The concern to protect the tenant which governs leases of residential and roofed workplace property does not treat the expiry of the term written in the agreement as, by itself, a ground of termination. The ending of the term does not require the tenant to vacate the leased property; the relationship continues by operation of law. The Turkish Code of Obligations has not, on the other hand, left the landlord bound indefinitely: where certain conditions are satisfied together, it affords him the opportunity to bring the agreement to an end and to demand that the leased property be vacated. The completion of ten years of extension is, among these opportunities, a distinct ground of termination which does not require the landlord to advance any justification.
The purpose behind the provision is to prevent the power of use accorded to the tenant from turning in practice into a right of unlimited duration, and to strike a reasonable balance between the interests of the parties. In lease relationships spread over many years this is one of the most powerful legal instruments in the landlord’s hands, since it does not require reliance on a further ground such as need, an undertaking to vacate, or default.
Below we examine, in a practice-oriented manner, the moment at which this power of termination arises, the qualities a valid notice must possess, how the ten-year period is calculated, and the procedure of the eviction action to be brought where the property is not vacated despite the notice.
What Does Termination Mean in a Lease Extended Beyond Ten Years?
Article 347 of the Turkish Code of Obligations No. 6098 does not attach the legal consequence of termination to the expiry of the term agreed in the contract in leases of residential and roofed workplace property. For as long as the tenant continues to remain in the leased property, the relationship continues in the manner provided by the law and the bond between the parties does not disappear.
The picture changes, however, where the period of extension exceeds ten years. At this stage the landlord may bring the agreement to an end and demand that the leased property be vacated without bearing the burden of advancing any justification. The completion of the ten-year extension period has therefore taken its place in the law as a ground of eviction of a special character which imposes on the landlord no obligation to show cause.
Automatic Extension of the Lease Agreement
In leases of residential and roofed workplace property established for a fixed term, where the term written in the agreement expires and the tenant continues to use the immovable, the relationship is deemed to have continued on the same conditions and in one-year increments. When the years accumulated in this way reach ten, the landlord may close the agreement by a notice of termination delivered at the latest three months before the end of the extension year in question.
Where the period has been completed but the tenant does not leave the immovable, the course open to the landlord is to bring an eviction action.
The Power of Termination Granted Without Any Ground
Within the framework of Art. 347 of the Turkish Code of Obligations No. 6098, where the extension years complete ten years, no allegation of need, just cause or fault on which the landlord must rely need be present. The legislator, treating the passage of a given span of time as sufficient in itself, has made it possible for long-running lease relationships to be brought to an end.
It must not be forgotten, all the same, that the power does not take effect of its own accord. For the agreement to be closed, the notice must be given within the span of time laid down in the law. The relationship comes to an end by a written notice delivered to the tenant at the latest three months before the end of the extension period; if the tenant nonetheless does not vacate the immovable, an action seeking eviction comes onto the agenda.
The Conditions Required for the Power of Termination to Be Exercised
The opportunity of termination without cause provided for in Art. 347 of the Turkish Code of Obligations No. 6098 is made conditional upon the presence of a number of conditions which complement one another. Unless all of these conditions are satisfied together, the landlord cannot bring the agreement to an end and cannot seek eviction.
The Agreement Having Entered the Period of Extension
It is required first of all that the lease relationship should have been established for a fixed term, that the tenant should have continued his use after the expiry of the agreed term, and that the agreement should thereby have passed into the period of extension.
The ending of the term written in the agreement does not terminate the relationship of its own accord; for as long as the tenant continues to remain in the immovable, the bond continues on the same conditions and in yearly increments. For the power of termination to arise, it is essential that the relationship should have entered this stage of extension.
The Extension Period Completing Ten Years
The power in the landlord’s hands emerges when the period of extension, which begins to run after the end of the initial contractual term, completes ten years. Put otherwise, the criterion is not the total time elapsed since the conclusion of the agreement but the number of extension years.
For this reason a scrupulous calculation is decisive in practice. A notice of termination sent before the ten years are complete creates no legal consequence; the agreement continues to be extended.
The Notice Being Given in Written Form
For the intention to terminate to take effect, it must be manifested in written form. Writing ensures that the landlord’s intention to bring the relationship to an end is conveyed to the tenant with a clarity that leaves no room for hesitation.
In practice, sending the notice through a notary is preferred, since it removes problems of proof that may arise later. Where a notary has not been used, on the other hand, no defect arises as to validity if it can be shown that the notice was drawn up in writing and reached the tenant.
Observance of the Three-Month Notice Period
After the extension period has completed ten years, the landlord must give his notice at the latest three months before the date on which the period is to end. Missing this span of time renders the termination invalid, and the lease relationship is deemed to have been extended for a further period of one year.
Calculating the Ten-Year Period
Since the power of termination without cause under Art. 347 of the Turkish Code of Obligations No. 6098 is tied to the extension period completing ten years, determining the period correctly is a precondition of the right being capable of exercise. An error in the calculation may cause the eviction process to be put off by at least a year.
Distinguishing the Initial Contractual Term from the Extension Years
In fixed-term lease relationships the term agreed at the outset is not included in the ten-year extension calculation. The landlord’s power arises not with the passage of ten years from the date on which the agreement was signed, but with the completion of the tenth of the extension years which begin to run after the end of the initial term.
Where the term expires and the tenant continues to use the immovable, the relationship is deemed to have been extended on the same conditions in periods of one year each, and only these extension years are included in the calculation. The landlord may close the agreement by a written notice delivered when at the latest three months remain before the end of the extension period.
The Calculation of the Period by Way of Example
In an agreement established at the outset for 1 year: the initial term is 1 year, and the extension period that follows is 10 years; 11 years in total.
The landlord may bring the relationship to an end by a written notice delivered to the tenant at least 3 months before the expiry of this eleventh year. If the immovable is not vacated although the period has expired, recourse may be had to an eviction action.
The Calculation in Agreements of Indefinite Duration
In lease relationships established for an indefinite duration too, the landlord’s power to terminate without showing cause depends on the passage of a given span of time. The criterion here is the time running from the date on which the lease relationship in fact began, and the ten years are determined on that basis.
Accordingly, where the relationship exceeds ten years in agreements of indefinite duration, the landlord may bring the agreement to an end while observing the period of notice required by the law.
The Fate of the Period Where a New Agreement Is Made
The parties’ drawing up of a fresh contractual text is a transaction which produces consequences as regards the calculation of the period. If the text drawn up is in the nature of a continuation of the previous agreement, the lease relationship is deemed not to have been interrupted and the calculation is built upon that footing.
If, on the other hand, the parties have closed the existing relationship and established an independent new lease relationship in its place, the period begins to run afresh from zero, taking the commencement date of this new text as its basis.
Preserving the Power of Termination on Renewal
Since the drawing up of a new text directly affects the ten-year extension calculation, the legal character of the transaction effected becomes decisive. If the arrangement carries an intention to continue that is tied to the previous agreement, the relationship is regarded as uninterrupted and the accumulated years are preserved. Where an independent agreement has been established which brings the previous relationship to an end and contains a new commencement date, however, the ten-year extension period begins to run afresh from the end of this new agreement.
A landlord who wishes to preserve the power under Art. 347 of the Turkish Code of Obligations No. 6098 must therefore act with caution when the agreement is renewed. Where a need arises to raise the rent or to alter certain conditions, choosing a supplementary protocol which refers to the text in force, rather than drawing up an agreement from scratch, may prevent the loss of the right as regards the period.
The matters to be observed in practice so that the landlord preserves his power of termination at the stage of renewal are as follows:
- Not establishing a contractual text that is independent and carries a new commencement date
- Taking the route of a supplementary protocol tied to the existing agreement rather than replacing it entirely
- Avoiding wording that would give the impression that the previous relationship has been closed
- Expressly stating in the text that the lease relationship has continued without interruption
In short, which legal transaction is effected at the moment of renewal determines whether the accumulated ten-year extension period will continue. Reflecting in the text that the existing lease relationship continues without interruption when the agreement is refreshed is a decisive detail as regards the survival of the landlord’s power of termination.
The Procedure Required for the Notice of Termination
Whether the power conferred by Art. 347 of the Turkish Code of Obligations No. 6098 can take effect depends on the notice fitting within the framework of time and form drawn by the law. That the power has arisen is not sufficient by itself; for the agreement to be closed, a valid notice must have reached the tenant.
The following points must not be overlooked as regards the notice being capable of taking effect:
- The notice must be drawn up in writing. Declarations made orally, or which cannot be shown to have been made in written form, create no legal consequence.
- The notice must be delivered to the tenant at least 3 months before the date on which the extension period will expire. A notice falling outside this span of time is invalid and the agreement is extended for a further year.
- Use of the notarial channel affords an advantage as regards proof. Although the law does not make this compulsory, notices conveyed through a notary constitute strong evidence in the course of the proceedings.
- A notice given irregularly or late postpones the power of termination by one year. In such a case the landlord may exercise his power afresh only at the end of the following extension year.
Bringing the Eviction Action
The lease agreement comes to an end upon a notice given in due form. If the tenant nonetheless does not vacate the immovable, the landlord must apply to the court. The eviction action to be brought here is an action for performance whose purpose is to establish that the lease relationship has come to an end and to have the tenant removed from the leased property.
The Mediation Requirement
In eviction disputes arising from leases of residential and roofed workplace property, recourse to mediation before going to court is compulsory. Where this stage is passed over and an action is brought directly, the court dismisses the action on procedural grounds without entering into the substance of the matter.
For this reason the landlord must apply to the competent mediation office and conclude that process before filing the statement of claim. Where the discussions do not end in agreement, the final record drawn up opens the way to bringing an action.
When the Action May Be Brought
In a termination effected on the ground that the extension period has completed ten years, the eviction action becomes capable of being brought from the date on which the agreement came to an end. For the action to be heard, the tenant must be continuing to use the immovable although the relationship has ended.
The law has not laid down a preclusive period as regards this action. All the same, making the application without delay is of importance in practice as regards establishing that the lease relationship has in fact been closed.
Subject-Matter and Territorial Jurisdiction
In eviction claims founded on the ten-year extension period, subject-matter jurisdiction lies with the Civil Court of Peace, since such actions fall among eviction disputes arising from a lease relationship.
As regards territorial jurisdiction, the rule is the court of the place where the leased property is situated. Even if the parties have inserted a jurisdiction clause into the agreement, that clause produces no effect; in eviction claims founded on leases of residential and roofed workplace property the jurisdiction of the court of the place where the leased property is situated is of an exclusive character.
The Burden of Proof and the Evidence
In the proceedings the landlord is bound to establish that a lease relationship exists between the parties, that the extension period has completed ten years, and that the notice of termination was given both in time and in due form. Whether the action succeeds depends on proof of these three matters.
Within this framework the title deed record of the immovable, the lease agreement between the parties, the notice sent to the tenant and the documents showing that it was served may be submitted to the file as evidence.
Any deficiency or error in these documents constitutes a serious risk capable of resulting in the dismissal of the action.
Errors Frequently Encountered in Practice
The greater part of the problems encountered in eviction files of this kind relate not to the substance but to procedure; the incorrect determination of the period and the giving of the notice otherwise than in accordance with the rules lead the field. The result is most often either that the right of eviction cannot be exercised for that period or that the process is put off by at least a year.
Frequently Made Errors
- Determining the commencement of the period wrongly: The most widespread misconception is to count the ten years from the date on which the agreement was signed. What is to be taken as the basis of the calculation, however, is the extension years running after the end of the initial term.
- Sending the notice late: A notice not delivered at least three months before the date on which the extension period is to expire does not acquire validity, and the agreement is extended for a further period of one year.
- Choosing the termination period incorrectly: Even where the notice has been sent in time, a wrong calculation of the extension year at the end of which the agreement is to end may delay the process.
- Failure to observe the requirement of written form: A declaration of termination made orally, or whose written form cannot be proved, produces no consequence; the lease relationship continues to be extended.
- Passing over the mediation stage: Since recourse to mediation before an eviction action is compulsory, actions brought without completing this step are dismissed on procedural grounds.
- Bringing an action before the period has expired: Eviction claims advanced before the extension period has been completed, or before the agreement has yet come to an end, are dismissed; the landlord may bring an action afresh only at the end of the following extension year.
Independent Legal Assessment
Termination founded on Art. 347 of the Turkish Code of Obligations No. 6098 appears at first sight to be the easiest route to eviction for the landlord, since it carries no burden of showing cause. The picture in practice is different: the reason such actions are lost is almost never a dispute going to the substance, but a slippage in the calculation of the calendar or a defect of form in the notice. The fate of the file is determined long before the statement of claim is written, on the day the notice is prepared.
In files where the lease relationship is spread over many years, every stage through which the agreement has passed must also be examined. A rent-increase protocol or a renewal text signed in the intervening period may have reset the accumulated extension years. The analysis of the period must therefore be founded not on a single document but on the entire documentary history of the relationship.
Before proceeding in a concrete file we recommend that the following matters be clarified:
- Determining on what date the ten years were completed, by separating the initial contractual term from the extension years
- Examining all supplementary protocols and renewal texts signed in the course of the lease relationship as to whether they interrupted the period
- Setting a calendar that will ensure the notice is served so as to leave at least three months before the end of the extension year
- Sending the notice through a notary so that the date of service is placed beyond dispute
- Completing the pre-action mediation process and adding the final record to the file
- Verifying at the outset whether the leased property falls within the scope of a residential or roofed workplace lease
Independent Legal provides advisory and litigation services at every stage of the process in disputes concerning the termination of lease relationships, from the preparation of the notice of termination to the enforcement of the eviction judgment.