Eviction of Leased Property For Necessity
Due to the rising rental prices, eviction of tenants by landlords of residences / workplaces in case of need has been a topical matter in recent times. Should the terms set out in Article 350 of the Turkish Code of Obligations be met, lessors may request a tenant to evict the property for themselves, their spouse, descendants, ancestors or any other persons they shall look after by law in case of need as a residence or a workplace.
A dual distinction namely Eviction of the Leased In Case of Ned of the Landlord and Eviction of the Leased Property In Case of Need of a New Landlord has been made under the Turkish Code of Obligations.
1. Eviction of Property For the Needs of the Landlord
Art. 350 of the Turkish Code of Obligations:
“If there is an obligation to use the rented property for themselves, their spouse, descendants, ascendants or other dependants for the need for housing or workplace, the rent may be terminated by filing a legal action by the end of the expiration date of fixed-term contracts or within a month in accordance with the termination date of indefinite-term contracts or their term set for the notification of termination.“
Needs for the Lessor to File a Legal Action of Eviction
- Need for housing: A lessor may file a legal action for eviction if he/she needs to use the property as a residence for himself/herself, his/her spouse or children, and only if it is proven that the need for the residence is actual.
- Practice of profession or art: The Lessor may also request the eviction of the immovables for his/her spouse or children's practice of profession or art. In this case, the need shall be proven to be genuine and sincere.
Legal Terms In Eviction Cases
Since the term of litigation is subject to the period of prescription in eviction cases based on necessity, it may vary by whether a rent contract is fixed or indefinite-term. In cases where the lessor requires substantial repair, expansion or replacement for the purpose of rebuilding, zoning, and the use of the leased property is impossible during such actions,
- A landlord may request the eviction of the leased property within a month starting from the end of the term of fixed-term rent contracts,
- Or in line with the term of termination and the term set for notification of termination in indefinite-term rent contracts, that is to say by filing a legal action within a month after the expiration of the six-month term on condition of notifying the tenant three months beforehand for every six-month term.
2. Eviction for the Need of a New Landlord
Art. 351 of the Turkish Code of Obligations:
‘’The person who acquires the property later on may terminate the rent contract through a legal action to be filed in six months upon written notification sent to the tenant within a month starting from the date of acquisition if there is an obligation to use the rented property for himself/herself, his/her spouse, descendants, ascendants or any other persons whom he/she must look after based on necessity for housing or workplace. The person who subsequently acquires the leased property is free to exercise the right to terminate the contract for necessity through a legal action to be filed within one month starting from the expiration date of the contract.“
The legislation stipulates that a new landlord of the leased property may seek eviction for his/her own need or for his/her spouse, descendants, ascendants or other dependents under the law.
Legal Terms to Request Eviction
- The person who acquires the leased property later on may terminate the rent contract through a legal action to be filed in six months upon written notification sent to the tenant within a month starting from the date of acquisition if there is an obligation to use the leased property for himself/herself, his/her spouse, descendants, ascendants or any other persons whom he/she must look after based on necessity for housing or workplace, and the obligation arises from actual needs.
- The person who subsequently acquires the leased property is free to exercise the right to terminate the contract for necessity through a legal action to be filed within one month starting from the expiration date of the contract.
In fact, the Article 351 of the Turkish Code of Obligations has increased the number of people who are eligible to request eviction based on necessity, and the new landlord, his/her her spouse, descendants, ascendants and dependants are free to file a legal action for eviction based on necessity.
Courts Authorised to Hear Cases of Eviction for Necessity
Under the Article 4 of the Code of Civil Procedure, the courts of peace where the immovable in question is located are authorised to hear cases concerning the eviction of the rented property for necessity. As per the general rule of jurisdiction, one is free to file a legal action in the defendant's place of residence and/or in the place where the contract is to be executed. Therefore, the parties are free to enter into authorization agreements and choose the authorised court to hear a case of rent contract since there is no definite authorization.
3. Re-Lease Ban
If the eviction has gone through and the property is to be evicted for any of the aforementioned reasons, the Re-Lease Ban shall be brought up under the Article 355 of the Turkish Code of Obligations.
Article 355 of the Turkish Code of Obligations on Re-Lease Ban
‘’ When the lessor has the leased property evicted for necessity, he/she shall not rent the leased property to anyone other than the former tenant without a justification unless three years have lapsed.
Immovables evicted for the purpose of reconstruction and zoning shall not be rented to someone else without a justification unless three years have passed. The former tenant shall hold the pre-emptive right to rent the immovables reconstructed and renovated under new terms and a new rental price. This right shall be exercised within a month upon the written notice of the lessor. Unless the preemptive right is terminated, the immovable shall not be rented to another person before three years lapse.
Should the lessor violate any of these provisions, he/she shall compensate his/her former tenant for a sum not less than one year's rent paid in the last year of rent.“
The lessor, who makes sure that the immovable property subject to the rent contract is evicted based on the needs of himself/herself and his/her relatives listed in the law, shall not be able to rent the property, which is the subject of the rent contract, to anyone other than his/her evicted tenant without a justification unless three years have lapsed. Those who act in contravention shall pay damages as per the paragraph 3.
The ruling No. E.2015/5502 K.2015/6746 01.07.2015 T. by the 6th Chamber of the Court of Appeals in this respect reads as follows:
The case concerns the eviction of the property rented for the necessity of housing. The court ruled to hear the case and the ruling was appealed by the plaintiff. The necessity must be proven to be genuine, sincere, and compulsory to rule in favor of eviction in cases that concern claims based on necessity. A temporary need that is not continuous shall not be considered a reason for eviction, and a need that has not yet arisen or whose execution takes a long time shall not be billed as a reason for eviction. The presence of the reason for need is not sufficient at the time of legal action, and the need must be ongoing during the course of the legal action.
In this case, the plaintiff sought eviction on the grounds of necessity for housing as its plumbing, kitchen closets, and bathroom would be renovated, and then modified the grounds for eviction to ask for the case to be heard by the court, arguing that he moved the pharmacy he operated to somewhere in close proximity, and he acquired the place that he would run as a pharmacy on the promise of an immovable sale and he would operate a pharmacy there. Although a report of conformity has been issued to open a pharmacy, it is inferred that the procedures have not yet been completed and that the plaintiff still continues to operate the pharmacy in the usual workplace. In this case, the case should be dismissed on the grounds that one cannot make a claim for necessity yet and it is not right to go on with the case upon written justification. The ruling should be reversed for this reason.”
There is no dispute in this case concerning the fact that the plaintiff was a tenant of the property as per a rent contract that starts on 1.1.2011 and expires in two years while the defendant decided to have the property demolished as per the Law No. 6306 upon a notification made on 29.1.2013, and the defendant asked the plaintiff to evict the property to put the demolition decision into effect and the plaintiff evicted the property on 27.3.2013, and the property was rented out to a 3rd party after its construction had been completed. The defendant, who is a lessor, has not filed an action for eviction based on necessity, reconstruction and zoning. The plaintiff, who is the tenant, has not evicted the property by a court order or an order of enforcement. In this case, the terms of compensation have not been met under the article 355 of the Turkish Code of Obligations No. 6098. In this case, while the court should rule to dismiss the case, it was considered not right to issue a written order and to reverse the order.
Although there are a variety of arguments in the doctrine about the fact that the phrase “having the rented property evicted" set out under the relevant article of the law concerning the re-lease ban also covers the eviction of leased properties upon a a cease and desist letter, the established practice is that the tenant shall be compensated through a legal action if the evicted property is rented out to another tenant within three years after the eviction, and the precedents are as follows:
The ruling No. 2017/6483 E., 2019/2527 K. and 25.3.2019 by 3rd Chamber of Court of Appeals reads as follows:
“In this case, the parties entered into a 10-year contract to rent a roofed workplace starting from 1.12.2007, and the defendant issued a notarised cease and desist letter on 28/6/2011 to inform the plaintiff that the contract would not be extended as the property would be used as a workplace, and the plaintiff was asked to evict the property six months after the delivery of the notification. In consideration of the foregoing, the rented property was automatically evicted on 1/1/2012 after the delivery of the notification according to the plaintiff’s statements, and the terms of compensation set out under the article 355 could not be met since there is no case of an eviction action filed by the defendant for the reason of necessity and the property was not evicted by a court order. In this case, while the court should rule to dismiss the case, it was considered not right to issue a written order and to reverse the order.’’
Conclusion
The lessor must prove that the necessity is actual, sincere, and compulsory in any case of eviction that he/she would file. One may file a legal action for eviction starting from the expiration date of a fixed-term rent contract or within a month starting from the termination date of indefinite-term contracts and from the date to be set for notification of termination, and any action filed without complying with the term of termination and the term of notification of termination would be dismissed on the procedural grounds. The term of termination notice and the term of prescription shall differ in legal actions to be filed based on the necessity of a new landlord. When the lessor has the leased property evicted for necessity, he/she shall not rent the leased property to anyone other than the former tenant without a justification unless three years have lapsed. Otherwise, the terms of compensation shall be deemed to be met under the article 355 of the TCO.
REFERENCES:
( https://mevzuat.gov.tr/mevzuatmetin/1.5.6098.pdf )
( https://karararama.yargitay.gov.tr/ )
(https://dergipark.org.tr/tr/pub/suhfd/issue/26640/281157)
