Article 82 of the Enforcement and Bankruptcy Law (İİK) was created to list properties that cannot be seized. According to this article, it is not possible to seize certain properties. Article 82/2, which is also the subject of our discussion, mentions that the debtor’s home, which is considered appropriate for their condition, cannot be seized. If the house, which is claimed to be a residence, is seized, the possibility of filing a complaint will arise.
The concept of a “home suitable for the debtor’s condition.
It is the family home where the debtor and their family members reside. To determine whether the house subject to seizure qualifies as a “home suitable for the debtor’s condition,” factors such as the debtor’s socioeconomic status and the number of family members are considered. If the house subject to seizure is too luxurious for the family, the claim of it being a “home suitable for the debtor’s condition” becomes invalid. For example, if a family consisting of a minimum wage-earning mother, father, and a young child lives in a duplex villa with a swimming pool, it would be considered a luxury based on socioeconomic conditions, and thus, the claim of a “suitable home” would not hold.
Claim of residence
As mentioned above, the claim of residence is the assertion that the house cannot be seized. A claim of residence is made with the allegation that the property in question qualifies as a “house suitable for the debtor’s situation,” as stated under Article 82/12 of the Enforcement and Bankruptcy Law. To verify its accuracy, a complaint should be filed with the enforcement court, and actions should be taken according to the court’s decision.
The situation where the debtor owns multiple properties.
The debtor owning multiple properties does not mean that the claim of residence is unfounded. As mentioned earlier, it is necessary to examine whether the property is essential for meeting the debtor and their family’s housing needs. For example, the debtor may be living in a second home because their child is attending university. This situation does not indicate that the debtor is living in luxury, as the reason for the concept of a “house suitable for the debtor’s condition” being exempt from seizure is to ensure the payment of the debt without causing harm to the debtor.
The time limitation for the claim of residence
Since it is an enforcement complaint, the general time limitation of 7 days applies to the claim of residence as well. The period begins from the date of notification or awareness, and if the period expires, the debtor loses the right to file a complaint.
Consequences of the Claim of Residence
If the claim of residence is rejected, the sale process of the immovable property registered in the debtor’s name may continue. The creditor will collect their debt from this amount, and in case the claim is accepted, the debtor’s “haline münasip” (appropriate) residence cannot be sold or seized. In the case of partial acceptance of the claim of residence, for instance, if the debtor has only one immovable property where the family resides, but its value is far from being appropriate, the court will decide that the property be sold, and the debtor will be given the necessary amount to purchase a residence suitable for their circumstances. Any excess amount obtained from the sale will be paid to the creditor in proportion to their receivable.
Court of Cassation General Assembly of Civil Chambers 2017/12-1138E. 2017/868K. 26.4.2017T.
According to Article 82, paragraph 1, item 12 of the Enforcement and Bankruptcy Law (İİK), the debtor’s “appropriate” home cannot be seized. Whether a dwelling is suitable for the debtor’s situation is determined based on the debtor’s social status at the time of the seizure and the needs of the debtor and their family. The term “family” here is used in a broad sense, including those living under the same roof as the debtor and those whom the debtor is obligated to support. After the enforcement court determines the necessary amount for the debtor to secure an appropriate home for themselves and their family through expert assessment, if the value of the seized property exceeds this amount, the property should be sold. The amount needed to purchase an appropriate home, as determined by the previously stated criteria, should be left with the debtor, and the remaining balance should be paid to the creditor. Properties exceeding these criteria, including those with rooms and halls larger than reasonable dimensions or those containing features not essential for habitation, are contrary to the purpose intended in this article. The debtor’s position and status do not require them to live in a residence more magnificent than the one described above.
The Court of Cassation, 12th Civil Chamber, 2006/23100 E., 2007/822 K. “…According to Article 82/12 of the Enforcement and Bankruptcy Law (İİK), the debtor’s “appropriate” home cannot be seized. Whether a dwelling is suitable for the debtor’s situation is determined based on the debtor’s social status at the time of the seizure and the needs of the debtor and their family. The term “family” here is used in a broad sense, including those living under the same roof as the debtor and those whom the debtor is obligated to support. After the enforcement court determines the necessary amount for the debtor to secure an appropriate home for themselves and their family through expert assessment, if the value of the seized property exceeds this amount, the property should be sold. The amount needed to purchase an appropriate home, as determined by the previously stated criteria, should be left with the debtor, and the remaining balance should be paid to the creditor. Properties exceeding these criteria, including those with rooms and halls larger than reasonable dimensions or those containing features not essential for habitation, are contrary to the purpose intended in this article. The debtor’s position and status do not require them to live in a residence more magnificent than the one described above…” confirms this matter in its ruling.
In the decision of the 12th Civil Chamber, dated 31.01.2005, with file number 2005/2976 E. and decision number 2005/6893 K., it was stated: “The house subject to the residential objection is also located on parcel number 1859, for which the court has decided to lift the seizure. In the expert report, it is stated that the house provides minimum conditions for habitation. For the stated reason, instead of accepting the claim of residential suitability regarding the house, the court wrongly decided to reject the claim, by arguing that the house does not meet the criteria of being suitable for a family to live in, as it is a shelter. It was stated that properties such as shelters, cottages, etc., if suitable for meeting the need for accommodation, would be accepted as an appropriate home.”
In determining the appropriate home for the debtor, factors such as the debtor’s social and economic situation, and the number of people living in the house should be taken into consideration. It cannot be concluded that the debtor should be forced to live in a slum as a result of selling a house that is not considered suitable for the debtor’s situation, and the decisions made by the Court of Cassation are also in this direction.
Court of Cassation 12th Civil Chamber, Case No: 2013/17428, Decision No: 2013/25793
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