348 / 469
NEWSLETTER 2011
334
annotation is not a “founding annotation”; however article 194 of the
TCC is not an exception to the rule of trust in the title deed records;
and therefore, in lack of annotation onto the title deed registry, the third
party’s right in rem shall be protected provided that he acted with good
faith in the transaction with the spouse who owns the house although the
other spouse has no consent.
Conclusion
Pursuant to article 194 of the TCC, regulating family dwelling
house which has a great importance to spouses, neither of the spouses
can terminate the rental agreement regarding the family dwelling house,
transfer the ownership of the family house nor restrict the rights upon
the family house without the explicit consent of the other spouse. If the
family house is owned by only one of the spouse, the other spouse is
entitled to demand to put family dwelling house annotation onto the title
deed registry.
The Assembly of Civil Chambers of the Court of Appeal is in the
opinion that the family house annotation is not a “founding annotation”.
Therefore, in lack of annotation onto the title deed registry, the third
party’s right in rem will not be protected in a straight course; at this point
the faith of the third party will be considered.
If the third party is in good faith, his right in rem will be protected; if
the third party is not in good faith, his right in rem will not be protected.
On the other hand, annotation will render legal transactions void despite
the third party’s good faith.
Therefore, in order to prevent the spouse from executing transaction
regarding the family house which he owns, the other spouse shall
definitely demand to put family dwelling house annotation onto the title
deed registry. Otherwise, if the third party is in good faith, his right in rem
will be protected.
In addition, in order to avoid any dispute, it will be convenient that a
person to receive the consent of the other spouse if he knows that he is a
party to a transaction regarding a family house.