1. INTRODUCTION
The rental relationship and lease agreements between lessors and tenants are now entirely governed under the new Turkish Code of Obligations (“TCO”) No. 6098. Nearly every aspect of this private law relationship has been extensively discussed in light of evolving economic conditions. In particular, considering that property owners (i.e., lessors) tend to terminate the rental relationship and seek eviction of tenants, while tenants often engage in legal action against wrongful evictions, an examination of the termination of lease agreements is of paramount importance. Although termination may occur due to default (i.e., delayed or non-payment of rent), expiration of the lease term, or other legal grounds, a relatively underrecognized and frequently misconstrued ground in practice is the tenant’s or his/her spouse’s possession of a residence suitable for habitation.
2. STATUTORY REGULATION, PURPOSE, AND CONDITIONS OF APPLICATION
2.1. Statutory Regulation
With respect to residential and roofed commercial premises, the grounds for eviction arising from the tenant are regulated in Article 352 of the TCO. The ground for eviction based on the tenant’s or his/her spouse’s possession of a residence suitable for habitation is provided in Article 352/3 of the TCO. The relevant provision is as follows:
“If the tenant or the spouse with whom he/she resides possesses a residence suitable for habitation within the limits of the same district or municipal area, and if the lessor was unaware of this at the time of entering into the lease agreement, the lessor may terminate the lease through litigation within one month from the termination of the agreement.”
2.2. Purpose of the Regulation and Protected Legal Interests
The fundamental objective of the rental relationship and its regulating norms is to preserve the balance of legal interests between the lessor and the tenant and to provide legal assurances to both parties. In rental relationships, it is essential to safeguard the lessor’s property rights while compensating for the tenant’s relative economic vulnerability. The ground for eviction set forth in Article 352/3 of the TCO was previously contained in the final paragraph of Article 7 of the Real Estate Leases Law No. 6570 (“Law No. 6570”), which stated: “Any person who, within the boundaries of the same city or municipality, possesses a residence registered in his/her or his/her spouse’s name, shall be obliged to vacate the rented premises at the owner’s request.”
While the TCO preserves this provision, it intensifies the requirement by mandating that the property be located “within the limits of the same district or municipal area” rather than “within the boundaries of the same city or municipality”. Moreover, whereas the previous regulation considered the mere existence of such a property sufficient for eviction, the TCO stipulates that the termination must be affected “within one month from the end of the contract”. Furthermore, the right to initiate eviction proceedings, formerly reserved solely for the property owner, is now extended to all lessors under the TCO. Lastly, unlike the earlier regime, the TCO requires that the lessor must not have been aware of the existence of the tenant’s or spouse’s residence at the time of the lease’s formation. Through these modifications, the legislator has, in effect, rendered the eviction of a tenant who is also the property owner comparatively more challenging.
It may be contended that Article 352/3 of the TCO is predicated on the principle that it would be inequitable for a tenant to continue residing in the lessor’s property at a lower rent while renting out his/her own residence at a higher rate.
2.3. Conditions of Application
Under the current TCO Article 352/3, mere ownership of a property by the tenant is deemed insufficient to justify eviction; additional conditions must be satisfied. The necessary conditions for an eviction decision on the basis of the tenant’s or his/her spouse’s possession of a residence are as follows:
1-) The tenant or his/her spouse must possess a residence within the limits of the same district or municipal area,
2-) The residence must be suitable for habitation, and
3-) At the time of entering into the lease agreement, the lessor must not have been aware of the existence of such a residence.
2.3.1. Possession of a Residence Within the Same District or Municipal Area by the Tenant or Spouse
According to Article 352/3 of the TCO, the primary requirement for terminating the lease agreement and ordering the tenant’s eviction is that the tenant or his/her spouse must possess a residence within the limits of the same district or municipal area. Unlike under Law No. 6507, the specific condition that the residence be located within the district or municipal area implies that the mere possession of a residence within the boundaries of a metropolitan municipality does not satisfy the requirement. The rented premises and the residence owned by the tenant or spouse must both lie within the same district or municipal area.
An important point is that this provision applies to cases where the tenant’s spouse possesses a legally adequate residence. Accordingly, Article 352/3 provides that, in order to authorize an eviction decision based on the spouse’s possession of a residence, the spouses must be cohabiting. In practice, if the lessor relies on the claim that the tenant’s spouse owns a suitable residence at the time of initiating and pursuing the eviction proceedings under Article 352/3, it is imperative that the tenant and his/her spouse be residing together both at the time of filing the lawsuit and throughout its duration. Consequently, if the spouses have been declared separated under Article 167 of the Turkish Civil Code No. 4721, have initiated divorce proceedings and started living apart, or are residing in separate dwellings for any other reason, this condition cannot be considered fulfilled.
It should also be noted that although Article 352/3 includes the expression “within the same municipal area,” following the enactment of Law No. 6360 on 06/12/2012—published in Official Gazette No. 28489—which resulted in the abolition of municipal administrations in certain provinces, the term “municipalities” should no longer be taken into account in the interpretation of this provision.
2.3.2. Suitability for Habitation of the Residence Owned by the Tenant or Spouse
Another indispensable condition for the lessor to obtain termination of the lease agreement through litigation under Article 352/3 is that the residence owned by the tenant or his/her spouse must be suitable for habitation by the tenant and, where applicable, his/her family. This requirement implies that the residence must meet the living standards, be physically adequate for habitation, and possess the characteristics necessary for occupancy (see, for example, decisions of the 3rd Civil Chamber of the Court of Cassation Case No: 2017/4366 E. and Decision No: 2017/12337). For instance, if the tenant and his/her family consist of five individuals and the residence is a one-bedroom apartment, it would be physically impractical and unreasonable for a family of five to reside in such premises, thereby precluding an eviction decision under Article 352/3.
In this regard, the decision of the 3rd Civil Chamber of the Court of Cassation in Case No: 2018/504 and Decision No: 2018/1840 stated that “… the property subject to the eviction proceedings was described as having superior qualities in terms of area and location compared to the defendant’s property, and the defendant tenant argued that his own property was insufficient to meet his family’s needs. In such a case, after collecting all relevant evidence, a decision should be rendered based on an assessment of whether the property in question is suitable for the defendant’s use considering his status and family needs…” This indicates that any significant discrepancy or disproportionality between the characteristics and standards of the rented premises and those of the residence owned by the tenant or spouse will be factored into the evaluation of “suitability for habitation” under Article 352/3.
In cases concerning suitability for habitation, the court hearing the eviction case is required to conduct an on-site inspection or authorize expert examination to objectively and subjectively assess all the features and attributes of both the rented property and the residence owned by the tenant or spouse. Objectively, “suitability” refers to the physical condition and structure of the residence, whereas subjectively, it pertains to whether the residence meets the living requirements of the tenant.
In the subjective evaluation, factors such as the distances between the rented property and the tenant’s or spouse’s residence with respect to the tenant’s workplace, the schools attended by any jointly raised children, and, where applicable, proximity to hospitals for regular medical needs will be taken into consideration.
Finally, in cases where the residence registered in the tenant’s or spouse’s name is of a commercial nature, Article 352/3 expressly provides that the provision shall not apply. Moreover, if the property is used both as a residence and a workplace, it will be classified as a commercial property, thereby precluding its recognition as a residence suitable for habitation under Article 352/3.
2.3.3. Non-Disclosure by the Lessor of the Existence of a Residence Owned by the Tenant or Spouse at the Time of Contract Conclusion
Another statutory requirement for initiating an eviction lawsuit under Article 352/3 is that, at the time of entering into the lease agreement, the lessor must not have been aware that the tenant or his/her spouse possessed another residence within the relevant boundaries. It is important to emphasize that, as the provision explicitly states “if the lessor was unaware of this at the time of entering into the lease agreement,” there is no further discussion regarding an objective obligation on the part of the lessor to have known. Thus, the court will examine whether the plaintiff lessor was aware of this circumstance; any argument that the lessor could have discovered it through due diligence will not be entertained.
2.3.4. Time Limit for Initiating the Lawsuit and Procedure
For an eviction lawsuit to be instituted on the grounds that the tenant or his/her spouse possesses a registered residence, the TCO provides a specific time frame, in contrast to the Real Estate Leases Law No. 6570. Under Article 352/3 of the TCO, the lessor must initiate the eviction lawsuit within one month from the termination of the lease agreement.
For example, in the case of a five-year lease agreement, the eviction lawsuit must be filed by the lessor within one month following the expiration of the five-year term.
If the lessor intends to terminate the lease under Article 352/3, this may only be accomplished by initiating litigation, as the lessor does not possess an immediate right to enforce the termination directly.
3. CONCLUSION
Article 352/3 of the TCO provides that if the tenant or the spouse with whom the tenant resides possesses a residence suitable for habitation within the same residential area, the lessor is entitled to terminate the lease agreement. This provision functions as a protective measure for the lessor by preventing the tenant from benefiting unduly from a rental advantage. The evaluation of the residence’s suitability for habitation is conducted according to both objective and subjective criteria and its applicability is subject to debate in cases where the tenant or spouse lives separately or where the marriage is deemed null. Moreover, as this provision applies solely to residential leases, it extends the right to initiate eviction proceedings beyond the property owner, thereby affording protection to all lessors.
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Av. Adar UÇAR
Uçar Law & Consultancy Office
