Two Justified Warnings Rule (TCO 352/2) In Turkish Law

Navigating Turkish Rental Law: A Challenge for International Landlords

For international landlords with property in Turkey, dealing with a tenant who consistently pays rent late is a common and frustrating problem. While the temptation may be to take swift action, it is crucial to understand that Turkish rental legislation is fundamentally designed to be tenant-protective. This legal landscape transforms eviction from a simple demand into a precise, rule-based procedure that requires careful navigation and, often, expert legal guidance. The law provides landlords with specific tools, but using them incorrectly can lead to significant delays, financial loss, and failed legal action.

This article serves as a comprehensive, step-by-step guide to one of the most effective, yet misunderstood, eviction methods for habitual late payment: the "two justified warnings" (iki haklı ihtar) rule, codified under Article 352/2 of the Turkish Code of Obligations (TCO). This legal ground is not for a tenant who simply fails to pay rent once, but for the tenant who makes a habit of paying late, even if they eventually settle their debt. We will provide a deep pe into the strict conditions, mandatory procedures, common pitfalls, and strategic considerations that every landlord must master to successfully reclaim their property using this powerful legal provision.

Foundations of Turkish Lease Agreements: What Every Landlord Must Know

The Tenant-Protective Nature of Turkish Rental Legislation

Before delving into specific eviction procedures, it is essential to grasp why the process is so meticulous. Turkish law, particularly for residential and roofed workplace leases, operates on the principle of protecting the tenant. This is rooted in the social function of housing and the perceived imbalance of power between landlord and tenant. As a result, a landlord cannot terminate a lease simply because the contract period has ended or because they have found a better offer. Eviction is only possible based on a limited set of grounds explicitly defined by law. This protective framework is precisely why a specific, rule-based procedure like the "two justified warnings" is necessary; it provides a legal pathway for landlords to act against a tenant's recurring breach of contract, but only by following a series of strictly enforced steps.

Eviction for Non-Payment (TCO 315) vs. Eviction for Habitual Lateness (TCO 352/2)

A critical mistake many landlords make is confusing the two primary legal grounds for eviction related to unpaid rent. While they both address non-payment, they target different scenarios and have completely different procedures.

1. Eviction for Default (Temerrüt Nedeniyle Tahliye - TCO 315): This is the appropriate action for a single, specific instance of non-payment. The process is as follows:

• The tenant fails to pay the rent.
• The landlord sends a formal written warning, giving the tenant a "cure period" of at least 30 days to pay the overdue amount.
• This notice must explicitly state that if payment is not made within this period, the lease agreement will be terminated.
• If the tenant pays the full amount within the 30-day period, the landlord's right to evict for that specific default is lost. The process would have to start over if the tenant defaults again in a subsequent month.

2. Eviction for Two Justified Warnings (İki Haklı İhtar - TCO 352/2): This is the core focus of our guide and a more strategic tool. It is not about a single default but addresses the habit of paying late. This method is designed for the tenant who consistently breaches the payment timeline, even if they eventually pay up after being prompted. The key difference is that a tenant paying the rent after receiving a warning under this rule does not "cure" the breach; the lateness itself has already "justified" the warning. If a landlord can prove two such justified warnings occurred within a single rental year, they gain the right to file for eviction at the end of that year. This provision was created to provide landlords with an effective remedy against tenants who chronically disregard payment deadlines, a situation where the 30-day cure period of TCO 315 would be ineffective.

Condition 2: The Form and Content of the Warning Notice

Once the timing is correctly mapped out, the next hurdle is ensuring the warning notice itself is legally valid. Mistakes in the form, content, or delivery method of the notice are common and can instantly derail an otherwise strong case. The law and court precedents are exacting on these requirements.

The "Written Form" Requirement: How to Send a Valid Notice

Article 352/2 explicitly requires the warning to be in "written" form. While this seems straightforward, how you achieve and prove this written delivery is critical.

• Notary Public (Noter): This is the gold standard and the most highly recommended method. A notice sent via a notary public provides indisputable, official proof of both the content of the warning and the date it was delivered to the tenant. It eliminates any potential disputes about what was said or when it was received.
  
• Registered Mail with Return Receipt (İadeli Taahhütlü Mektup): This is a viable and commonly used alternative to a notary. It provides official proof of delivery from the Turkish postal service (PTT). While generally reliable, it is sometimes considered slightly less robust than a notary's certificate in the face of a determined legal challenge.
  
• Hand Delivery with Written Acknowledgment: It is legally possible to deliver the notice by hand, but only if the tenant signs a document acknowledging receipt of the written warning, with the date clearly noted. This method is highly risky, as a tenant can simply refuse to sign, leaving the landlord with no proof of delivery.
  
• Email, WhatsApp, and Other Digital Communication: This is a frequent source of error for modern landlords. As a general rule, standard emails or messages sent via platforms like WhatsApp are not considered valid for a "two justified warnings" eviction. They typically fail to meet the strict legal standards for "written form" and, more importantly, do not provide the level of verifiable proof of delivery that courts require for this specific action. The exception is a notice sent with a secure electronic signature (güvenli elektronik imza) as defined under Turkish law (TCO Art. 14), which holds the same legal weight as a handwritten signature. However, this requires the sender to have a secure e-signature and is often sent via the Registered Electronic Mail (KEP) system, making it a less common method for inpidual landlords. For maximum security, a notary or registered mail remains the best practice.
  

Who Are the Parties? Getting the Sender and Recipient Right

A legally perfect notice can be invalidated if it is not sent by the correct person to the correct person.

The Sender (The Landlord):
The warning must be issued by the "landlord" (kiraya veren) as named in the lease agreement. This person is not always the same as the legal "owner" (malik) of the property. If the property is sold, the new owner legally inherits the lease agreement and becomes the new landlord (TCO Art. 310), granting them the right to issue warnings.

The situation becomes complex if there are multiple landlords:

• Shared Ownership (Paylı Mülkiyet): In this structure, a warning notice generally requires the consent and action of a majority of both the shareholders and the ownership shares.
• Joint Ownership (Elbirliği Mülkiyeti): This is common in inheritance situations. The rule is even stricter: all owners must act together (unanimously) to issue a valid warning.

Failing to meet these majority or unanimity requirements is a critical error that can nullify the warning. This is a key area where seeking legal advice is crucial to avoid procedural mistakes.

The Recipient (The Tenant):
The rule here is absolute: the warning notice must be addressed and sent to every tenant listed on the lease agreement. If a couple, partners, or multiple inpiduals are all signed as tenants, each one must receive a separate, formal notice. Failure to notify even one of the tenants on the lease will invalidate the entire process for all of them, as the eviction action is considered legally inpisible.

The Content of the Warning: What Must It Say?

While the delivery method is procedural, the content of the notice is substantive. There is some legal debate on the level of detail required, but a "safe approach" is always recommended to prevent challenges.

The Safe Approach: The warning should be unambiguous and clearly state:

1. Which specific month's rent is overdue.
2. The exact amount of rent that is unpaid.
3. A clear demand for payment of this overdue amount.

The Legal Nuance: The Turkish Court of Cassation (Yargıtay), the highest court of appeals, has ruled in some cases that explicitly stating the month is not strictly necessary if the debt is otherwise clear and undisputed. However, relying on this is a significant risk. A tenant can easily challenge a vague notice, arguing they were unsure which payment it referred to. Therefore, the strongest legal advice is to always be specific.

A Crucial Distinction: It is vital to understand that this warning notice is fundamentally different from the notice sent for eviction due to a single default (TCO 315). A "justified warning" notice for TCO 352/2 does not need to:

• Grant the tenant a 30-day period to pay.
• State that eviction will be the consequence of non-payment.

It is simply a formal, written demand for the specific, overdue rent. Including extra information or incorrect legal threats can create confusion and potentially weaken the notice's legal standing.

Condition 3: Ensuring the Warning is "Justified" (Haklı)

A warning can be perfectly timed and correctly delivered, but if it is not legally "justified," it is worthless for an eviction case under TCO 352/2. The justification is the substantive heart of the matter. It means the landlord had a legitimate, legally recognized reason to send the notice at that specific moment. Several common mistakes can strip a warning of its justification.

The Rent Must Be Due and Unpaid (Muacceliyet)

This is the most fundamental requirement. A warning notice is only justified if it is sent after the rent has become due and payable (muaccel) and has not been paid. A warning sent even one day before the official due date is premature and legally invalid.

Determining the exact due date is therefore critical:

• If the Lease Agreement Specifies a Date: This is the most straightforward case. If the contract states, "Rent is payable by the 5th day of each month," the rent becomes due at the end of the day on the 5th. The landlord can legally send a justified warning on the 6th if the payment has not been received.
  
• If the Contract is Vague (e.g., "Paid monthly in advance"): When a specific day is not mentioned, interpretation can become tricky. While "in advance" implies the beginning of the month, the Turkish Court of Cassation (Yargıtay) has, in some past rulings, granted the tenant a grace period of a few business days to complete the payment. To be safe and avoid challenges, it is advisable for landlords in this situation to wait until the 3rd or 4th day of the month has passed before sending a warning.
  
• If the Lease Agreement is Silent on the Due Date: In the rare case that the contract does not mention a payment date at all, the Turkish Code of Obligations provides a default rule. TCO Article 314 states that rent is due "at the end of each month and at the latest at the end of the lease term." Therefore, the landlord would have to wait until the first day of the following month to send a justified warning.
  

Partial Payments and Minor Amounts

A tenant does not need to miss the entire rent payment to be in default. Paying less than the full amount also constitutes a breach. A landlord is fully justified in sending a warning for the remaining unpaid balance, no matter how small.

However, legal principles require acting in good faith. If the outstanding amount is trivially small and insignificant (e.g., a few cents due to a calculation error), a court could potentially view a warning based on this amount as an abuse of rights (hakkın kötüye kullanılması). This is a very high bar for the tenant to meet, but it highlights the importance of focusing on substantive, not minuscule, breaches.

What Does NOT Count as "Rent"? The Side-Costs Trap

This is one of the most common and costly mistakes landlords make. The eviction ground under TCO 352/2 applies exclusively to the non-payment of the "rent payment" (kira bedeli) itself.

Unpaid side costs, even if they are the tenant's responsibility under the lease, cannot be the basis for a justified warning under this specific article. A warning sent for any of the following is not justified for the purposes of this eviction process:

• Utility bills (water, electricity, gas)
• Common area maintenance fees (aidat)
• Repair costs
• Other ancillary charges

If a landlord sends a notice demanding only unpaid aidat, for example, that notice will not count as one of the two justified warnings needed for eviction. This is a critical distinction from eviction for default under TCO 315, where the law explicitly includes side costs.

Valid Tenant Defenses That Invalidate a Warning

A warning can also be rendered unjustified if the tenant has a legally valid reason for not paying the rent. A landlord must be aware of these potential defenses:

• Right of Set-Off (Takas): If the tenant has a separate, due, and payable monetary claim against the landlord, they can formally declare that they are "setting off" their debt against the landlord's debt to them. For example, if the tenant had to pay for an urgent, necessary repair (like a burst pipe) that the landlord was responsible for but failed to fix, the tenant can deduct that cost from the rent. If they have properly notified the landlord of this set-off, any warning the landlord sends for the "unpaid" portion of the rent will be invalid.
  
• Right to Withhold Performance (Ödemezlik Def'i): The landlord has a continuous duty to maintain the property in a condition suitable for use. If a significant defect arises (e.g., a failing heating system in winter) and the landlord, after being formally notified, fails to perform the necessary repairs, the tenant has the right to withhold rent payments until the issue is resolved. A warning sent by a landlord who is already in breach of their own primary obligations will not be considered justified.
  
• Landlord's Default (Alacaklı Temerrüdü): A landlord cannot cause the tenant's default and then use it against them. This occurs if the landlord refuses to accept a properly tendered rent payment. Examples include refusing to provide a bank account number, closing the designated bank account without providing a new one, or failing to show up to collect a cash payment as agreed in the lease. If the tenant can prove they attempted to pay but were prevented from doing so by the landlord, any subsequent warning is unjustified.

The Most Critical Pitfall: The "Payment Before Receipt" Doctrine

Of all the procedural traps in the "two justified warnings" process, none is more critical, more counter-intuitive, or more responsible for failed eviction cases than the "payment before receipt" doctrine. This is not a rule written explicitly in the law itself, but rather a strict and long-standing interpretation by the Turkish Court of Cassation (Yargıtay). Understanding this doctrine is absolutely essential for any landlord.

The Yargıtay's Strict Interpretation: A Major Risk for Landlords

This judicial precedent creates a major risk that every landlord must be aware of. The rule is as follows:

The Rule: For a warning to be considered "justified," the tenant's rent payment must be made after the written warning notice has been officially delivered to and received by the tenant.

If the tenant pays the overdue rent before the notice is delivered, the warning is deemed unjustified for the purposes of eviction, even if the landlord had already initiated the legal process by sending the notice.

Let's walk through a clear, practical scenario to illustrate this critical point:

• January 1: Rent for January is due. The tenant does not pay.
• January 4: The landlord, having correctly identified the default, goes to a notary public and sends a formal warning notice for the unpaid January rent.
• January 5: The tenant, completely unaware that a notice is on its way, makes a bank transfer and pays the overdue January rent in full.
• January 6: The official notary notice is delivered to the tenant's address.

The Result: According to the established precedent of the Yargıtay, the warning sent on January 4th is NOT JUSTIFIED. Why? Because the payment on January 5th occurred before the receipt of the notice on January 6th. Even though the tenant paid late, causing the landlord to incur the time and expense of sending a legal notice, the court's doctrine invalidates the warning.

The Rationale and The Critique (Explained for a Client)

It is natural for a landlord to find this rule perplexing and unfair. To understand it, one must look at the court's reasoning and its practical consequences.

• The Court's Rationale: The judiciary's rationale is based on the perceived purpose of the warning. The courts have interpreted the warning's primary function as being a "prompt" to encourage the tenant to fulfill their obligation. If the tenant fulfills the obligation (pays the rent) before they are officially prompted (receive the notice), then the warning is considered to have had no legal effect.
  
• A Practical Critique: From a landlord's perspective, this creates a frustrating "race against time." The validity of your legal action depends not on the tenant's breach, but on whether your notary's delivery person or the postal service is faster than the tenant's bank transfer. This doctrine can feel like it protects a tenant who is habitually late, allowing them to pay at their leisure, secure in the knowledge that as long as they pay before a notice arrives, they face no consequences under TCO 352/2. This is a primary reason why precise timing and an immediate, strategic response to late payment are essential.
  

Practical Implications: Checking Timestamps

This is not a theoretical debate. In the event of an eviction lawsuit, courts will meticulously scrutinize the evidence. The landlord's legal team will present the notice delivery receipt, and the tenant will present their bank transfer record or payment receipt. The dispute can come down to the exact date of each event. In some cases, courts have even examined the specific time of day on the delivery receipt versus the timestamp on the bank transfer to determine which occurred first. This highlights the incredibly detailed and procedural nature of Turkish rental law.

The Modern Challenge: Electronic Notifications (E-Tebligat) and the 5-Day Rule

The "payment before receipt" doctrine has become even more perilous with the rise of Turkey's official Electronic Notification system, known as E-Tebligat. While seemingly a modern and efficient solution, its specific legal mechanics create a significant trap for landlords pursuing an eviction under TCO 352/2.

What is E-Tebligat?

E-Tebligat is the official electronic notification system used by Turkish government bodies, courts, and legal professionals to serve official documents. Certain entities are legally required to have an E-Tebligat address, including:

• All legal entities (e.g., limited liability companies, joint-stock companies).
• Public institutions and organizations.
• Notaries, lawyers, mediators, and other legal professionals.

Additionally, any inpidual can voluntarily apply for and obtain an E-Tebligat address. This means a landlord might be able to send a warning to a tenant's official E-Tebligat address. However, doing so without understanding the rules is extremely risky.

The "Deemed Received" Rule and Its Danger

The core danger of E-Tebligat lies in Article 5 of the Electronic Notification Regulation. The law states that an electronic notification is considered legally "deemed to have been served at the end of the fifth day" following the date it reaches the recipient's E-Tebligat address.

This is not an optional interpretation. It is a legal presumption. It does not matter if the recipient opens the message on Day 1 or never opens it at all. For the purposes of the law, the official date of receipt is automatically fixed at the end of Day 5.

How E-Tebligat Amplifies the "Payment Before Receipt" Risk

This 5-day rule creates a disastrous interaction with the "payment before receipt" doctrine established by the Yargıtay. It essentially gives the tenant a 5-day grace period to pay the rent and invalidate the landlord's warning.

Let's revisit our scenario, this time using E-Tebligat:

• January 1: Rent is due. The tenant does not pay.
• January 4: The landlord sends the warning notice to the tenant's official E-Tebligat address. The notice arrives in the tenant's inbox almost instantly.
• January 5: The tenant, who may not check their E-Tebligat inbox regularly, remembers the rent and pays the overdue amount in full.
• January 9 (End of Day 5): According to the law, the E-Tebligat sent on January 4th is now legally "deemed received" by the tenant.

The Result: The warning is NOT JUSTIFIED. The payment was made on January 5th. The legal receipt date is January 9th. The payment occurred before the legal receipt. The landlord's warning is now void for the purpose of eviction, and they must wait for another default to start the process again.

Strategic Advice: When to Use (and Not Use) E-Tebligat for Warnings

Given this significant risk, the strategic advice is clear:

• Avoid E-Tebligat for TCO 352/2 Warnings: For the specific purpose of sending one of the two justified warnings, E-Tebligat should generally be avoided. The built-in 5-day delay provides a window for the tenant to defeat the warning's justification.
  
• Stick to the Safest Method: The most reliable and strategically sound method for sending a justified warning remains delivery via a Notary Public. A notary messenger can often deliver the notice within 1-2 business days, drastically shortening the time window for the tenant to pay. This speed minimizes the risk of the "payment before receipt" doctrine and maximizes the landlord's chances of securing a legally "justified" warning.
  

Condition 4: The Final Step - Filing the Eviction Lawsuit

Successfully securing two justified warnings is a significant achievement, but it does not, by itself, evict the tenant. It merely grants the landlord the right to file for eviction. The final step is to exercise this right by initiating a formal lawsuit. This stage is governed by its own strict deadline and procedural rules that must be followed precisely.

The One-Month Deadline: An Unforgiving Time Limit

The most critical rule at this stage is the one-month deadline for filing the lawsuit. This is not a mere guideline; it is a "forfeiture period" (hak düşürücü süre). This is a very strict type of deadline in Turkish law. If missed, the right to evict based on those specific two warnings is lost permanently. The court is required to check this deadline on its own initiative, even if the tenant does not raise it as a defense.

The start date for this one-month period depends on the lease term:

• For Leases of One Year or Longer: The lawsuit must be filed within one month starting from the end of the rental year in which the two warnings were issued.
  
  • Example: A lease starts on January 1, 2024. The rental year ends on December 31, 2024. The landlord sends justified warnings for late payments in March 2024 and September 2024. The landlord has the right to file an eviction lawsuit between January 1, 2025, and January 31, 2025. If the landlord fails to file by January 31, 2025, their right to evict based on the 2024 warnings is extinguished forever.
• For Leases Shorter Than One Year: The lawsuit must be filed within one month starting from the end of the lease term itself.
  
  • Example: An 8-month lease runs from January 1, 2025, to August 31, 2025. The landlord sends justified warnings in February and June. The landlord must file the eviction lawsuit within one month of the lease ending, i.e., between September 1, 2025, and September 30, 2025.

Where to File: Jurisdiction and Competent Court

The proper venue for filing an eviction lawsuit is crucial for the case to be heard.

• Competent Court: The case must be filed in the Civil Court of Peace (Sulh Hukuk Mahkemesi). These courts have specific jurisdiction over rental disputes and are experienced in handling such matters.
  
• Jurisdiction (Location): As a general rule of Turkish civil procedure, the lawsuit is filed in the court located at the defendant's (tenant's) place of residence. In nearly all rental eviction cases, this corresponds to the location of the rental property itself.
  

The Lawsuit Process in Brief

Initiating the lawsuit involves filing a formal petition (dava dilekçesi) with the competent Civil Court of Peace. This petition must clearly state the grounds for the eviction and be accompanied by all necessary evidence, including:

1. The written lease agreement.
2. Copies of the two justified warning notices.
3. Official proof of delivery for both notices (e.g., notary delivery receipts, registered mail return receipts).
4. Evidence of the late payments (e.g., bank statements showing payment dates).

Once the case is filed, the court will officially serve the petition to the tenant, who then has a right to submit a formal reply. The court's role is to act as an impartial adjudicator. It will meticulously review the evidence presented by the landlord to verify that all four conditions—correct timing, correct form, legal justification, and timely filing of the lawsuit—have been met. If the landlord successfully proves their case, the court will issue a decision ordering the eviction of the tenant.

Strategic Summary and Final Recommendations

Navigating the eviction process based on two justified warnings is a journey through a landscape of strict procedures and legal nuances. For international property owners in Turkey, understanding this path is not just about knowing the law, but about executing it with flawless precision. A single misstep can nullify the entire effort, wasting time and resources. This summary provides a strategic overview and final recommendations to ensure success.

A Process of Precision, Not Power

The core takeaway is that this eviction method is a technical, procedural tool. It does not depend on the landlord's moral high ground or the tenant's general poor behavior. Success hinges entirely on the demonstrable proof that four key conditions have been met:

1. Correct Timing: Both warnings were issued for late payments within the same rental year.
2. Correct Form: The warnings were sent in writing via a legally defensible method (preferably a notary) to all tenants on the lease.
3. Legal Justification: The warnings were for overdue rent only (not side costs) and were not invalidated by a tenant payment made before the notice was received.
4. Timely Lawsuit: The eviction case was filed in the correct court within the strict one-month deadline following the end of the relevant rental year.

Failure on any one of these points will cause the case to fail.

The Three Most Common and Costly Mistakes to Avoid

Across thousands of cases, the same errors repeatedly appear. Avoiding these three pitfalls will dramatically increase the chances of a successful outcome:

1. Timing and Deadline Errors: The two most unforgiving timelines are the "same rental year" rule for the warnings and the "one-month" forfeiture period for filing the lawsuit. These are absolute and not open to interpretation. Always have the lease start date clearly documented and mark the lawsuit filing deadline on a calendar the moment the second justified warning is secured.
   
2. Sending Invalid Warnings: A warning is invalid if it is not delivered correctly or if it demands the wrong thing. Sending a notice via standard email or WhatsApp is a fatal error. Equally fatal is sending a warning for unpaid utility bills or building fees (aidat). The warning must be for the core rent payment and delivered by a method that provides undeniable proof of receipt, with a notary being the safest option.
   
3. Ignoring the "Payment Before Receipt" Doctrine: This is the ultimate procedural trap. A landlord's legal action is invalidated if the tenant pays the overdue rent even a moment before the warning notice is officially delivered. This risk is amplified by the 5-day "deemed receipt" rule for E-Tebligat. The only way to mitigate this risk is to act with speed, using the fastest possible delivery method (notary) the moment a default occurs.
   

The Golden Rule: When in Doubt, Seek Counsel

While this guide provides a comprehensive overview, it cannot replace tailored legal advice based on the specifics of your situation. Issues such as multiple owners (shared or joint ownership), ambiguous lease terms, or a tenant who raises sophisticated legal defenses (like a set-off claim) add layers of complexity that require professional analysis.

Engaging legal counsel is not an admission of weakness; it is a strategic investment in risk management. The cost of a failed eviction—in terms of lost rent, legal fees, and time—is invariably higher than the cost of professional guidance from the outset. A specialized lawyer can ensure every step is executed correctly, from drafting the initial warning to filing the final lawsuit, transforming a complex legal challenge into a clear, manageable process.

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.