1. Introduction

In enforcement law, compulsory enforcement proceedings are carried out against the debtor’s assets in order to ensure that the creditor receives payment of the receivable. As a general rule, the debtor is liable for the debt with all of his or her assets, and in enforcement proceedings by way of seizure, the debtor’s property, rights and receivables may be subject to seizure. However, the purpose of compulsory enforcement is not solely to ensure the collection of the receivable; it also aims to safeguard the debtor’s and his or her family’s ability to maintain minimum living conditions compatible with human dignity.

Seizure proceedings carried out in the debtor’s residence are also significant in terms of the inviolability of the domicile guaranteed under Article 21 of the Constitution, particularly when considered together with the provisions concerning exemptions from seizure.

In this context, Law No. 7445 on Amendments to the Enforcement and Bankruptcy Law and Certain Laws, published in the Official Gazette on 5 April 2023, introduced Article 79/a into the Enforcement and Bankruptcy Law (“EBL”) and subjected seizures carried out in residences to a specific procedure. Accordingly, if the enforcement officer determines that the place where seizure is requested is a residence, the enforcement officer decides that a seizure may be carried out in the residence and immediately submits this decision for the approval of the enforcement court. If the court determines that the place in question is indeed the residence where seizure is requested, it issues an approval decision. The seizure may then be carried out once the decision is notified to the enforcement office.

The primary purpose of this regulation introduced by Article 79/a of the EBL is to ensure that an enforcement officer’s intervention in the inviolability of the domicile is not left solely to the assessment of the enforcement authority and that judicial review is carried out before a seizure takes place in a residence.

However, the legislator has provided for an exception regarding the application of Article 79/a of the EBL. Pursuant to the final paragraph of the provision, Article 79/a of the EBL does not apply to provisional attachment.

Another issue that must be considered in relation to seizure in a residence is whether the court approval authorizing the seizure means that every item located in the residence may be seized. The court approval granted under Article 79/a of the EBL concerns only the authorization to conduct a seizure in the residence and does not preclude a separate assessment of whether the particular assets are subject to seizure. Accordingly, authorization to conduct a seizure in a residence and the question of whether a specific item may be seized constitute two distinct legal issues.

2. Property That Cannot Be Seized in the Debtor’s Home

Although the debtor’s assets generally constitute the subject matter of compulsory enforcement, Article 82 of the EBL provides that certain assets cannot be seized. The rationale underlying the exemptions from seizure indicates that the protection of the minimum living conditions of the debtor and the family members living under the same roof is an important consideration.

In this respect, two principal areas of exemption from seizure may be identified in seizures carried out in a residence. The first is the exemption applicable to the debtor’s residence that is suitable to his or her circumstances, while the second concerns household goods necessary for the debtor and the family members living under the same roof.

3.1. Exemption from Seizure of the Debtor’s Residence Suitable to His or Her Circumstances

Pursuant to Article 82/1-12 of the EBL, the debtor’s “residence suitable to his or her circumstances” cannot be seized. This exemption, commonly referred to as the “homestead” or “meskeniyet” exemption, aims to prevent the debtor from being deprived entirely of the possibility of housing due to his or her debt.

According to the case law of the Court of Cassation, whether a residence is suitable to the debtor’s circumstances must be determined by taking into consideration the debtor’s social and economic circumstances at the date of seizure, the number and needs of family members, and the characteristics of the residence. In this assessment, not only the value of the property but also the amount required to provide a more modest residence capable of meeting the reasonable needs of the debtor and his or her family must be taken into account.

If the value of the seized property exceeds the amount necessary to obtain a residence suitable to the debtor’s circumstances, the property may be sold, provided that the amount necessary for such a residence is left to the debtor. Therefore, the homestead exemption does not necessarily mean that the property is completely exempt from seizure and sale in every case.

Accordingly, residences that exceed reasonable standards and go beyond the essential needs of the debtor and his or her family cannot be protected under Article 82/12 of the EBL.

3.2. Exemption from Seizure of Necessary Household Goods

The second significant area of exemption from seizure in seizures carried out in a residence concerns the necessary household goods regulated under Article 82/1-3 of the EBL.

Pursuant to Article 82/3 of the EBL, except for valuable items such as money, negotiable instruments, gold, silver, precious stones, antiques or decorative items, goods necessary for the debtor and family members living under the same roof cannot be seized. However, where there is more than one item serving the same purpose, one of them is exempt from seizure, while the other may be seized.

For this reason, it cannot be concluded that every item located in a residence is automatically exempt from seizure. In determining whether an item is exempt, it must first be assessed whether it is necessary for the debtor and his or her family to maintain their daily lives.

The Court of Cassation has held that, when determining what constitutes a necessary household item, goods required for the debtor and his or her family to maintain a modest standard of living should be protected. At the same time, it emphasizes that the seizure should serve an economic purpose and aim to enable the creditor to recover the receivable.

Accordingly, when assessing whether items such as televisions, computers, air conditioners, tumble dryers or similar goods may be seized, it is not sufficient to consider only the type of item. Factors such as the purpose for which the item is used, the needs of the debtor and his or her family, whether another item serving the same purpose is available, and the economic value of the item must be assessed together.

On the other hand, where there is more than one item serving the same purpose, only one of them may be left with the debtor. Therefore, under Article 82/3 of the EBL, a distinction must be made between the concept of “household goods” and that of “necessary household goods.”

Finally, legal scholarship indicates that, in assessing the homestead exemption, the needs of pets living with the debtor and their bond with the family should also be taken into consideration. In this context, the animal’s need for living space and documents such as a veterinary passport may be considered. However, animals kept in bad faith should not be taken into account; domestic and ornamental animals kept for commercial purposes, on the other hand, may be subject to seizure.

3.3. Seizure of Gold, Antiques, Precious Stones and Decorative Items

Article 82/3 of the EBL expressly excludes certain items from the exemption applicable to necessary household goods.

Accordingly, valuable items such as money, negotiable instruments, gold, silver, precious stones, antiques or decorative items do not fall within the exemption applicable to necessary household goods, even if they are in the possession or use of the debtor and his or her family.

The purpose of this provision is to prevent assets with a high economic value and which are not essential for meeting the debtor’s basic living needs from being excluded from seizure merely because they are located within the residence.

Accordingly, it cannot be argued that gold, precious stones, antiques or valuable decorative items located in the debtor’s residence are exempt from seizure. Due to their nature, such assets must be regarded as excluded from the protection afforded to necessary household goods under Article 82/3 of the EBL.

4. Conclusion

Seizures carried out in the debtor’s residence constitute an area requiring a balance to be established between the creditor’s right to recover the receivable and the protection of the debtor’s fundamental rights.

Article 79/a, introduced into the EBL by Law No. 7445, provides an important procedural safeguard by making seizures in residences subject to the prior approval of the enforcement court; provisional attachment, however, has expressly been excluded from this regulation. Nevertheless, court approval does not mean that all assets located in the residence may be seized. The seizureability of each individual item must be assessed separately.

In this context, pursuant to Article 82/1-12 of the EBL, the debtor’s residence suitable to his or her circumstances is exempt from seizure, while under Article 82/1-3, necessary household goods belonging to the debtor and his or her family are likewise exempt. In assessing the homestead exemption, the debtor’s social and economic circumstances and family needs must be taken into account. For household goods, factors such as whether the item is necessary, whether another item serving the same purpose exists, and its economic value should be considered. In this way, the aim is to establish a fair balance between enabling the creditor to recover the receivable and protecting the debtor’s minimum living conditions in the enforcement of seizures carried out in a residence.

References

1. Seyhan Selçuk, “Seizure in a Residence Pursuant to Article 79/a of the Enforcement and Bankruptcy Law”, İnönü University Law Review, Vol. 14, No. 2, 2023, p. 412 et seq.
2. Sarısözen, M. S. (2015). “Seizure of Living Animals in Enforcement and Bankruptcy Law”. Erciyes University Journal of Law, 10(2), 53-96. https://izlik.org/JA52KF34JG
3. Akil, C. (2011). “Exemption from Seizure of the Residence Suitable to the Debtor’s Circumstances (Homestead Exemption) in Light of the Decisions of the Court of Cassation (EBL Art. 82/12)”. Ankara University Faculty of Law Review, 60(4), 775-808. https://doi.org/10.1501/Hukfak_0000001644
4. Pekcanıtez, Hakan / Atalay, Oğuz / Sungurtekin Özkan, Meral / Özekes, Muhammet: Enforcement and Bankruptcy Law, 9th ed., On İki Levha, Istanbul, 2022.
5. Özbay, İ. (2005). “Waiver of the Exemption from Seizure in Turkish Enforcement and Bankruptcy Law (EBL Art. 83/a)”. Erzincan Binali Yıldırım University Journal of Law, IX(1-2), 543-567. https://izlik.org/JA22JK57XD