I. INTRODUCTION (WHAT IS EVACUATION DUE TO NEED?)
The words “need” and “evacuation” have entered our Turkish language from Arabic. According to the Turkish Language Association, ‘İhtiyaç’ means “need” and ‘tahliye’ means “evacuation”.
With the Turkish Code of Obligations No. 6098, which entered into force on 01.07.2012, a special regulation has been made for housing and roofed workplace leases.
Article 350/1 of the Turkish Code of Obligations (TBK) gives the right to file an eviction lawsuit “if the tenant is obliged to use the leased property for himself/herself, his/her spouse, his/her spouse, his/her descendants, his/her ascendants or other persons who are legally obliged to take care of him/her due to the need for housing or workplace”.
The phrase “residence” in the text of the article is interpreted broadly by the established case law. Places that are more or less continuously inhabited without the absolute intention to settle may also be subject to eviction.
II. TERMS AND SCOPE OF THE CASE DUE TO EVACUATION FOR NEED
A. Scope of the Case for Eviction on the Grounds of Necessity in Terms of Person (Who Can File an Eviction Case on the Grounds of Necessity?)
Article 10 of the Turkish Code of Obligations dated 12/1/2011 and numbered 6101 repealed the Law on Real Estate Leases dated 18/5/1955 and numbered 6570. In Article 7/b of the abrogated Law No. 6570, only the lessor’s own, spouse’s or children’s claims of need to be used as a residence were accepted. The Turkish Code of Obligations, on the other hand, has expanded the scope by including descendants, lineal descendants and other dependents of the lessor.
The concept of descendants includes children, grandchildren, great-grandchildren (and their descendants) as well as adoption. Lineal descendants are mother, father, grandmother, grandfather (and their descendants). Examples of other persons who are obliged to take care of as per the law are siblings.
B. Compulsory, Real and Sincere Need for Housing
As accepted by the Court of Cassation and established jurisprudence, the most important element for the eviction to be decided in eviction cases due to need is that the need is sincere, real and compulsory.
In its decision dated 06.02.1991 and numbered E. 6/624, K. 40, the Court of Cassation General Assembly of Civil Chambers stated that “…this need does not necessarily have to exist on the date of the lawsuit, but the need existing on the date of the lawsuit must have continued until the end of the lawsuit. In other words, the seriousness of the need that will arise shortly after the date of the lawsuit may be accepted, but if the need that existed on the date of the lawsuit subsequently disappears, the eviction request will be groundless.” and elaborated the existence of the need temporally.
The basis of this justification is the rule of honesty in Article 2 of the Turkish Civil Code No. 4721. In other words, the right to sue granted by the law to the lessor cannot be used arbitrarily against the lessee.
Needs that do not continue during the trial, in other words, temporary needs do not constitute a reason for eviction. In cases of eviction due to need, the existence of the alleged need on the part of the lessor should be examined in detail. The lessor can prove the existence of the alleged need with all kinds of evidence. The evaluation of the validity of the need is left to the discretion of the judge. The judge, who will evaluate the reality and sincerity, should take into account the lifestyle of the lessor claiming the need, the needs arising depending on the lifestyle, the social and economic situation and other conditions.
C. Scope of Housing Need
Whether the need asserted by the lessor is compulsory, real, and sincere is determined according to the characteristics of the concrete case. Therefore, the asserted need may sometimes be accepted as real, and sometimes it may be rejected as insincere.
The main situations where the lessor’s housing need is recognized;
- The housing needs of the lessor, his spouse, his descendants, his ascendants, or the persons he is obliged to take care of by law
- The lessor residing in the rental property
- The lessor living with someone else
- Need for rented accommodation for health reasons
- The location of the leased property is more favorable economically and physically
- Landlord’s need for a summer residence
- Lessor’s workplace needs
In addition to the reasons listed above; the assignment of the lessor, who is a civil servant, to the city where the lessor’s house is located, the lessor’s spouse’s desire to live in a separate residence while the divorce case is ongoing, the definitive return of the lessor who works abroad, the purpose of keeping household goods in the lessee, etc. examples can be given. As long as the need is real and sincere, these examples can of course be multiplied.
III. PROHIBITION OF RE-LEASING
The lessor may not rent the real estate evacuated due to necessity to anyone other than the former lessee for a period of three years without force majeure or just cause (TBK Art. 355/f.1). The lessor’s breach of this obligation is subject to penal sanction (compensation) by the legislator. According to the last paragraph of Article 355 of the TBK, the lessor becomes liable to pay compensation to the former lessee not less than one year’s rent paid in the last lease year.
IV. TIME LIMIT FOR EVICTION ON GROUNDS OF NECESSITY
In order to file an eviction lawsuit based on the need for housing or workplace, there is no need for a prior notice. In the eviction lawsuits to be filed due to need, a binary distinction is made according to whether the lease agreement is for a definite or indefinite term.
For fixed-term residential or workplace leases, this lawsuit must be filed within one month as of the end of the lease term. For indefinite-term contracts, it must be filed within one 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.
The notice given within one month at the latest allows the lawsuit to be filed until the end of the year (Art. 353 TBK). In other words, this lawsuit can be filed for each renewed lease period, provided that the need continues.
V. PARTIES TO EVICTION PROCEEDINGS
The lessor can file a lawsuit for eviction due to necessity. The lessor does not have to be the owner at the same time in order to file a lawsuit.
The defendant in the eviction due to necessity case is the party appearing as the tenant in the lease agreement.
VI. THE COMPETENT AND AUTHORIZED COURT IN AN EVICTION DUE TO NECESSITY CASE
Pursuant to Article 4 of the Code of Civil Procedure No. 6100, all disputes arising from the lease relationship are heard by the civil courts of peace.
“Civil courts of peace, regardless of the value or amount of the subject matter of the lawsuit…
Except for the provisions relating to the eviction of leased immovables through execution without judgment in accordance with the Execution and Bankruptcy Law dated 9/6/1932 and numbered 2004, the lawsuits concerning all disputes, including the lawsuits for receivables arising from the lease relationship, and the lawsuits filed against these lawsuits…”
The parties may determine the competent court with the agreement between them. Eviction cases are subject to general jurisdiction rules. A jurisdiction agreement does not remove the general jurisdiction; therefore, the plaintiff may file his/her lawsuit either in the court with general jurisdiction or in the court specified in the agreement.
VII. EVICTION ORDER
As a result of the judge’s decision made as a result of the eviction lawsuit, the lease agreement ends. Pursuant to paragraph 1 of Article 26 of the Enforcement and Bankruptcy Law;
“When the judgment regarding the eviction and delivery of an immovable is given to the enforcement office, the enforcement manager orders the debtor to deliver the judgment within seven days by serving an enforcement order as written in Article 24”.
The deterioration of economic conditions day by day has negatively reflected on many sectors, including real estate. Landlords have not been able to receive the rents they desire, and tenants have had to face high rents.
The legislator has tried to prevent unfair and dishonest activities and to protect the tenant, who is the weaker party of the contract, with rules such as the prohibition of renting for three years and the obligation that the need must be sincere and real.
Although there is no real and sincere need, we would like to remind you that you may face the penalty of paying compensation as a result of eviction lawsuits filed with the sole purpose of removing the tenant from the dwelling and in bad faith. Landlords who think and claim that the rental price is low can apply to the remedies in our article on “Determination of the Rental Price and Adaptation Case”.
Atty. Yusuf Ozan ÖZTOP