A person who acquires ownership of immovable property while a lease is running is afforded the possibility of seeking the tenant’s removal where that person, or one of the relatives listed in the statute, has a need for a dwelling or business premises. Known in practice as an eviction action based on the new owner’s need, this route is a special ground of termination that arises where ownership changes hands.
That said, the subsequent acquisition of the property does not by itself bring about eviction. The need relied upon must be genuine, sincere and compelling; notice must be given to the tenant within the periods prescribed by law; and the proceedings must be conducted in accordance with procedure. Where one of these steps is omitted, the claim may be dismissed even though the need genuinely exists.
Below we examine in detail the statutory basis of the subject, the scope of the concept of the new owner, whose need may be relied upon, the conditions and time limits required, the notice and the proceedings, the enforcement of the eviction judgment, and the restriction imposed on reletting the property after eviction.
What Is an Eviction Claim Based on the New Owner’s Need?
The action in question allows a person who acquires ownership of the property while the lease agreement is in force to seek the tenant’s removal on the ground that there is a need for a dwelling or business premises for that person or for the relatives designated in the statute. The new owner is thereby given the power, in defined circumstances, to bring the lease relationship to an end where the property has changed hands.
Summary of This Note
- The tenant’s removal from the property may be secured by way of this action.
- For the claim to be entertained, the need relied upon must be genuine and compelling.
- Eviction may be sought only in respect of the new owner personally and the relatives listed in the statute.
- Compliance with the time limits and procedures laid down in the statute is the critical factor determining the outcome.
- Following eviction, letting the property to another person for three years is prohibited by law.
The Concept of the New Owner and the Statutory Basis
The expression “new owner” denotes a person who subsequently acquires ownership of the leased property while the lease relationship is continuing. Upon the transfer of ownership that person takes the place of a party to the existing lease agreement and thereby assumes the rights and obligations arising from the relationship.
Article 351 of the Turkish Code of Obligations No. 6098 confers on a new owner who is under an obligation to use the property for themselves or for the relatives designated in the statute the power to seek eviction, provided that the statutory time limits and procedures are observed. The thinking behind the provision is to secure the practical exercise of the right of ownership.
How the Status of New Owner Is Acquired
A new owner is a person who becomes a party to the lease agreement by subsequently taking over ownership of the leased property. The legal transaction by which ownership was acquired is not decisive; for the status to arise it is sufficient that ownership was obtained subsequently.
This status may be acquired in the following ways:
- Acquisition of ownership by inheritance
- Becoming owner through a gift or another transfer transaction
- Becoming owner by purchasing the property
It must be emphasised that, irrespective of the transaction by which ownership was acquired, written notice must have been given to the tenant within the statutory periods and the genuineness and sincerity of the need must be proved before an eviction claim may be brought.
Whose Need May Found an Eviction Claim?
The new owner may base the eviction claim not only on their own need but also on the need for a dwelling or business premises of certain relatives exhaustively listed in the statute. This circle cannot, however, be construed broadly; for the claim to be entertained, the need must belong to one of the persons designated in the statute.
Under Article 351 of the Turkish Code of Obligations No. 6098, the new owner may seek eviction where there is an obligation to use the leased property for themselves, their spouse, their descendants, their ascendants or persons whom they are legally obliged to support. The need of relatives falling outside this circle, or of third parties, is as a rule not regarded as a ground of eviction.
Accordingly, the persons capable of founding an eviction claim are as follows:
- The new owner’s mother and father (ascendants)
- The new owner’s spouse
- Persons whom the new owner is legally obliged to support
- The new owner personally
- The new owner’s children (descendants)
By contrast, the need of the new owner’s sibling, paternal uncle, maternal uncle, cousin, daughter-in-law, son-in-law or other relatives does not as a rule found this action. Where, however, a statutory duty of support has arisen in respect of such persons on the facts of the case, the existence of the need is assessed separately.
Conditions Required for the Eviction Claim
For the claim to be allowed, the subsequent acquisition of the property is not regarded as sufficient. The conditions laid down in the statute must be satisfied cumulatively. The courts weigh the alleged need according to the particular features of the case and scrutinise these conditions rigorously.
- The property must have been taken over while the lease relationship was running
For the claim to be raised, the leased property must have been the subject of a change of ownership while the lease agreement was in force. In other words, the property must have passed to the new owner as a result of a change in the identity of the landlord.
It is sufficient for this status that ownership was acquired by purchase, inheritance, gift or a similar transaction. Where, on the other hand, the person who is party to the lease agreement has owned the property from the outset in the capacity of owner, the dispute is governed not by Art. 351 but by the provisions on eviction on the ground of general need.
- The need must be genuine, sincere and compelling
The need relied upon must be genuine, sincere and compelling. A wish to use the leased property does not by itself produce any result; the need is expected to rest on a reasonable and necessary basis within the ordinary course of life.
The courts assess whether the allegation is compatible with the rule of good faith and whether the need is genuine in the light of concrete evidence. For this reason it is of considerable importance that the allegation be supported by documents and other evidence.
- The need must be directed at personal use as a dwelling or business premises
The need relied upon must be directed at the actual use of the leased property as a dwelling or business premises. A wish to turn the property to some other purpose, or to have it vacated purely for investment reasons, is as a rule not regarded as a ground of eviction.
The need must therefore correspond to the purpose for which the leased property is used and must rest on a direct obligation to use it.
- The need must still subsist at the date of the action
The need must exist at the date on which the action is brought and must continue to exist throughout the proceedings. No eviction judgment may be given on the basis of a need that has ceased after the action was brought or whose occurrence is not certain.
The courts therefore examine the continuity of the need separately as at the date the action was brought and as at the moment of judgment.
- The statutory time limits must be observed following acquisition
For the claim to be raised, the time limits and procedures designated in the statute must be observed following the acquisition of the property. In this framework, the new owner is required to give written notice to the tenant within one month of the date of acquisition and to bring the action within the statutory periods after that notice.
Where the time limits are missed, the claim may be dismissed even though the need is genuine. Correct calculation of the periods and compliance with procedure are therefore of decisive importance.
Points to Note Regarding the Time Limits
In this type of action the time limits are foremost among the factors directly affecting the outcome. The notice to be given to the tenant following acquisition and the time for bringing the action are expressly regulated in the statute; missing the period may lead to dismissal of the claim even where the alleged need is well founded. The new owner must therefore follow the calendar carefully from the date on which ownership was acquired.
Notice Within One Month of Acquisition
The new owner is obliged to give the tenant written notice within one month of the date on which the leased property was acquired. The notice must state expressly that the property has been taken over by the new owner and that the leased property will be used for that person or for the relatives listed in the statute.
The one-month period runs from the date on which the property is registered in the land registry in the name of the new owner. If no notice is given within that period, the possibility of bringing an action at the end of six months may be lost. In practice this notice is one of the most critical steps keeping the new owner’s right of eviction alive.
Bringing the Action at the End of Six Months
A new owner who has given notice within the one-month period may bring the eviction action based on need upon the expiry of six months from the acquisition of the property. This waiting period is in the nature of a preparatory period allowed by law for the tenant to vacate the property.
Once the six months are complete, the way to court is open. Since actions brought before the period has expired may be dismissed on procedural grounds, correct determination of the time of application is important.
Bringing the Action at the End of the Lease Term
If the new owner so wishes, they may seek eviction by awaiting the expiry of the term of the lease agreement in force instead of waiting for the six-month period. On this option the claim is raised within the period prescribed by the statute running from the end of the agreement.
The use of this option, too, depends on written notice having been given to the tenant in time. Where no notice has been given, the claim may be dismissed even though the end of the term of the agreement has been awaited.
How the Proceedings Work
This action requires scrupulous compliance with the procedural rules laid down by the statute. The written notice to be given to the tenant, satisfaction of the mediation requirement, correct determination of the rules on subject-matter and territorial jurisdiction, and proof of the need by suitable evidence are the decisive links in the process. A procedural defect may lead to dismissal of the action, or to the proceedings being unnecessarily prolonged, even where the allegation is well founded on the merits.
Written Notice to Be Sent to the Tenant (Formal Notice)
The first step in raising the claim is to give the tenant written notice. By that notice the tenant is informed clearly that the property has been taken over by the new owner and that the leased property will be used for that person or for the relatives designated in the statute.
The notice must be given within one month of the date on which the property is registered in the land registry in the name of the new owner. Where no notice is given within that period, the right to bring an action at the end of six months may be lost. Sending a formal notice therefore stands out as one of the most important procedural steps protecting the right of eviction.
Satisfying the Mediation Requirement
In eviction disputes arising from leases of dwellings and roofed business premises, recourse to mandatory mediation is required before an action is brought. The new owner must therefore first pursue the mediation process and bring the action once that process closes without agreement.
Where the mediation stage is omitted and the court is approached directly, the action may be dismissed on procedural grounds. Accordingly, the final mediation record must be annexed to the statement of claim.
Courts with Subject-Matter and Territorial Jurisdiction
In eviction disputes of this kind the court with subject-matter jurisdiction is the Civil Court of Peace. Since the dispute arises from a lease agreement, no other court may be approached in terms of subject-matter jurisdiction.
As to territorial jurisdiction, the rule is the court of the place where the leased property is situated. The parties may nevertheless have designated the court of another place as having jurisdiction by a jurisdiction clause inserted in the lease agreement. Examination of the jurisdiction clause in the agreement before bringing the action is therefore important.
Evidence Available to Prove the Need
For the claim to be allowed, it must be established by concrete evidence that the need relied upon is genuine, sincere and compelling. The evidence annexed to the statement of claim is therefore foremost among the factors directly affecting the outcome.
The evidence frequently relied upon in practice in this context is as follows:
- The written notice sent to the tenant (formal notice)
- Civil registry extract
- Documents or medical reports establishing the need for care
- Land registry records
- The lease agreement
- Certificates of residence
- Plans and documents relating to the opening of business premises
- Witness statements
The courts assess the alleged need not on the basis of oral explanations alone, but by considering whether it is supported by concrete evidence.
Appeal and Appeal on Points of Law
Judgments given in these actions may, where the statutory conditions are met, be made subject to review by way of appeal and appeal on points of law. Against the judgment of the court of first instance the parties may apply to the Regional Court of Appeal within the statutory period running from service and pursue an appeal.
If the decision given at the end of the appeal review is amenable to an appeal on points of law, the parties may apply to the Court of Cassation. Since recourse to the appellate remedies may delay the judgment becoming final, it may directly affect the time at which eviction actually takes place.
Enforcement of the Eviction Judgment
The judgment need not have become final for an eviction judgment to be enforced. Once the reasoned judgment has been drawn up, the new owner may apply to the Enforcement Office and request that eviction be carried out.
The Enforcement Office serves an eviction order on the tenant; if the tenant does not vacate the property within the period allowed, eviction may be carried out by force. This is the stage at which the judgment is actually put into effect.
The tenant, for their part, also has the means of halting this process. The tenant may pursue an appeal with a request for a stay of enforcement; by depositing three months’ rent in the enforcement file as security, they may request a stay of enforcement from the Enforcement Court. Where such a decision is given, the eviction process is suspended.
Restriction on Reletting After Eviction
Where the tenant is removed on the ground of need, reletting the property for a defined period is restricted by law. The restriction is intended to prevent abuse of the allegation of need and to protect the tenant. How the new owner who has obtained an eviction judgment may subsequently use the property is thus expressly regulated in the statute, and a breach of the rule may give rise to legal liability.
Three-Year Prohibition on Reletting
Property vacated on the ground of need may not, absent a just cause, be let to anyone other than its former tenant until three years have elapsed from the date of eviction. The period runs from the date on which the tenant actually vacated the property.
The legislature laid down this restriction in order to forestall the use of an allegation of need purely for the purpose of removing the tenant and to secure the tenant’s legal certainty. The new owner must therefore genuinely use the property for the purpose stated and observe the statutory period as regards reletting.
Liability in Damages for Breach of the Prohibition
Where the new owner lets the property they had vacated on the ground of need to another person before three years have elapsed and without just cause, liability in damages arises in favour of the former tenant.
In such a case the new owner is obliged to pay the former tenant damages of not less than one year’s rent paid in the last year of the lease. That amount, designated in the statute, is in the nature of a lower limit, and where the loss suffered by the tenant is higher on the facts of the case a greater sum may also be awarded.
By contrast, where the property is relet on the basis of a just cause, whether liability in damages arises is assessed separately by the court in each dispute. It is therefore of considerable importance that transactions relating to the property after eviction be conducted in accordance with the statutory periods and conditions.
Related Topics
- Grounds for Evicting a Tenant and Eviction Actions
- Eviction Action on the Ground of Need: Conditions and Proceedings (Art. 350(1))
- Eviction of a Tenant by Way of Enforcement Proceedings
- Prohibition on Stipulating a Penalty Clause Against the Tenant — Turkish Code of Obligations Article 346
- Prohibition on Stipulating an Eviction Condition Against the Tenant (Art. 354)
Independent Legal Assessment
In eviction claims based on Art. 351, the great majority of actions are concluded without the merits being reached, on account of defects in the time limits and the notice. Since the start of the one-month notice period is tied to the date of registration in the land registry, the difference between the day on which the transfer transactions were completed and the day on which registration took place may by itself cause a right to be lost. Establishing the date on which ownership was acquired conclusively from the land registry record should therefore be the first task in the process.
The second critical heading is proof. In practice the sincerity of the need is assessed within the whole of the new owner’s existing pattern of life or activity; the existence of another vacant property in the same area, or use after eviction that does not match the notice, may weaken the allegation. The three-year restriction on letting that takes effect after eviction is a natural extension of that assessment.
In a concrete file it is appropriate to address the following headings first:
- Determining the date of registration from the land registry record and calculating the one-month notice period accordingly
- Stating expressly in the content of the formal notice the purpose of use and the person on whose behalf the need is relied upon
- Making a deliberate choice between the six-month waiting period and the option of awaiting the end of the term of the agreement
- Establishing at the outset a plan of evidence capable of supporting the continuity of the need up to the moment of judgment
- Exhausting the mandatory mediation process and annexing the final record to the statement of claim
- Assessing in advance the three-year restriction on letting after eviction and the risk of liability in damages
Independent Legal provides advisory services and conducts litigation throughout the entire process in eviction disputes arising from lease relationships, from the formal notice stage through to enforcement proceedings.