1.WHAT IS AN EVICTION UNDERTAKING?
Written eviction undertaking is regulated in paragraph 1 of Article 352 of the Turkish Code of Obligations No. 6098. According to this provision, if the lessee has stated in writing that he/she will evacuate the leased property on a certain date, but has not evacuated the real property on this date, the lessor has the right to request the evacuation of the real property based on the said evacuation commitment.
2.VALIDITY CONDITIONS OF THE EVICTION UNDERTAKING
2.a. The Eviction Undertaking must be in Writing
The most important condition for the validity of the eviction undertaking is that it must be in writing. It is sufficient if it is in ordinary writing. In this context, it is clear that the eviction of the tenant cannot be requested based on an oral eviction commitment.
In practice, it is accepted that the undertaking may be given in different forms. The Court of Cassation accepts the validity of the statements recorded in the minutes of the hearing during the trial. Another form of eviction undertaking is to record the tenant’s statement regarding the eviction and the date of eviction in the minutes of the enforcement proceedings.
The written commitment does not need to be notarized. However, the undertaking whose signature is notarized will benefit the lessor in case the lessee attempts to prolong the eviction by denying the signature.
2.b. The date of eviction must be clearly and unambiguously stated
It is a mandatory provision of the law to specify the date on which the lease will be evacuated. A statement such as “I will evacuate the leased property” is invalid.
2.c. The Eviction Commitment must not be given at the same time with the Lease Agreement
The signature of an eviction undertaking by the lessee at the time of the initial lease agreement without the delivery of the leased premises is not based on the free consent of the lessee who is suffering from housing or workplace shortage, and the acceptance of the validity of this undertaking nullifies the provisions of the law limiting the right of the lessor to terminate the lease agreement.
In practice, the undertakings are signed without a date to make the undertaking valid. If the lessee claims that he/she signed the undertaking with the lease agreement under force and against his/her free will, he/she is obliged to prove this claim.
In ongoing lease agreements, the eviction commitments given in the renewed year are accepted as valid. The reason for this is that the lessee is currently residing in the leased property and it is accepted that these commitments are given with free will while residing in the leased property. For example; a lease agreement with a start date of 01.01.2021 will be renewed on 01.01.2022. In this context, while a commitment made on 01.01.2021 is invalid, a commitment made on 01.01.2022 will be valid.
2.d. The Eviction Commitment must be signed in person or by proxy
Another condition for the validity of the eviction undertaking is that the eviction undertaking must be given and signed by the tenant himself. A commitment made by a family member who lives with the tenant is not valid.
If there is more than one tenant in the same real estate, the eviction commitment must be given by all of the tenants (since there is compulsory litigation friendship between the tenants).
In real properties that are rented as a family dwelling and have a family dwelling annotation, the explicit consent or approval of the non-tenant spouse is also required. Turkish Civil Code No. 4721 restricts the power of disposition over the family dwelling, which is the reason for this situation.
In leases made by a legal entity, the eviction commitment must be given by the authorized body or company official/representative.
The eviction commitment may also be given through a proxy. It is a matter of debate in the doctrine whether the power of attorney requires a special authorization for the attorney to issue an eviction undertaking. For this reason, paying attention to this situation while issuing the power of attorney and commitment will be positive for the parties and will eliminate the problems that may arise later.
3.EVICTION LAWSUIT AND ENFORCEMENT PROCEEDINGS BASED ON EVICTION UNDERTAKING
First of all, it should be noted that a valid eviction commitment issued in accordance with the rules listed above does not terminate the lease agreement on its own. For this, the lessor must resort to legal remedies. The first of these legal remedies is the eviction lawsuit to be filed in the Civil Court of Peace, and the other is the enforcement proceeding.
3.a. Parties to the Eviction Case
The plaintiff in eviction cases is the lessor. If the number of lessors is more than one, the lawsuit is filed jointly by all lessors. In the event of the death of the lessor, the heirs of the lessor may request the eviction of the immovable property based on the commitment. The death of the lessor does not invalidate the undertaking.
In the event that the lease agreement is transferred from the lessor to a third party (new lessor) by contractual or legal means, since the ancillary agreements will automatically be transferred to the transferee, the transferee (new lessor) will be able to demand eviction from the lessee based on the written eviction commitment between the previous lessor and the lessee.
3.b. Duration of Eviction Case
If the lessee does not evacuate the leased property on the commitment date, an eviction lawsuit must be filed within one month from the commitment date or an execution proceeding must be applied. Otherwise, the commitment becomes invalid and the lease agreement continues. In other words, this period is a grace period. Since these periods are related to public order, even if they are not put forward by the parties, they are automatically taken into consideration by the court and the cases that are not filed in due time are dismissed.
3.c. Eviction of the Tenant through Enforcement Proceedings
Eviction may be requested against the tenant by filing an enforcement proceeding based on Articles 272 and 273 of the Enforcement and Bankruptcy Law. Article 272 of the Execution and Bankruptcy Law stipulates that the tenant may object to the eviction order notified to him within 7 (seven) days, if he does not object, he must evacuate the immovable within 15 (days) and otherwise he/she will be forcibly removed from the immovable.
The objection made by the tenant to the eviction order within the period stops the proceedings. If the tenant objects to the evacuation order, the lessor may request the removal of the objection in the Enforcement Law Court or may file a lawsuit for the cancellation of the objection in the general courts.
In commitments that are not issued by a notary or where the date and signature are not notarized, if the tenant objects to the signature or date in the eviction commitment, the removal of the objection cannot be requested from the Enforcement Civil Court. In this case, the lessor who requests eviction is obliged to file a lawsuit in the civil court of peace.
3.d. Competent and Authorized Court in Eviction Case
The court in charge of all kinds of eviction, termination and determination lawsuits based on the lease agreement and the receivables and compensation lawsuits filed together with these lawsuits is the Civil Court of Peace. The competent court is the court where the immovable is located.
4.BLANK EVICTION COMMITMENT
In practice, eviction commitments are often issued by making the tenants sign blank signature, taking advantage of the difficult situation of the tenant who wants to validate the eviction commitment and find a house and settle as soon as possible. In our law, a blank signature is considered valid provided that it is filled out in accordance with its purpose. However, it should be noted that the blank signature may be filled in against the will of the other party. In the event that the signed blank paper is issued against the will, erroneously, maliciously, the burden of proof will be on the tenant who signed it.
5.OTHER LAWSUITS THAT MAY BE FILED
Since the Turkish Code of Obligations No. 6098 sets forth many reasons for the evacuation of the leased premises, the lessor may file a lawsuit based on the evacuation commitment or, if the conditions are met, may file a lawsuit for evacuation due to necessity. It may even assert these two lawsuits in a single lawsuit.
Again, if the lessor does not have the will to evacuate the evacuation mecuru, but wants the rental price to be updated, this time he/she may file a rent determination or rent adjustment lawsuit against the lessee to update the rental price.
Av. Yusuf OZAN ÖZTOP
Av. Lider TANRIKULU
2005/5933 E. 2005/7384 K (Yargıtay 6. Hukuk Dairesi 07 11, 2005).
Tandoğan. (2010). Borçlar Hukuku Özel Borç İlişkileri (s. s.196). içinde
Tandoğan. (2010). Borçlar Hukuku Özel Borç İlişkileri (s. 198). içinde
Yargıtay 6. HD, 25.04.1991, E. 1991/5234, K. 1991/5536..