The right of residence, also known as the right of residence, is a limited real right that allows a person to use the real estate of another person as a residence. The right of residence, regulated under the Turkish Civil Code, is a subtype of the right of usufruct and allows the right holder to use the real estate only for residential purposes. The right of residence, which cannot be transferred to another person and is not passed on to the heirs, is an effective legal solution that meets the need for housing without owning the real estate. In this article, we have discussed in detail the conditions for the establishment of the right of residence, its scope, the reasons for its termination and how it stands in family law and inheritance law.
1. What is the Right to Residence?
The right of occupancy refers to the right of a person to use a building or a part of a building suitable for living on a real estate owned by someone else as a residence. This right, also known as the right of residence, is defined as a limited real right according to Article 823 of the Turkish Civil Code (TMK) and can only be used for residential purposes. The right of occupancy cannot be transferred to anyone else and does not pass to heirs. With these characteristics, the right of occupancy can only be used personally by the rightful owner and cannot be rented or transferred to a third party. The right of occupancy is considered a type of usufruct right and according to Article 823 of the TMK, the provisions regarding usufruct right are also applied to the right of occupancy. The scope of the right of occupancy is limited and only grants the rightful owner the authority to live and use as a residence. For example, commercial activities cannot be carried out using this right or the building cannot be used for other purposes.
2. Scope and Characteristics of the Right to Residency
The scope of the right of occupancy is determined according to the personal needs of the right holder. This right grants the right holder the right to use the property as a residence in its entirety or in part. However, whether the right holder will also include the family and household depends on the contract or legal transaction. If the family and household of the right holder are also specified in the contract, then they have the right to reside together. However, if the right is only allocated to the right holder, only the right holder can benefit from this right. The right of occupancy grants the right holder the right to use it only as a residence and cannot be rented or transferred to anyone else. The right of occupancy can only be established on structures suitable for occupancy. For example, the right to occupy a room or a section of a building can be established. However, the structure subject to this right cannot be established on structures that are not suitable for occupancy, such as a shed or a cabin.
3. The Right to Residence is Inalienable and Does Not Pass to Heirs
One of the most important features of the right of residence is that it cannot be transferred to another person and cannot be passed on to heirs. In other words, the right holder cannot transfer the right of residence to another person or leave this right to others through inheritance. This feature distinguishes the right of residence from the right of usufruct. While the right of usufruct grants the right holder the right to use and benefit, it is a right that can be transferred to another person. However, the right of residence is a limited real right that can only be used by the right holder personally. This makes the right of residence more personal and specific to the individual. In the event of the right holder's death, the right of residence ends and their rights over the real estate are completely terminated. Therefore, when the right of residence is to be transferred, a more flexible right such as the right of usufruct should be preferred.
4. The Right to Residency Can Only Be Established on Real Estate
The right of occupancy can only be established on real estate; that is, on immovable properties such as a plot of land, a residence or a workplace. Since the right of occupancy provides the right to use an immovable property as a residence, it is not possible to establish the right of occupancy on movable or movable rights. For example, the right of occupancy cannot be established on a vehicle or other movable property. This situation requires that the right of occupancy be limited to immovable properties and only be applied to immovable properties that can be used as a residence. One of the conditions of the right of occupancy is that the immovable property to be used as a residence complies with a certain level of security and living standards.
5. Methods of Establishing the Right to Residency
There are various methods for establishing the right of residence. These methods include contract, unilateral legal transaction and court decision. The right of residence can be established with all three methods and each method has different procedures. This right is considered legally valid and protected when it is recorded in the land registry.
6. Establishment of the Right to Residency by Contract
The most common way to establish a right of residence is through a contract. A right of residence can be established through a formal contract between real estate owners and rights holders. In this case, an official document is issued by the land registry officer and the right of residence becomes valid by being registered in the land registry. A right of residence established through a contract is realized based on the mutual consent of the parties and in this case, the right holder has the authority to use the house for a certain period or indefinitely. Registration in the land registry ensures that the right of residence is also protected against third parties. This right, registered in the land registry with a formal contract, provides full legal security and grants the right holder a permanent right of use over the house.
7. Establishment of the Right of Residence by Unilateral Legal Action
The right of residence can also be established through a unilateral legal transaction. For example, a testator may establish the right of residence on a real estate through a will. In this case, the person determined in accordance with the testator's wishes acquires the right of residence after the testator's death. This unilateral legal transaction is considered valid under certain conditions and must again be registered with the land registry. Since unilateral legal transactions are carried out through a direct declaration of will by the rightful owner, there is no requirement for mutual agreement between the parties. The right of residence established through a will provides a right of use specific to the rightful owner and authorizes the heir to reside in the house.
8. Establishment of the Right to Residence by Court Decision
The right to reside can also be established by a court decision. Especially in family law and divorce cases, a right to reside can be granted in favor of a spouse by a court decision. For example, in a divorce protocol, it can be decided that a spouse has the right to reside in the house, and this decision becomes legally valid when approved by the family court. The right to reside established by a court decision is registered in the land registry and is legally secured. Such decisions made by the courts, especially in the context of divorce or family law, ensure that one spouse provides a safe living space against the other. In such cases, the right to reside secures the right of the rightful owner to live and use the house.
9. Limits of the Right to Residency and How to Use It
The limits and usage of the right to reside are clearly defined in the Civil Code. Since the right to reside is defined as a limited real right to be used as a residence, the scope of the right is limited only to the rights to reside. This right includes a part of the property rights but does not provide a full ownership authority; the right holder can only use the residence as a living space. For example, it is not possible for the right holder to conduct a commercial activity, open a business or rent this residence. The limitation of the right to reside can also be established in a certain part of the real estate. For example, the right holder can only have the right to reside in a certain room of a house. In this case, the common areas (kitchen, bathroom, etc.) can be used together with the owner. The limits of the right to reside ensure that the right holder only benefits from it as a residence and ensures that the right is used in accordance with its purpose.
10. The Right to Residence Covers the Family and Household of the Rightful Owner
The right of residence may also include the family and household of the right holder. If it is stated that the right of residence is not reserved only for the right holder, the right holder may benefit from this right together with his/her family and household. In this case, the right holder may share the residence with his/her family members, but this sharing cannot be directed to income-generating activities outside the residence. In addition, if the right of residence is reserved for the right holder, this right is granted only to the right holder and his/her family or household are not included in this right. In such cases, only the right holder has the right to live in the residence. This flexible structure of the right of residence allows it to be arranged according to personal needs and the area of use to be determined.
11. Establishment of the Right to Residency with or without a Fee
The right of residence can be established with or without a fee. This situation may vary depending on the contract or legal transaction made between the parties. In the case of a right of residence established with a fee, the rightful owner is obliged to pay a certain fee to the owner. This fee is stated in the official title deed and is considered one of the basic elements of the contract. The right of residence established without a fee means that the rightful owner can use the house without paying any fee. This is a situation that is frequently seen especially in family relationships or in accordance with the will of the deceased. However, in both cases, the right of residence must be officially registered in the title deed and established in accordance with certain conditions.
12. Reasons for Termination of Residence Right
The right of residence may end in certain cases. The reasons for the termination of the right of residence include the destruction of the immovable property that is the subject of the right, the expiration of the right of residence, expropriation, the death of the right holder, court decision and voluntary abandonment. These reasons lead to the right holder losing the right of residence and the termination of the use of the residence on the immovable property. With the termination of the right of residence, all rights on the immovable property also end and the owner regains full ownership of the immovable property. In particular, in the event of the death of the right holder, the right of residence ends and does not pass to the heirs.
13. Abolition of the Right to Residency
Since the right of occupancy can only be established on real estate suitable for occupancy, the right of occupancy also ends if the real estate is destroyed. For example, if a building on which the right of occupancy is established is destroyed due to a natural disaster, the right holder's ability to benefit from the house is eliminated and therefore the right of occupancy ends. In such cases, since the continuation of the right is not possible, the right of occupancy is legally considered to have been lost. The termination of the right of occupancy does not grant the right holder any right to compensation. Because the main purpose of the right is dependent on the existence of the real estate and this right is automatically terminated when the real estate is destroyed.
14. Termination of Residence Rights with Expiration
If the right of residence is established for a certain period, it automatically ends when the period ends. For example, if it is decided that a person will have the right to reside in a house for 10 years, the right ends at the end of this period. With the expiration of the period, the right holder's right to use the property on the property is terminated. If the right of residence that has ended with the expiration of the period is to be re-established, a new contract or legal action must be made. At the end of this period, the right holder must vacate the property and reach a new agreement with the owner.
15. Termination of the Right to Reside in Case of Expropriation
The right of residence also ends if the real estate is expropriated. Expropriation is the state taking the real estate from the owner for the public benefit, and in this case the right of residence also ends. Due to expropriation, all real rights on the real estate end and the rightful owner can claim the expropriation fee. If the real estate is returned to the owner after expropriation, the right of residence can be re-established. However, in the event of permanent expropriation of the real estate, the right of residence of the rightful owner ends completely and it is not possible to re-establish it.
16. Termination of Rights by Death of the Residence Right Holder
The right of residence ends with the death of the right holder. This situation arises from the fact that the right of residence is a personal right. When the right holder dies, the right of residence automatically ceases and does not pass to the heirs. This feature is a natural consequence of the right of residence being an inalienable and personal right. If the right of residence that ends with the death of the right holder is desired to be re-established on the real estate, the owner can grant the right of residence to a new right holder. However, in this case, a new legal process will be required.
17. Right to Residence Arising from Family Law
In family law, in the event of the death of one of the spouses, it is possible for the surviving spouse to have the right to reside in the family home. According to Article 240 of the Turkish Civil Code, the surviving spouse may request that the right to reside in the home belonging to their deceased spouse and in which they lived together be offset against the participation receivable. This right is designed to enable the surviving spouse to maintain their former standard of living and to support them economically. This right to reside in family law is recognized in return for the participation receivable or the right to inheritance. In this case, the surviving spouse has the right to live in the family home instead of requesting their share of the inheritance. This right is established by a decision approved by the Family Court and registered in the land registry.
18. Right of Residence Arising from Inheritance Law
The right to reside may also be granted within the scope of inheritance law. In the event of the death of one of the spouses, it is possible for the surviving spouse to request the right to reside in the house they live in together. According to Article 652 of the Turkish Civil Code, the surviving spouse may request the right of ownership or usufruct over the family house and household goods. In the event of a legitimate reason, a decision may be made to grant the right to reside instead of ownership. The right to reside arising within the context of inheritance law is evaluated by the Civil Court of Peace. The court may examine the surviving spouse's request and establish the right to reside in the family house if legitimate reasons are found. Since this right is granted in deduction from the right of inheritance, it includes the right of the surviving spouse to use the house as a house instead of ownership. In this way, the surviving spouse's living standards are protected and their residence in the family house is ensured.
Legal Nature and Importance of the Right to Residence
The right to reside (stay) is an important legal regulation developed to meet the individual's housing needs. This right, which can only be used as a residence, regardless of property rights, is personal and is tied to the person. It cannot be transferred, does not pass to heirs and can only be used by the rightful owner. The establishment of the right to reside is ensured by registration in the land registry, which provides legal security to the rightful owner. The right to reside also has an important place in family and inheritance law. Especially in divorce or inheritance cases, the right to reside can be granted to the surviving spouse or an heir in need, providing economic and social support. In this respect, the right to reside shows that the law has a structure that adapts to social and economic life. As a result, the right to reside stands out as a limited real right in terms of real estate ownership and provides the rightful owner with a use for residential purposes only. In addition to meeting the need for housing in today's legal system, this right also aims to protect the living standards of family members as an element of social support.