A real estate sale contract is a type of agreement that imposes the obligation of transferring and delivering the title deed of the property to the seller and the obligation of payment to the buyer, which creates mutual obligations. If either of the parties fails to fulfill these obligations, the breach of contract will occur. The party failing to fulfill its obligations under the contract will be responsible due to default, and the other party will have the opportunity to exercise certain rights. This article will discuss the legal ways to evict the previous property owner when the buyer has purchased the property but the previous owner refuses to evict, considering whether a contract has been made with the previous owner, and then answer frequently asked questions.
How to Evict the Previous Owner from the Purchased Property If No Contract Has Been Made?
If the previous owner is still living in the purchased property, the buyer may have given them a certain period to vacate based on mutual trust. However, if no payment has been made under the guise of rent, this cannot be interpreted as the existence of a lease relationship. In practice, however, some property owners fail to vacate the property they have sold for various reasons after the sale. These reasons may include being unable to find a suitable property within their budget, delays in the tenant eviction process from the purchased property, plans not going as expected, or the previous owner acting in bad faith. Therefore, if the previous owner is still living in the purchased property, it is crucial to understand the reasons behind their reluctance to move out and then, if there is bad faith, explore opportunities on how to evict the previous owner.
A. How to Evict the Previous Owner from the Purchased Property Based on Breach of Sale Contract
The answer to how to evict the previous owner from the purchased property depends on whether there is a lease agreement between the parties. The first option to consider is invoking the provisions regarding the seller's default. According to Article 97 of theTurkish Code of Obligations(TCO), as a rule, in reciprocal contracts, the parties are obliged to fulfill their obligations simultaneously. Therefore, if the previous owner is living in the purchased property, after receiving the payment for the property, the seller should fulfill their obligation to deliver the property immediately. If this is not the case, the seller will be legally liable for default, and the previous owner may face the following claims:
1. Compensation for damages arising from the failure to deliver the property.
2. Compensation for damages resulting from delays in the delivery.
3.Compensation for other damages such as the property price and the real estate agent's fee as if the sale never occurred.
However, before exercising these options, as stated in Article 123 of the TCO, the defaulting party must be given a reasonable period to fulfill its obligation or request the judge to grant such a period. There are situations where no such period needs to be granted, as stated in Article 124 of the TCO:
1. If it is clear that granting a period will be ineffective due to the debtor's current condition or attitude.
2. If the fulfillment of the obligation is useless for the creditor as a result of the default.
3. If the contract specifies that non-fulfillment of the obligation at a certain time or within a certain period will result in its rejection.
In summary, if the previous owner is living in the purchased property, and unless exceptional situations exist, a reasonable period should be given to the previous owner, and one of the options mentioned above can be used.
The Court of Appeals has stated: "...In a reciprocal contract, the creditor has three options against the defaulting debtor. These are: requesting performance as agreed, requesting compensation due to the delay, or terminating the contract and seeking compensation for negative damages. In cases of default on delivery, the creditor may either use one of the options stated in Article 106 of the TCO or request 'permission to perform' under Article 97 of the TCO." (Court of Appeals, 14th Civil Chamber, Decision Date: 20.06.2017, 2017/3041, 2017/5311)
B. How to Evict the Previous Owner from the Purchased Property Using an Action for Prevention of Unlawful Possession
Property rights are among the most significant rights that give the owner the authority to use, benefit from, and dispose of the property, and these rights are protected by law. Even if no contractual relationship is established, if the previous owner continues to live in the purchased property, it constitutes an infringement of the ownership rights. Therefore, if the buyer can file an action for the prevention of unlawful possession in accordance with Article 683 of the Turkish Civil Code (TCC), which states: "A person who owns something has the right to use, enjoy, and dispose of it within the limits of the law. The owner may file a claim for the return of property against anyone unlawfully holding it and may file a case to prevent any unlawful interference." This action is a solution to the issue of evicting the previous owner from the purchased property.
For this case to be filed, the following conditions must be met:
1. The interference with the ownership rights must be unlawful, meaning the previous owner is living in the property without any legal relationship such as a lease, usufruct, or occupancy right.
2. The unlawful interference must be continuing.
The Court of Appeals has ruled that, "...If the property is used by the defendant, and the ownership of the property was transferred to the plaintiff via sale on 22.04.2008, the defendant continued to occupy the property after the sale... Since the property is registered in the plaintiff's name, and the defendant has no right to use or occupy the property, it is clear that the defendant's continued occupation is unlawful and must be regarded as a violation of good faith..." (Court of Appeals, 8th Civil Chamber, Decision Date: 13.03.2019, E. 2018/3215, K. 2019/2680)
In addition, a claim for Unlawful Occupation Compensation can be made to recover the financial losses, such as missed rent payments, during the time the previous owner refused to vacate the property.
How to Evict the Previous Owner from the Purchased Property If a Lease Agreement Has Been Made
If the previous owner is still living in the purchased property and the new owner and the previous owner have made a lease agreement, the previous owner has fulfilled the delivery obligation, and no claims based on default can be made. In this case, the previous owner will not be considered as an unlawful occupier.
If the new owner has leased the property for a specified period, such as 6 months, the previous owner, who is now a tenant, can be evicted through aneviction lawsuit based on needor aneviction commitment, if certain conditions are met.
You may be interested in:Tenant Eviction in Turkey
How to Evict the Previous Owner from the Purchased Property with an Eviction Commitment
If the previous owner is still living in the purchased property and a lease agreement has been signed, the new owner may want to secure their position by obtaining an eviction commitment. In this case, the previous owner agrees to vacate the property after a specified period. If the previous owner does not vacate the property by the agreed date, the new owner can file a case within one month from that date.
How to Evict the Previous Owner from the Purchased Property for Personal Need
For eviction based on personal need, certain conditions must be met according to Article 351 of the Turkish Code of Obligations (TCO):
1. The place to be vacated must be a residential or covered workplace.
2. The plaintiff must be the new owner of the property.
3. The new owner or their family members must have a legitimate need for the property.
4. The need for the property must be genuine, necessary, and ongoing.
It is important to consider the legal time limits for filing such a case. An eviction case can be filed by the new owner within one month from the termination of the lease or within six months from the date of acquisition by giving written notice to the tenant.
Additionally, starting from 1 September 2023, it is mandatory to apply for mediation before filing a case related to rental disputes, according to Law No. 7445.
Frequently Asked Questions
How do I evict the previous owner from a property I bought?
There are several legal paths to evict the previous owner. Depending on the situation, you may use the seller's default to exercise one of the options or file a case for unlawful possession, ecrimisil, or eviction.
How many days does the previous owner have to leave the property after I buy it?
After purchasing a property, the previous owner is obliged to vacate it immediately. A notice can be sent demanding the property be vacated within a specified time, but there is no legally prescribed timeframe for this. You may demand immediate evacuation or give them a reasonable period to vacate.
What is the notice period for a tenant in a property I bought?
According to Article 351 of the TCO, the new owner must give the tenant written notice within one month from the acquisition of the property.
What should I do if the previous owner won't leave the property?
The answer to how to evict the previous owner depends on the specific circumstances. You should consult a lawyer to assess your options and ensure that the appropriate legal steps are taken.
Conclusion
After purchasing a property, the evictions of the previous owners can be pursued through various legal methods depending on the specific circumstances. Identifying the damages suffered and understanding potential future losses is crucial to prevent further financial loss. It is recommended to contact areal estate lawyer in Turkeyto choose the most appropriate legal route and avoid losing rights over time.
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.
