Recognisance of Eviction Under Lease Law

In order to comprehend the legal nature of the eviction undertaking, firstly, it is necessary to address the scope and limits of the law. In our Code of Obligations (“CoO”), the termination of the contract in residential and roofed workplace leases is regulated under two main headings. These are; termination by notification and termination by litigation.

Termination by notification is regulated in Articles 347 and following articles of the Code of Obligations. Termination through litigation is dealt with under two main headings; reasons arising from the lessor and reasons arising from the lessee.

In the systematic distinction, eviction due to the written eviction commitment is included under the sub-heading of “termination due to reasons arising from the tenant” in the termination “through litigation”, which is one of the reasons for termination specific to residential and roofed workplace lease agreements.[i] In other words; it will be in question if the lease agreement ends through litigation and for reasons arising from the tenant.

The reasons arising from the lessee are regulated under Article 352 of the Code of Obligations. The tenant’s evacuation commitment is regulated in Article 352/1 of the Code of Obligations.

If we make a definition by taking into account the place of regulation and the relevant article in the law, it can be said that the eviction undertaking is “the declaration of the lessee’s will to vacate the lease on the specified date”. With a valid eviction undertaking, the lessor has the right to remove the lessee at the end of the specified period.

The lessee undertakes to vacate the leased property unconditionally on the specified date with the evacuation undertaking. For this reason, the validity of the letter of undertaking is subject to strict formal conditions. It is not possible to categorise valid and invalid eviction undertakings under one heading. Therefore, whether an undertaking is valid or not must be determined according to the nature of each concrete case.[ii]

VALIDITY CONDITIONS OF THE EVACUATION COMMITMENT 

• In order for the eviction undertaking to be valid, it must be made in writing. The official form, which is a more stringent form requirement than the written form, can also be applied with the acceptance of the parties. Notaries are authorised to make the official form.
• The commitment must be signed by the tenant. If there is more than one lessee, all lessees must sign the undertaking. If there is more than one lessor, as a rule, the lawsuit must be filed by all lessors due to compulsory litigation friendship. (Court of Cassation 6th HD, 2015/2559 E.2015/6224 K. 22.06.2015 T.)
• The evacuation undertaking should not contain any terms and conditions and should be based entirely on the free will of the parties.
• Someone other than the tenant (spouse, child, relative, etc.) should not make an eviction commitment, the tenant himself should make an eviction commitment. The tenant’s attorney may be authorised to give an eviction commitment with a power of attorney. (Court of Cassation 12th HD, 12.02.1981 T., 8935 E., 1362 K.)
• The scope of the contract (letter of undertaking), the residence / workplace to be evacuated with the contract must be clearly understood.
• The eviction undertaking must include the date of eviction (Court of Cassation General Assembly of Civil Chambers, 2017/975 E., 2021/1108 K., 28/09/2021 T.)
• There are two dates in the letter of undertaking, the date of issue and the date of evacuation. In order for the letter of undertaking to be valid, the date of issue must be a date after the date of the establishment of the lease agreement.
• The evacuation undertaking shall be invalid if it is given before or together with the lease agreement. (YİBK, 4.10.1944 T., 15-20 E., 28 K.)
• The release date may be any date after the date of issue.

With this validity condition, it is aimed to prevent the lessee from giving a commitment by departing from his free will due to the insistence and pressure of the lessor (injury of will). For the same purpose, if there is a certain month shown as the eviction date, the Court of Cassation argues that the end of the month should be understood.

• The eviction undertaking must be made after the delivery of the leased immovable (Court of Cassation General Assembly of Civil Chambers 2017/975 E., 2021/1108 K.)
• It should be noted that the evacuation undertaking opportunity regulated under Art. 352/1 of the TCO is mandatory and the parties cannot change the conditions of the reason for evacuation by regulating them in the contract.[iii]
• The eviction undertaking must also comply with Article 27 of the TCO. Therefore, eviction undertakings that do not have these validity conditions will be invalid.

ENFORCEMENT PROCEEDINGS AND LITIGATION BASED ON EVICTION UNDERTAKING

The lessor has the right to apply for enforcement proceedings WITHIN 1 MONTH if the lessee does not evacuate the leased property, which the lessee undertakes to vacate on a certain date, on the agreed date despite the undertaking. In addition, the lessor also has the right to file an eviction lawsuit in the Civil Court of Peace WITHIN 1 MONTH. The 1-month period is a forfeiture period. If the tenant has made a valid eviction commitment, no notice is required.

If the lessor fails to utilise the aforementioned facilities within this period, the eviction of the immovable cannot be requested based on the eviction undertaking. [iv]

If these rights are not exercised within 1 month starting from the eviction date specified in the commitment letter, the lease agreement is deemed to be extended for 1 year.

Another issue that should not be missed is that if the lessor notifies the lessee in writing that he will file a lawsuit while the period for filing a lawsuit is available, the period for filing a lawsuit is deemed to be extended by 1 lease year.

If the tenant objects to the eviction order within 7 days from the notification of the eviction order, the enforcement directorate shall decide to stop the proceedings. No action shall be taken in the execution file until the lessor brings the cancellation of the objection and eviction from the Enforcement Law Court or the cancellation of the objection and eviction decision from the Civil Court of Peace.

If there is no objection to the signature and date in the lease agreement or the eviction undertaking in the objection made by the lessee, it is assumed that their accuracy is accepted. In such a case, according to Article 275 of the EBL, the lessor may request the removal of the objection from the Enforcement Civil Court. In other words, the court in charge in the case of lifting the objection is the Enforcement Civil Court. If the court decides to lift the objection, the lessor has the right to evacuate by submitting this decision to the enforcement file. If the Enforcement Law Court rejects the lifting of the objection, the lessor reserves the right to file an eviction case in the Civil Court of Peace, since the rejection decision in question does not constitute a final judgement in material terms.

If the objection of the lessee is related to the signature or date, the lessor has no right to request the cancellation of the objection from the Enforcement Law Court. In the presence of this situation, the only way the lessor can follow will be to file a cancellation of the objection in the Civil Court of Peace.

It is possible for the lessor to file an eviction lawsuit at the Civil Court of Peace within 1 month starting directly from the committed date, without resorting to enforcement proceedings. If the lawsuit is accepted, the tenant will be evicted from the immovable in question. The court in charge in the eviction case and in the cancellation of the objection case is the Civil Court of Peace. The competent court is the court where the immovable is located.

If the lessor is not a single person, if there is joint ownership or joint ownership, the enforcement proceedings must be made by all lessors together. The right to evacuate by enforcement proceedings is a right given only to the lessor, and if the owner and the lessor are different persons, the owner will not have the right to evacuate by enforcement proceedings. (Court of Cassation 6th HD 2007/5249 E. 2007/7533 K., 14.06.2007 T.; Court of Cassation 12th HD 2005/10603 E., 2005/14357 K., 01.07.2005 T.)

THE EFFECT OF WHITE SIGNATURE ON THE VALIDITY OF THE EVACUATION UNDERTAKING

As a rule, anyone who signs a blank piece of paper must also bear the consequences of this signature.

It is accepted in the doctrine that if the lessee signs a blank paper (signature in white) and gives it to the lessor and the lessor fills it in later, the written form of validity will be complied with.[v] The Court of Cassation’s opinion on this matter is in parallel with the doctrine.

As a rule, the subsequent filling of the eviction undertaking is not a condition of validity. As a rule, in order for the eviction undertaking not to be deemed valid, the lessee must prove that the undertaking was filled in contrary to the legal relationship between the lessor and the lessee, and that the paper signed in blank was not given as an eviction undertaking.

Since the person whose signature is affixed is responsible for the signed and blank document, the burden of proof for the aforementioned claim of later and against the will belongs to the lessee. The claim that the date in the letter of undertaking provided by the will of the parties is incorrect and the claim that the letter of undertaking was filled in later must be proved by the lessee with a written evidence/document.

FAMILY RESIDENCE OBJECTION

According to an opinion; since the eviction undertaking is a transaction in the nature of termination of the lease agreement, the tenant spouse cannot make an eviction undertaking without the express consent of the other spouse.

According to another opinion, even if there is no explicit consent of the other spouse, this situation alone is not sufficient to affect the validity of the eviction undertaking.

Although there is no established practice on this issue in practice, although different decisions are made by the Courts of First Instance, Regional Courts of Appeal and the Court of Cassation, in most of the cases where it is determined that the residence subject to the eviction commitment is the family residence, the assertion of this objection has recently been taken into consideration and the explicit consent of the other spouse is also sought.

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[i] Murat Doğan, Termination of Residential and Roofed Workplace Lease Agreements, Ankara, 2011, p.169.

[ii] Tunaboylu, M; Termination of Lease Contract and Eviction Cases, Ankara 1995, p.464.

[iii] İNCEOĞLU, Murat, Lease Law, On İki Levha Publishing, C.2, Istanbul, 2014, p.423.

[iv] İNCEOĞLU, p.434.

[v] Kocayusufpaşaoğlu, Y; Law of Obligations, Istanbul 2000, p.228; Ayan, M; Law of Obligations, Konya 2002, p.141.