TO THE ISTANBUL FAMILY COURT

FILE NO: (…/… E.)

DEFENDANT MAKING THE STATEMENT: ML (Turkish Republic Identity Number: …) – Address: (…)

REPRESENTATIVE: Attorney Ferhat KÜLE (Istanbul Bar Association, Registration No: …) – Address: (…)

PLAINTIFF: YGL (TR Number: …) – Address: (…)

ATTORNEY: Attorney E. Ş. – Address: (…)

SUBJECT: Our statements regarding the plaintiff's request for a family home annotation and the list of evidence submitted, as well as our procedural and substantive objections; furthermore, the submission of the defendant's list of evidence.

EXPLANATIONS

I. PROCEDURAL OBJECTIONS

1. Compulsory joinder of parties – incomplete party: The immovable property in question was inherited by my client and is subject to joint ownership (co-ownership) with his/her sibling (Turkish Civil Code, Articles 640 et seq.; Turkish Civil Code, Articles 701, 702). When the annotation of family home is registered in the land registry, it will also have a restrictive effect on the disposition rights of the other co-owner/sibling . Therefore, compulsory joinder of parties exists, and it is not possible to proceed to the merits and render a decision without including the other co-owner in the lawsuit (Turkish Code of Civil Procedure, Articles 59-60). As it stands, the lawsuit has been filed with incomplete parties ; it should be dismissed on procedural grounds or the deficiency should be remedied first .

2. Nature of the protection request and proportionality: The annotation of family home creates a powerful legal effect that can be asserted against third parties by resulting in a restriction of a real nature . According to Article 389 of the Code of Civil Procedure and the principle of proportionality, if the same purpose can be achieved with a less restrictive intervention (e.g., allocation of rent to family expenses, establishment of a reasonable living arrangement, personal relationship/alimony measures), then an annotation imposing a severe restriction should not be applied.

II. EXPLANATIONS REGARDING THE MERITS

3. Legal status of ownership (joint ownership): The immovable property was inherited from the deceased father, and since the liquidation and division of the estate has not been carried out, joint ownership continues. In joint ownership , the shares are not defined ; according to Article 702/2 of the Turkish Civil Code, none of the co-owners can dispose of the property alone ; the registration of a family home annotation on this property directly restricts the rights of the co-owner who is not a party to the lawsuit . In the practice of the Supreme Court , it is accepted that a family home annotation that restricts the right of disposal of immovable properties owned by a third party or subject to joint ownership with a third party is not permitted (see Supreme Court 2nd Civil Chamber, 16.09.2008, E. 2008/11885, K. 2008/11958 : “A family home annotation cannot be registered on an immovable property owned by a third party, even if it is used as a family home by the spouses, in a way that restricts the property rights of the third party.”).

4. Family Home Status – Condition of Continuity and Actual Use: Within the framework of Article 194 of the Turkish Civil Code , a family home is the place where spouses continuously maintain their common life. The plaintiff herself stated in the notarized power of attorney that she has been residing in Gayrettepe, which is her mother's address, for a long time . In the concrete case where the de facto common life has ended, the plaintiff occasionally stays alone in the luxury villa , and the family unit has effectively dissolved , the status of the villa as a family home is debatable . According to the established jurisprudence of the Supreme Court, temporary places of use or residences where common life is not actually maintained cannot be considered family homes; a family home is a factual matter and is determined according to the specific characteristics of the case.

5. The principle of best interests and the rule of good faith: The defendant's brother is a third party not involved in the lawsuit , and his property rights are protected under Article 35 of the Constitution and Article 683 of the Turkish Civil Code. The plaintiff's request to register a family home annotation on the property inherited from the client's father, contradicting his own notarized declaration of residence , is incompatible with the principle of good faith (Article 2 of the Turkish Civil Code) . An annotation that restricts a third party's freedom of ownership and disposition cannot be granted unless it is a necessary and only option .

6. The best interests of the entire family – reasonable housing proposal and economic reality: While married, the parties resided in a high-standard luxury villa ; however, due to a decrease in cash flow in the client's business activities and the plaintiff's excessive spending habits, this standard has become unsustainable . The client proposed moving together to a "reasonably sized and costly dwelling" without breaking up the family , and renting out the villa for (... USD), with the income allocated to family expenses and the education of their child . Under this plan, the total cost of rent plus basic expenses would remain approximately ... TL ; the idle costs arising from keeping the luxury villa vacant would be eliminated. By rejecting this reasonable housing solution , the plaintiff is exposing the family to higher costs and debt risks . The purpose of Article 194 of the Turkish Civil Code is to protect family unity , and a clause that would plunge the entire family into economic hardship is contrary to this purpose .

7. The disproportionate consequence of the family home restriction – less restrictive measures are available: The plaintiff is requesting a restriction that limits the property rights of a third party when they can meet their housing needs in a suitable dwelling . However, the protection of family interests can be ensured through less restrictive interventions such as alimony, arrangements for the use of the dwelling, sharing of rental income, and planning of educational expenses . In accordance with the principle of proportionality, the least restrictive measure should be preferred.

In conclusion: (i) The request for a family home annotation should be rejected on procedural grounds due to insufficient opposing parties ; (ii) On substantive grounds, the request should be rejected on the grounds of joint ownership , cessation of actual use , superior protection of third-party rights , proportionality , and the principle of good faith .

EVIDENCE

Our evidence is being submitted within the peremptory deadline set by your court's interim decision dated …/…/20… :

1. Population registration certificate (information on spouse and children),

2. Residence certificate – showing that the plaintiff's actual residence is the Gayrettepe address.

3. Certificate of inheritance: Istanbul … Civil Court of Peace (…) E., (…) K. no. (Annex-1),

4. Divorce case file: Istanbul Family Court (…) Case No. E. (preliminary proceedings, petitions, statements, social investigation, maintenance/alimony documents),

5. Land registry records (TAKBİS) and type of ownership: S. Land Registry Directorate; Ş. Y. Road, İ. Location, 751 plot, 8162 block, 151 parcel – joint ownership and transfer record(deceased, transfer date, co-owners),

6. Electricity/water/natural gas/maintenance fee consumption records (last 24 months) – to prove that the dwelling is not used for continuous family lifeand is currently unused.

7. Bank account statements and income statements – for the client's cash flow and allocating the villa's rental potential to family expenses ,

8. Property valuation and rental appraisal report – rental value of the villa (… USD) and reasonable housing (… TL),

9. B. 18th Notary Public's power of attorney for divorce dated …/…/20… – plaintiff's declaration of Gayrettepe address (submitted in the file),

10. Our witnesses:

1. KK – Address: (…) (de facto separation of the parties and reasonable housing proposal),

2. APPENDIX – Address: (…) (luxury villa left idle, expense burden),

3. SL – Address: (…) (inheritance/transfer and sibling's joint ownership status),

4. O. C. – Address: (…) (observations regarding the plaintiff staying with his mother),

5. UB – Address: (…) (child's education plan and family's best interests),

6. AOC – Address: (…) (impact on family budget if the villa is rented out),

7. AU – Address: (…) (parties' spending habits and economic sustainability),

8. Should the plaintiff present new facts, we reserve the right to call additional witnesses specifically for those facts .

11. Inspection and expert examination (property/rental rate, consumption data, actual use; determination of title deed registration and type of ownership),

12. Sworn testimony and any other legally verifiable evidence.

LEGAL GROUNDS

Turkish Civil Code Articles 2, 194, 683, 640, 701, 702; Code of Civil Procedure Articles 59–60, 189, 190, 389 et seq.; Land Registry Regulation; Supreme Court 2nd Civil Chamber, September 16, 2008, Case No. 2008/11885, Decision No. 2008/11958 and relevant established case law.

CONCLUSION and REQUEST

For the reasons explained above, and without prejudice to the matters that your Court may consider ex officio;

1. The case is dismissed on procedural grounds due to insufficient parties ; – If you are of the opposite opinion, it is requested that the co-owner brother, who is not a party to the lawsuit, be included in the lawsuit first (Code of Civil Procedure, Article 60).
   

2. On the merits; the request for a family home designation is REJECTED due to the principles of joint ownership, protection of third-party rights, absence of actual use, and proportionality .

3. The court costs and attorney's fees shall be borne by the plaintiff.

4. (With reservations) If deemed necessary to protect family unity, the parties may be given the opportunity to reach a compromise/plan regarding less stringent interventions (such as renting out the villa and allocating the income to family expenses and the education of the joint child; moving to a more suitable residence, etc.),

We respectfully request and demand that a decision be made.

Defendant's Attorney
, Ferhat KÜLE
(Istanbul Bar Association)
[E-signature]