347 / 469
MISCELLANEOUS
333
Any legal transaction to be executed by only one spouse
regarding such an important asset may be against the benefit
of the other spouse. Therefore, pursuant to article 194 of the
Turkish Civil Code numbered 4721, the transfer of the ownership
of a family house is subject to the consent of the other spouse.
In other words, the transfer of the ownership of a family house
is a legal transaction which requires the consent of the other
spouse. (Bilge ÖZTAN, Aile Hukuku, Ankara-2004, p. 207; Ahmet
M. KILIÇOGLU, Türk Medeni Kanunu’nda Diğer Eşin Rızasına
Bağlı Hukuksal İşlemler ve Yasal Alım Hakkı, Ankara-2002, p. 18 )
It is provided in subparagraph III of article 194 of the Turkish
Civil Code numbered 4721 that a family house annotation
can be put onto the title deed registry in order to prevent legal
transactions without receiving consent. However, the aforesaid
article is not an exception to the rule of trust in the title deed
records. ( KILIÇOĞLU, p. 20 )
If the other spouse failed to demand the relevant annotation
to be put onto the title deed registry, the right of the third party,
who acted with good faith in the legal transaction with the spouse
who owns the house, will be protected in accordance with article
1023 of the Turkish Civil Code numbered 4721.
On the other hand, annotation will render legal transactions
void despite the third party’s good faith. Therefore, the decision
of the local court stating that the restriction on transaction
of the ownership will arise by annotation, in other words, the
annotation is a “founding annotation” and thus the right of the
third party will be deemed as valid without considering whether
the third party is in good faith, is found to be inaccurate.
As it is known, article 1023 of the Turkish Civil Code
numbered 4721 stipulates the rule of trust in the title deed
records. The subparagraph III of article 194 of the Turkish Civil
Code numbered 4721 indicates that this rule is maintained.
(KILIÇOĞLU, p. 20)”
As it is understood from the above decision, the Assembly of Civil
Chambers of the Court of Appeal is in the opinion that the family house