WITHIN THE SCOPE OF THE TURKISH CODE OF OBLIGATIONS
UNDER THE TURKISH CODE OF OBLIGATIONS
EVICTION UNDERTAKING AND VALIDITY CONDITIONS
As explicitly regulated in the Turkish Code of Obligations No. 6089, it is possible for lessors to terminate residential and roofed workplace lease agreements before their term or upon expiration under circumstances clearly specified within the Turkish Code of Obligations. For this reason, we observe that, particularly as a result of the rising rent prices in recent times, lessors are filing eviction lawsuits when they demand an increase in rent for residential and roofed workplace leases and these demands are not accepted by the tenants. However, before filing an eviction lawsuit, it is mandatory to apply for mandatory mediation in rental disputes. Since the Turkish Code of Obligations grants certain rights to allow lessors to file eviction lawsuits, obtaining an eviction undertaking has become a frequently preferred method by lessors. Today, I will attempt to explain to our valued readers the legal nature of an eviction undertaking, its validity, and the eviction stages that can be carried out based on a valid undertaking.
EVICTION UNDERTAKING AND ITS LEGAL NATURE
An eviction undertaking is a written commitment made by the tenant to the lessor stating that the property will be vacated on a specific date. This matter is regulated in Article 352, Paragraph 1 of the Turkish Code of Obligations as follows;
“If the tenant has undertaken in writing to vacate the leased property on a specific date after its delivery, but has not vacated it, the lessor may terminate the lease agreement by applying for enforcement or filing a lawsuit within one month starting from this date.”
In this context, it is important to note that an eviction undertaking can only be arranged for residential and roofed workplace leases, and the legal validity of this undertaking depends on certain conditions. In lease agreements concluded under the general provisions of the Turkish Code of Obligations, the provision of Article 352, Paragraph 1 of the Turkish Code of Obligations will not find an area of application, and an eviction undertaking cannot be made within this scope.
The purpose of an eviction undertaking is for the tenant to commit to the lessor to vacate the leased property on a specific date; in this context, the lessor has the opportunity to terminate the lease relationship without needing the existence of any other reason and without incurring any compensation liability.
Although the legal nature of a written eviction undertaking is explicitly regulated under the Turkish Code of Obligations, there are debates in legal theory.
CONDITIONS FOR THE VALIDITY OF AN EVICTION UNDERTAKING
Although the legal nature of the eviction undertaking given by the tenant is debated in legal doctrine, the validity conditions required under the Turkish Code of Obligations are regulated as follows;
The Eviction Undertaking 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 sought for the eviction undertaking. While no additional criteria have been set in this context, it is considered sufficient for the undertaking to be made in a simple written form. To eliminate the possibility of the tenant claiming that the signature does not belong to them, it is important for this undertaking text to be drawn up by a notary public. If there is more than one tenant, this undertaking must be given by all tenants in compliance with the said formal requirement. Otherwise, the eviction undertaking does not have any legal effect.
The Undertaking Must Be Given by the Tenant or Their Authorized Representative.
The tenant can provide the eviction undertaking personally, or it can be given by an authorized representative with explicit authority. A specific requirement of authority is also sought regarding the possibility of giving an eviction undertaking via a power of attorney.
The Undertaking Must Contain a Declaration That the Tenant Commits to Vacate the Leased Property on a Specific Date.
In accordance with the regulations regarding eviction undertakings under the Turkish Code of Obligations, it is stipulated that the eviction date must be specified in eviction undertakings concluded by the tenant or their authorized representative. The eviction undertaking must contain a definite and ascertainable day.
According to the decision of the General Assembly of Civil Chambers of the Court of Cassation dated 28.09.2021 and numbered 2017/975 E., 2021/1108 K., the issue concerns signing a printed text with the signature and eviction dates left blank. Although it is invalid if these blanks are filled in later, the burden of proving this issue rests personally with the tenant. In cases where this cannot be proven by the tenant, the undertaking is accepted as valid.
The Undertaking Must Be Given After the Leased Property Has Been Delivered to the Tenant.
The most important issue in providing an eviction undertaking is that eviction undertakings given before the lease agreement, or even those given after the lease agreement is concluded but before the property is delivered to the tenant, are considered invalid. The Turkish Code of Obligations explicitly makes the validity of eviction undertakings conditional upon the delivery of the leased property. In this context, situations where the signing date of the undertaking is left blank and filled in later, just like the eviction date, are frequently encountered. In this context, it is stated in the precedents 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 undertaking under Article 39 of the Turkish Code of Obligations due to a defect of intent following the signing of the undertaking under duress or coercion. The most important point to consider in such cancellation requests is that they must be made within the one-year statute of limitations stipulated by law.
EVICTION PROCESS BASED ON A VALID EVICTION UNDERTAKING
In the presence of a validly concluded written eviction undertaking, the tenant is obliged to vacate the leased property on the date specified in this undertaking and deliver it to the lessor. If the tenant does not vacate the leased property in violation of the existing and valid eviction undertaking, the lessor has the right to apply for enforcement or file a lawsuit for eviction. The lease agreement does not terminate automatically with the eviction undertaking. An enforcement proceeding with an eviction request or an eviction lawsuit must be filed within one month from the date of the eviction undertaking. By its nature, this period is a peremptory period and is taken into account by the judge ex officio.
Eviction Request via Enforcement Proceedings
If the tenant does not vacate the leased property on the date of the eviction undertaking, it is necessary to initiate enforcement proceedings without a judgment against the tenant within one month from the promised date, in accordance with Article 272 of the Enforcement and Bankruptcy Law (“İİK”) No. 2004. In this context, a seven-day objection period begins upon the notification of the eviction order to the tenant by the relevant enforcement office, and the proceedings will stop if an objection is filed within this period. To continue the proceedings, the lessor has the right to file a lawsuit for the removal of the objection in the enforcement court within 6 months for the eviction of the property, or a lawsuit for the cancellation of the objection in the civil court of peace within 1 year. If the eviction undertaking was signed in the presence of a notary, the lessor can file a lawsuit for the removal of the objection for the sake of speed and practicality. If the eviction undertaking was not signed in the presence of a notary, the tenant has the right to object to the signature; in case of an objection to the signature, the court authorized to hear the case will be the civil court of peace.
Eviction Request by Filing a Lawsuit
If the tenant has committed to vacate the leased property on a date agreed upon with the lessor through a written and valid undertaking, the lessor has the right to file an eviction lawsuit against the tenant in the authorized Civil Court of Peace where the property is located within one month from the date specified in this undertaking. It should be importantly stated that the 1-month period mentioned in the Turkish Code of Obligations is of a peremptory nature, and if not used, the lessor cannot request the eviction of the property based on the eviction undertaking. Another point to be aware of is that, according to Article 353 of the Turkish Code of Obligations, if the lessor indicates that they will evacuate the leased property by notifying the tenant no later than the period foreseen for filing the lawsuit, the lawsuit filing period shall be deemed extended by one lease year. Furthermore, it is accepted that in the event of a change of ownership of the leased property during the lease relationship, the new owner may file a lawsuit against the tenant based on the valid eviction undertaking.
Situation of Drafting a Conditional Eviction Undertaking
The issue of whether an eviction undertaking can be drafted conditionally is controversial. Since it is stated under Article 170 of the Turkish Code of Obligations that contracts can be drafted conditionally, it can be decided that lease agreements will terminate conditionally. As an example of this, an eviction undertaking can be given in cases such as the tenant not paying the rent debt of the property by the specified date, or the property being sold to a 3rd party. According to another view, such an eviction undertaking is invalid because the eviction date is uncertain and there should be no doubt about the date according to the law. Conditional eviction undertakings will provide the opportunity to vacate the property upon the realization of the condition and will be executed under the same conditions as eviction undertakings that do not contain conditions. However, according to the practice of the Court of Cassation, it is possible for a written eviction undertaking to be subject to a condition.
“The decision of the 6th Civil Chamber of the Court of Cassation dated 07.04.2009, E. 2009/1388, K. 2009/2938; 'The eviction undertaking relied upon by the plaintiff lessor in the enforcement proceeding is made conditional upon the payment of rent and dues debts. Since contracts can be made conditionally pursuant to Article 149 of the former Code of Obligations, as a natural result of this, eviction undertakings can also be drafted conditionally. In this case, the undertaking 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 undertaking is valid and binding on 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 undertaking gains currency with the realization of the condition. Although the defendant claimed that the rent payments were made in their objection to the enforcement proceeding according to the condition in the undertaking, since the defendant could not prove this claim with a payment receipt, the undertaking 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 undertaking given while residing in the property is unjust due to the realization of the condition, it is not correct for the court to decide to reject the case by mentioning the invalidity of the conditionally drafted undertaking, whereas it should have decided to remove the objection.'”
The eviction undertaking is regulated in Article 352 and subsequent articles of the Turkish Code of Obligations and offers the opportunity to terminate the lease agreement and vacate the leased property without incurring any additional compensation liability. The eviction undertaking includes the obligation to vacate the leased property on the date the lease agreement expires and return it to the lessor. However, if the eviction is not performed in accordance with the undertaking date, the right to use certain legal remedies arises to protect the rights of the lessor. The lessor has the right to request eviction through enforcement or to file a lawsuit in cases where the tenant does not comply with the undertaking.
The most important point to be considered regarding the eviction undertaking is applying for enforcement or filing a lawsuit within one month from the date of the undertaking. This period is of great importance in terms of protecting the rights of the parties. If the lessor does not make the eviction request within this period, they face the situation of losing the case.
As a result, the written eviction undertaking included in lease agreements includes the tenant's obligation to vacate the leased property on the specified date. Regarding tenants who do not comply with this undertaking, the lessor has the right to protect their rights through enforcement or lawsuits. However, the period for filing a lawsuit or initiating enforcement proceedings, which must be taken into account during this process, is of great importance in terms of protecting the legal rights of the parties.