What is a Lease Agreement?

The transfer of the right to use and benefit from a movable or immovable property for a price is possible with a lease agreement. While issues such as the establishment, termination and scope of lease agreements are comprehensively regulated in Chapter 4 of the Turkish Code of Obligations ("TCO", "the Code"), Article 299 of the relevant Code defines a lease agreement as "a contract whereby the lessor agrees to leave the use or benefit of a property to the lessee, and the lessee agrees to pay the agreed rental price in return".

As in every contract, the lease agreement creates certain debts and obligations for both the lessor and the lessee. While the lessor has obligations such as the duty to deliver the leased property as promised and to bear the taxes and similar expenses related to the leased property, the lessee has obligations and liabilities such as the obligation to pay the rent, the obligation to use the leased property in accordance with the contract and to use the leased property in accordance with the contract, and the obligation to notify the lessor of defects. In addition to these obligations and liabilities arising from the TCO, some rights are also granted to the lessor and the lessee. One of these rights is the right to terminate the lease agreement granted to both parties. The reasons for the termination of the lease agreement are regulated under Articles 331-356 of the TCO, and while the usual termination of the lease agreements is possible with the expiry of the contract period and the notice of termination, reasons such as bankruptcy and death of the lessee are also listed among the reasons for extraordinary termination. Although these are general grounds for termination, the Law also regulates the grounds for termination specific to Residential and Roofed Workplace Leases. In this article, the eviction of the leased property due to necessity, which is one of the reasons for termination specific to Residential and Roofed Workplace Leases, and the eviction lawsuit process will be examined.

Eviction Of the Leased Property Due to Need and Eviction Lawsuit

Eviction of the leased property due to need is a right which can be used through a lawsuit, and it is regulated in the Code under the reasons for termination arising from the lessor. Termination of the lease agreement by filing an eviction lawsuit is a right granted to the subsequent owner of the leased property, as well as the lessor, if the conditions listed in the Code are fulfilled. Thus, the Code guarantees the right of termination not only to the owner of the leased property at the time of the establishment of the lease agreement, but also to the new owner who purchases the leased property.

Eviction of the leased property due to lessor's need is regulated in the Article 350 of the TCO as follows: "1. If he/she is obliged to use the leased property for himself/herself, his/her spouse, his/her descendants, his/her ascendants, or other persons he/she is legally obliged to take care of due to the need for a residence or a workplace, 2. If it is necessary to repair, extend or change the leased property for the purpose of reconstruction or reconstruction and it is impossible to use the leased property during these works, the lessor shall terminate the agreement within one month starting from, for the fix term contracts at the end of the term, for the indefinite term contracts from the date to be determined by complying with the termination period and the periods regulated for the notice of termination in accordance with the general principles regarding the lease." With this article, the Law has set some conditions for the lessor to open an eviction proceeding.

  • The Obligation to Make a Termination Notice Before Opening the Eviction Lawsuit

Article 350 of the TCO stipulates that the lessor is obliged to make a notification before the right of termination can be exercised. This termination notice is regulated separately for fixed and indefinite term contracts. According to the relevant article, the termination notice must be made at the end of the term determined for the contract for fixed term contracts, while for indefinite term contracts, the termination notice may be made by taking into account the termination period determined by the general provisions regarding the lease and the periods stipulated for the termination notice. As it can be clearly understood from the wording of the article of the Code, the eviction lawsuit will not be accepted unless the termination notice is made in accordance with the specified periods.

  • Notice of Termination and the Period for Filing a Lawsuit

According to Article 350 of the TCO, the lessor must file an eviction lawsuit at the civil court of peace within 1 month starting from the end of the period specified in the contract for fixed term contracts.

In indefinite term contracts, a lawsuit can be filed in the civil court of peace within 1 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. In this case, the termination of the lease agreement should be examined according to the general provisions. In the Article 329 of the TCO, termination of indefinite-term immovable lease agreements regulated as follows: Either party may terminate a lease of immovable property or a movable structure at the end of the lease term specified by local custom or, in the absence of such custom, at the end of a six-month lease term, by giving three months' notice of termination. In accordance with this article, in order to file an eviction lawsuit, a notification must be made before the end of each 6-month lease period by complying with the 3-month termination notice period. After the termination notice is made, a lawsuit can be filed within 1 month from the specified period according to Article 350 of the TCO.

The legislator, who regulates the period for filing an eviction lawsuit as 1 month, has also granted the lessor a right to extend the lawsuit period in Article 353 of the TCO in fairness. Accordingly, in both types of agreements, if the lessor notifies the lessee in writing that he will file a lawsuit within the period stipulated for the filing of the lawsuit at the latest in the termination notice made by complying with the periods specified in the Code, the period for filing a lawsuit will be extended by 1 year.

  • For Whose Need and What Need a Lawsuit Can be Filed

According to Article 350 of the TCO, the lessor may terminate the lease agreement if she/he is obliged to use the leased property due to the housing or workplace needs of herself/himself, her/his spouse, her/his lineal descendants, her/his offspring, or other persons who are legally dependent on her/him.

Secondly, if it is necessary to repair, extend or change the leased property for the purpose of rebuilding or reconstruction, and it is impossible for the tenant to reside in the house during the execution of these works, the need for termination is deemed to have occurred and the lessor may terminate the lease agreement.

  • Existence, Necessity, Sincerity and Continuity of The Need

The Supreme Court has determined some criteria in many decisions in terms of the nature of the need for the acceptance of the eviction lawsuit. In the decision of the 6th HD of the Court of Cassation, E. 2013/11815 K. 2013/14034 T. 22.10.2013, the issue is also stated:

"In order to decide on the 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 made a reason for eviction, nor can the need that has not yet arisen or whose realisation 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."

As stated in the decision, the lessor's need should not be temporary, in other words, it should be continuous, and the lessor should be sincere in her/his claim of need. While determining these criteria, the Supreme Court wanted to protect the lessee and wanted to prevent the lessor from evicting the lessee from the immovable property for random reasons. In addition, the evacuation of the leased property must be mandatory for the lessor, that is, the lessor must not be able to meet its needs in any other way. In this context, the fact that the lessor has another immovable property that can meet its needs may also negatively affect the need request.

Eviction of the Leased Property Due to the Needs of the New Owner

In addition to the owner at the time of the conclusion of the contract, the law also grants the right of eviction due to necessity to the newly acquired owner of the leased property. This right is regulated in Article 351 of the TCO as follows: "If the person who acquires the leased property later is obliged to use it for the need of housing or workplace for herself/himself, her/his spouse, her/his descendants, her/his ascendants or other persons who are legally dependent, she/he may terminate the lease agreement with a lawsuit to be filed after six months, provided that she/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/she wishes, exercise his/her right to terminate the lease agreement due to necessity by filing a lawsuit within one month starting from the end of the contract period." Therefore, the new owner must first send a written notice of termination and eviction to the lessee within 1 month from the date of acquisition of the leased property. Then, she/he can terminate the lease agreement by filing an eviction lawsuit within 6 months. The criteria of the need explained above and the issues such as who can file a lawsuit for which need are also valid for the new owner.

Prohibition of Renting After Eviction Due to Necessity

According to Article 355 of the TCO, after the lessor evacuates the leased property for the needs of herself/himself, her/his spouse, her/his descendants, her/his lineal descendants, etc., the lessor may not rent the leased property to anyone other than the former lessee unless 3 years have passed without a justifiable reason. If the lessor has evicted the immovable in line with the renovation requirements, the lessor will not be able to rent the immovable to another person in its former condition until 3 years have passed. This article provides an exception to the prohibition of re-renting the immovable under the name of just cause. Since the Code does not regulate the justified reasons, they shall be assessed by the judge by taking into consideration the circumstances and conditions in the concrete case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.