Eviction of Tenant Due to Eviction Commitment

As is known, even if a lease agreement is made for a specific period, it does not automatically terminate for residential and covered commercial property rentals. However, the tenant giving a written commitment to vacate constitutes an exception to this matter.

The eviction commitment is a unilateral legal act in which the tenant commits in writing to vacate the leased property on a specific date. With a written eviction commitment, the tenant restricts their freedom to extend the contract by committing to eviction in advance. Our article consists of details regarding the eviction commitment.

1. GROUNDS FOR VALIDITY

Article 352/1 of the Turkish Code of Obligations contains provisions regarding the eviction commitment. As a general rule, the eviction commitment can be given in both specific and indefinite lease agreements.

The article of the law is as follows:

Even if the tenant undertakes in writing to vacate the leased property on a certain date after the delivery of the leased property, if they fail to vacate, the lessor may terminate the lease agreement by applying to enforcement or filing a lawsuit within one month starting from this date.

According to the provisions of the law, the following conditions are required for the existence of a valid eviction commitment that will serve as the basis for an eviction lawsuit/enforcement procedure:

• The eviction commitment must be made in written form.

This requirement is explicitly stated in the legal article. It is not necessary for the commitment to be drafted or authenticated by a notary for validity; rather, it should be made in ordinary written form. Eviction cannot be demanded based on an oral eviction commitment.(1)

• During the issuing of eviction commitment, the lessor or an authorized representative must be present.

In cases where there are multiple tenants, the signatures of all tenants are required on the eviction commitment for it to be valid. An eviction commitment obtained from only one tenant is not considered sufficient. (2)

However, a person appointed as an agent by the tenant can sign this contract on behalf of the tenant. According to the Court of Cassation, the tenant's representative must have specific representative authority, although different opinions exist in legal doctrine. (3)

• A specific date must be indicated in the eviction commitment.

The date of eviction can be either before or after the expiration of the agreed lease term. This determination can be made by specifying the day, month, and year, or based on a specific event (for example, Republic Day of the year 2008). (4)

In cases where a specific year or month is indicated, the eviction commitment does not allow for eviction. (5)

• The eviction commitment must be given by the tenant's free will.

If the eviction commitment is obtained through error, fraud, or intimidation, it will be considered invalid under the general provisions of the Turkish Code of Obligations regarding impaired will. The tenant is required to revoke this commitment within a period of 1 year.

• An eviction commitment becomes invalid if it is given during the signing of the lease agreement or before its signing.

According to the law, the eviction commitment must be obtained after the leased property has been delivered to the tenant. Eviction commitments obtained before the conclusion of the lease agreement or along with the lease agreement are considered invalid and do not provide an opportunity for eviction. (6), (7)

There is no obligation to make the eviction commitment within a specific period. It can be obtained within the time frame specified in the lease agreement, as well as during extended periods if the lease agreement is renewed.

Undated Eviction Commitment

Even if it lacks a specific date, the Supreme Court (Yargıtay) considers an eviction commitment that includes a promise from the tenant to vacate the property on a certain date to be absolutely valid. (8) In this case, the lessor can fill in the eviction commitment, which was signed as blank, for a specific date as desired. Unless the eviction commitment is signed on the same date as the lease agreement, the lessor can use the eviction commitment to demand the tenant's eviction.

2. PERIOD FOR FILING AN EVICTION LAWSUIT OR ENFORCEMENT PROCEEDINGS

According to Article 352/1 of the Turkish Code of Obligations, the lessor must request eviction within one month from the committed eviction date. The one-month period for filing a lawsuit is not a statute of limitations but a period of forfeiture of rights. Due to its nature as a period of forfeiture, the time limit for filing a lawsuit is observed by the court ex officio.

Furthermore, according to Article 353 of the Turkish Code of Obligations, 'If the lessor informs the lessee in writing that they will file a lawsuit within the prescribed time for filing a lawsuit, the period for filing a lawsuit is considered extended for one rental year.'

The notice reserving the right to file a lawsuit must be sent no later than before the expiration of the period of forfeiture and must reach the lessee. (9), (10)

3. EVICTION PROCESS

In a written eviction commitment, the lessor can terminate the lease agreement based on this document in two ways:

• Eviction through enforcement proceedings at the location of the property,

Eviction through enforcement proceedings is regulated in Articles 272 and subsequent articles of the Enforcement and Bankruptcy Law. The article of the law is as follows:

Upon the expiration of the term of a leased property under the lease agreement, eviction may be requested by submitting the agreement to the enforcement office within one month.

Upon this, an enforcement officer issues an eviction order, instructing the eviction and delivery of the property within fifteen days.

In the eviction order: If the lessor, lessee, and, if any, their representatives, fail to apply to the office within seven days with their names, identities, places of residence, the date of the agreement, and if they have an objection to the renewal or extension of the lease and do not state their objection or fail to vacate voluntarily, it is stated that they will be forcibly removed.'

If there is no objection within the specified period or if the objection is withdrawn, the leased property is vacated at the end of the period. In case of objection, the lessor must request the removal of the objection from the enforcement court.

• Filing a lawsuit in the Conciliation Court of the district where the property is located,

As specified in the law, eviction lawsuits are typically filed in general courts, and they must be initiated within one month from the committed date.

4. CONCLUSION

In conclusion, although the tenant may have limited their freedom to extend the contract by committing to eviction in advance, the legislator has established the conditions for validity in the eviction commitment. The commitment must adhere to the form and content requirements outlined in the law for its validity. Otherwise, the possibility of eviction cannot be based on the commitment.

Leyla Sarı

REFERENCES

1 Gümüş, Mustafa Alper. Lease Agreement. Istanbul: Vedat Kitapçılık, 2012.

2 Burcuoğlu, Haluk. Eviction of the Tenant According to Law No. 6570 in the Light of Judicial Decisions. Istanbul: Filiz Kitapevi, 1993.

3 Court of Cassation 3rd Civil Chamber Decision, Case No: 2002/414, Verdict No: 2002/1200, Date: 04.02.2002.

4 Court of Cassation 6th Civil Chamber Decision, Case No: 1477/168, Date: 19.01.1992.

5 Gümüş, Mustafa Alper. Lease Agreement. Istanbul: Vedat Kitapçılık, 2012.

6 Official Gazette No: 5927 of the Ministry of Justice and Public Relations, Date: 04.10.1944.

7 Court of Cassation 6th Civil Chamber Decision, Case No: 206/334, Date: 27.01.2003.

8 Court of Cassation 6th Civil Chamber Decision, Case No: 2461/3391, Date: 27.03.2007.

9 İnceoğlu, Murat. Rental Law. Istanbul: 12 Levha Yayıncılık, 2014.

10 Contrary view in Gümüş, Mustafa Alper. Lease Agreement. Istanbul: Vedat Kitapçılık, 2012.