A. INTRODUCTION
Rental
agreement is one of the most commonly-executed types of agreement in daily
lives. Such type of agreement can be executed rapidly due to its nature, which
makes it one of the most commonly-encountered disputes in settlement of
disputes. In our country, there has been an increase in the number of actions
for eviction especially in the aftermath of Covid-19 pandemic. Most property
owners are seeking ways to evict the tenants from the property, and to rent the
property again at a higher amount or under a much more advantageous rental
agreement considering the prevailing economic conditions or changing conditions.
However; the lawmakers have set out strict terms and conditions to file an
action for eviction in order to protect the tenants’ rights. The 1st
subparagraph of the article 350 of the Turkish Code of Obligations grants the
landlord a right to terminate the rental agreement due to any necessity to
arise. Accordingly; “In the event
that the landlord, or the spouse, descendant or ascendant, or any other legal
dependents thereof is required to use the property due to any residential or
business need, they may terminate the rental agreement by filing an action in
one month starting as of the date of expiry of the period of time as prescribed
under the agreements for definite duration or the date to be determined by
observing the termination period as per the general provisions under rental
agreements, and the time periods as prescribed for serving a termination
notification for such purpose under the agreements for indefinite duration …”. Filing
an action for eviction due to necessity is based on filing a request for
eviction of the immovable property due to the fact that the landlord or the
owner thereof needs the property.
1.
Terms & Conditions on Actions for Eviction due to Residential Necessity
i.
Existence of Residential Need, and Right of Action
As
can be understood from the article provided hereinabove, it has been prescribed
that the landlord, or the spouse, descendant or ascendant, or any other legal
dependents thereof may file an action for eviction due to need. No action may
be filed for any persons other than the foregoing. While such
right was once granted only to the landlord, and the spouse and child(ren)
thereof, the descendant or ascendant,
and the dependents thereof have not also been included by the lawmaker under
the new regulation. As it is against the Turkish family system and traditions
to exclude the father, mother and sibling(s) thereof from such right, the term
“dependents” have been incorporated into the new law.
Another
critical point here is that there is not any requirement for the person to file
an action for eviction as the owner of the property. The right of action lies
with the landlord. Because the lawmaker is referring to the ‘landlord’, without
any specific provision that the claim of necessity may be raised by the owner,
only. The landlord is not required to be the owner; however, in case of any
joint ownership, all shareholders may file such an action only after meeting
the quorum on shares and shareholders under the joint ownership. In any such
case, either all shareholders should have such a need, or grant their consent
unanimously on utilization of the property due to the necessity of a single
shareholder. In case of any tenancy in common, all shareholders should file the
action or grant their consent to that end.
ii.
Necessity Should Be Unavoidable and Sincere
Although
it is not set out clearly under the said provisions, another agreed matter here
is that the necessity should be unavoidable and sincere. In
practice, it is required to prove that
the claim of necessity is true, sincere and unavoidable in order for the
decision for eviction to be ordered by the court in consequence of the
litigation process. It is undoubtedly not easy to determine under which
conditions the necessity is true and sincere. Therefore, it is seen that
sometimes it is based on the presumptions of fact. However; various criteria
such as the lifestyle, social and economic conditions of the landlord should be
considered in concrete cases while determining whether the necessity is true
and sincere, or not.
As
per the settled case-laws of the Supreme Court of Appeals; if the plaintiff
claims to need it due to the fact that s/he is under the threat of being
evicted, s/he should prove it. The 6th Civil Chamber of the Supreme
Court of Appeals ordered, under the decision bearing the Basis number 211/3280,
and the Decision number 2011/7033, and dated 27.06.2011 that: “… Although the
needy plaintiff’s being under the threat of being evicted from its business is
a valid reason as it is true in terms of its need for the property, the
plaintiff should prove the existence of the threat of eviction. The plaintiff
relied its necessity on its eviction notice, provided for the business run by
the same, and its witnesses, requesting the court to order a decision based on
the eviction notice and the expert’s report after renouncing from its request
of ensuring that its witnesses are heard during the litigation process. As the
eviction notice is a document issued unilaterally by the tenant, it may be
issued either beyond the knowledge of the landlord at any time or in joint
collaboration with the landlord. Therefore, the existence of the eviction
notice only does not prove the existence of the eviction threat. Due to the
fact that the existence of the eviction threat is not supported with any other
evidence by the plaintiff, it should be ordered to dismiss the action, and…”
Although
it was first requested to increase the rental amount without mentioning of any
necessity at the end of the rental period, it was then raised a claim of
necessity therefor, which was not found unavoidable and sincere by the Supreme
Court of Appeals. (The landlord did not provide the property, which was evicted
a short time ago, to its daughter, and then filed an action claiming that its
daughter needed the property, which shows that such claim is not sincere. The
Decision, bearing the Basis number 2001/8167, and the Decision number
2001/8314, and dated 23.10.2001, of the 6th Civil Chamber of the
Supreme Court of Appeals)
The
3rd Civil Chamber of the Supreme Court of Appeals ordered under its
decision, bearing the Basis number 2018/7751, and the Decision number 2019/493,
and dated 23.01.2019, that: “In this present case, there is a dispute arising
between the parties with respect to existence of a rental agreement which was
executed on 30.11.2014. The action is based on arising of a residential need of
the plaintiff’s son, and the agreement showing that the needy persons is a
tenant is available under the file. It is primary evidence for the needy person
to be a tenant under the scope of the actions for eviction due to residential
necessity. It is also understood that the claim of such necessity is confirmed
by the witnesses to the plaintiff. In such a case, it should be acknowledged
that the said necessity is sincere, true and unavoidable. The court should
order a decision for acceptance of the claim of eviction due to necessity.”
The
landlord should need such immovable property. With respect to residential
rental agreements; being a tenant is deemed alone a valid and satisfactory
reason for need by the Supreme Court of Appeals. The 3rd Civil
Chamber of the Supreme Court of Appeals ordered a prejudication precedent,
bearing the Basis number 2019/2702, and the Decision number 2019/4829, and
dated 22.05.2019, that: “As per the article 350/1 of the Turkish Code of
Obligations; the residential need should be proven to be true, sincere and unavoidable
in order to order a decision for eviction under the actions for eviction filed
based on such a residential need. Any temporary need may not be claimed as a
valid reason for eviction, or any need which has not arisen yet or which takes
long to arise may not be deemed as a valid reason for eviction. Existence of
the need on the date of filing is not sufficient alone, and it should be still
at issue during the litigation period.”.
Besides
the foregoing, there are also some time-related conditions under the actions
for eviction due to any necessity. Any action, filed without observing such
conditions, is dismissed. Observance of such time-related conditions will be
inquired automatically – i.e. even if it is not claimed by the parties – by the
judge. The 3rd Civil Chamber of the Supreme Court of Appeals ordered
a prejudication precedent, bearing the Basis number 2017/4069, and the Decision
number 2017/11195, and dated 06.07.2017, that: “As per the article 350/1 of the
Turkish Code of Obligations numbered 6098; the action for eviction due to
necessity should be filed at the end of the period, as set out under the
agreements for a definite duration, and within a period of one month as of the
date to be determined by observing the periods of time, as prescribed for
serving the termination notification under the article 328 of the said Law,
with respect to the agreements for an indefinite duration. As per the article
353 of the Turkish Code of Obligations; in the event that the landlord has
notified the tenant, in writing, of that it will file a legal action earlier or
within the period of time, as prescribed to file a legal action, at the latest,
such legal action may be filed up until the end of the extended one year of
rent following such notification. The period of time granted to file a legal
action is about the public order, and it needs to be considered automatically
even if it is not claimed by the defendant.”
The
lawmaker does not want the landlord to go into trouble due to necessity. For
example; if a landlord, living in Artvin, files a request for eviction since
her/his child has been admitted to a university based in Istanbul, then such
request is deemed valid and legal [1]. However, the residential necessity should continue
up until the end of the litigation process. The Supreme Court of Appeals
ordered a decision that a sincere and unavoidable reason for eviction may not
be at issue as it has been understood that it has been tried to sell the
property even during the litigation process [2].
The
decision, bearing the Basis number 2017/8674, and the Decision number 2018/1180,
and dated 15.02.2018, of the 3rd Civil Chamber of the Supreme Court
of Appeals reads as follows: “…The plaintiff filed a request for eviction due
to purchase and necessity under its petition, with no specific explanation on
its claim of necessity under the letter of warning and the petition. While the
court should have made the plaintiff explain its claim of necessity, and
focused on the matter of necessity through collection of any and all kinds of
related evidence, it ordered a decision, in writing, based on missing research
and investigation, which is against the applicable procedures and law, and
therefore, the decision should be reversed…”
iii.
Period of Filing a Legal Action
The
period of filing a legal action is set out clearly under the article 350 of the
Turkish Code of Obligations. Accordingly; a legal action needs to be filed
within a period of one month as of the end of the period under the agreements
for a definite duration. However, it should be emphasized here that the period
of time, as prescribed by the lawmaker here, refers to the period of
prescription, and expiry of such period ceases the landlord’s right to
terminate the agreement.
The
date of expiry of the rental agreement is calculated based on the date of
issuance of the rental agreement. If no agreement in writing has been executed
or no date of issuance has been specified under the agreement, the date of
commencement may be proven based on the dates of application and execution of
the subscription agreements for installation of electricity, water, natural
gas, telephone, and Internet services at the immovable property [3].
However;
the article 353 of the Turkish Code of Obligations sets out an exception to the
foregoing. Accordingly; “If the landlord has notified the tenant, in writing,
of that it shall file a legal action within the period of time, as prescribed
for such purpose, at the latest, the period of filing a legal action shall be
extended for a further year of rent.” Such warning, reserving the right to file
a legal action, should be served to the tenant before expiry of the period of
prescription, at the latest.
2.
Ban on Re-Letting, and Former Tenant’s Right to Indemnity
As
per the article 355 of the Turkish Code of Obligations; the landlord may not
let the property to any other person other than the evicted tenant for three
years without any just cause upon eviction of the tenant due to necessity. Otherwise,
the landlord shall pay the tenant, evicted by the same due to necessity, an
indemnification amounting to not less than the one-year rental which has been
paid in the last year of rent. Upon elapse of such three-year period of time,
the landlord may let the property without any restriction.
In
order to refer to the ban on re-letting, the landlord should have let the
property to any third person other than the former tenant upon eviction of the
property due to necessity. It is not clearly set out that whether it may be
referred to such article or not if the landlord does not use the property for
her/his own needs or her/his kinsmen and dependents without any just cause even
if the property has been evicted by the same. We are of the opinion that it
would not be appropriate to subject the landlord to indemnification if s/he
does not take an advantage for herself/himself or allows the property to be
used free considering that the purpose of such article is to prevent the
property from being let at a higher amount upon eviction of the tenant. [4]
The
decision, bearing the Basis number 2001/13394, and the Decision number
2002/4387, and dated 08.04.2002, of the 4th Civil Chamber of the
Supreme Court of Appeals reads as follows: “… The plaintiff left the house
without filing of any debt enforcement proceedings upon finalization of the
decision, as ordered in consequence of the legal action for eviction filed by
the defendant. Accordingly, it is understood here that the immovable property
was evicted due to the defendant’s need. However; the defendant sold the
property to the third person in a collusive way without waiting for elapse of
the period of time, as prescribed under the law, and then bought it back and
let it again. It is therefore clear that the defendant acted in breach of the
articles 15 and 16 of the Law numbered 6570.”
The
tenant’s leaving the house on her/his own will upon any such request is not different
than the eviction of the house through debt enforcement proceedings for the
tenant to have the right to claim for indemnification. The wording under the
said provision reading as “When the landlord ensures eviction of the property
due to any necessity” is supporting the foregoing. The way of eviction of the
property by the landlord is not important here. However; in cases where
eviction did not occur through a litigation process, the tenant needs to prove
that s/he had to leave the property upon the landlord’s request to that end. It
is sufficient to have a letter of warning which has been issued to the tenant
by the landlord, and states that a legal action for eviction shall be brought
against the same unless the property is evicted. [5]
B.
CONCLUSION
This
legal means, which is resorted commonly nowadays by the Landlords under today’s
conditions, is subject to some restrictions both under the applicable laws and
the case laws of the Supreme Court due to the reasons we tried to explain in
detail hereinabove. Such that, individuality of the term of “need/necessity” has even been
narrowed down by the courts and lawmakers, prescribing that it should be
interpreted and considered specifically to each case – i.e. each landlord and
tenant. Accordingly, it has been quite appropriate for the lawmaker to include
the descendant or ascendant, or any other legal dependents of the landlord
regardless of the type of such need/necessity, considering the Turkish Family
patterns.
Att.
Ekin Silan Guvenc
References:
1. KILICOGLU, p.465
2. EREN, p.417
3. EREN, p.417
4. (SARUHAN, p.365)
5. (Akyigit p.2134; Dogan Sona Erme p.103,104; Aydogdu/Kahveci
p.607, Ceran, Tahliye p.119.)
Efrail
Aydemir- Kira Hukuku, Seckin Hukuk Publications, April 2010
Doc.
Dr. M. Murat Inceoglu -Kira Hukuku, 12 Levha Publications, 1st Ed.,
March 2014
Hikmet
Kanik-Yargitay Uygulamasinda Kira Hukuku Davalari, Yetkin Publications, 2021
EREN,
Fikret: Borclar Hukuku Ozel Hukumler, Yetkin Publications, 4th Ed.,
Ankara 2017.
KILICOGLU,
Mustafa: Kira Hukukundan Dogan Tahliye Tespit Uyarlama Davalari, Bilge Publications,
4th Ed., Ankara 2017.
Utku SARUHAN, Yeniden Kiralama Yasagi, Journal of Turkish Justice Academy, Year: 2019, Issue: 37
