Article 299 and the following articles of the Turkish Code of Obligations numbered 6098 ("TCO") contains provisions regarding lease law. Under the TCO, lease agreements are regulated in three categories: lease subject to general provisions, residential houses and roofed workplace leases, product leases. The termination provisions of the lease agreement of residential houses and roofed workplace are regulated under article 347 and the following articles of TCO. According to the provisions regulated under the TCO, the lease agreement regarding residential and roofed workplace leases can be terminated by a notification or through litigation process. In order to terminate the lease agreement through notification, notification shall be made in accordance with the periods regulated under article 347 of the TCO. Termination of the lease agreement through litigation process is possible for reasons arising from the lessor or the lessee, and these situations are specified under the TCO. The reasons arising from the lessor are the requirement of the lessor or the new owner or the reconstruction of the immovable. The reasons arising from the lessee are the issuance of a written eviction undertaking, the default of the lessee as a result of two justified warnings due to non-payment of the rental fee and lessee's or his/her spouse's residence in the same district. In this article, the written eviction undertaking issued by the lessee will be examined.
Article 352/1 of the TCO stipulates a provision regarding the eviction undertaking. According to this article, "in the event that lessee does not vacant the leased property although he/she has already undertaken in writing to vacant it at certain date, the lessor is entitled to terminate the lease agreement by filing a lawsuit or starting the execution procedure within one month as of the aforesaid date." In order to terminate the lease agreement on the basis of a valid eviction undertaking, it is necessary to refer to residential houses and roofed workplace lease. Article 352/1 of the TCO shall not apply to lease agreements subject to general provisions.
Elements of the Eviction Undertaking
- Requirement to be in writing
Article 352/1 of the TCO stipulates that the validity of the eviction undertaking shall be in writing. Eviction cannot be requested based on an oral eviction undertaking. The eviction undertaking can be made in ordinary written form, or it is possible for the eviction undertaking to be made by a notary public. Thus, in accordance with article 275/2 of the Execution and Bankruptcy Law numbered 2004, the lessor will be in a stronger position when faced with the risk of signature denial. With the eviction undertaking in an ordinary written form, there will always be a risk of denial of signature when the lessor initiates enforcement proceedings against the lessee or files a lawsuit.
Article 349/1 of the TCO stipulates that the lessee may not terminate the lease agreement in immovable properties leased for use as a family residence without the express consent of his/her spouse. The explicit consent of the spouse regulated under the TCO is not subject to any form. If an eviction undertaking is issued in relation to the immovable property leased for use as a family residence, the signature of the spouse shall also be obtained. The lessee, against whom an eviction proceeding has been initiated due to a written eviction undertaking for the family house, may prevent the eviction by claiming that his/her spouse does not have her/his explicit consent. In such a case, the lessor will have to prove that the lessee's spouse has explicit consent.
In the event that there is more than one lessee, each lessee shall sign the eviction undertaking. It is not sufficient for only one lessee to sign the eviction undertaking.
- The date shall be clearly stated
In order for the eviction undertaking to be valid, the eviction date shall be clearly stated. In practice, the eviction date is usually left blank in the eviction undertakings and this date is filled in later by the lessor. In this way, lessors can put pressure on the lessees regarding the rental fee increase with the eviction undertakings with the date section left blank. Thus, lessees are forced to accept rental fee increases imposed by lessors due to the eviction undertaking. However, in such situation, abuse of right and breach of good faith will be mentioned in accordance with article 2 of the Turkish Civil Code numbered 4721.
It is a controversial issue whether a penalty clause should be set in the eviction undertaking if the immovable is not evacuated on the date of evacuation.
- Being issued after the delivery of the leased property
In order for the eviction undertaking to be valid, the leased property shall be delivered to the lessee. However, in practice, eviction undertakings are issued at the same time with the lease agreement and before the immovable is delivered. In the presence of such a situation, the eviction undertaking will not be valid. In practice, lessors who want to prevent this situation make the lessee sign the eviction undertaking by writing the date of issue of the eviction undertaking at a later date. Since the lessees who want to rent the immovable property have no other choice but to sign the eviction undertaking at that moment, the lessees sign the eviction undertaking with a later date of issue. In the ordinary course of life, it is not possible for the lessee to issue an eviction undertaking to the lessor without any reason. In order for the lessee to give the eviction undertaking, the lessor shall give the lessee a deadline for another reason, for example, due to need or in case the new owner takes the immovable property, although the lessor is in a position to vacate the lessee.
It is difficult for the lessee to prove that the eviction undertaking was issued before the delivery of the immovable property in the case of undertakings made in writing, with a clearly stated eviction date and made at the same time with the lease agreement but with a later date of issue, and in practice, it has become impossible to execute a lease agreement without the issuance of an eviction undertaking. As such, the provisions of the TCO regarding the protection of the lessee are not applicable.
When the situation is evaluated in terms of the lessor, in the presence of an eviction undertaking issued in accordance with the law and in an ordinary written form, when the lessor initiates enforcement proceedings based on the eviction undertaking, the issues related to proceedings without judgment will come to the agenda, and when the lessee objects to the enforcement proceedings in due of time, the enforcement proceedings will cease and the process will continue in the trial. Considering the workload and intensity of the courts today, it will take a long time to resolve this dispute between the lessee and the lessor, and the lessor will not be able to achieve its goal with the eviction undertaking obtained from the lessee in accordance with the law. For this reason, it would be appropriate for the lessors to issue the eviction undertaking before the notary public after the delivery of the immovable in order to avoid any loss of time during the enforcement proceedings.
Eviction Procedure
In the presence of a legally issued eviction undertaking, the lessee shall evacuate the leased property on the eviction date. If the lessee does not evacuate the immovable property, the lessor may initiate enforcement proceedings or file a lawsuit within one month from the eviction date. When an enforcement proceeding is initiated, an eviction order is issued to the lessee in accordance with article 272 of the Execution and Bankruptcy Law numbered 2004. The lessee notifies the enforcement office of his/her objection within seven days of the notification of the eviction order and thus the enforcement proceedings are suspended. If the lessee does not notify his/her objection within the due date, the lessee will forcibly be evicted. In the event that the lessee objects within the due date and the proceedings are suspended, it is possible for the lessor to proceed in two ways. The lessor may request the removal of the objection from the execution court within 6 months from the notification of the objection or may file a lawsuit for cancellation of the objection and eviction within 1 year from the notification of the objection in the civil court of peace.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.