Today, many disputes arise in the field of lease law due to economic conditions. The lease agreement is regulated under the Turkish Code of Obligations. A lease agreement is a contract in which the lessor undertakes to leave the use of a thing or to benefit from it together with its use to the lessee, and the lessee undertakes to pay the agreed rental price in return. With the lease agreement, the lessor and the lessee are under certain obligations.

Upon the lessee's failure to properly fulfill its obligation, the lessor has the possibility to request the lessee to evacuate the immovable property. The subject to be discussed in this article is the eviction of the immovable property through execution without writ of execution due to expiration of the lease term. The eviction of the leased immovable property through execution without writ is regulated between Articles 269-276 of the Enforcement and Bankruptcy Law. In the absence of an authorization agreement in the lease agreement, the authorized enforcement office is the residency of the debtor, which is the general authority. In addition, the place where the immovable is located is also authorized. One of the reasons for the eviction of the leased immovable property through execution without writ of execution is expiration of the lease term. We will discuss this in detail in our article.

  1. INTRODUCTION

Article 347 of the Turkish Code of Obligations,

"In residential and roofed workplace leases, unless the lessee notifies at least fifteen days before the end of the term of the fixed-term contracts, the contract is deemed to be extended for one year with the same conditions. The lessor cannot terminate the contract based on the expiration of the contract period.

However, at the end of the ten-year extension period, the lessor may terminate the contract without giving any reason, provided that the lessor gives notice at least three months before the end of each extension year following this period. In indefinite-term lease agreements, the lessee may terminate the agreement at any time, and the lessor may terminate the agreement with a notice of termination according to the general provisions after ten years from the beginning of the lease.

In cases where the right of termination can be exercised according to general provisions, the lessor or the lessee may terminate the contract." is stated.

Pursuant to Article 352/I of the Turkish Code of Obligations, if the lessee has undertaken in writing to evacuate the leased property on a certain date after the delivery of the leased property, but has not done so, the lessor may terminate the lease agreement within one month starting from this date by applying for execution or filing a lawsuit.

The subject to be examined in this section is the conditions and the procedure to be followed in order to obtain eviction through execution without writ of execution in the event that the tenant fails to evacuate the real estate despite being notified in writing that the real estate will be evacuated by the tenant in accordance with the provision of TCO 352/I.

In order to request the eviction of the immovable property through execution without writ of execution, there must be a lease agreement. As we mentioned before, it makes no difference whether the lease agreement is written or oral. However, pursuant to Article 352/I of the TCO, the lessee must undertake in writing to vacate the leased property on a certain date. The conditions for a valid eviction commitment are given below.

  • The eviction undertaking must be in writing.
  • The commitment letter must be given after the first lease agreement.
  • The tenant must have personally signed the eviction undertaking.
  • If the tenant who signed on an empty sheet cannot prove that the document was filled out for no purpose, the results of his signature must be proved.
  • The date on which the immovable property will be evacuated must also be specified in the letter bearing the eviction commitment.
  • Conditional eviction commitment is valid.

The eviction undertaking given with the first lease agreement is not valid. It has been argued that the eviction undertaking cannot contain conditions that are incompatible with itself, otherwise it cannot be valid. However, in practice, it has been adopted that the eviction commitment may be conditional and, in this case, the lessor must file a lawsuit within one month from the realization of the condition. 1

The enforcement proceeding to be made against the lessee pursuant to Article 272 of the EBL due to the failure to fulfill the eviction commitment must be made within 1 month from the date of the expiration of the term in the commitment letter. Otherwise, the commitment letter loses its legal value. Even the application for execution before the deadline agreed in the eviction undertaking cannot have any effect on the operation of the aforementioned period of filing a lawsuit. 2

In the event that the lease agreement is concluded by the lessor and there is more than one lessor, the eviction undertaking must be given by all of the lessors. 3 The eviction commitment also binds the tenant's heirs. In the event that the tenant has died after making the eviction commitment, the lessor may file an eviction proceeding against the heirs without a writ. 4 The lessor is obliged to attach the letter of undertaking as the underlying document of the proceeding.

According to Article 352 of the TCO No. 6098; the eviction case based on the reason of commitment must be filed by the lessor. The owner who is not the lessor has no right to sue. However, the new owner, as the successor of the previous owner and the lessor, may file a lawsuit based on the commitment given at the time of the former owner.

Upon the eviction proceeding initiated on the basis of the written eviction commitment, the enforcement office sends the tenant a sample no: 14 eviction order.

Evacuation order,

  • The names, surnames and residences of the lessor and lessee's representatives, if any,
  • Notify any objections within seven days,
  • If the tenant does not object within this period or does not evacuate spontaneously, the evacuation and delivery within fifteen days from the date of notification of the evacuation order, otherwise the warning that it will be removed by execution, is written.

If the tenant does not object to the eviction order to the enforcement office within seven days from the notification of the eviction order, the proceeding becomes final. Following the finalization of the proceeding, if the lessee does not vacate the immovable within 15 days from the notification of the eviction order, it shall be removed by the enforcement office and the immovable shall be delivered to the lessor. (Art. 273 of the EBL)

  • Objection to Eviction Order

If the tenant objects to the eviction order within the seven-day legal period, the proceedings are suspended. Reasons for objection,

  • The tenant may object to the signature in the ordinary written commitment letter. The objection regarding the signature and date must be clear. If the tenant does not explicitly deny the signature and date in his objection upon the notification of the eviction order, he is deemed to have accepted this signature and date. Because the tenant cannot change and expand the reasons for objection.
  • The tenant may also object that the eviction commitment was given with the first lease agreement and is therefore invalid.
  • The tenant may also raise an objection that the lease agreement was renewed or extended after the written eviction commitment was given.
  • Removal of Objection and Eviction

If the lessor has filed an eviction proceeding without judgment based on the ordinary written eviction undertaking and the lessee has separately and explicitly denied the signature or date in the ordinary written eviction undertaking in his objection to the eviction order, the lessor cannot request the removing of the objection from the enforcement court; if he requests, the enforcement court shall decide to reject the request for removing the objection without examining the signature or date.

Upon the tenant's denial of the signature or date or upon the rejection of the request for removing the objection by the enforcement court, the lessor may file an eviction lawsuit before the magistrate law court. (EBL 275/IV). In this case, the tenant, whose signature is found to be his own, which he denied during the enforcement proceedings, shall be sentenced to a fine by the magistrate law court. (EBL 275/V)

If the signature and date in the ordinary eviction undertaking are not explicitly denied by the lessee, the lessor may request the removal of the objection from the enforcement court. (Article 275/II of the EBL) If the signature and date in the ordinary eviction undertaking are not explicitly denied by the lessee, the lessee cannot deny the signature and date in the written eviction undertaking since the lessee is bound by the grounds of objection.

If the lessor has filed an execution proceeding without a judgment based on a notarized or dated and signed eviction commitment, he/she may ask the execution court to remove the objection. In this case, if the lessee does not present a document of the same force and nature that the rent is renewed or extended, the objection shall be removed.

  1. RESULT

Considering the length of the proceedings, it takes a long time to file a lawsuit to finalize the dispute. In order for the lessor to evacuate the immovable property in a shorter period of time, it is more practical for the lessor to apply for execution without writ of execution. Both in terms of procedural economy and in terms of reducing the workload of the judges, it seems to be the easiest way to evict the leased immovable property through execution without writ. Although the process will still go to the litigation stage in the event that the tenant objects to the proceedings, we believe that it will be much more beneficial in terms of resolving the dispute more quickly if the enforcement proceedings are initiated without a judgment first.

Footnotes

1 YAVUZ, Nihat, Kira Hukuku, Adalet Yayınevi, 8. Publish, p.904.

2 YAVUZ, Nihat, p.906.

3 KURU, p.744.

4 KURU, p.745.

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.