Where the leased property is used in breach of the lease agreement, or where the tenant engages in conduct that disturbs the peace of the neighbours, the landlord may terminate the agreement on the basis of Article 316 of the Turkish Code of Obligations No. 6098 and seek the tenant’s removal from the property. The rule is that the tenant must be granted a period in which to bring the breach to an end; where the gravity of the breach is such, however, or where it is plain that granting a period would serve no purpose, the agreement may be terminated outright.
In practice this ground of eviction has a narrower field of application than the other routes to eviction. Where the procedural rules are observed scrupulously, on the other hand, it offers a workable means of removing problematic tenants from the property. Three elements determine the fate of the process: service of the notice in due form, the granting of a reasonable period in which to remedy the breach, and proof of the breach by concrete evidence.
In this briefing note we examine which forms of conduct justify eviction, the scope of the notice requirement, the conduct of the proceedings, how the burden of proof is allocated, and how the judgment obtained is given effect through enforcement.
What Is Eviction for Breach of the Lease Agreement?
This form of eviction is a special ground of termination which, where the tenant breaches the duty of use and care arising from the agreement or from the law, entitles the landlord to bring the relationship to an end and to demand that the property be vacated. Use of the property otherwise than for the agreed purpose, damage to the leased property, or disturbance of the peace and safety of those living in the same building may bring this route into play.
The Tenant’s Duty of Use and Care
Article 316 of the Turkish Code of Obligations No. 6098 imposes a threefold obligation on the tenant: to use the property in a manner consistent with the purpose stipulated in the agreement, to preserve it with care, and to refrain from conduct that would impair the peace of those living in the same building.
Turkish Code of Obligations No. 6098, Art. 316(1)
“The tenant is obliged to use the leased property with care and in conformity with the agreement, and to show the necessary respect to the persons residing in the immovable in which the leased property is situated and to the neighbours.”
As will be seen, this obligation has a broad content covering not only the physical integrity of the property but also the effects that the manner of its use has on the surrounding environment.
The duty of use and care performs a function that extends beyond the contractual relationship between the parties; it is also directed at maintaining order in apartment and housing-estate life. For that reason the tenant’s conduct is not assessed by reference to the text of the agreement alone; the rule of good faith and the principles of neighbourhood law are also taken into account.
The Legal Character of the Breach and Its Consequence
In character, breach of the lease agreement is a contractual breach that entitles the landlord to terminate and to seek eviction. Several conditions must nevertheless be satisfied together before eviction may be ordered: the breach must be of a gravity that can be regarded as material, a notice in due form must be served on the tenant, and the state of breach must persist notwithstanding the period granted.
Conduct Amounting to Breach of the Lease Agreement
Breach of the lease agreement means that the tenant, in violation of the duty of use and care, uses the property in a manner that does not comply with the agreed conditions or causes damage to it. The assessment is made according to the circumstances of each dispute; even so, the headings most frequently encountered in practice are well established: alteration of the purpose of use, damage to the property, alterations carried out without permission, and allowing third parties to use the leased property without consent.
It should not be overlooked that not every breach leads to eviction. Before eviction may be ordered, the breach must be material in nature, notice in due form must be served on the tenant, and the situation must remain uncorrected after the period granted has expired. The claim must therefore be examined separately in the light of the particular features of the case and the evidence placed before the court.
Use of the Property Otherwise Than for the Agreed Purpose
Use of the leased property in departure from the purpose specified in the agreement is among the most typical manifestations of breach. The tenant is obliged to use the property only in accordance with the purpose set out in the text; unilateral alteration of that purpose constitutes a breach.
The conversion of premises leased as a dwelling into business premises, the carrying on of manufacturing in premises taken for use as a warehouse, or the operation of a dwelling for the conduct of commercial activity may be assessed under this heading. In such cases the landlord may grant an appropriate period and require the breach to be brought to an end; if that produces no result, the landlord may terminate the agreement and take the matter to court.
Breach of the Duty of Care and Damage to the Property
The tenant is expected to act in accordance with the rule of good faith when using the property and to show the care required for its preservation. Ill-treatment of the leased property, neglect of the obligation of maintenance and cleaning, or direct damage to the property is regarded as a breach of this obligation.
Destruction of walls, causing the installations to break down, heavy soiling of the premises, or dilapidation to an extent that renders the property difficult to use are examples falling within this scope. Where the damage becomes continuous or reaches a material degree of gravity, it becomes possible for the landlord to seek eviction.
Alterations or Structural Changes Without Permission
The tenant may not undertake any substantial change or structural alteration to the property without the written consent of the landlord. Altering the layout of the premises, removing walls, relocating installations, or making permanent interventions in the structure are all acts that touch directly upon the landlord’s right of ownership.
Substantial changes to be carried out on the property must therefore rest on the express consent of the landlord. Alterations and structural interventions made without such consent may entitle the landlord to terminate the agreement and seek eviction.
Unauthorised Assignment of the Leased Property or Allowing Its Use by Another
The tenant may neither assign the property to third parties nor allow them to use it without the landlord’s permission. Sub-letting, transferring the right of use to others, or acquiescing in the property being used in fact by third parties may amount to a breach of the lease agreement.
Opening a dwelling to others on a continuing basis for the purposes of short-term letting, or abandoning the premises entirely to the use of another person, are among the situations that may be accepted in practice as grounds for eviction. In such cases the landlord may first demand that the breach be brought to an end; if the situation is not corrected, the landlord may pursue eviction.
Use for Unlawful or Immoral Purposes
Devoting the property to activities contrary to the law or to the rules of public morality is one of the gravest forms of breach of the lease agreement. Making the premises the object of criminal enterprises, or using them for activities that disturb public order, may entitle the landlord to terminate the agreement forthwith.
The carrying on of drug trafficking, the running of gambling, or similar unlawful activities on the property may in most cases justify eviction without any need for a notice to be served. In disputes of this kind the protection of the right of ownership and of public order is regarded as taking priority.
Conduct Amounting to Disturbance of the Neighbours
Article 316 of the Turkish Code of Obligations No. 6098 places the tenant under an obligation, when using the property, to refrain from conduct that would impair the peace and safety of those around. Disturbance means that the tenant, exercising the right of use in a manner contrary to the rule of good faith, appreciably prevents others from enjoying their property. The criterion applied here is whether the conduct exceeds the ordinary limits of apartment or housing-estate life and strains the duty of tolerance owed by those around.
Not every irritation justifies eviction. Before eviction may be ordered, the conduct must not be a single occurrence but must be repeated, must be of a gravity such as to disturb the peace appreciably, and must constitute a threat to the safety of those around. In addition, in most cases notice must be served on the tenant and the disturbing conduct must persist notwithstanding the period granted. Where, on the other hand, the conduct has reached a grave and intolerable level, it may also be possible to terminate and seek eviction without passing through the notice stage.
Noise and Disruption of Order in the Building
Disruption of order in the building through the persistent making of noise, playing music at high volume, shouting during the night, and similar conduct is the most common manifestation of this heading. Repeated noise arising particularly during hours of rest may seriously affect the living space of the other residents.
Three points assume importance in such cases if the claim is to succeed: the disturbance must be continuous, the neighbours’ complaints must be on the file, and the conduct must persist notwithstanding warnings. Isolated or short-lived incidents of noise are not, as a rule, regarded as grounds for eviction.
Fighting, Insults and Threatening Behaviour
A tenant who fights with the neighbours, insults or threatens them, or engages in conduct amounting to physical violence commits grave breaches directed squarely at peace and safety. Such conduct does not merely create a disturbance; it also gives rise to a risk to safety.
Where conduct involving fighting, threats or violence is repeated or gives rise to serious danger, it becomes possible for the landlord to terminate the agreement and seek eviction. Incidents requiring the attendance of law enforcement officers at the scene may carry appreciable evidential value in proving conduct of this kind.
Improper Use of Common Areas
Use of the common areas belonging to the building or housing estate otherwise than for their purpose, or their restriction in a manner that prevents the other residents from enjoying them, may be assessed as disturbance. Occupation of common areas, the permanent storage of belongings there, or disruption of the arrangements for common use may be cited as examples under this heading.
Leaving belongings permanently in the stairwell, blocking the entrance to the building, using common areas as a storeroom, or breaching rules of hygiene there are all forms of conduct that impair the right of use of others. Where such conduct persists, a claim for eviction may arise.
Conduct Endangering Peace and Safety
Where the tenant’s conduct takes on a character that endangers the safety of those around, this is the gravest example within this group. Acting in a manner that gives rise to a risk of fire, keeping hazardous substances in the building, or engaging in conduct that threatens safety fall within this scope.
What is at stake in incidents of this kind is not merely a disturbance but a concrete danger; the landlord may accordingly be able to turn to swifter and more effective legal remedies. Where the conduct has taken on a grave and dangerous dimension, it may even be possible to seek eviction without serving notice.
Repeated Incidents Involving Law Enforcement
Where law enforcement officers are frequently obliged to intervene because of the tenant’s conduct, this is a strong indication that the disturbance has become continuous. Police reports, municipal police records and administrative documents are among the sound items of evidence establishing the existence and continuity of such conduct.
Where law enforcement has intervened on more than one occasion because of incidents at the same property, that picture shows that the tenant’s conduct has reached a level capable of disrupting the ordinary order of life. Records of this kind are accepted as evidence of high value for the purposes of proof in eviction proceedings.
The Notice Requirement Under Art. 316 of the Turkish Code of Obligations No. 6098
Before eviction may be sought on the ground of breach of the lease agreement, a written notice must as a rule be served on the tenant and an appropriate period granted in which to correct the state of breach. That communication is a procedural condition which affords the tenant an opportunity to correct the conduct and which must be completed before the process can be commenced.
The notice must be in writing and its receipt by the tenant must be capable of proof. In practice, notices served through a notary public are adopted as the safest method. Although the law prescribes no specific period, in practice a period of 30 days is most often granted.
Where, on the other hand, the tenant’s conduct is of a grave and intolerable character, or where serious damage has been caused to the property, it may be possible to seek eviction directly without any need for the notice stage.
Matters the Notice Must Contain
Whether the communication served produces legal effect depends on its being drafted clearly, intelligibly and in concrete terms. Notices confined to vague or general expressions are in most cases not treated as valid and may lead to the claim being dismissed.
For that reason it is important that the text of the notice contain the following points:
- An express statement of the period granted in which to bring the breach to an end
- A description of the conduct in breach of the agreement in concrete terms leaving no room for doubt
- A clear statement of precisely what conduct the tenant is expected to correct
- Notification that, if no correction is made within the period granted, the agreement will be terminated and eviction sought
Consequence of Bringing an Action Without Serving Notice
A failure to serve a notice in due form on the tenant before the eviction action is brought results in most cases in the action being dismissed. The notice is, after all, in the nature of a precondition that must be completed before the claim can be asserted.
Where the courts find that the communication was never made or cannot be regarded as legally valid, they may dismiss the claim without entering upon the merits. Preparing the notice with the correct content and serving it in due form is therefore one of the most critical steps in the process.
Exceptional Cases in Which No Notice Is Required
The gravity of the tenant’s conduct renders the notice stage unnecessary in certain situations and allows eviction to be sought directly. These situations constitute the exceptions to the notice requirement provided for in the law.
The notice requirement may in particular be dispensed with in the following situations:
- Where it is apparent that granting the tenant a period would produce no result,
- Where the tenant has intentionally caused serious damage to the leased property,
- Where the tenant’s conduct in breach of this obligation has become intolerable for the landlord, for the persons residing in the same immovable, or for the neighbours
In cases of this kind, having regard to the gravity of the conduct and its urgent character, it may be possible for the landlord to proceed directly to eviction.
How Is an Eviction Action Brought?
The Obligation to Apply for Mediation
In disputes arising out of a lease relationship it is mandatory to apply for mediation before an action is brought. As this condition is in the nature of a procedural requirement, actions brought before the process has been completed are dismissed on procedural grounds.
The application is made to the mediation office at the courthouse for the place where the property is situated. If the parties fail to reach agreement, the eviction action may be brought together with the final record drawn up by the mediator.
Time Limit for Bringing an Action After the Notice
No firm time limit for bringing proceedings is laid down in the law for these actions. It is nevertheless important in practice that the action be brought within a reasonable time during the period in which the breach persists. Remaining inactive for a long time, or continuing the relationship in fact notwithstanding the breach, may in some cases cause the claim to be filtered through the rule of good faith.
Court with Subject-Matter and Territorial Jurisdiction
In eviction actions brought on the ground of breach of the lease agreement, subject-matter jurisdiction lies as a rule with the Civil Court of Peace. Given the nature of eviction actions arising out of a lease relationship, this rule of jurisdiction laid down by law cannot be altered by agreement between the parties.
As regards territorial jurisdiction, the court for the place where the property is situated has jurisdiction.
Burden of Proof and Evidence
The landlord seeking eviction bears the burden of proving the state of breach alleged. Success of the claim depends on the breach being established by concrete and convincing evidence.
The items of evidence most frequently used for this purpose in practice are the following:
- A notice served through a notary public
- Resolutions adopted by the management of the building or housing estate, together with letters of complaint
- Records drawn up by the neighbours or by the management
- Reports drawn up by law enforcement or the municipal police
- Photographs and video recordings
- Witness testimony
In claims of disturbance of the neighbours in particular, the variety of the evidence and its capacity to establish that the incidents were continuous play a decisive role in the success of the claim.
Appeal and Appeal on Points of Law
The parties have the right to pursue the legal remedies against the judgment given at the conclusion of the proceedings. An appeal may be lodged against an eviction judgment of the court of first instance within 2 weeks of the judgment being served on the parties.
An appeal on points of law may also be open against judgments given at the conclusion of the appeal examination, where the statutory conditions are met. One matter should not be overlooked here: the lodging of an appeal against an eviction judgment does not of itself halt the eviction. For the process to be suspended, a separate order for a stay of execution must be obtained.
Giving Effect to the Eviction Judgment Through Enforcement
An eviction judgment given on the ground of breach of the lease agreement may as a rule be enforced without waiting for it to become final. Once the judgment has been served on the parties, the landlord may apply to the relevant Enforcement Office and make a request. The Enforcement Office then serves an eviction order on the tenant and requires the property to be vacated within a specified period.
If the tenant does not vacate the property voluntarily within the period granted, forced eviction may be carried out through the Enforcement Office. At this stage the property is vacated, with the support of law enforcement where necessary, and delivered up to the landlord. With the eviction actually taking place the lease relationship comes to an end; the landlord is once again in a position to deal with the property.
If the tenant has pursued a legal remedy and has in addition obtained an order for a stay of execution, the eviction process is temporarily suspended. The mere lodging of an appeal or an appeal on points of law, by contrast, does not produce that result.
The enforcement fees, eviction costs and expenses of forced eviction arising at the enforcement stage are as a rule borne by the tenant. Forming the final link in the litigation process, this stage is in practice one of the critical steps at which the result is actually obtained and which produces the swiftest effect.
Independent Legal Assessment
In files resting on this ground of eviction, the source of failure is most often not the substance of the claim but shortcomings at the preparatory stage. A notice drafted in general terms, an action brought without a period having been granted, or a claim founded on a single incident are all apt to be dismissed without the merits being reached. In claims concerning disturbance of the peace of the neighbours, the question is largely one of proof: the timely and orderly collection of records showing that the incidents were repeated directly affects the outcome.
When taking a concrete dispute forward, it would be appropriate to give priority to the following heads:
- Preparing the notice so that it sets out the concrete conduct, the period granted and the warning of termination
- Assessing whether the breach is material in nature, distinguishing it from a single isolated incident
- Assembling law enforcement reports, management resolutions and witness statements before proceedings are brought
- Establishing at the outset whether any of the exceptional cases in which no notice is required are present
- Completing the mediation process in full as a procedural requirement
- Taking the possibility of a stay of execution into account in advance at the stage of enforcing the eviction judgment
Independent Legal provides advisory and litigation services throughout the whole of the process in disputes arising out of lease relationships, from the preparation of the notice to the enforcement of the eviction judgment.