An undertaking to vacate is a unilateral declaration of intent by which the tenant undertakes in writing to vacate the leased property on a date agreed in advance and which, where the property is not vacated once that date arrives, entitles the landlord to seek eviction.
The document is not, however, sufficient in itself for the tenant to be removed; the undertaking must also satisfy the conditions of validity required by law. Merely holding an undertaking produces no result on its own. Conducting the process with the correct timing and in accordance with procedure, and above all not missing the preclusive period, is decisive.
In this briefing note we examine, in the light of the case law, when an undertaking is regarded as valid, how eviction may be obtained on the strength of the document either through enforcement proceedings or by court action, and the procedural questions that come to the fore in practice.
What Is an Undertaking to Vacate?
An undertaking to vacate is the tenant’s written assumption of the obligation to vacate the leased property on a specified date, coupled with the landlord being afforded the power to seek eviction where the property is not vacated on that date. In this respect the undertaking constitutes a special ground of eviction that brings the lease relationship to an end.
Legal Nature of the Undertaking
In terms of legal characterisation, an undertaking to vacate is a unilateral declaration by which the tenant assumes an obligation of their own volition. In this respect the document does not dissolve into the lease agreement; it acquires existence as a separate and independent transaction.
That characterisation has two practical consequences. First, since the obligation arises from the tenant’s declaration alone, no separate declaration of acceptance is required from the landlord. Second, because the document is not a clause of the lease agreement, it must be drawn up on a date different from the agreement and as a self-standing text.
Statutory Basis
Eviction based on an undertaking has been given express regulation in the first paragraph of Article 352 of the Turkish Code of Obligations No. 6098:
Turkish Code of Obligations Art. 352(1)
"Where the tenant, after the leased property has been delivered, has undertaken in writing towards the landlord to vacate the leased property on a specified date but has failed to vacate it, the landlord may terminate the lease agreement by applying for enforcement or bringing an action within one month from that date."
The consequence of the provision is this: where the obligation to vacate assumed in writing is not performed on the agreed date, two options open up before the landlord. Within the period allowed by law, eviction is either requested from the enforcement office or an eviction action is brought before the court.
Validity Conditions of an Undertaking to Vacate
Obtaining an eviction order on the strength of an undertaking depends on the document satisfying in full the conditions laid down by law. Where even one of those conditions is absent, the document produces no legal effect and the landlord’s request may be dismissed. Indeed, a considerable proportion of the eviction actions brought in practice come to nothing because the undertaking is defective in point of form or content.
This picture makes it essential that the statutory requirements be observed scrupulously at the stage at which the document is drawn up. The basic conditions required for validity are explained one by one below.
Mandatory Written Form
For the undertaking to take effect, it must have been drawn up in writing. Since written form is prescribed by law as a condition of validity, a promise to vacate given orally produces no legal effect.
Drawing the document up before a notary has not, however, been made mandatory. That said, because it makes proof easier, recourse to a notary is frequently had in practice. An undertaking prepared in simple written form is likewise regarded as valid, provided that it meets the statutory requirements.
A Definite Date for Vacating
The date on which the leased property is to be vacated must be shown in the document clearly and in a manner leaving no room for hesitation. Where the date of vacating has not been written at all or has been left indefinite, the undertaking is not regarded as valid.
For instance, entries such as "the leased property shall be vacated at a suitable time" or "the property shall be vacated when the need arises" do not create a valid undertaking, since they contain no specific date. The date of vacating must be written as day, month and year.
Bearing the Tenant’s Signature
The validity of the document depends on its having been signed by the tenant. An undertaking created with the signature of a person other than the tenant produces, as a rule, no effect.
Where more than one tenant is party to the lease relationship, the signature must be obtained from all of them. Otherwise it may not be possible to order the eviction of all the tenants on the strength of a document bearing the signature of only one of them.
Given After the Lease Agreement Was Concluded
For the undertaking to be valid, it is required to have been given on a date after the lease agreement was concluded. Documents drawn up on the same day as the agreement may be regarded as invalid on the ground that they are not the product of the tenant’s free will.
For this reason it is important in practice that the document be prepared at a stage following the signature of the agreement and, if possible, so as to bear a different date. Court of Cassation decisions likewise show undertakings bearing the same day as the lease agreement being regarded as invalid.
Unambiguous Identification of the Leased Property
The text of the undertaking must state, with a clarity leaving no room for hesitation, which property is to be vacated. Writing the address, the independent unit number or the features distinguishing the property from others is important in point of validity.
Where the leased property is not clearly identified, it becomes uncertain which property is to be vacated; that uncertainty may in turn result in the document being regarded as invalid.
The Declaration Must Rest on Free Will
A further condition required for validity is that the tenant gave the document of their own free will. An undertaking obtained by coercion, pressure or deception produces no legal effect. In practice the defence that the will was vitiated is most often raised in the following three situations: that the document was obtained by deception or misleading, that it was signed with the date fields left blank, and that the signature was affixed under pressure or coercion.
Faced with allegations of this kind, the court assesses the particular circumstances of the concrete case and rules on whether the document can stand in law.
Is an Undertaking With Blank Dates Signed Together With the Lease Agreement Valid?
In practice, landlords are frequently seen to have the tenant sign, simultaneously with the lease agreement, an undertaking to vacate in which the dates of issue and of vacating have been left blank. This method, which has become widespread in both residential and commercial leases, is the source of a great many disputes as to the validity of the document.
The rule is that the undertaking must be given after the agreement has been concluded and the leased property has been delivered to the tenant. That said, a tenant who alleges that the document was obtained before the agreement and before delivery bears the burden of proving that defence.
Indeed, the Assembly of Civil Chambers of the Court of Cassation has likewise adopted the position that, in respect of undertakings signed with blank dates at the time the lease agreement is concluded, the burden of proof lies with the tenant. On the Assembly’s approach, the allegation that the document was obtained with blank dates before delivery and subsequently completed contrary to the agreement must be proved by the tenant; where that proof is not achieved, the undertaking is regarded as valid.
Court of Cassation, Assembly of Civil Chambers — Merits No. 2017/975, Decision No. 2021/1108, Decision Date: 28.09.2021
The conclusion that follows from the decision is this: the fact that the dates of issue and of vacating were written in later does not, in itself, vitiate the document. What is decisive is whether the tenant is able to prove that those fields were completed contrary to the agreement between the parties.
Eviction Through Enforcement Proceedings Based on an Undertaking
If the tenant does not vacate the leased property on the date shown in the document, the landlord may, relying on that undertaking, request eviction through enforcement proceedings. This method, which operates by the landlord applying directly to the enforcement office, is in practice one of the options that yields a result in the shortest time.
The process begins with eviction proceedings being opened against the tenant at the enforcement office and an eviction order being served on the tenant. If the tenant does not object within the statutory period, the vacating is carried out by the enforcement office. If, by contrast, an objection is made, the proceedings are stayed and the dispute is resolved, according to the content of the objection, before the Enforcement Court or the Civil Court of Peace.
The Preclusive Period in Enforcement Proceedings
For recourse to be had to enforcement on the strength of an undertaking, the landlord must commence proceedings within one month of the date of vacating written in the document. Where this period, prescribed by law as a preclusive period, is missed, the power to seek eviction through enforcement on the basis of the undertaking comes to an end.
The moment at which the period begins to run is the day following the date of vacating shown in the document. For example, if the undertaking states that the leased property is to be vacated on 01.06.2025, the period for commencing proceedings begins to run on 02.06.2025 and expires on 02.07.2025.
The Enforcement Office With Territorial Jurisdiction
In proceedings based on an undertaking, territorial jurisdiction belongs, as a rule, to the enforcement office of the place where the leased property is situated. In addition, it is also possible for proceedings to be opened at the enforcement office of the tenant’s place of residence.
If proceedings are commenced at an office lacking jurisdiction, the tenant may raise an objection to jurisdiction within the statutory period. Such an objection stays the proceedings, and the objection is assessed by the enforcement court.
The Court With Jurisdiction Upon an Objection
Where the tenant objects to the proceedings, they are stayed; the dispute is dealt with, according to the content of the objection, by the Enforcement Court or the Civil Court of Peace. At this stage the landlord must apply to the court seeking the removal or the annulment of the objection.
The court examines whether the document is valid and whether the conditions for eviction have been fulfilled, and rules on the removal or annulment of the objection or dismisses the request. Where removal or annulment of the objection is ordered, the vacating is completed by the enforcement office.
Accordingly, when the enforcement route is chosen, account must be taken of the fact that, if the tenant objects, the process will be carried over to the adjudication stage and eviction will become dependent on a court decision.
Eviction Through Court Action Based on an Undertaking
Where the property is not vacated on the agreed date, the second option before the landlord is to bring an eviction action directly on the basis of the undertaking. This route is preferred in particular where it is anticipated that the tenant will object to the proceedings, or where the validity of the document is open to dispute.
In the action brought, the court first reviews whether the undertaking bears the conditions of validity required by law. If it is established that the document is valid and that the tenant has not performed the obligation to vacate, the tenant’s eviction from the leased property is ordered.
The adjudication process mostly takes longer than the enforcement route; on the other hand, because it allows the dispute to be resolved under judicial supervision from the outset, in some situations it constitutes a safer choice.
Time Limit for Bringing the Action
For an eviction action to be brought on the strength of an undertaking, the landlord must bring the action within one month starting from the date of vacating written in the document. Where this period, regulated by law as a preclusive period, is allowed to elapse, the power to bring an action based on the undertaking is extinguished.
The period begins to run on the day following the date of vacating shown in the undertaking. For instance, if the document states that the leased property is to be vacated on 01.06.2025, the period for bringing the action begins on 02.06.2025 and ends on 02.07.2025.
Subject-Matter and Territorial Jurisdiction in the Action
In an eviction action based on an undertaking, subject-matter jurisdiction belongs to the Civil Court of Peace. The rule on subject-matter jurisdiction is a matter of public order and cannot be altered by agreement between the parties.
As regards territorial jurisdiction, the rule is the court of the place where the leased property is situated. It is also possible for the action to be brought before the court of the tenant’s place of residence. However, in order to remove the possibility of facing an objection to jurisdiction, bringing the action directly before the court of the place where the property is situated is adopted in practice as the safer method.
Differences Between the Enforcement Route and the Court Route
Eviction based on an undertaking may be effected both through the enforcement office and by court decision. Although both routes are open in law, they are distinguished from one another in point of operation, duration and outcome. Which route is to be followed should therefore be decided by assessing the circumstances of the concrete case.
The general tendency is that eviction through enforcement yields a result more quickly than the court route. In cases where the tenant does not object to the proceedings, the vacating may be completed within a short time. Where an objection is made, the process is prolonged and the dispute must be heard before a court.
An eviction action, by contrast, is adjudication conducted before the court from beginning to end. This route comes to the fore in situations where the validity of the document is contested or where it is anticipated that the tenant will object. Although the process is generally longer, the dispute passes under the supervision of the court from the very first moment.
| Comparison criterion | Eviction through enforcement | Eviction by court action |
|---|---|---|
| Authority applied to | Enforcement office | Civil Court of Peace |
| Period for application | One month from the date of vacating | One month from the date of vacating |
| Speed of reaching a result | Short if no objection is made | Generally longer |
| Effect of an objection | Proceedings are stayed, the dispute is carried to court | The adjudication already runs before the court |
| Situation in which it is preferred | Files in which the undertaking is uncontested | Files in which validity is disputed |
In conclusion, in practice recourse is mostly had first to the enforcement route, and, where the tenant objects, the court route is then taken. Even so, since every dispute has its own particular circumstances, a legal assessment must be made at the outset if the process is to be conducted effectively.
Related Topics
- The Offence of Breaching an Undertaking to Pay and Its Penalty
- Grounds for Evicting a Tenant and Eviction Actions
- Eviction of a Tenant Through Enforcement Proceedings
- Eviction Action Based on the New Owner’s Need: Conditions and Procedure (Turkish Code of Obligations Art. 351)
- Eviction Action Based on Need: Conditions and Procedure (Turkish Code of Obligations Art. 350(1))
Independent Legal’s Assessment
Although an undertaking to vacate appears to be one of the most practical ways for a landlord to bring a lease relationship to an end, the failure rate in practice is not low. A significant proportion of files come to nothing without the merits being reached, because the document is defective in point of form or because the one-month period has been missed. The undertaking should therefore be put through legal review not at the moment it is signed, but at the moment its drawing up is planned.
On the tenant’s side, the defence most often centres on the allegation that the will was vitiated. In the face of the allocation of the burden of proof adopted by the Assembly of Civil Chambers of the Court of Cassation, it should be borne in mind that the bare defence that "the dates were filled in later" is not sufficient on its own and that such an allegation must be supported by concrete evidence.
The points to be given priority in planning the process are as follows:
- Drawing the document up as a text separate from the lease agreement and on a different date
- Writing the date of vacating as day, month and year, and the property with its address and independent unit details
- Obtaining the signature of all tenants where more than one tenant is party to the lease relationship
- Calculating the one-month preclusive period from the day following the date of vacating and entering it in the calendar
- Making the choice between enforcement proceedings and court action with the tenant’s likelihood of objecting in mind
- Reducing the risk of an objection to jurisdiction by, as a rule, commencing the proceedings or the action in the place where the leased property is situated
Independent Legal provides advisory and litigation services in all disputes arising from lease law, from the preparation of an undertaking to vacate through to the conduct of enforcement proceedings and eviction actions.