PRECEDENT-SETTING RULING FROM THE SUPREME COURT ON EVICTION UNDERTAKINGS
A PRECEDENT-SETTING DECISION FROM THE COURT OF CASSATION REGARDING EVICTION UNDERTAKINGS
In this week's column, I will attempt to explain, with examples, a precedent-setting decision by the Civil Chamber of the Court of Cassation regarding one of the most frequently asked questions in rental law. The Court of Cassation has issued a ruling of close concern to millions of tenants. There is bad news for tenants from the Court of Cassation: a blank sheet of paper signed as an "eviction undertaking" has been found to be legally valid. Consequently, tenants should avoid signing blank sheets of paper.
The 3rd Civil Chamber of the Court of Cassation upheld a decision regarding an eviction demand based on a signature the tenant had provided on a blank sheet of paper intended as an "eviction undertaking."
According to the 3rd Civil Chamber's decision, an official of an institution that rented a workplace in Ankara in 2012 signed and gave the property owner a blank sheet of paper as an eviction undertaking. In 2020, the property owner filled in the document stating that the tenant committed to vacating the premises on February 28, 2021, and subsequently demanded eviction.
After the tenant objected to the enforcement proceedings initiated when the property was not vacated, the owner filed an eviction lawsuit. The local court, having determined that the signature on the undertaking belonged to the tenant institution's official, ruled for eviction.
The 15th Civil Chamber of the Ankara Regional Court of Justice, which conducted the appellate review of the case, found the local court's decision legally sound on the grounds that the signatory is deemed to have accepted how the blank paper they signed would be filled out by the lessor.
The tenant appealed the decision, stating that the date in the eviction undertaking was filled in by the lessor and that their objections to this had not been evaluated by the courts.
The 3rd Civil Chamber of the Court of Cassation, which conducted the appellate review, found the eviction decision to be in accordance with the law and upheld it.
The Chamber's decision stated that, according to the Turkish Code of Obligations, if a tenant fails to comply with an eviction undertaking, the lessor may apply for enforcement or file a lawsuit to have the property vacated within one month.
The decision, which noted that expert reports confirmed the signature on the eviction undertaking belonged to the tenant company official, also cited previous decisions of the Court of Cassation General Assembly of Civil Chambers, which stated that "a signature on a blank sheet of paper is accepted as a document."
The decision stated that there were no errors in the rulings of the lower courts and, pursuant to the Code of Civil Procedure No. 6100, the eviction decision was upheld unanimously.
What is an eviction undertaking?
An eviction undertaking is a written declaration by a tenant to the lessor that they will vacate the rented property on a specific date. This declaration must be signed by the tenant personally. Relatives of the tenant or a third party cannot provide this undertaking. The vacating date of the property must also be included in the eviction undertaking.
What are the validity conditions for an eviction undertaking?
Although the legal nature of an eviction undertaking is debated in legal doctrine, the validity conditions required under the law are clearly defined. These are as follows:
The undertaking must be in writing
While there is no restriction in the Turkish Code of Obligations regarding the form of a lease agreement, there is a formal requirement for an eviction undertaking. While no specific criteria have been set in this context, a simple written form is considered sufficient. To rule out the possibility of the tenant claiming the signature is not theirs, it is possible for this undertaking to be prepared in the form of a notarized document. If there is more than one tenant, this undertaking must be provided by all tenants in compliance with the formal requirement. Otherwise, the undertaking will have no legal effect.
The undertaking must be given by the tenant or their authorized representative
A tenant can provide an eviction undertaking personally, or an authorized representative can do so. Whether a specific authorization is required for providing an eviction undertaking via a power of attorney is debated in legal doctrine. While one view argues that specific authorization is required, the prevailing view holds that an agent authorized to enter into a lease agreement can also execute an eviction undertaking.
The undertaking must contain a declaration that the tenant undertakes to vacate the rented property on a specific date
Pursuant to the article of the Turkish Code of Obligations regarding eviction undertakings, it is required that the eviction date be specified in eviction undertakings executed by the tenant or their authorized representative. Regarding this specific issue, while one view argues that the undertaking must contain a precise and determinable day, another view suggests that only the month of evacuation can be specified without a specific day, and in such cases, the last day of the specified month should be accepted as the eviction date.
Another point to mention is the practice of signing a printed text while leaving both the signature and the eviction dates blank in the eviction undertaking. Although filling in these blanks later is technically invalid, the burden of proof for this issue lies with the tenant. Therefore, if the tenant cannot prove this, the undertaking will be accepted as valid. (Court of Cassation General Assembly of Civil Chambers, Decision dated 28.09.2021, E. 2017/975, K. 2021/1108).
The undertaking must be given after the rented property is delivered to the tenant
It is important to state that eviction undertakings given before the lease agreement, or even those given after the lease agreement has been made but before the property has been delivered to the tenant, are considered invalid. The legislator has clearly made 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 are frequently encountered. In this regard, Court of Cassation precedents state that the burden of proof lies with the tenant and that they must bear the consequences if they cannot prove the current situation.
On the other hand, following the signing of an undertaking under pressure and duress, the tenant has the right to request the cancellation of the undertaking due to a defect of will pursuant to Article 39 of the Turkish Code of Obligations. The most important point to consider in such cancellation requests is that they must be made within the one-year statute of limitations required by law.
EVICTION BASED ON A VALID EVICTION UNDERTAKING
In the presence of a validly executed written eviction undertaking, the tenant is obliged to vacate the rented property and deliver it to the lessor on the date specified in the undertaking. If the tenant does not vacate the property in contradiction to the existing and valid eviction undertaking, the lessor has the right to apply for enforcement or file a lawsuit for eviction. In other words, the eviction undertaking does not mean the lease agreement terminates automatically. The most important issue to consider before resorting to the eviction methods listed below is that they must be initiated within one month from the date of the undertaking. By nature, this period is a statute of limitations (preclusive period) and will be considered by the judge ex officio; eviction requests filed without observing this period will not be accepted by the judiciary.
Eviction via Enforcement
If the tenant does not vacate the property on the date of the undertaking, non-litigious enforcement proceedings can be initiated against the tenant within one month from the committed date in accordance with Article 272 of the Enforcement and Bankruptcy Law No. 2004 (“EBL”). 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 filed within this period, the proceedings will be stayed. To continue these proceedings, the lessor has the right to apply to the enforcement court within 6 months for the removal of the objection or to the civil court of peace within 1 year for a lawsuit for cancellation of the objection. If the eviction undertaking was signed in the presence of a notary, the lessor may file a lawsuit for the removal of the objection for 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, and if such an objection is made, the court with jurisdiction to hear the case will be the civil court of peace.
Eviction via Lawsuit
If the tenant has undertaken, via a written and valid undertaking, that they will vacate the property on a date agreed upon with the lessor, the lessor may file an eviction lawsuit against the tenant at the competent Civil Court of Peace in the location of the property within one month from the date specified in the undertaking. It is important to emphasize that the 1-month period specified by law is a preclusive period, and if not utilized, the lessor cannot request the eviction of the property based on the eviction undertaking. Another point to note is that pursuant to Article 353 of the Turkish Code of Obligations, if the lessor notifies the tenant within the period prescribed for filing the lawsuit that they will vacate the property, the period for filing the lawsuit will be deemed extended by one lease year. Furthermore, it is accepted that in the event of a change of ownership of the rented property during the term of the lease, the new owner may file a lawsuit against the tenant based on the valid eviction undertaking.
Conditional Eviction Undertaking
On the other hand, whether an eviction undertaking can be arranged subject to a condition is debated in legal doctrine. According to one view, since Article 170 of the Turkish Code of Obligations states that contracts can be arranged subject to conditions, it can be agreed that lease agreements will terminate subject to a condition. As an example of this, an eviction undertaking can be given in cases such as the tenant's failure to pay rent by a certain date or the sale of the property to a third party. According to another view, such an eviction undertaking is invalid because the eviction date is uncertain and, legally, there should be no doubt about the date. 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 Court of Cassation practice, it is possible to attach conditions to a written eviction undertaking.