EVICTION OF THE TENANT DUE TO NECESSITY
- Av. Emre Dönmez
- Jul 25, 2024
- 6 min read
Turkish Code of Obligations No. 6098 ("TCO") regulates a limited number of reasons for termination of residential and roofed workplace leases by the lessor. Even if the lease agreement is for a definite term, the lease agreement does not automatically terminate upon the expiration of the prescribed term, and the lessee may terminate the lease agreement 15 days prior to the expiration of the term or, in the case of a lease agreement for an indefinite term, by giving notice, provided that the legal termination notice periods are complied with. As a rule, the lessor may exercise the right of unilateral termination only at the end of the 10-year periods specified in the law, but may request the evacuation of the lease in the event of certain circumstances. The reasons for eviction arising from the lessor are specified in Articles 350-352 of the TCO. These reasons are as follows:
1. Housing need
2. Workplace needs
3. Reconstruction or reconstruction
4. Needs of the new owner
This article examines the reasons for termination due to the lessor's need.
Eviction on Grounds of Necessity
Article 350/b.1 of the TCO stipulates that the lessor may terminate the lease agreement as a result of the necessity, which is called “eviction due to need” in practice.
ARTICLE 350- The lessor may terminate the lease agreement
1. If the lessor is obliged to use the leased property for himself, his wife, his spouse, his descendants, his ascendants or other persons he is legally obliged to take care of due to the need for a residence or a workplace,
2. If substantial repair, extension or alteration of the leased property for the purpose of reconstruction or construction is necessary and the use of the leased property is impossible during these works, the lessor may terminate the lease by filing a lawsuit within one month starting from the date to be determined by complying with the termination period and the periods stipulated for the notice of termination in accordance with the general provisions regarding the lease in the case of fixed-term contracts and in the case of indefinite-term contracts.
As can be understood from the provision of the article, it is possible for the lessor to evict the lessee due to need through an eviction lawsuit to be filed.
Conditions of Eviction Case Due to Necessity
1. There must be an obligation to use the leased property for housing or workplace needs.
This necessity must arise from the needs of the lessor himself, his spouse, his spouse, his descendants, his ascendants and his dependents in accordance with the law. It is not possible to request eviction for the needs of the lessor's relatives other than the persons mentioned here. The fact that it is said that they are obliged to take care of after the spouse, lower and upper lineage is counted in the law narrows this area. Here, the guardian's obligation to take care of the restricted person as required by law can be introduced and the guardian may file an eviction lawsuit against the tenant for the needs of the restricted person.[1]
2. The need must be for a dwelling and roofed workplace.
3. The necessity must be real, sincere and compulsory.
The real and sincere necessity claim put forward by the lessor must be demonstrated with all kinds of evidence. If it is understood that the purpose of the eviction request is to obtain higher rent, which is not satisfied with the increase at the end of the lease agreement, in the event that the lessee has a residence where he can live, where he can house his relatives, and a workplace where he can practice his profession, the termination claim and the reason for eviction are not justified. In the precedent decision of the Third Civil Chamber of the Court of Cassation dated 2019/2702E 2019/4829K and 22.05.2019,
“According to Article 350/1 of the TCO, in order to decide on eviction in eviction cases filed based on the need for housing, it must be proven that the need is real, sincere and compulsory. Temporary need that is not continuous cannot be a reason for eviction, nor can the need that has not yet arisen or whose realization depends on a long period of time be accepted as a reason for eviction. It is not enough to have a reason for need at the time the lawsuit is filed, this need must continue during the trial.”
Whether the need is real, sincere and compulsory or not is appreciated by the judge in the specific case. However, it is in the interest of the lessor to specify the nature of the need before filing an eviction lawsuit and to determine whether it meets the criteria stated in the decisions of the Court of Cassation.
4. In fixed-term lease agreements, an eviction lawsuit must be filed within one month from the expiration of the contract period. In case of need, the tenant cannot be evicted immediately.
5. In indefinite-term lease agreements, an eviction lawsuit must be filed within 1 month from the date to be determined by complying with the termination period and the periods stipulated for the termination notice.
Each 6 months from the date of the lease agreement constitutes the termination period. In order to terminate at the end of these 6 months, the lessor must give notice of termination to the tenant whose eviction is requested at least 3 months in advance. Despite this, if the leased property is not evacuated, the lessor can file an eviction lawsuit within 1 month from the end of the termination period. The lawsuit filed without complying with the termination notice and deadlines is rejected procedurally. It is useful to pay attention to these periods in order to avoid loss of rights.[2]
In its precedent decision dated 2017/4069 E 2017/11195 K 06.07.2017, the Third Civil Chamber of the Court of Cassation stated that
“According to Article 350/1 of the TCO No. 6098, the eviction lawsuits to be filed based on the claim of need must be filed within one month starting from the date to be determined by complying with the periods stipulated for the termination notice in Article 328 of this law in indefinite term contracts. Pursuant to Article 353 of the TCO, if the lessor has notified the lessee in writing that he will file a lawsuit before or at the latest within the period stipulated for the filing of the lawsuit, the lawsuit may be filed until the end of an extended lease year following the notification. The period for filing a lawsuit is a matter of public order and should be taken into consideration by the court automatically, even if the defendant does not assert it.”Eviction Case to be Filed Due to the Needs of the New Owner
Eviction Case to be Filed Due to the Needs of the New Owner
ARTICLE 351- If the person who acquires the leased property later is obliged to use it for himself, his spouse, his spouse, his descendants, his ascendants or other persons who he is obliged to take care of by law due to the need for housing or workplace, he may terminate the lease agreement with a lawsuit to be filed after six months, provided that he notifies the lessee in writing within one month starting from the date of acquisition.
The person who acquires the leased property later may, if he wishes, exercise his right to terminate the lease agreement due to necessity by filing a lawsuit within one month starting from the end of the lease agreement.
As explained in the provision, the new owner can exercise this right under the same conditions.
Competent and Authorized Court in Eviction Case
The competent court for the eviction lawsuit to be filed due to the need is the Civil Court of Peace, and the competent court is the court where the leased property is located.
Leasing the Immovable Property to Another Person after the Eviction of the Lessee
The prohibition of re-lease is regulated in Article 355 of the TCO as follows.
When the lessor evacuates the leased property for the purpose of necessity, the lessor may not rent the leased property to anyone other than the former lessee unless three years have passed without just cause. Immovable properties evacuated for reconstruction and reconstruction purposes may not be rented to anyone else in its former condition unless three years have passed without just cause. The former lessee has the right of priority to lease the immovable immovables that have been reconstructed and reconstructed with the new condition and new rental price. This right must be exercised within one month following the written notification by the lessor; unless this priority right is terminated, the immovable cannot be leased to another person before three years have passed. If the lessor violates these provisions, the lessor is obliged to pay compensation to the former lessee not less than one year's rent paid in the last lease year.
Pursuant to Article 355/1 of the TCO, after the eviction due to necessity, the lessor cannot rent the leased property to anyone other than the evicted tenant before 3 years without a justified reason. Otherwise, the lessor is obliged to pay compensation to the lessee evicted due to need, not less than one year's rent paid in the last lease year. After 3 years, the lessor may lease the immovable property to another person without any restriction.
[1] Prof. Dr. Ahmet M. KILIÇOĞLU, Law of Obligations Special Provisions, Page 303
Atty. Emre DÖNMEZ & Int. Atty. Hilal GÖKTAŞ
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