Where the leased building must be demolished and rebuilt, substantially repaired, enlarged or structurally converted, those works may present a temporary or permanent obstacle to the use of the property. An eviction action on the ground of reconstruction or substantial renovation is a special type of action affording the possibility, where such a necessity arises, of seeking the termination of the lease relationship and the vacating of the leased property.
For recourse to be had to this route, it is not sufficient that some work is to be carried out on the property. The planned work must go beyond the level of routine maintenance or minor repair and be in the nature of substantial repair, extension or reconstruction; use of the leased property must be actually impossible while those works are under way; and the necessity in question must be capable of being established by concrete documents.
Below we address the statutory basis of the provision, which building activities fall within its scope, the conditions and time limits required for the claim to be allowed, the conduct of the proceedings, how the necessity of the construction or renovation is to be proved, and the priority afforded to the former tenant once the works are complete, as these appear in practice.
What Does Eviction on the Ground of Reconstruction or Substantial Renovation Mean?
This type of action confers the power to seek the tenant’s eviction where a necessity arises to rebuild, substantially repair, enlarge or alter the leased property and it is apparent that use cannot be continued on account of those works. The interest protected by the legislature here is the owner’s ability to carry out building activities on the property that have become necessary; a ground of eviction specific to the termination of the lease agreement has been provided for that purpose.
The Limits of the Concept of Construction and Substantial Renovation
The concept covers interventions that transform, enlarge or reorganise the structural characteristics of the property to an appreciable extent. Those interventions must be of an intensity that will temporarily halt, or seriously impede, the enjoyment of the property.
Painting and whitewashing works, small-scale repairs and maintenance activities that can be carried out within ordinary use are as a rule not counted within this scope. By contrast, operations such as demolishing and rebuilding the structure, making changes to the load-bearing system, enlarging an independent unit or converting the purpose of use are characterised as substantial renovation or reconstruction.
The Statutory Basis of the Provision
This ground of eviction is regulated in the second subparagraph of Article 350 of the Turkish Code of Obligations No. 6098. Under that provision the landlord may, where the leased property must be reconstructed or substantially repaired and it is impossible to enjoy the leased property during those works, terminate the lease agreement and seek to have the property vacated.
The wording of the subparagraph is as follows:
Turkish Code of Obligations Art. 350(2)
“Where the substantial repair, extension or alteration of the leased property is necessary for the purpose of its reconstruction or development, and use of the leased property is impossible during those works,”
The provision has regard to two interests together: the owner’s ability to renew the property in line with economic and technical requirements, and the tenant’s protection against arbitrary eviction claims. In order to strike that balance, the courts scrutinise rigorously whether the building necessity is genuine and compelling, whether the works actually prevent use, and whether the allegation is supported by concrete documents.
In What Circumstances May This Ground of Eviction Be Relied Upon?
For the action to be pursued, the planned work must go beyond the level of ordinary maintenance or minor repair; there must be a necessity for reconstruction or substantial renovation that largely prevents, or entirely precludes, the enjoyment of the leased property. While affording the owner the possibility of renewal, the legislature has drawn certain limits so that this power does not become a means of ridding the owner of the tenant.
In this framework the courts assess, according to the particular features of the file, whether the planned building activity is necessary, whether it actually prevents use, and whether it is to be regarded as substantial from a technical point of view.
The Necessity of Reconstructing the Property
Where the building has reached the end of its economic life, has lost its structural safety or has become unusable in its present condition, it may be necessary to demolish and rebuild the property. Where such a picture emerges, the landlord may seek the tenant’s eviction for the purpose of reconstruction.
Urban transformation schemes requiring the demolition and rebuilding of the building, renewal of the structure on grounds of earthquake safety, or the existing structure becoming technically unusable are typical situations assessed under this heading. Where it is established that enjoyment of the leased property is impossible for the duration of the construction, the eviction claim is accepted as well founded in law.
The Need for Substantial Repair or Extension
Where the operations envisaged on the property are in the nature of substantial repair or extension, this too may constitute a ground of eviction. For that purpose, however, the operation must not remain at the level of simple maintenance or minor repair; it must change the characteristics of the structure to an appreciable extent or seriously affect its use.
Making changes to the load-bearing system, enlarging an independent unit, reorganising the area of use from scratch, or renewing a significant part of the building are among the works regarded as falling within this scope. Painting, whitewashing, minor repairs and routine maintenance works, by contrast, as a rule do not bring about eviction.
Use Becoming Impossible for the Duration of the Works
For this action to be brought, it is not enough that the work to be carried out merely makes enjoyment of the leased property more difficult; it must render use actually impossible. If the tenant is able to continue using the property while the works are under way, the claim may not be allowed.
The courts therefore examine whether use is genuinely possible by considering together the nature, the scope and the estimated duration of the work. Where it is determined that use is severely impeded, or entirely removed, for the duration of the construction, the eviction claim is regarded as well founded in law.
Conditions Required for the Action to Be Allowed
The landlord’s expression of a wish to carry out renewal or repair on the property is not sufficient for an eviction judgment. The courts weigh the nature, scope and necessity of the planned work in the light of concrete evidence and examine whether the statutory conditions are satisfied cumulatively. Before the claim is raised it is therefore necessary to assess carefully whether the envisaged work will be regarded in law as a ground of eviction.
The Work Being in the Nature of Substantial Repair, Extension or Reconstruction
Whether the claim will be entertained depends on the planned operation going beyond the level of simple maintenance or minor repair and constituting a substantial repair, extension or reconstruction activity that appreciably transforms the characteristics of the structure or directly affects its use.
Painting, whitewashing, minor repairs and day-to-day maintenance works are as a rule not counted as a ground of eviction. By contrast, demolishing and rebuilding the building, altering the load-bearing system, enlarging an independent unit, or comprehensive works converting the purpose for which the structure is used are characterised as substantial renovation.
The Work Rendering Use Actually Impossible
For eviction to be ordered, it is required that the work render use impossible, not merely difficult. If the tenant is able to continue using the property safely and healthily throughout the works, the claim may be dismissed.
In making this assessment the courts consider together the nature, scope and duration of the work; they test whether use can be sustained against technical data and the concrete evidence submitted to the file.
The Necessity Being Genuine and Compelling
The building activity relied upon must rest on a genuine and compelling need. Allegations of construction and renovation put forward solely in order to increase the value of the property, to obtain a higher rental income or to remove the tenant are not protected in law.
At this point the courts assess, according to the particular features of the file, whether the work is technically necessary, whether a situation exists that is compelling from an economic or safety point of view, and whether the claim has been raised in a manner consistent with the rule of good faith.
Proving the Necessity by Documents Such as the Project and the Permit
Whether the claim is allowed depends on the planned work being established by concrete evidence. The landlord is expected to submit to the court the technical documents and official permissions showing the nature and scope of the envisaged construction or renovation.
The documents that come to the fore in practice as regards proof are as follows:
- The building permit or the permit relating to the renovation
- The architectural project together with the implementation plans
- Structural and technical reports establishing the condition of the building
- Decisions taken in the direction of urban transformation or structural strengthening
- Letters from the relevant municipality and decisions of the administrative authorities
Where these documents are not placed on the file, dismissal of the claim may arise on the ground that the necessity of the construction or renovation has not been sufficiently proved.
The Claim Not Being Abused for the Purpose of Eviction
The ground relied upon must be compatible with the rule of good faith. Alleging construction or renovation solely in order to remove the tenant where no such necessity in fact exists may be assessed as an abuse of right.
The courts therefore examine carefully the true purpose of the claim, whether the works have actually been carried out, and whether the manner in which the property is used after eviction corresponds to the ground relied upon.
Time Limits for Bringing the Action and Commencing the Work
Time limits are one of the important factors determining the outcome in this type of action. For the landlord to raise the claim, the action must be brought within the period prescribed by the statute according to the type of agreement, and after the eviction the planned works must be commenced within a reasonable time. Miscalculating the periods, or failing to comply with these obligations, may lead to dismissal of the claim or to legal liability on the part of the landlord.
The Period for Bringing an Action Under Fixed-Term Agreements
In fixed-term lease agreements the action must, as a rule, be brought within one month of the expiry of the term of the agreement. That period is a preclusive period; if the action is not brought in time it may not be possible to seek eviction on the same ground.
Where, however, the landlord has notified the tenant in writing before the end of the term that the right to bring an action is reserved, the action may be brought even after the one-month period has expired. In practice, sending a formal notice before the term of the agreement is complete is important as regards protecting the right of eviction.
The Period for Bringing an Action Under Open-Ended Agreements
For an action to be brought under open-ended agreements, the lease relationship must first be terminated in conformity with the termination periods and notice periods for termination prescribed by the statute. The landlord may bring the agreement to an end by observing the period allowed for notice and may bring the eviction action within one month of the date of termination.
Since the calculation under this type of agreement calls for a technical assessment, accurate determination of the termination period and the notice period is of considerable importance in practice. An erroneous calculation may result in the eviction claim being dismissed.
Commencing the Works Within a Reasonable Time After Eviction
Once eviction has been secured, the landlord is expected to commence within a reasonable time the construction or renovation works that have been planned. Where no work at all is carried out for a considerable period after eviction, that may lay the ground for an assessment that the necessity did not in fact exist or that the right of eviction has been abused.
The courts therefore examine, according to the particular features of the file, whether the works have been commenced and the nature and duration of the work carried out. Where the work is not undertaken within a reasonable time, the landlord may incur legal liability and a claim in damages in favour of the former tenant may arise.
Bringing the Action and the Proceedings
This action is a process that must be conducted in conformity with the procedural rules laid down in the statute. The notice to be given to the tenant, the mediation requirement, the correct application of the rules on subject-matter and territorial jurisdiction, and proof of the necessity by concrete evidence are decisive at this stage. A procedural defect may lead to the claim being dismissed even where the work to be carried out is genuinely necessary.
The Notice to Be Given to the Tenant
Sending written notice to the tenant before the claim is raised is a procedural step of importance in practice. The notice must state clearly the nature and scope of the construction or renovation envisaged on the property and the fact that enjoyment of the leased property will not be possible while those works are under way.
The landlord may, by giving the tenant written notice before the term of the agreement expires, announce that the right to bring an action is reserved. That notice serves to preserve the period for bringing an action. In practice it is preferred that the notice be sent through a notary in the form of a formal notice.
The Obligation to Have Recourse to Mediation
In eviction disputes arising from leases of dwellings and roofed business premises, recourse to a mediator is mandatory before an action is brought. The landlord is expected to pursue this process before bringing an action on the ground of construction or renovation and to apply to the court where the meetings close without agreement.
Where the mediation stage is omitted and an action is brought directly, the claim may be dismissed on procedural grounds. The final record drawn up at the end of the process must therefore be annexed to the statement of claim.
Courts with Subject-Matter and Territorial Jurisdiction
In these actions subject-matter jurisdiction lies with 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 have designated the court of a different place as having jurisdiction by a jurisdiction clause added to the lease agreement. It is therefore important to review the jurisdiction provision in the agreement before bringing the action.
Evidence Available to Prove the Necessity
In order to raise the claim, the nature and the necessity of the planned work must be established by concrete evidence. The courts assess, within the framework of technical data, whether the work is genuinely in the nature of substantial repair or reconstruction and whether enjoyment of the leased property is possible while the works are under way.
The evidence frequently submitted in these actions in practice is as follows:
- The lease agreement between the parties and the land registry records of the property
- The formal notice served on the tenant
- The building permit or the renovation permit
- The architectural projects and the implementation plans attached to them
- Structural and technical reports establishing the condition of the building
- Letters from the administrative authorities and municipal decisions
- Decisions relating to structural strengthening or urban transformation
- Court-appointed expert reports and opinions obtained from specialists in the field
Where these documents are absent or prove insufficient, dismissal of the claim on the ground that the necessity has not been proved may arise.
Appeal and Appeal on Points of Law
The judgments given in these actions are, where the statutory conditions exist, open 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 of two weeks running from service of the judgment 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 seek review before the Court of Cassation. Since recourse to the appellate remedies delays the judgment becoming final, it also directly affects the total time within which eviction will be completed.
Enforcement of the Eviction Judgment
The eviction judgment given in this action need not have become final in order to be enforced. The landlord may commence the eviction proceedings by way of enforcement based on a court judgment without waiting for the judgment to become final; the opposing party, for its part, may deposit three months’ rent as security and request a stay of enforcement.
An eviction order is sent to the tenant by the Enforcement Office; if the tenant does not vacate the property within the period allowed, eviction may be carried out by force. This stage is the final link that actually brings about eviction once the proceedings are complete.
The Property Not Being Let in Its Former State for Three Years
Property vacated on the ground of reconstruction or substantial renovation 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 begins to run on the date on which the tenant actually left the property.
The legislature introduced this restriction in order to prevent an allegation of reconstruction or substantial renovation being used solely to remove the tenant and to secure the tenant’s legal certainty. The owner must therefore turn the property to account after eviction in a manner consistent with the renewal purpose declared, and must observe the statutory period as regards reletting.
The Priority Afforded to the Former Tenant Once the Works Are Complete
Where the tenant is removed on the ground of construction or renovation, the landlord is under a special statutory obligation to be observed when reletting the property. That obligation differs from the three-year prohibition on letting in eviction actions brought on the ground of need; what is in issue here is that priority be afforded to the former tenant once the property becomes usable again. The purpose of the provision is to alleviate the detriment suffered by the tenant as a result of eviction and to forestall abuse of the right of eviction.
Accordingly, where the landlord wishes to relet the property once the works have been completed, the offer must be directed first to the former tenant. Acting contrary to that obligation may give rise to liability in damages.
Offering the Property to the Former Tenant First
If letting is contemplated once the works have been completed and the property has become usable again, the landlord must take the first offer to the former tenant. The offer must carry clear and intelligible information about the final condition of the property and the terms of the lease.
Where the former tenant accepts that offer, the lease relationship may be re-established. Where the offer is refused, or the terms are not found suitable by the former tenant, the landlord may let the property to a third party.
The obligation in question is a protective provision aimed at reducing the detriment suffered by the tenant on account of eviction and at preventing the right of eviction from being used for a purpose other than its own.
Damages for Breach of the Right of Priority
Where the landlord, once the works are complete, lets the property directly to a third party without offering it to the former tenant, liability in damages arises in favour of the former tenant.
In such a case the former tenant may claim damages of not less than one year’s rent paid in the last year of the lease. That amount, prescribed by the statute, is capable of covering the removal costs borne by the tenant on account of eviction, the difference in the new rent and similar losses. The extent of the loss is assessed separately by the court according to the particular features of the case.
It is therefore of considerable importance that the landlord act in conformity with the statutory obligations in the process of reletting the property following the eviction judgment.
Independent Legal Assessment
Unlike actions founded on the ground of need, eviction actions brought on the ground of reconstruction and substantial renovation proceed predominantly on technical documents. The course of the dispute is generally determined not by witness statements but by whether official documents such as the permit, the project and the structural report were available as at the date of the action. In actions brought in reliance on a building activity for which the permit has not yet been obtained and the project has not been approved, a problem of proof is all but inevitable.
Nor should it be overlooked that the process does not close with eviction. The three-year prohibition on letting, the obligation to commence the works within a reasonable time and the priority afforded to the former tenant on completion make the post-eviction period, too, an area subject to legal scrutiny. Breach of these obligations may turn into liability in damages after an action has been won.
In planning a concrete file, the following headings should be given precedence:
- Determining in advance, by technical opinion, whether the planned work crosses the threshold of substantial renovation
- Completing documents such as the permit, the project and the structural report before the action is brought
- Calculating the one-month period according to the type of agreement and, if necessary, sending a formal notice before the term expires
- Annexing the final mediation record to the file as a procedural requirement
- Constructing, in a documentable manner, the timetable for commencing the works after eviction
- Communicating by a provable method the offer of a lease to be made to the former tenant once the works are complete
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 the management of post-eviction obligations.