Alleged Occupancy And Its Application
The allegation of occupancy, which is one of the concepts of the Execution Law, and the actions subject to the complaint based on it are regulated under the title of non-foreclosable goods in the Execution and Bankruptcy Law. The allegation of homelessness constitutes an obstacle to the foreclosure and sale of the immovable property, which has the status of non-foreclosable property, by the creditor.
According to Article 82 of the Enforcement and Bankruptcy Law, the debtor’s house, which is suitable for the debtor’s situation, is accepted as unforeclosable property. What should be understood from the concept of a suitable house is a house that is suitable for the living conditions of the debtor, taking into account the family and social life of the debtor. In this case, this concept may vary according to the economic situation of the person, the number of people living in the house, and social status.
Pursuant to the Constitutional Court’s decision dated 12.12.2019, the family residence was accepted as one of the goods that cannot be seized, the existence of the right to respect for family life was accepted, the application was accepted and the seizure of the family residence was found unconstitutional, recognizing that the concept of a house suitable for its condition is not only a right for the need for housing, but also the protection of family unity should be considered within this scope. Although the decision was taken by a majority of votes, this decision of the Constitutional Court will affect the proceedings in many concrete cases. This precedent-setting judicial decision reveals that the protection of family life is one of the arguments that will affect the assessment of non-foreclosability, since the provision of the law does not clearly define the appropriate house and should be evaluated according to the living conditions of the debtor.
The Effect of Mortgage on the Claim of Occupancy
In order for the debtor to file a complaint of non-foreclosure about the immovable property that was previously mortgaged by the debtor, the mortgage must be one of the mortgages established compulsorily, such as housing loans, tradesmen loans, agricultural loans. This is because the principle that a compulsorily established mortgage does not constitute an obstacle to the complaint of non-foreclosure stems from the fact that this mortgage constitutes the collateral of the loan granted for social purposes. Apart from this, mortgages established by the debtor with his/her free will prevent him/her from making a claim of habitual residence in relation to this place. In the debtor’s complaints based on the mortgage, the nature of the mortgage should be investigated first and the proceedings should be continued according to this investigation.
The debtor does not necessarily have to be using the foreclosed house in order to file a complaint with the claim of dwelling. If the debtor has rented out the immovable property and he/she lives in the rented property, he/she should not aim to enrich himself/herself with the rental income. If the debtor pays the rent debt of the dwelling he/she uses with the rental income he/she earns, he/she will be able to file a complaint of occupancy.
The debtor must apply to the enforcement law court where the immovable is located within 7 days from the date of learning about the seizure of his/her residence and request the removal of the seizure. According to Article 103 of the Enforcement and Bankruptcy Law, the debtor is deemed to have learned about the seizure as of the date of notification to the debtor. If the debtor does not apply to the enforcement law court within 7 days despite this notification, he/she loses his/her right to object, and the period is the forfeiture period.
As a result of the debtor’s application to the enforcement law court, the court may decide to lift the seizure by accepting that the property is unseizable property based on the claim of domicile. However, this claim may not be accepted in all circumstances. At the same time, the court may decide to sell the immovable property by determining the price necessary for the debtor to acquire a house suitable for his/her situation, to pay the price to the debtor and to pay the remaining amount to the enforcement file.
The important point here is the economic status and living conditions of the debtor. The court’s decision should be aimed at enabling the debtor to acquire a dwelling that will not reduce the debtor to poverty, or to protect this dwelling.
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