INTRODUCTION

The right of habitation plays a vital role particularly within frameworks of social solidarity, such as old age, retirement, or intra-family mutual assistance. Contrary to the temporary nature of lease agreements, which are prone to eviction risks, the right of habitation provides the right holder with a direct, in rem, and absolute protection over the immovable property, thereby securing them even during periods of socio-economic vulnerability. Consequently, the examination of this right is not merely a technical analysis of property law, but is of profound importance for understanding the legal manifestation of the principles of the social state and family solidarity, which lie at the very heart of daily life.

From a legal perspective, pursuant to Article 823 of the Turkish Civil Code, the right of habitation is an easement that grants the right holder the authority to utilize a building or a specific part thereof as a dwelling. Easements, on the other hand, are defined as rights that grant the right holder a part or the entirety of the owner’s powers regarding the use and enjoyment of the property, or that prohibit the owner from exercising certain powers inherent in the content of ownership for the benefit of the right holder. In this study, taking into account its socio-legal function in daily life, the legal nature of the right of habitation, the immovables upon which it can be established, its types, and the methods of its acquisition and termination will be examined; furthermore, its distinctions from the lease agreement—which it functionally resembles but diverges from in terms of the security provided to the right holder—will be addressed in light of doctrinal debates.

KEYWORDS: Right of Habitation, Habitation, Immovable Property, In Rem Right

1. DEFINITION AND LEGAL NATURE OF THE RIGHT OF RESIDENCE

According to Article 823 of the Turkish Civil Code, the right of habitation is an easement that grants the right holder the authority to utilize a building or a specific part of it as a dwelling. Easements, on the other hand, are defined as rights that provide the right holder with part or all of the owner’s powers regarding the use and enjoyment of the property, or that prohibit the owner from using certain powers inherent in ownership for the benefit of the right holder.

The right of habitation resembles the right of usufruct in terms of its non-transferability and the fact that it cannot be passed on to heirs. Nonetheless, while the right of usufruct provides full enjoyment of the immovable property, the right of habitation only grants the authority to reside in the whole or a part of the building.

Since the right of habitation only grants the holder the authority to use, it is characterized as a limited in rem right. The right of habitation is a right strictly attached to the person (intuitu personae). A non-personal and transferable right of habitation cannot be spoken of.

The most important feature that distinguishes the right of habitation from other easements is its nature as an in rem right. Because the right of habitation is an absolute right, it can be asserted against anyone, including the owner. The right of habitation grants the right holder solely the right to reside. In other words, the right holder can only use the immovable property subject to the right as a dwelling. That is, it cannot be used for any purpose other than residential purposes. However, provided that the residential purpose remains predominant, it is also possible for the right holder to use a part of the immovable property for a different purpose.

2. IMMOVABLE PROPERTIES UPON WHICH A RIGHT OF HABITATION CAN BE ESTABLISHED

The right of habitation can only be established on immovable properties that are used for residential purposes or whose use for residential purposes will not disturb public order. For example, it is possible to establish a right of habitation on immovable properties that were once used as warehouses or workplaces.

The entire immovable property can be subject to the right of habitation, as can a part of it. Although there are opposing views in doctrine; since the movables specified in Article 728/1 of the Turkish Civil Code (TCC) are not registered in the land registry and do not meet the concept of a “building”, it is not possible to establish a right of habitation on them.

Pursuant to TCC Article 826/3, the right of habitation is independent and continuous in nature, and it can be established upon a construction right (superficies). Here, contrary to establishing the right of habitation on an immovable property, it is established upon a construction right. The duration of this right of habitation established upon a construction right is also limited to the duration of the construction right. As for immovable properties under shared ownership, different views exist in doctrine. According to one view, since the indivisible construction right concerns the entirety of the immovable property, all owners must act together.

The opposing view, although suggesting that a rule cannot be established where the use is divided among stakeholders, maintains that a right of habitation can be established on the partitioned share.

3. THE TYPES OF RIGHT OF HABITATION

3.1. Independent Right of Habitation

In an independent right of habitation, the right holder ensures the use of the immovable property independently of the owner. In the land registry, the independent right of habitation is expressed with terms such as “exclusive, sole, independent”. With the independent right of habitation, the owner’s right of use is completely eliminated.

3.2. Joint Right of Habitation

In a joint right of habitation, the right holder uses the immovable property together with the owner or a third party. “Joint possession” is the case here.

3.3. Mixed Right of Habitation

In a mixed residence permit, the right holder possesses a completely separate, independent right of habitation in one part of the immovable property away from the owner, while sharing the use with the owner in other parts, thereby possessing a joint right of habitation. Disputes that may arise regarding this matter find application under provisions according to the type of area used.

4. THE DIFFERENCE BETWEEN THE RIGHT OF HABITATION AND A LEASE AGREEMENT

Although there are functional similarities between a lease agreement and the right of habitation, the provisions regarding lease agreements are, as a rule, not applied to the right of habitation. For instance, this difference also manifests in terms of duration and termination scenarios. While a lease agreement can be established for a definite or indefinite period, it is not possible to make an agreement stating that it will continue to be in force for life like a right of habitation. Contrary to the lessor having the authority to unilaterally terminate the contract, provided that the statutory provisions protecting the lessee are reserved, it is not possible for the holder of the right of habitation to terminate it unilaterally.

When the lease agreement is compared with the right of habitation, it becomes apparent that it is not a fully and continuously secured contract. In the event that the immovable property is sold, the lessee faces a risk of eviction pursuant to Article 351 of the Turkish Code of Obligations (TCO). However, such a situation does not apply to the right of habitation. At the same time, while the persons with whom the lessee will reside in the immovable property are not specified by the TCO, the holder of the right of habitation can reside with the persons specified pursuant to TCC Article 824/2. As frequently encountered in practice, while the right of habitation is, as a rule, gratuitous (without consideration), a lease agreement strictly grants the right to use the house in return for a consideration.

This situation also necessitates a distinction regarding the lawsuits that need to be filed in case of violation of the mentioned rights; in case of a violation of the right of habitation, in addition to “deprivation of possession” and the lawsuits specified in TCC Articles 982-983, an action for the prevention of non-possessory interference can also be filed, whereas the lessee can only file a lawsuit for deprivation of possession and pursuant to TCC Articles 982-983.

It is possible for lease agreements to be annotated in the land registry pursuant to TCO Article 312. A lease agreement annotated in the land registry, in a sense, provides more security to the lessee compared to its previous state. Namely, although a lease agreement annotated in the land registry does not transform into an in rem right, it acquires the nature of a reinforced personal right. However, even if the lease agreement is annotated, it is deprived of the privileges of the right of habitation, which is of the same nature.

There are different views regarding the registrability of the right of habitation in the land registry when there is a lease agreement annotated in the land registry. According to one view, since the right of habitation registered in the land registry following the annotation of the lease agreement constitutes an invalid registration, the lessee can have the right of habitation cancelled pursuant to TCC Article 1025. The opposing view suggests that if the right of habitation is not actually used, the right holder will only be entitled to the rental fee pursuant to TCO 310-311; hence, it should not be concluded that the right of habitation is invalid.

Another controversial issue relates to entering into a lease agreement for an immovable property upon which a right of habitation has been established. Some authors, accepting that the holder of the right of habitation would obtain the status of lessee in this case pursuant to TCO 310-311, argue that they can evict pursuant to TCO 351, and since the right of habitation holder cannot use their right due to the lease agreement, they are entitled to the accrued rental fee. In case of holding a partial right of habitation, the right holder will have a lease right equivalent to the portion they cannot use. In line with these views, if the lessee and the right of habitation holder are the same person in the lease agreement, since it will produce the same result with the change of ownership pursuant to TCO Articles 310-311, the agreement will terminate due to the merger of the capacities of creditor and debtor.

According to another view, although the right holder does not possess the status of lessor by virtue of the right of habitation, they can only evict for their own need due to it being a personal right pursuant to TCO Article 351.

5. METHODS OF ACQUIRING THE RIGHT OF HABITATION

The right of habitation, which can be established with or without consideration, is fundamentally established through a contract, a court decision, or a unilateral legal transaction. Establishment by contract is the most common form; it is established when the land registry officer registers the deed into the registry, while it is also possible to establish it in favor of heirs or a third party via a will, which is a unilateral legal transaction. In the right of habitation, which can also be established by a court decision, a right of habitation can be established in favor of a spouse, for example, by a Family Court decision approving the clause regarding the right of habitation in a divorce protocol.

The ownership right acquired by a person who has maintained possession over immovable properties in good faith, without dispute and uninterruptedly for a period of ten years, and who has been registered as the owner in the land registry without a valid legal ground, cannot be objected to. It is possible to reach this situation through the provision of Article 712 of the Turkish Civil Code. As a result, since the existing registration is automatically valid, there is no need to obtain a separate declaratory judgment from the court.

While the establishment of the right of habitation in favor of real persons is indisputable, whether it can be established in favor of legal entities is a matter of debate. Some authors argue that since the need for shelter is exclusive only to real persons, legal entities cannot acquire a right of habitation, whereas some authors interpret the obligation of legal entities to acquire a domicile according to TCC Article 20/1 as the shelter need of legal entities and argue that they can acquire a right of habitation.

6. PARTIES TO THE RIGHT OF HABITATION AND THEIR RIGHTS AND OBLIGATIONS

The parties to the right of habitation consist of the owner of the encumbered immovable property and the holder of the right of habitation. Pursuant to Article 824 of the Turkish Civil Code, the holder of the right of habitation has the right to reside in the building or a part of it with their family and household, unless it is explicitly stated that the subject right is individualized to their person.

As to what should be understood from the concepts of “family and household”, it is accepted that persons who are deemed customary to live with the right holder according to the facts and circumstances fall within the scope of this concept.

On the other hand, pursuant to Article 824-3 of the Turkish Civil Code, it is possible for a person who has a right of habitation over a part of a building to also benefit from the places allocated for common use. With the acquisition of the right of habitation, the right holder will obtain derivative and direct possession over the integrative parts and appurtenances as well as the immovable property.

The property owner has the right to request the keeping of an inventory by a notary public. This right can be evaluated as a right of both parties. A lawsuit can be filed against the party who does not give consent to the keeping of an inventory, and the court judgment substitutes for consent. Another right of the owner is that, as long as they prove it, they have the right to claim compensation for decreases occurring in the value of the property and, in case of the destruction of the immovable property, for extraordinary value deficiencies that occur.

7. TERMINATION OF THE RIGHT OF HABITATION

Although there is no regulation in the Turkish Civil Code regarding the acquisition and loss of the right of habitation, pursuant to Article 823 of the same code, the provisions regarding the right of usufruct are valid here as well.

Based on this provision, by virtue of the provision of Article 795 of the Turkish Civil Code, while it terminates with the complete destruction of its subject matter and the cancellation of the registration, the owner has the authority to request cancellation in cases such as death, waiver, and expiration of the term. Regarding destruction, if a part of the immovable property is destroyed, the subject right will continue over the remaining part of the immovable property.

If the property is completely ruined and the owner has made the subject property usable for the usufruct right holder, the owner covers the expenses. In case of the owner’s fault, the usufruct right holder can have the property repaired themselves, to be claimed from the owner.

CONCLUSION

Beyond being a technical institution of property law, the right of habitation possesses a deeply rooted and social function that links an individual’s right to housing and social solidarity to an in rem guarantee. Its indispensable place in daily life is demonstrated particularly by the fact that it protects the housing security of the elderly, individuals in need of care, or family members against the arbitrary dispositions of the owner and economic risks. As evident from our comparative analysis with lease agreements, the right of habitation, with its absolute nature that can be asserted even against third parties in the event of the transfer of ownership of the immovable property, completely eliminates the eviction risks faced by a lessee and offers a permanent living space to the right holder.

Defined under Article 823/1 of the Turkish Civil Code as ‘…the authority to utilize a building or a part thereof as a dwelling…’, this limited in rem right is equipped with strict rules, such as being strictly personal, non-inheritable, and non-transferable in terms of its exercise. This rigidity prevents the right from being diverted from its purpose and transformed into a commercial rent, ensuring that it directly serves the objective of the ‘fulfillment of the need for housing’. Due to the absence of specific and detailed regulations regarding its acquisition and loss in the law, referencing the provisions on the right of usufruct significantly fills the gaps in practice.

In conclusion, this right, which can be established in independent, joint, or mixed forms, strikes a perfect balance between the absoluteness of the right of ownership and an individual’s need for social security. Considering the increase in housing crises and property disputes under today’s socio-economic conditions, it is evaluated that the in rem security provided by the right of habitation should be utilized much more effectively and widely within intra-family legal relations and social protection models.

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