Eviction Reasons Within the Scope of Residential and Roofed Workplace Lease Agreements
29 July, 2023
29 July, 2023
Article 299 of the Turkish Code of Obligations No. 6098 -TCO- generally defines the lease agreement as follows:
“A lease agreement is a contract whereby the lessor undertakes to allow the lessee to use or benefit from an object along with its usage, in return for the payment of an agreed rental fee by the lessee.”
Essentially, three types of lease agreements can be mentioned. These are;
Residential and roofed workplace leases are regulated under Articles 339 et seq. of the TCO, and in this blog post, the eviction conditions of residential and roofed workplace lease agreements will be examined.
The lease agreement may be terminated through a notice of termination or by filing a lawsuit.
Termination of a lease agreement by notice is regulated under Article 347 of the TCO. Accordingly, in residential and roofed workplace leases, the lessee may terminate a fixed-term lease agreement by notifying at least fifteen days before the end of the term. However, if the lessee does not give such notice, the lease agreement is deemed to be extended for another year under the same conditions [1].
The right of termination granted to the lessee here is a right that has a terminating effect, meaning it does not end the lease agreement at the moment it is exercised, but rather at the end of the contract period. Therefore, the notice of termination must reach the lessor at least fifteen days before the lease agreement expires. If not received, the termination notice becomes invalid, and the lease agreement does not end. In such a case, the lease agreement is automatically extended for another year [2].
The grounds for termination of a lease agreement by lawsuit are regulated under Articles 350 et seq. of the TCO. These grounds are categorized into those arising from the lessor and those arising from the lessee. According to Article 354 of the TCO, these grounds cannot be extended to the detriment of the lessee. It is important to emphasize that if the lessee has a usufruct right, the bare owner does not have the right to file an eviction lawsuit.
The competent court for eviction lawsuits is the civil court of peace, and the jurisdiction belongs to the court in the location where the leased property is situated.
The grounds for termination of the lease agreement due to reasons arising from the lessor are regulated under Articles 350 and 351 of the TCO. The reasons listed under these articles will be explained individually below.
According to Article 350/1 of the TCO:
“The lessor may terminate the lease agreement;
1. If the leased property is required for residential or workplace use by the lessor, their spouse, descendants, ascendants, or other persons they are legally obligated to support,
…
in fixed-term contracts at the end of the term, and in indefinite-term contracts within one month from the date determined by complying with the periods prescribed for termination notice and lease termination periods in the general provisions on leases.”
In lawsuits based on the need for residential or workplace use, the burden of proof primarily lies with the plaintiff. To terminate a lease agreement based on the need for residential or workplace use, the need must be genuine and mandatory. A lawsuit cannot be filed based on a need that does not yet exist or is only anticipated. For example, the landlord's plan to marry off their child or retire does not constitute a valid reason for this lawsuit [3]. However, if an adult individual does not wish to live with their family, or if there are health issues or a need for a summer house, these may be considered valid reasons for eviction [4]. Additionally, in a ruling, the Court of Cassation did not find the landlord's justification credible and legitimate when they attempted to evict a tenant shortly after leasing the property on the grounds that their daughter would live there [5].
According to the ruling of the 6th Civil Chamber of the Court of Cassation dated 25.04.2016, with case number 2016/3380 E. and decision number 2016/3343 K.:
“In cases based on necessity, an eviction decision can only be made if the necessity is real, sincere, and compulsory. A temporary necessity that does not indicate continuity cannot be a reason for eviction, nor can a necessity that has not yet arisen or is dependent on a long period.
From the perspective of the present case, an adult individual cannot be forced to live with their family even if they are unmarried. In this context, the claim of necessity should be accepted as proven if an adult, even if single, wishes to live separately.”
For a lessee to be evicted due to necessity, it is sufficient that the person in need is living in rented accommodation. This person does not need to be under the threat of eviction [6].
A lawsuit for eviction on these grounds must be filed within one month after the lease term expires for fixed-term contracts, and within one month after the date determined by complying with the termination periods prescribed under Article 328 of the TCO for indefinite-term contracts [7].
Eviction due to the new owner's necessity is regulated under Article 351 of the TCO:
“If the person who subsequently acquires the leased property needs it for residential or workplace use for themselves, their spouse, descendants, ascendants, or other persons they are legally obligated to support, they may terminate the lease agreement by filing a lawsuit within six months, provided they notify the lessee in writing within one month from the acquisition date.
If the new owner wishes, they may also exercise their right to terminate the agreement due to necessity by filing a lawsuit within one month from the expiration of the lease term.”
According to this regulation, the need for residential or workplace use applies not only to the new owner but also to their descendants, ascendants, and dependents. The necessity must be genuine and compulsory.
In this case, the new owner must notify the lessee within one month of acquiring ownership and request that the leased property be vacated within six months. It is important to note that if less than six months remain until the lease term ends at the time of acquisition, the new owner can file an eviction lawsuit at the end of the lease term without waiting six months [8]. The new owner may also exercise their right to terminate the lease due to necessity by filing a lawsuit within one month from the expiration of the lease term.
Eviction due to the construction and reconstruction of the property is regulated under Article 350/1-2 of the Turkish Code of Obligations (TBK) as follows:
“If substantial repairs, expansion, or alteration are necessary for the reconstruction or redevelopment of the leased property, and its use becomes impossible during such works, the lease may be terminated by filing a lawsuit within one month from the end of the fixed-term contract or, in the case of an indefinite-term contract, within one month from the date determined by adhering to the general provisions on lease termination and the required notice periods.”
Accordingly, if substantial repairs, expansion, or alteration are necessary for the reconstruction or redevelopment of the leased property, the property must be vacated. If the use of the leased property becomes impossible during these activities, the lease may be terminated by filing a lawsuit within one month from the end of the fixed-term contract or, in the case of an indefinite-term contract, within one month from the date determined in compliance with the prescribed termination periods and notice requirements.
It is important to emphasize that for eviction due to construction and redevelopment, the use of the leased property must be impossible during these activities. For instance, the Court of Cassation has ruled that painting, plastering, and parquet flooring do not constitute substantial renovations and therefore cannot be grounds for eviction [9].
Additionally, if the leased property is vacated due to construction and redevelopment, the evicted tenant has a right of priority over the said property. Without removing this priority right, the leased property cannot be rented to another party for three years following the eviction. However, this priority right does not grant the tenant the right to compel the landlord to enter into a lease agreement through legal action [10].
In eviction cases based on construction and redevelopment, the submission of an architect-approved architectural or preliminary project is mandatory. However, this project does not necessarily have to be submitted at the time the lawsuit is filed; it may also be submitted after the lawsuit has been initiated [11].
As previously stated, the Turkish Code of Obligations (TBK) distinguishes between two types of lease terminations through legal proceedings. A lease agreement may also be terminated due to reasons attributable to the tenant. Articles 352 and subsequent provisions of the TBK regulate these situations. These cases will be examined below.
Article 352/1 of the TBK regulates eviction lawsuits based on a written eviction commitment. According to this provision:
“If the tenant, after taking possession of the leased property, has committed in writing to vacate it by a certain date but fails to do so, the landlord may terminate the lease agreement by initiating enforcement proceedings or filing a lawsuit within one month from that date.”
For eviction based on a written eviction commitment, the following conditions must be met:
A conditional eviction commitment is valid under Article 170 of the TBK and is binding on both parties. In such cases, the commitment becomes effective once the stipulated condition is fulfilled. It should be noted that, according to the Court of Cassation, an eviction commitment contingent upon the non-payment of accumulated rent debts is considered valid [15].
If an eviction commitment is signed by the tenant at the time of the lease agreement with the dates left blank, the tenant must prove that these dates were left blank before the handover of the leased property and were later filled in contrary to the agreement. The mere fact that the dates were subsequently completed does not invalidate the document, and the burden of proving that the dates were filled in against the agreement lies with the tenant [16].
Finally, if a lawsuit challenging the validity of an eviction commitment is filed within one year, it can be proven by any means of evidence. The one-year period starts from the date the commitment was given [17].
Eviction due to two justified notices is regulated under Article 352, Paragraph 2 of the TBK as follows:
“If the tenant, in lease agreements shorter than one year, receives two written notices for non-payment of rent within the lease term, or in lease agreements of one year or longer, within a lease year or an extended lease term exceeding one year, the landlord may terminate the lease agreement by filing a lawsuit within one month from the end of the lease term or the lease year in which the notices were issued.”
As seen, the legislator grants the landlord the right to file an eviction lawsuit if the tenant defaults on rent payments under certain conditions.
According to the above regulation, the conditions for filing an eviction lawsuit are as follows:
The validity of the notice is crucial in an eviction case. For example, according to the decision of the 3rd Civil Chamber of the Court of Cassation dated 01.06.2017 with case number 2017/3884 E. and 2017/8824 K.:
"It has been agreed in the contract that the monthly rent will be paid between the 5th and 10th of the month. The payment receipts in the case file show that the rent was paid after the 10th of the month. In this case, it cannot be said that a custom has developed between the parties for the rent to be paid on the 10th of the month. Therefore, if the rent is not paid between the 5th and 10th of the month, the notice sent is valid."
Finally, it should be noted that in an eviction case based on two valid notices, the plaintiff is obliged to prove the rental relationship, the start date of the lease, the term of the contract, the monthly rent amount, and the rent payment date [20].
This situation is explained in Article 352, Paragraph 3 of the Turkish Code of Obligations. According to this provision:
"If the tenant or their spouse has a suitable dwelling within the same district or municipality, and the landlord was unaware of this at the time of the contract's formation, the landlord may terminate the contract within one month after its expiration by filing a lawsuit."
The conditions required for eviction under this provision are as follows:
Additionally, according to the Court of Cassation's view, if the dwelling owned by the tenant or their spouse has been rented to someone else or is vacant, this will not prevent the tenant's eviction from the property they currently occupy [21].
The lease agreement is a contract in which the landlord agrees to allow the tenant to use a property or benefit from it, and in return, the tenant agrees to pay the agreed rent. The termination of a residential or commercial lease agreement can be done either through a notice of termination or by filing a lawsuit.
As a result, eviction may occur for various reasons. The law has defined these reasons in a limited manner, and they cannot be expanded against the tenant. As explained above, the conditions of these situations must be evaluated for each specific case, and legal proceedings must be conducted accordingly. The conditions may vary for each case. Therefore, the specific details of the case should be carefully examined.
Stj. Av. Muhammed Safa Karzaoğlu
Av. Sumru Özlem Türkoğlu
[1] Eren, Fikret: Borçlar Hukuku Özel Hükümler, Ankara 2017, p. 411.
[2] For this, see Court of Cassation 3rd Civil Chamber, T.14.12.2017, E.2017/7129, K.2017/17713.
[3] For this issue, see Court of Cassation 6th Civil Chamber, 23.10.2007, E.2007/8688, K.2007/11036.
[4] Kurak, Necat: Kira Sözleşmelerinden Kaynaklanan Davalar, Ankara 2019, p. 730.
[5] Court of Cassation 6th Civil Chamber, 23.10.2001, E.2001/8167, K.2001/8314.
[6] Court of Cassation 6th Civil Chamber, 25.12.2013, E.2013/16659, K.2013/17305.
[7] Court of Cassation 6th Civil Chamber, 11.09.2013, E.2013/9913, K.2013/12174.
[8] Eren, p. 419.
[9] Court of Cassation 6th Civil Chamber, 18.01.2016, E.2015/2565, K.2016/25.
[10] Court of Cassation 6th Civil Chamber, 19.01.2016, E.2015/7205, K.2016/102.
[11] Court of Cassation 6th Civil Chamber, 11.11.2014, E.2014/10295, K.2014/12270.
[12] Kurak, p. 790-791.
[13] Court of Cassation 6th Civil Chamber, 22.02.2016, E.2016/5363, K.2016/1143.
[14] Yavuz, Cevdet: Borçlar Hukuku Dersleri, Istanbul 2014, p. 347-348.
[15] Court of Cassation 6th Civil Chamber, 11.02.2016, E.2015/11188, K.2016/839.
[16] Court of Cassation General Assembly, 28.9.2021, E.2017/975, K.2021/1108.
[17] Court of Cassation 6th Civil Chamber, 12.06.2012, E.2012/5461, K.2012/8809.
[18] Yavuz, p. 349.
[19] Yavuz, p. 350.
[20] Court of Cassation 6th Civil Chamber, 29.04.2014, E.2014/4142, K.2014/5419.
[21] Court of Cassation 6th Civil Chamber, 12.10.1964, E.3125/4375.
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