly saw are assessed. The claim, the damage and any compensation calculation should be set out separately.

One-year limitation period starting from the moment of return: Article 802 TMK

Very important: Article 802 TMK provides a one-year limitation period from the moment of return for all claims that the owner or the usufructuary may assert at the moment of return. It is not correct to start this period automatically from the creation of the right or from the holder's death. The substantive nature of the claim concerned, the date on which the immovable was in fact returned and the conditions for applying the special provision of the law must be examined in the particular case.

The Surviving Spouse's Usufruct and Right of Habitation

Article 240 TMK: the family home in the liquidation of the property regime

Under the regime of participation in acquired property, when the conditions are met, the surviving spouse may request a usufruct or a right of habitation over the family home, set off against the participation claim and, where necessary, with an additional payment. Where there are justified grounds, the allocation of ownership may also come into question. This request is a matrimonial property regime assessment separate from the inheritance share.

Article 652 TMK: the common home in the partition of the estate

In the partition of the estate, the surviving spouse may, within the conditions of the law, request ownership of the common home and household goods, set off against his or her inheritance entitlement; on justified grounds, a usufruct or a right of habitation may also come into question. The ground, calculation and consequences of Article 240 and Article 652 TMK cannot be used in place of one another.

Is a family residence annotation the same as a right of habitation?

No. The protection of the family home under Article 194 TMK concerns the annotation in the land registry and the spouse's consent; it is not identical to an independent right of habitation under Article 823 TMK. The existence of a family residence annotation does not, on its own, show that a right of habitation extending beyond death has been created.

Related articles: Surviving Spouse's Inheritance Rights: Liquidation of the Matrimonial Property Regime, Participation Claim and the Family Home; Living in an Inherited Home: Use Rights, Compensation for Unjust Occupation and Sharing Rental Income.

Contract of Maintenance Until Death, Gifts and Intra-Family Title Transfers

Transfer of bare ownership to a child

A mother or father may transfer the bare ownership of his or her immovable to a child and create a usufruct or right of habitation for himself or herself. This method can help meet future needs for use and housing; however, if the transaction is in the nature of a genuine sale, a gift or a maintenance contract, the separate validity and inheritance-law consequences of these are examined.

Is a sale with the usufruct reserved a way of moving assets away from heirs?

Not on its own. Reserving the usufruct neither creates a presumption of simulation nor makes the transaction entirely immune from a simulation inquiry. The apparent sale price, the actual payment, the true intention of the deceased, the relationships among the heirs, the proportion of the patrimony transferred and the evidence are assessed together.

Reserved portion, abatement and equalization

A genuine sale, a gratuitous gift and a transfer made on account of the inheritance share may have different consequences. Abatement (tenkis) under Article 560 TMK and the following articles; equalization (denkleştirme) under Article 669 and the following articles; and cancellation of title and re-registration on the ground of simulation by the deceased must not be used in place of one another. The economic and legal nature of the transfer of bare ownership must be investigated separately.

Related articles: Contract of Maintenance Until Death: Requirements, Title Transfer, Termination, Simulation by the Deceased, Heirs' Rights and Legal Remedies; Title Transfers Between Parents and Children: Sale, Gift, Maintenance Contract, Simulation and the Rights of Heirs; Decedent's Simulated Transfer and Title Cancellation: Moving Property Away from Heirs.

Partition of Co-Ownership and Pre-Emption over an Immovable Encumbered by Usufruct

Participation of the usufructuary in the partition of co-ownership

Where there is a usufruct over a property held in shares, the legal position of the right holder must be taken into account in an action for dissolution of co-ownership (partition). The decision of the 7th Civil Chamber of the Court of Cassation dated 09.01.2023, E.2022/5906, K.2023/22, examined the joinder of the usufructuary to the action and the distinction between the applicable law according to the date the right was created. The same result should not be reached in all sales without assessing, in particular, Article 700 TMK and the case-law transition rules concerning older rights.

Sale of the bare ownership share and statutory pre-emption

In the reasoning accessed from the decision of the 6th Civil Chamber of the Court of Cassation dated 04.10.2010, E.2010/2251, K.2010/10203, it was stated that a genuine sale of a share with the usufruct reserved does not, on its own, prevent statutory pre-emption. However, the TMK provisions in force on the date of the transaction and their amendments must also be checked separately as regards the pre-emption period and entitlement.

Distinguishing usufruct created before and after 2002 in the partition of co-ownership

Article 700 TMK establishes a special relationship between a co-owner's usufruct over his or her own share and the dissolution of co-ownership. The consequences of rights created before 01.01.2002 and rights created afterwards should not be treated as the same. The decision of the 7th Civil Chamber of the Court of Cassation dated 09.01.2023, E.2022/5906, K.2023/22, is also noteworthy as regards the participation of the usufructuary in the action and the historical regulations. Whether the usufruct continues over the sale price, or whether a sale subject to the burden is involved, is assessed according to the date the share and the right were created.

Related article: Pledge and Usufruct over Company Shares: Creation, Voting Rights and Realization of the Security.

Which Actions Can Be Brought If Usufruct or the Right of Habitation Is Infringed?

Obstruction of use and prevention of encroachment

Where the holder is prevented from using the immovable in accordance with his or her right, an action to protect the real right and other appropriate claims may come into question. The claimant's standing, the type of right, the land registry entry, the interference and the relief sought are assessed together.

Rent claims and accounting

Where the rental fruits belong to the usufructuary, it is investigated who collected the rent, whether the tenant had paid earlier and what the representation relationship was. It cannot be assumed that a claim for money and claims relating to ownership have the same legal nature.

Eviction and compensation for unjust occupation (ecrimisil) after the right has ended

Once the usufruct or right of habitation has ended, it is investigated whether the person using the immovable has another legal basis for use. If the conditions are met, the owner may request the prevention of encroachment, eviction or compensation for unlawful use. The result may change if a valid lease or another right exists.

Wrongful deletion or registration

Where there is an unlawful deletion, a forged document, abuse of authority of representation or a wrong registration, the position of the parties and of later acquirers is examined under Articles 1023–1025 TMK. The land registry records, the daily register (yevmiye) documents and the official documents underlying the transaction are decisive.

Jurisdiction, venue and interim injunction

In claims concerning the real right in an immovable, the exclusive venue under Article 12 of the Code of Civil Procedure (HMK) is important. By contrast, for rent claims or contractual claims, subject-matter jurisdiction and venue vary under special provisions. A party seeking an injunction must show the conditions under Article 389 HMK and the following articles and prima facie proof. Merely filing an action does not automatically stop the transaction.

Comparative Legal Assessment of Court of Cassation Decisions

The usufructuary's authority over rental income

Court of Cassation 6th Civil Chamber, 02.11.2015, E.2015/6314, K.2015/9270. In the passage of the decision that was accessed, the right to demand rent on the basis of the usufruct entry in the land registry was assessed. The court of first instance's assessment on the basis of proof of an oral tenancy alone was not considered sufficient; the decision indicated that earlier payments made to the lessor had to be investigated. Practical consequence: The status of rent creditor, the usufruct in the land registry and the payment records must be examined together.

The right of habitation being narrower than usufruct

Court of Cassation 2nd Civil Chamber, 15.06.2015, E.2015/626, K.2015/12665. In the reasoning that was accessed, it was held that, in an arrangement intended for use as a dwelling, the right of habitation may confer a narrower authority than usufruct. Practical consequence: Beyond the words used in the agreement, the actual use and the legal nature of the parties' intention are important.

Death and non-passing to heirs

Court of Cassation 14th Civil Chamber, 24.03.2015, E.2015/2288, K.2015/3178. In the reasoning that was accessed, the ending of the usufruct on the death of the holder and the bare ownership being freed of this restriction were assessed. Practical consequence: After death, the usufruct cannot be written into the heirs' position as a new share of ownership.

The holder's procedural position in a partition of co-ownership

Court of Cassation 7th Civil Chamber, 09.01.2023, E.2022/5906, K.2023/22. The passage that was accessed shows the importance of joining the usufructuary to the action and of the distinction between the date the right was created and the form of sale. Practical consequence: A request for sale should not be concluded before the parties to the action have been fully identified and the land registry records examined.

Which facts distinguish decisions of acceptance and rejection?

In assessing the usufructuary's claim to rental income, the right in the land registry, the parties to the lease and the periods already paid are decisive; in the bare owner's request for protection, the danger of damage, the contrary use and the security shown are decisive. In protecting the right of habitation, use by the holder personally or with family is distinguished from allowing an independent third party to use it. The fundamental difference between disputes with different outcomes is not merely the entry "usufruct exists" or "owner in the land registry", but the nature of the specific right and the facts that have been proved.

Reading the land registry, rent and termination decisions together

The decision of the 8th Civil Chamber of the Court of Cassation dated 27.11.2024, E.2023/3706, K.2024/6918, compares the legal nature of usufruct and the right of habitation. The decision of the 3rd Civil Chamber of the Court of Cassation dated 08.05.2024, E.2023/3408, K.2024/1602, refers to earlier case law in a dispute over rent payments to the usufructuary. The reasoning in which the earlier decision is cited must be distinguished from the later decision's own outcome. General and absolute conclusions should not be drawn from these decisions before a full-text review is completed.

Documents to Check Before the Agreement and the Land Registry Transaction

1. The current and past land registry records of the immovable, encumbrances and ownership shares.
2. The type of right to be created: usufruct or right of habitation; the whole immovable or a particular section?
3. The duration, the start and the registration date of the right.
4. The capacity to act, authority of representation and special authority requirements of the owner and the right holders.
5. Whether the transfer of bare ownership is for value or free of charge.
6. Future need for rental income and any lease agreements.
7. Dues, ordinary maintenance, substantial repair and insurance costs.
8. The ranking of previously created mortgages, attachments and restrictions.
9. The person's need to live with family or household.
10. The holder's death, renunciation, term and the deletion arrangements.
11. The relevant title deed fee, tax consequences and revolving fund costs.
12. The heirs' reserved portion and other transfers connected with the transfer.
13. Handover, keys and settlement procedures at the end of the agreement.
14. An evidence-preservation plan in case of an interim injunction or dispute.
15. If there is a foreign element: acquisition of immovable property, representation and the applicable law.

Comparison of Transaction, Claim and Evidence for Usufruct and the Right of Habitation

This table does not replace the determination of the exact type of action or the competent court. The nature of the claims, their time limits and the competent court must be determined according to the specific legal relationship.

Conclusion

Usufruct and the right of habitation are two different real rights that allow certain security of use to be preserved even though ownership of the immovable passes to another. Usufruct is, in general, broad as regards enjoyment and rental fruits; the right of habitation is specific to housing needs and narrower in scope. The creation of both, their scope in the land registry, the costs, and the consequences of death and deletion must be determined according to the law.

For a person who transfers the bare ownership of an immovable, the most important protection is not to rely solely on trust within the family or an oral promise, but to create the right that suits his or her real needs in a way that is legally valid and verifiable in the land registry. When a dispute arises, the right of ownership, the limited real right, the lease relationship and inheritance claims must be assessed separately without being confused with one another.

Frequently Asked Questions

Can the owner sell a house subject to a usufruct?

As a rule, bare ownership can be sold; the sale does not automatically eliminate the usufruct. The ranking of encumbrances and the exceptions in enforcement proceedings must be examined separately.

Can a usufructuary let the house?

Within the scope of the usufruct, enjoyment of the rental fruits is as a rule possible. The existing lease, representation and payment conditions are examined separately.

Can the holder of a right of habitation let the house?

The right of habitation is directed at personal use as a dwelling; unlike usufruct, it does not confer a general authority to earn rental income.

Does usufruct pass to heirs?

It ends on the death of an individual holder. Claims that arose before death may be assessed separately.

Can the holder of a right of habitation live with family?

Unless it is expressly stated that the right is reserved to the person alone, the holder may live there with his or her family and household (Article 824 TMK).

Can the bare owner evict the usufructuary?

As long as the usufruct continues and is used in accordance with the right of use, the owner cannot demand eviction merely in his or her capacity as owner; concrete breaches and grounds for termination are assessed separately.

Is deletion made automatically when the usufructuary dies?

The right ends on death; however, a deletion application may be required, in accordance with the current registry and transaction procedure, for the entry to be removed from the land registry.

Must the usufructuary pay the costs?

A distinction must be made between ordinary maintenance and costs, on the one hand, and substantial renovations, on the other. Articles 803 and 812–815 TMK and lawful contractual provisions are assessed together; in particular, ordinary costs and important repairs must be distinguished.

Who bears the maintenance and repair costs of the right of habitation?

Article 825 TMK provides different rules for use of the whole dwelling and for shared use with the owner.

Is a title transfer to a child with the usufruct reserved a way of moving assets away from heirs?

Not on its own. The genuineness of the sale and the purpose of the deceased are examined separately under the conditions of simulation, abatement and equalization.

Can a surviving spouse obtain a usufruct or right of habitation over the family home?

It may come into question under the special conditions of Article 240 or 652 TMK; the legal basis and the calculation of these two provisions differ.

Can partition of co-ownership be requested over an immovable subject to a usufruct?

It is possible under the particular conditions of ownership and entitlement; the usufructuary's capacity in the proceedings, the date the right was created and the legal effects of the sale are determined separately.

Can a usufructuary leave the authority to exercise the right to someone else?

As a rule, it is possible under the conditions of Article 806 TMK; it is not the usufruct itself but its exercise that is left to the third party. The agreement, the requirement of personal use and the nature of the right may change the result.

Under what conditions may the bare owner demand security?

Under Article 808 TMK, the owner must prove that his or her rights are endangered. In a gift made with the usufruct reserved, the special exception in Article 809 TMK must also be taken into account.

If the usufructuary's use is contrary to the right, may the owner immediately take possession of the house?

No. The reasonable period under Article 810 TMK, the breach and the decision of the judge of the civil court of peace are assessed. It cannot be said that the right ends automatically.

Which period matters for a damages claim after the immovable has been handed back?

Article 802 TMK provides a one-year limitation period from the date of return for claims that can be asserted at the moment of return. This period is not automatically equated with the date of death.

Can the owner request an official inventory by a notary for the immovable subject to the usufruct?

Yes. Under Article 811 TMK, an official inventory can be requested with the costs shared; it helps to document the present condition and any later damage claims.

Sources and legal bases

1. Law No. 4721, Turkish Civil Code (Türk Medeni Kanunu), in particular Arts. 194, 240, 652, 700, 794–825, 1023–1026. Ministry of Justice legislation database. mevzuat.adalet.gov.tr.
2. General Directorate of Land Registry and Cadastre (Tapu ve Kadastro Genel Müdürlüğü), Land Registry Practices (Tapu Sicili Uygulamaları, 2014), the sections on the creation and deletion of usufruct. tkgm.gov.tr.
3. Court of Cassation 6th Civil Chamber, 02.11.2015, E.2015/6314, K.2015/9270; rental income.
4. Court of Cassation 2nd Civil Chamber, 15.06.2015, E.2015/626, K.2015/12665; the distinction between habitation and usufruct.
5. Court of Cassation 14th Civil Chamber, 24.03.2015, E.2015/2288, K.2015/3178; death and heirs.
6. Court of Cassation 7th Civil Chamber, 09.01.2023, E.2022/5906, K.2023/22; partition of co-ownership.
7. Court of Cassation 6th Civil Chamber, 04.10.2010, E.2010/2251, K.2010/10203; sale of a bare ownership share and pre-emption.
8. Güneş & Güneş Law Firm, “Surviving Spouse's Inheritance Rights: Liquidation of the Matrimonial Property Regime, Participation Claim and the Family Home”.
9. Güneş & Güneş Law Firm, “Living in an Inherited Home: Use Rights, Compensation for Unjust Occupation and Sharing Rental Income”.
10. Güneş & Güneş Law Firm, “Pledge and Usufruct over Company Shares: Creation, Voting Rights and Realization of the Security”.
11. Law No. 4721, Turkish Civil Code, Arts. 799–815; return, compensation, limitation, transfer of the exercise of usufruct, supervision, security, official inventory and sharing of costs. mevzuat.adalet.gov.tr.
12. Court of Cassation 8th Civil Chamber, 27.11.2024, E.2023/3706, K.2024/6918; the nature of the rights.
13. Court of Cassation 3rd Civil Chamber, 08.05.2024, E.2023/3408, K.2024/1602; rent dispute.