Eviction Due to Necessity/Need Among the Cases of Termination of Lease Agreements Through Litigation

GENERAL

Due to today's economic conditions, the depreciation of the Turkish Lira, high inflation and consequently increasing real estate prices, moves by lessors to increase the rental prices have begun to increase, while the desire to continue to pay rent over the old payment prices for tenants has taken shape. In this process, with the developments experienced, the intensity of eviction cases in courts has increased today. The lessor or the new owner may file this lawsuit in case of need of the lessor, his/her spouse, spouse, descendants, ascendants and dependents. In addition, the state of need must be real, sincere, necessary and continuous.

ARTICLE 350 OF THE TURKISH CODE OF OBLIGATIONS AND ITS ELEMENTS

ARTICLE 350- The lessor may conclude the lease agreement

1. If the lessor is obliged to use the leased property for himself, his spouse, his descendants, his ascendants or other persons that 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 is necessary for the purpose of reconstruction or reconstruction and the use of the leased property is impossible during these works,

The lessor may terminate the lease agreement 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 indefinite term agreements.

Eviction due to necessity, which is one of the cases of termination of the lease agreement due to reasons arising from the lessor, is regulated in Articles 350 and 351 of the Turkish Code of Obligations. The relevant legal provision requires certain prerequisites for the eviction of the lessee due to necessity.

A) The leased property is a necessity for the lessor himself, his spouse, his spouse, his descendants, his ascendants or other persons who are legally obliged to take care of

When the first paragraph of the article is examined, it is required that the use of the residence or workplace by the lessor or other persons listed in the law is mandatory in order to ensure the eviction of the tenant due to necessity. The proof of necessity is of great importance for the case and the burden of proof is on the plaintiff.

"Other persons who are obliged to be dependent by law" will be determined according to Article 364 of the TCC. Since Article 350 of the TCO explicitly refers to descendants and ascendants, only the lessor's dependent siblings remain within the scope of Article 364 of the TCC, and the lease agreement may be terminated due to the compulsory housing needs of the dependent siblings. While Article 364 of the TCC lists the persons who are obliged to pay alimony as descendants, lineal descendants and siblings, when we look at the Turkish family structure, the scope of the persons who are obliged to pay alimony may also include the bride, groom and other relatives. However, the legislator wanted to put a limit to this and limited the persons who are legally obliged to be dependent to be the heirs, next of kin and siblings with Article 364 of the TCC. ¹

B) The State of Need must be Real, Sincere, Necessary and Continuous

Although it is not written verbatim in the law, judicial decisions have set forth four criteria for the eviction of the tenant based on this article. These four criteria for evicting the tenant are that the need must be real, sincere, essential and continuous. In the specific case, each element must be evaluated separately by the court and the event subject to the lawsuit must meet all of the criteria. In addition to these criteria, it is not appropriate to use this type of eviction for situations that have not yet arisen or are likely to arise.

EVICTION CASE TO BE FILED BY THE NEW OWNER DUE TO NECESSITY/NEED

New owner's requirement

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 are obliged to take care of him 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 subsequently acquires the leased property 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 expiration of the lease agreement. The new owner must send a notary notice to the lessee within one month of the purchase, by attaching the title deed as an annex. The notice must include a declaration of the purchase, eviction due to necessity and the filing of an eviction lawsuit. It should be noted that; the new owner must specify the eviction request in the notice and request the payment of the rent due within the period until the eviction, otherwise the payments made by the tenant to the former owner will release the tenant from the rent debt.

DEADLINES TO BE OBSERVED FOR FILING AN EVICTION CASE DUE TO NECESSITY/NEED

What is important in practice is the time periods that must be observed in order to file an eviction lawsuit. In terms of this issue; it is useful to make a triple distinction as the periods that the lessor must comply with and the periods that the new owner must pay attention to in fixed- and indefinite-term lease agreements.

A) Periods Determined for the Lessor

In fixed-term contracts, the right to file a lawsuit may come to the agenda at the end of the term in the lease agreement. In fixed-term contracts, the lessor may file a lawsuit on behalf of the cause of need within one month from the end of the term. In the event that the lessee does not make any notification that he/she will leave the leased premises within 15 days before the expiration of the term, the contract is deemed to be extended for one year, continues to be a definite lease contract and does not become an indefinite-term contract. In the event that the lease agreement is deemed to be extended for another year, the agreement does not need to be renewed between the lessor and the lessee.

According to Article 300 of the Turkish Code of Obligations (TCO), a lease agreement that will expire without any notice upon the expiration of the agreed period is a definite term; other lease agreements are deemed to have been concluded for an indefinite period. In this context, lease agreements where the parties do not agree on when they will expire are indefinite-term lease agreements. In indefinite-term lease agreements, the lease agreement may be terminated with a lawsuit to be filed within one month starting from the date to be determined by complying with the termination period and the periods stipulated for the termination notice according to the general provisions regarding the lease. Pursuant to Article 329 of the TCO, each party may terminate the lease agreement for an immovable or movable structure for the end of the lease period determined by local custom, or in the absence of such custom, for the end of the six-month lease period, by complying with the three-month termination notice period. In other words, for indefinite-term lease agreements whose lease term is divided into 6-month periods, the first termination notice must be given 3 months before the expiration date of the agreement. The lessor may file an eviction lawsuit within one month from the end of the six-month period, provided that the notice requirement is complied with.

If it is necessary to make a separate evaluation in terms of the notice requirement; there is no obligation to give notice for fixed-term contracts. This situation is different for indefinite-term contracts. A notice must be sent to the lessee at least 3 months before the end of the 6-month period, which is the termination notice period.

B) Periods Determined for the New Owner

The law grants the new owner two optional rights. The new owner may serve a notice to the tenant within one month from the date of acquisition and file the lawsuit at the end of 6 months. The second way is to send a notice within one month from the date of acquisition and file a lawsuit within one month after the end of the lease agreement. If the lease agreement is for a definite term, an eviction lawsuit must be filed within 1 month after the expiration of the contract period; if the lease agreement is for an indefinite term, an eviction lawsuit must be filed within 1 month after the termination period and the periods stipulated for the termination notice.

The lessor may use whichever optional right is more advantageous in terms of its own situation. For example; instead of waiting for the expiration date of the lease agreement for the eviction of a tenant whose lease agreement expires 9 months later, it will be more advantageous to send a notice within one month from the date of acquisition and file a lawsuit at the end of six months.

PROHIBITION OF RENTING THE RELEVANT IMMOVABLE PROPERTY AFTER EVICTION

A dwelling or roofed workplace evicted due to necessity cannot be rented out for 3 years, except in cases where there is no justifiable reason. During this period, if the owner wishes to rent out the property again, it is a legal obligation to first make an offer to the former tenants.

In practice, within the framework of the decisions of the Court of Cassation, the necessary conditions for the tenant to recover damages through litigation in case of violation of this prohibition have been determined. The former tenant cannot receive compensation if he/she does not leave the leased premises by way of forced execution. In other words, the fact that the lessor only verbally requests eviction due to necessity and sends a notice is not considered sufficient to be entitled to compensation, and it is accepted that the condition of forcing eviction will only be met by the execution of the court decision.

COMPETENT AND AUTHORIZED COURTS IN EVICTION CASES

Duty of peace courts

ARTICLE 4-

(1) Civil courts of peace, regardless of the value or amount of the subject matter of the lawsuit

a) Except for the provisions regarding the eviction of leased immovable properties through execution without judgment in accordance with the Execution and Bankruptcy Law dated 9/6/1932 and numbered 2004, they hear all lawsuits regarding all disputes arising out of the lease relationship, including debt lawsuits, and lawsuits filed against these lawsuits.

According to Article 4 of the CCP, the competent court for the lawsuits arising from the lease relationship is the civil courts of peace. Pursuant to this provision, the lawsuits to be filed for eviction must also be filed in the civil court of peace. The competent courts for the eviction case due to necessity are the courts where the leased property is located.

RELEVANT JUDICIAL PRECEDENTS

The witnesses of the plaintiff who were heard stated that the place subject to the lawsuit was small, that there were empty places in the building, that the claim of need was not sincere, and in the report prepared by the expert, it was stated that the shop subject to the lawsuit was on the ground floor of the building and was 10 m2 in size and was not sufficient and suitable for the Attorney's Office. When the plaintiff's claim in the lawsuit petition, the statements of the witnesses heard, the expert report and all the documents were evaluated together, it was concluded that the claim of need was not real and sincere, and it was necessary to decide to dismiss the lawsuit, but it was erroneous to make a written eviction decision, and the judgment had to be reversed.

Court of Cassation Decision - 6th HD, E. 2001/294 K. 2002/548 T. 03.12.2002 

In order to decide on eviction in cases based on the claim of need, it is necessary to prove that the need is real, sincere and compulsory. Temporary need that is not continuous cannot be a reason for eviction, nor can a 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 of filing the lawsuit, this need must continue during the trial.

The plaintiff claimed that his grandson Semih, who is currently unemployed, will operate the leased premises in the same way as a coffee house, and the defendant defended the dismissal of the lawsuit.

All plaintiff witnesses heard during the trial stated that the plaintiff was a graduate of the Faculty of Agriculture, worked in temporary jobs, was not successful in the KPSS exams, returned from the military, is still unemployed and has no insurance, wants to operate a coffee shop in the leased premises, and therefore needs the leased premises. Although the defendant argued that the need was not sincere, he did not submit any evidence to the file to prove his defense. In this case, according to the nature of the evidence collected, it should be accepted that the grandson of the plaintiff, who still has no job, has a real and sincere need for a workplace. In addition, the fact that the needy person, who graduated from the Faculty of Agriculture, wants to do a job other than a job related to his profession is not considered as a sincere and real need. In this case, while the court should decide to evict the tenant, it is not correct to dismiss the lawsuit with the written justification.

Court of Cassation Decision - 6th HD, E. 2015/7043 K. 2015/7734 T. 1.10.2015

In the event that the new owner files a lawsuit by taking advantage of the periods in Article 7/d of the Law No. 6570, the lessee must be notified of the purchase of the leased property within one month from the date of acquisition and the lawsuit must be filed at the end of six months from the acquisition. In our case, since the acquisition is dated 15/04/2010, the notice must be served to the defendant until the evening of 15/05/2010. However, the notice of acquisition was notified to the defendant on 28/05/2010 after the expiration of one month. In this case, since the one-month notice condition required by the law has not been fulfilled, the lawsuit should be dismissed, but the lawsuit should not be accepted with the written justification.