Where a tenant who has failed to pay the rent when due has been served two justified notices within the same lease year, the landlord may rely on that fact to demand that the leased property be vacated. Known in practice as eviction on the ground of two justified notices, this type of action is a specific remedy granted to the landlord against tenants who persistently undermine payment discipline.
The court’s power to order the property to be vacated does not depend on late payment alone. The notices must be regarded as justified, both must fall within the same lease year, they must have been served on the tenant in accordance with the law, and the action must be brought within the preclusive period. The absence of any one of these conditions may lead to the claim being dismissed without an examination of the merits.
Below we examine in detail the statutory basis of this action, the conditions required, the notice methods regarded as valid, the calculation of the periods, the burden of proof, the conduct of the proceedings and the difficulties frequently encountered in practice.
What Is an Eviction Action Based on Two Justified Notices?
This is the action by which, where the tenant has been served two justified notices within the same lease year because of a failure to pay the rent on time, the landlord seeks the termination of the lease relationship and the vacating of the leased property on the basis of the second paragraph of Article 352 of the Turkish Code of Obligations No. 6098. This remedy, which is one of the grounds for eviction recognised in lease law, confers a right of action on the landlord where the statutory conditions have materialised, even if the rent has subsequently been paid.
Default and Default of the Tenant
Default is the legal position that arises where the debtor fails to perform its obligation at the time laid down by the law or by the contract. Non-performance, late performance or defective performance of the obligation places the debtor in default. In the law of obligations, default is an institution that gives rise to liability on the part of the debtor and confers various powers on the creditor.
Default of the tenant, for its part, arises where the sum payable under the lease agreement is not paid at the time laid down in the contract or by the law. The tenant is deemed to be in default where the rent is not paid when due, is paid short or is paid late.
Legal Basis: Article 352(2) of the Turkish Code of Obligations
The action is founded on the second paragraph of Article 352 of the Turkish Code of Obligations No. 6098:
Turkish Code of Obligations No. 6098, Art. 352(2)
“Where the tenant has given cause for two justified written notices to be served upon him for failure to pay the rent — in lease agreements of less than one year, within the lease term; and in lease agreements of one year or longer, within one lease year or within a period exceeding one lease year — the landlord may terminate the lease agreement by way of an action within one month from the expiry of the lease term and, in leases of more than one year, of the lease year in which the notices were served.”
The essence of the provision is this: where two justified notices have been served on the tenant within a single lease year on account of non-payment of the rent, the landlord may bring an action within one month of the end of the lease agreement and seek an order that the leased property be vacated.
Conditions of the Action
Whether the claim can be allowed depends on the conditions laid down in Art. 352(2) of the Turkish Code of Obligations being satisfied together. The absence of even one of these conditions results in the dismissal of the claim.
Failure to Pay the Rent When Due
For the right to evict to arise, the tenant must have failed to discharge the payment obligation on the date agreed in the contract. Non-payment of the rent, short payment or payment after the due date places the tenant in default.
In this connection, for a notice sent by the landlord to be regarded as justified, the tenant must genuinely have had a rent debt due and payable on the date on which the notice was drawn up. Otherwise the notice sent does not count as a justified notice.
Both Notices Falling Within the Same Lease Year
For the action to be brought, the two justified notices served on the tenant must have been made within the same lease year. The lease year denotes the one-year period determined by reference to the commencement date of the contract.
Notices belonging to separate lease years cannot be combined and relied upon as the basis of a claim to have the property vacated. It is therefore of great importance that the lease year to which each notice belongs be established with care.
Notices Being Given in Writing
Before two justified notices can be spoken of, the notices must have been drawn up in writing and served on the tenant. Service through a notary is not compulsory; what is required, however, is the use of a written and provable method.
In practice, the notarised notice and the payment order served within the framework of enforcement proceedings stand out as the safest methods of satisfying the requirement of a written notice.
Notices Resting on a Justified Ground
Whether a notice can be regarded as justified depends on the tenant having failed to pay the rent on time as at the date of the notice. If the rent was paid when due, the notice sent does not have the character of a justified notice.
The assessment of justification is accordingly made by reference to whether the tenant made payment and on what date the payment was made. Notices that are not regarded as justified are left out of account when it is examined whether the condition of two justified notices has materialised.
Effect of Subsequent Payment on the Right to Evict
The fact that the tenant has paid the debt at a later stage does not deprive justified notices previously served of their legal value. Put differently, even if payment was made after the notice, that notice continues to be taken into account as a justified notice.
By this arrangement the legislature has granted the landlord the possibility of eviction against tenants who persistently pay the rent late, with the aim of preserving payment discipline.
Notice Procedure and the Notice Methods Regarded as Valid
In this action, whether a notice can be regarded as valid depends on its being drawn up in writing and reaching the tenant in the proper manner. The notarial channel has not been made compulsory; what is decisive, by contrast, is that it can be established that the notice was sent and reached its addressee. For this reason a notarised notice, or a payment order within enforcement proceedings, is mostly preferred in practice.
Notice Served Through a Notary
Notice given through a notary is one of the safest methods in terms of proving both the fact of service and the content. Since the notarised notice reaches the tenant by way of official service, no doubt arises as to the date and content of the notice.
This is why the notarised notice is the method to which landlords have recourse most often. A notice sent through the notarial channel and served on the tenant is regarded as valid for the purposes of the two-justified-notice condition.
Payment Order in Enforcement Proceedings With an Eviction Request
A payment order served on the tenant within the framework of enforcement proceedings with an eviction request, commenced with a view to collecting the rent claim, also has the character of a notice in law. Enforcement proceedings pursued in respect of unpaid rent are therefore accepted as a valid notice for the purposes of the materialisation of the two-justified-notice condition.
In particular, where the debt is not paid on time despite service of the payment order in proceedings with an eviction request, that step is treated as a justified notice. This is also the reason why notices given by way of enforcement proceedings occupy an important place in practice.
Notice by Registered Post With Return Receipt
A written notice sent to the tenant by registered post with return receipt is likewise regarded as a valid method of notice. With this method, the fact that the item was sent and that the notice reached its addressee can be established from the postal records.
Even so, with registered post with return receipt it may separately become a matter of dispute whether service was effected in the proper manner and whether the notice actually reached the tenant. For this reason the method in question is accepted as falling short of the notarised notice in terms of evidential strength.
Written Notice Delivered by Hand
It is also legally possible for the notice to be handed to the tenant directly. Here, however, what is decisive is that delivery can be proved to have taken place. A signature should therefore be obtained on delivery, or the step should be recorded in a written record.
Delivery by hand further requires that the date of delivery be ascertainable and that the tenant’s receipt of the notice be clearly established. Otherwise the fact that notice was given may remain unproved.
Notice Through Registered Electronic Mail (KEP)
The contents of messages sent through the KEP system are kept on record; the sending and delivery data can be established from the system records, and the requirement of written form is satisfied in this way. Notices given through KEP may therefore be accepted as a valid notice method for the purposes of an eviction action based on two justified notices.
Although the method has not yet become widespread in practice, it is accepted that it may legally be possible to serve a notice through KEP. That said, for reasons of ease of proof and legal certainty, the notarised notice or the route of enforcement proceedings is seen to be chosen more often.
Are Notices Given by WhatsApp, SMS and E-Mail Valid?
Notices given through WhatsApp, SMS or e-mail are not always regarded as valid notices on their own. Although these means of communication have the character of a written notice, it must be proved conclusively that the message reached the tenant and what its content was.
For this reason such notices are mostly assessed in practice as supporting evidence; for reasons of legal certainty and ease of proof, notice by way of a notarised notice or of enforcement proceedings is preferred.
How Is the Action Brought?
Before the action can be brought, the mediation stage must first be completed and the claim must then be made by a properly drawn application. In the course of the proceedings the court examines whether the notices were justified, whether they fall within the same lease year and whether the action was brought within the time limit.
Mandatory Recourse to Mediation
In claims for the vacating of property arising out of a lease relationship, recourse to mediation before the action is compulsory. Under the amendment made by Act No. 7445, mediation has been made mandatory as a procedural requirement in disputes arising out of a lease relationship.
Before an action based on two justified notices is brought, the mediation process must therefore have been exhausted. Where this stage is omitted and the court is approached directly, the action is dismissed on procedural grounds for want of a procedural requirement.
Time Limit for Bringing the Action
The time limits are decisive in this action for the purposes of exercising the right to evict. Under Art. 352(2) of the Turkish Code of Obligations, the landlord must bring the action within one month of the end of the lease agreement.
The period in question is preclusive in character; if it is missed, the right to evict is extinguished. It is therefore of critical importance that the period be calculated correctly and that the statement of claim be filed in good time.
Courts With Subject-Matter and Territorial Jurisdiction
In these actions, subject-matter jurisdiction lies with the Civil Court of Peace. Since the claim concerns a demand for the vacating of property arising out of a lease relationship, the question of subject-matter jurisdiction is one of public policy.
As to territorial jurisdiction, the rule is the court of the place where the leased immovable is situated. That said, the parties may agree on a court with territorial jurisdiction in the lease agreement. An objection to territorial jurisdiction not raised within the time limit will not be entertained.
Burden of Proof and Evidence
The burden of proof lies, as a rule, on the landlord as claimant. The landlord is under a duty to establish that the rent was not paid when due, that two justified notices were served within the same lease year and that the action was brought within the time limit.
In this context the notices, the proofs of service, the lease agreement, the payment records and the bank receipts are among the principal items of evidence. If it cannot be proved that the notices were served on the tenant, the two-justified-notice condition will not be accepted as having materialised.
Appeal and Appeal on Points of Law
The parties may have recourse to appeal and to appeal on points of law against the judgment given at the end of the proceedings, within the periods laid down in the law. Where an appeal against the judgment of the first-instance court is lodged in time, the file is examined by the regional court of appeal.
Against the judgment of the regional court of appeal, an appeal on points of law is available where the statutory conditions are met. Recourse to an appellate remedy may delay the judgment becoming final and may also postpone the enforcement of the vacating order.
Enforcement of the Eviction Judgment
For the vacating order given at the end of the proceedings to be put into effect in fact, the judgment must have become final and the tenant must not have left the property of its own accord. If the property is not vacated after the judgment becomes final, the landlord may apply to the enforcement office and request that the judgment be carried out by compulsion.
At this stage an application to vacate is made to the competent enforcement office, and an eviction order is sent to the tenant by that office. The eviction order grants the tenant a period of grace within which to vacate the property. If that period passes without result, the vacating is carried out by compulsion by the enforcement office.
If it is considered necessary during the operation, the support of the law enforcement authorities is obtained and the property is vacated. Once the vacating is complete, the landlord regains actual control over the property.
Independent Legal Assessment
Eviction based on two justified notices, although it appears simple on paper, is in practice one of the types of action most often lost through a procedural error. A significant proportion of dismissed claims stem from the notices being spread over different lease years, from there being no debt due and payable on the date of the notice, or from the one-month preclusive period having been missed. The fate of the file is therefore usually settled long before the statement of claim, at the moment the first notice is drawn up.
Keeping payment records systematically from the outset is of separate importance, since the justification of a notice is assessed not only by reference to the date on which it was sent, but together with the state of the debt on that date. In a concrete file we recommend that the following headings be given priority:
- Establishing the lease year definitively by reference to the commencement date of the contract
- Establishing, for each notice, by means of the payment records, that a debt due and payable existed on the date of service
- Choosing a notarised notice, or enforcement proceedings with an eviction request, as the notice method
- Diarising the one-month preclusive period and planning the mediation stage with that period in mind
- Assembling the proofs of service, the receipts and the lease agreement in full before the action
- Stating expressly in the pleadings that subsequent payments do not affect the justification of the notices
Independent Legal provides advisory and litigation services throughout the whole process in disputes arising out of a lease relationship, from the drafting of notices to the enforcement of the eviction judgment.