Eviction commitment and validity conditions

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As clearly regulated in the Turkish Code of Obligations No. 6089, it is possible for landlords to terminate residential and roofed workplace lease agreements before their term or when the term expires under the circumstances clearly specified within the scope of the Turkish Code of Obligations.

For this reason, we see that landlords are filing eviction lawsuits, especially as a result of the recent increase in rental prices, because landlords demand an increase in rent and these demands are not accepted by tenants.

However, before filing an eviction lawsuit, it is mandatory to apply for mandatory mediation in rental disputes. Since certain rights are granted to landlords under the Turkish Code of Obligations for filing eviction lawsuits, obtaining an eviction commitment is a frequently preferred method by landlords.

Attorney Gizem Gonce, in her article written for 12punto, explained the legal nature and validity of an eviction commitment, as well as the eviction stages that can be carried out based on a valid commitment.

EVICTION COMMITMENT AND ITS LEGAL NATURE

An eviction commitment is a written undertaking by the tenant to the landlord that the property will be vacated on a certain date. This matter is regulated in the 1st Paragraph of Article 352 of the Turkish Code of Obligations as follows;

“If the tenant has undertaken in writing to vacate the leased property on a certain date after the delivery of the leased property, but has not vacated it, the landlord may terminate the lease agreement by applying for enforcement or filing a lawsuit within one month starting from this date.”

In this context, while it is important that an eviction commitment can only be regulated for residential and roofed workplace leases, the legal validity of this commitment depends on certain conditions. In lease agreements concluded subject to the general provisions of the Turkish Code of Obligations, the provision of the 1st Paragraph of Article 352 of the Turkish Code of Obligations will not find an area of application, and an eviction commitment cannot be made within this scope.

The purpose of an eviction commitment is for the tenant to commit to the landlord to vacate the leased property on a certain date, and in this context, the landlord has the opportunity to terminate the lease relationship without needing the existence of any other reason and without incurring a compensation obligation.

Although the legal nature of a written eviction commitment is clearly regulated under the Turkish Code of Obligations, there are debates in legal doctrine.

VALIDITY CONDITIONS OF AN EVICTION COMMITMENT

Although the legal nature of the eviction commitment given by the tenant is debated in doctrine, the validity conditions sought under the Turkish Code of Obligations are regulated as follows;

The Eviction Commitment Must Be in Writing.

There is no restriction regarding the form of the lease agreement in the Turkish Code of Obligations. A formal requirement is also sought for the eviction commitment. Although no separate criterion has been determined in this context, it is considered sufficient for the commitment to be made in simple written form.

In order to eliminate the possibility of the tenant claiming that the signature does not belong to them, it is important that this commitment text is drawn up through a notary public.

If the tenant is not a single person, this commitment must be given by all tenants in compliance with the said formal requirement. Otherwise, the eviction commitment does not have legal effect.

The Commitment Must Be Given by the Tenant or Their Authorized Representative.

The tenant can give an eviction commitment personally, or it can be given through an express authorization granted to their authorized representative. A special authorization requirement is also sought regarding the fact that an eviction commitment can be given via power of attorney.

The Commitment Must Contain a Declaration That the Tenant Undertakes to Vacate the Leased Property on a Certain Date.

In accordance with the regulations regarding the eviction commitment under the Turkish Code of Obligations, it is stipulated that the eviction date must be specified in eviction commitments concluded by the tenant or their authorized representative. The eviction commitment must contain a definite and determinable day.

According to the ruling of the General Assembly of Civil Chambers of the Court of Cassation dated 28.09.2021, numbered 2017/975 E. and 2021/1108 K., the issue is signing a printed text while leaving both the signature and the eviction dates blank in the eviction commitment.

Although filling in these blanks later is invalid, the burden of proving this matter belongs to the tenant personally. In cases where this situation cannot be proven by the tenant, the commitment is accepted as valid.

The Commitment Must Be Given After the Leased Property Has Been Delivered to the Tenant. The most important issue in giving an eviction commitment is that; eviction commitments given before the lease agreement and even eviction commitments made before the delivery of the leased property to the tenant, even if the lease agreement has been made, are considered invalid.

The validity of eviction commitments, which are clearly regulated under the Turkish Code of Obligations, is made conditional upon the delivery of the leased property. In this context, situations where the commitment signature date is left blank and filled in later, just like the eviction date, are frequently encountered.

In this context, it has been stated in the case law of the Court of Cassation that the burden of proof is on the tenant and that they must bear the consequences if they cannot prove the current situation. On the other hand, the tenant has the right to request the cancellation of the commitment in accordance with Article 39 of the Turkish Code of Obligations due to a defect of will following the signing of the existing commitment under pressure and duress.

The most important issue to be considered in such cancellation requests is that the request must be made within the one-year limitation period stipulated by law.

EVICTION PROCESS TO BE CARRIED OUT BASED ON A VALID EVICTION COMMITMENT

In the presence of a validly concluded written eviction commitment, the tenant is obliged to vacate the leased property on the date specified in this eviction commitment and deliver it to the landlord.

If the leased property is not vacated by the tenant in a manner contrary to the existing and valid eviction commitment; the landlord has the right to apply for enforcement or file a lawsuit for eviction.

The lease agreement does not terminate automatically with the eviction commitment. An enforcement proceeding with a request for eviction or an eviction lawsuit must be filed within one month from the date the eviction commitment was given. By its nature, this period is a limitation period and is taken into account by the judge ex officio.

Eviction Request Process Through Enforcement Proceedings

If the tenant does not vacate the leased property on the date of the eviction commitment; in accordance with Article 272 of the Enforcement and Bankruptcy Law (“EBL”) No. 2004, an enforcement proceeding without judgment must be initiated against the tenant within one month from the committed date. In this context, a seven-day objection period begins from the notification of the eviction order to the tenant by the relevant enforcement office, and if an objection is made within this period, the proceeding will stop.

The landlord has the right to file a lawsuit for the removal of the objection at the enforcement court within 6 months for the continuation of this proceeding, or a lawsuit for the cancellation of the objection at the civil court of peace within 1 year.

If the eviction commitment was signed in the presence of a notary, the landlord may file a lawsuit for the removal of the objection for the purpose of being faster and more practical.

If the eviction commitment was not signed in the presence of a notary, since the tenant has the right to object to the signature, the court authorized to hear the case in the event of an objection to the signature will be the civil court of peace.

Eviction Request Process by Filing a Lawsuit

In the event that the tenant has committed with a written and valid commitment that they will vacate the leased property on a date agreed upon with the landlord, the landlord has the right to file an eviction lawsuit at the authorized Civil Court of Peace where the real estate is located against the tenant within one month from the date specified in this commitment.

It must be importantly stated that the 1-month period specified under the Turkish Code of Obligations is of a limitation nature, and if it is not used, the landlord cannot request the eviction of the real estate based on the eviction commitment.

Another issue to be considered is that, in accordance with Article 353 of the Turkish Code of Obligations, if the landlord has stated that they will vacate the leased property by notifying the tenant at the latest within the period stipulated for filing the lawsuit, the lawsuit filing period will be deemed to have been extended by one lease year.

Furthermore, in the event that the ownership of the leased property changes during the lease relationship, it is accepted that the new owner can file a lawsuit against the tenant based on the valid eviction commitment.

Situation of Regulating a Conditional Eviction Commitment

The issue of whether an eviction commitment can be regulated conditionally is debated. Since it is stated in accordance with Article 170 of the Turkish Code of Obligations that contracts can be regulated conditionally, it can be decided that lease agreements will terminate conditionally.

As an example of this matter, an eviction commitment can be given in cases such as the tenant not paying the rent debt belonging to the leased property until the determined date, or the leased property being sold to a 3rd party.

According to another view, such an eviction commitment is invalid because the eviction date is uncertain and there should be no doubt about the date by law.

Conditional eviction commitments will provide the opportunity to vacate the leased property upon the realization of the condition and will be executed under the same conditions as eviction commitments that do not contain conditions. However, according to the Court of Cassation practice, it is possible to attach a condition to a written eviction commitment.

“The ruling of the 6th Civil Chamber of the Court of Cassation dated 07.04.2009 and numbered E. 2009/1388 K. 2009/2938; “The eviction commitment relied upon by the plaintiff landlord in the enforcement proceeding is tied to the condition of paying rent and dues debts. If contracts can be made conditionally as per the provision of Article 149 of the former Code of Obligations, as a natural consequence of this, eviction commitments can also be regulated conditionally.

In this case, the commitment gains currency with the realization of the condition, and the enforcement proceeding must also be carried out within one month from the realization of the condition.”

“6th Civil Chamber of the Court of Cassation 2015/11188 E. 2016/839 K.; A conditional eviction commitment is valid and binds the parties in accordance with Article 149 of the former Code of Obligations and Article 170 of the new Turkish Code of Obligations.

In this case, the commitment gains currency with the realization of the condition. Although the defendant claimed in their objection to the enforcement proceeding that the rent payments were made according to the condition in the commitment, since the defendant could not prove this claim with a payment document, the commitment became valid.

In this case, since it is understood that the objection made to the enforcement proceeding initiated on 30/03/2015 within the one-month legal period from the eviction date based on the written commitment given while residing in the leased property is unfair due to the realization of the condition, it is not correct for the court to decide to dismiss the case by mentioning the invalidity of the conditionally regulated commitment, while it should have decided to remove the objection.”

The eviction commitment is regulated in Article 352 of the Turkish Code of Obligations and the following articles, and it offers the opportunity to terminate the lease agreement and vacate the leased property without incurring an additional compensation obligation.

The eviction commitment includes the obligation to vacate the leased property and deliver it back to the landlord on the date the lease agreement ends.

However, if the eviction is not carried out in accordance with the commitment date, the right to use certain legal remedies arises to protect the landlord's rights. The landlord has the right to request eviction through enforcement or file a lawsuit in cases where the tenant does not comply with the commitment.

The most important issue to be considered regarding the eviction commitment is to apply for enforcement or a lawsuit within one month from the commitment date.

This period is of great importance in terms of protecting the rights of the parties. If the landlord does not make the eviction request within this period, they face the situation of losing the case.

As a result, the written eviction commitment included in lease agreements includes the tenant's obligation to vacate the leased property on the specified date.

The landlord has the right to protect their rights through enforcement or a lawsuit regarding tenants who do not comply with this commitment. However, the period for filing a lawsuit or initiating enforcement proceedings that must be considered in this process is of great importance in terms of protecting the legal rights of the parties.

News Source: 12punto

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