Eviction of the Lessee in Case of Nonpayment of the Rent
Lease agreement is regulated in the articles of 299-356 the Turkish Obligations Code numbered 6098 (“the TOC”). Within the scope of a lease agreement, the lessee is under certain obligations such as the obligation to use the leased property carefully, the obligation to respect the neighbors, the obligation to pay the cleaning and maintenance expenses and the obligation to notify the lessor of defects. However, the most important and fundamental obligation of the lessee is to pay the rent. This newsletter will evaluate the legal ways to be followed for the eviction of the lessee in case of nonpayment of the rent.
A. Filing of an eviction action due to default
By virtue of the article 315 in the TOC, it is possible to terminate the lease agreement due to the lessee’s default. If the lessee does not pay the due and payable rent or secondary expenses, the lessor may grant a period of time to the lessee in writing, notifying the lessee that the lessee should pay his debt within this period of time and that the lessor will, otherwise, terminate the lease agreement. It is mandatory that such period of time which will be granted to the lessee is at least 30 days for roofed workplace leases and at least 10 days for other leases; and this period of time starts to run as from the day following the date that the written notice has been given to the lessee. In case the lessee does not pay the delayed rent within the granted period of time as of the date that the written notice is served upon the lessee, it is possible to file an eviction action due to default, without waiting for the end of the lease period. The eviction order issued as a result of the eviction action can be concluded through the channel of the competent bailiff’s office. If the lessee makes the payment in due of time, it will not become possible to file the eviction action. It is possible to apply the article 315 of the TOC to the lease agreements for houses and the lease agreements for roofed workplaces as well as the ordinary lease agreements.
B. Eviction of the lessee by serving two justifiable notices upon him and then, by filing the eviction case
According to the second paragraph contained in the article 352 of the TOC, if the lessee causes to be given him two justifiable notices due to nonpayment of the rent, by the reason that the lessee has not paid the rent within a period of one lease year, the lessor may file an eviction action against the lessee. For the lease agreements with a term shorter than one year, it is possible to file the eviction action in case these conditions take place within the lease term. Firstly, the lessor should give the lessee the two written notices for the due and payable rent receivables pertaining to different months. Following these notices, the lessor may apply to and file an eviction action before the Civil Court Peace situated at the location of the real estate. The eviction action must file filed within one month as from the end of the lease period that the justifiable notices have been sent. The one-month term is a prescription period. It is possible to apply the article 352 of the TOC to the lease agreements for houses and roofed workplaces only.
C. Eviction of the lessee by initiating enforcement proceedings with the request for eviction
By virtue of the article 269 and the subsequent articles contained in the Enforcement and Bankruptcy Law numbered 2004 (“the EBL”), for the eviction of the lessee who does not pay the rent, the third option is to initiate enforcement proceedings with the request for eviction, without filing an eviction action. The matter which the lessors should pay attention is that the request for eviction is specified in the payment order regarding the enforcement proceedings they will initiate for the unpaid rents. In practice, such enforcement proceedings with the request for eviction are preferred mostly, since this method is fast and practical. When the enforcement proceedings with the request for eviction are initiated, the lessee should submit his objection within 7 days as from the date that the payment order is served on the lessee. If the lessee does not submit his objection within 7 days and if the lessee does not pay his debt within 30 days, the lessee shall be evicted from the real estate through the channel of the competent bailiff’s office. However, the eviction of the lessee from the real estate is not possible, in case the lessee pays his debt, including all the expenses for the enforcement proceedings, within the 30 days’ term. It is possible to apply the article 269 of the EBL to the lease agreements for houses and the lease agreements for roofed workplaces as well as the ordinary lease agreements, and there is no differentiation in this respect.
In conclusion, the TOC contains special provisions for lease agreements, and there are three different possibilities for the lessor in case of the lessee’s failure to pay in a timely manner the rents pertaining to the lease agreement. These possibilities are: (1) to file an eviction action due to default, (2) to issue two justifiable notices and then, file the eviction action and finally, (3) to initiate enforcement proceedings with the request for eviction.