The eviction, through enforcement proceedings, of a tenant who fails to pay the rent is a special and highly workable legal avenue, resting on Art. 315 of the Turkish Code of Obligations No. 6098 and Art. 269 et seq. of the Enforcement and Bankruptcy Act No. 2004, which affords the landlord the opportunity, within a single process, both to recover the sums accrued to it and to secure the vacation of the property.
The most frequent misconception in practice is that non-payment of the rent is in itself treated as sufficient for eviction. In truth, whether the request will be granted depends as much on the notice of default having been drawn up in due form, on the tenant having been allowed in full the period prescribed by law, and on the proceedings having been conducted in accordance with the rules of procedure, as it does on the existence of the debt.
In this briefing note we examine, stage by stage, the process of evicting through enforcement proceedings a tenant who fails to pay the rent, within the framework of Art. 315 of the Turkish Code of Obligations No. 6098 and Art. 269 et seq. of the Enforcement and Bankruptcy Act No. 2004.
How Are Enforcement Proceedings Commenced Against a Tenant Who Fails to Pay the Rent?
Commencing enforcement proceedings against a tenant who fails to pay the rent on time is one of the most productive avenues open to the landlord, both for recovering the sums due and for securing the tenant’s removal from the property. This special form of proceedings, known as enforcement proceedings without a judgment carrying an eviction warning, allows the landlord to seek both payment and eviction by way of a single application.
A common error is to suppose that the existence of rent arrears is in itself sufficient to commence proceedings. In reality, for the proceedings to be valid there must be a lease relationship between the parties, the debt must be ascertained, and the periods prescribed by law must be correctly allowed to the tenant. A defect in any one of these elements may lead to the dismissal of the eviction claim and to the process having to be built afresh.
Conditions Required for Commencing Proceedings
Whether proceedings with an eviction warning may be brought against a tenant who fails to pay the rent depends on the following conditions being satisfied together:
- There must be a valid lease relationship between the parties. The agreement may be written or oral; the existence of a written text, however, confers a marked advantage in terms of proof, particularly where an objection is encountered.
- The debt must have fallen due. In other words, the day for payment of the rent must have arrived and the tenant must nonetheless have failed to make payment.
- The extent of the debt must be ascertained. The application for enforcement must state, with a clarity leaving no room for doubt, the periods to which the debt relates and its total amount.
- The proceedings must be brought before the enforcement office with territorial jurisdiction. As a rule, jurisdiction lies with the enforcement office for the place where the leased property is situated.
The Payment Order to Be Served on the Tenant
In proceedings brought against a tenant who fails to pay the rent, arriving at an eviction depends to a large extent on the payment order having been drawn up correctly. The content of the order, the period allowed to the tenant and the regularity of service therefore form the most delicate links in the process.
Elements That Must Appear in the Payment Order
The payment order to be served on the tenant must contain the following matters in full and in clear terms. The absence of any one of them is grave enough to lead to the dismissal of the eviction claim.
- The amount of the debt must be stated expressly. The total sum and the periods the debt covers must be set out so as to leave no room for doubt.
- The items must be separated out. The rent, the interest accrued and any other sums due should so far as possible be shown separately.
- The statutory period for payment must be allowed. In residential and roofed workplace leases the tenant must be given at least 30 days.
- An eviction warning must be included. The tenant must be expressly notified that the leased property will be vacated should payment not be made within the period.
- The period for objection must be stated. The order must indicate that the tenant may object to the payment order within the statutory period.
Where these elements are drawn up defectively or incorrectly, the result may be that the proceedings are treated as wholly invalid or that the eviction claim is dismissed.
Service and the Commencement of Time Limits
For the process to produce legal effect, the payment order must be served on the tenant in due form. Where service is irregular, time does not begin to run and the eviction process does not acquire validity.
At the stage of service, the following points in particular must be observed:
- Time runs from the date on which the notification reaches the addressee.
- Service must be effected at the tenant’s last known address.
- Where service is irregular, the tenant may argue that time has not run at all.
- Where the tenant cannot be found at the address, the provisions of the Notification Act must be followed.
At this point we underline the following in particular: both the 30-day period for payment and the 7-day period for objection begin to run from the date on which the payment order is served on the tenant.
What Happens If the Tenant Neither Objects Nor Pays?
Where no objection is made to the payment order within the statutory period and the debt is likewise not paid within the period allowed, the proceedings become final. From that stage the landlord acquires both the right to recover the rent due and the right to seek the vacation of the leased property. In practice this threshold is regarded as the critical point at which the eviction process actually begins.
At this stage it is useful to be aware of the following:
That the tenant has neither objected nor made payment means that it has, in law, acknowledged both the debt and the lease relationship. The tenant’s scope for advancing defences at later stages as to the existence of the debt or as to the agreement is therefore appreciably narrowed.
Finalisation of the Proceedings
The proceedings become final as against a tenant who, within the statutory period following service of the payment order, neither objects nor pays the debt within the period allowed to it. Finalisation shows that the legal ground required for the landlord to be able to seek eviction has been established.
The consequences arising at this stage are as follows:
- The existence of the lease agreement and of the tenancy relationship is deemed to have been acknowledged.
- The existence of the debt becomes legally settled.
- The tenant largely loses the opportunity to raise a defence as to the debt or the agreement.
- The landlord acquires the right to seek eviction.
As will be seen, a failure to object to the payment order in time carries grave consequences for the tenant.
Requesting Eviction from the Enforcement Office
Once the proceedings have become final, the landlord may apply to the enforcement office and request eviction with a view to securing the tenant’s removal from the property. That application is generally made by way of a request to the enforcement office and formally sets the eviction process in motion.
For a request for eviction to be made, the following conditions must have been satisfied together:
- The payment order must have been served on the tenant in due form.
- The tenant must not have taken the course of objecting within the statutory period.
- The period for payment allowed to the tenant must have expired.
- The debt must have remained unpaid throughout that period.
Where these conditions come together, the landlord may request the Enforcement Court to order the eviction of the leased property.
Does Later Payment of the Debt Prevent Eviction?
A tenant’s discharge of the debt after the period allowed to it has expired does not in every case halt the eviction process. In particular, where payment has not been made within the period prescribed by law and the proceedings have become final, a payment made subsequently does not extinguish the landlord’s right to seek eviction.
The distinction is drawn as follows:
- Payment made within the period brings the right to evict to an end.
- Payment made after the period has expired results only in the recovery of the sums due; it does not touch the right to evict.
Accordingly, late discharge of the debt does not, in most cases, stand in the way of eviction; it merely secures the recovery of the sums that were the subject of the proceedings.
What Happens If the Tenant Objects to the Proceedings?
If the tenant objects, within the statutory period, to the debt or to the lease relationship set out in the payment order served on it, the proceedings are stayed and the landlord cannot seek eviction directly. For the process to continue, the landlord must apply to the court and request the removal or the annulment of the objection.
In practice this stage is one of the most critical turning points, determining the direction the process takes. For whether the objection raised by the tenant is in the nature of:
- An objection to the lease agreement
- An objection to the debt
- An objection to the signature
alters the legal course to be followed entirely. It is therefore of great importance, if the process is to advance swiftly and soundly, that the landlord correctly identify the type of objection and select the course of action that corresponds to it.
The Course to Follow Where the Debt Is Disputed
Where the tenant objects only to the rent debt, it is deemed to have acknowledged the lease relationship in law. In that case the dispute is directed not at the existence of the agreement but at whether the debt has arisen and whether it has been paid. This is the most frequently encountered type of objection in practice and generally rests on an allegation that payment was made or that the account was drawn up incorrectly.
Where the debt is disputed the proceedings are stayed; the landlord’s right to evict, however, remains intact. The course to be followed in that case is a request before the Enforcement Court for the removal of the objection and eviction.
For further detail on the subject, reference may be made to our note entitled Action for the Removal of an Objection.
- Period for Bringing the Action
An action for the removal of the objection and for eviction must be brought before the Enforcement Court within 6 months of the date on which the objection is notified to the landlord. That period is preclusive.
- Court with Subject-Matter and Territorial Jurisdiction
Court with subject-matter jurisdiction: the Enforcement Court.
Court with territorial jurisdiction: the enforcement court for the place where the leased property is situated, or the enforcement court for the place where the proceedings are being conducted.
- Proof and Evidence
The evidence that comes to the fore in actions of this kind is as follows:
- The enforcement file and the payment order
- The written lease agreement
- The schedule of rent arrears together with the statement of account
- Bank receipts or documents relating to payment
At this stage the burden of proving that payment was made lies with the tenant.
The Course to Follow Where the Signature Is Disputed
Where the tenant expressly and unequivocally denies that the signature on the agreement is its own, the existence of the agreement becomes seriously contentious. In such a case the dispute turns not merely on the debt but into a fundamental disagreement as to whether the agreement was concluded at all.
Objections of this kind are generally expressed in the following terms:
- “The signature is not mine.”
- “I did not sign this agreement.”
- “The signature on the document is forged or has been imitated.”
The course to be followed differs according to the nature of the lease agreement.
- Where the agreement has been drawn up by a notary or its signature certified by a notary, the removal of the objection and eviction may be sought before the Enforcement Court. For a document drawn up by a notary, or one whose signature has been certified by a notary, has the force of an “official document” within the meaning of Art. 68 of the Enforcement and Bankruptcy Act No. 2004.
- Where, by contrast, the agreement consists of no more than a private written document, an action for the annulment of the objection and for eviction must be brought before the Civil Court of Peace. For further detail on the subject, reference may be made to our note entitled Action for the Annulment of an Objection.
- Period for Bringing the Action
An action for the annulment of the objection and for eviction must be brought within 1 year of the notification of the objection to the landlord. That period is preclusive.
- Court with Subject-Matter and Territorial Jurisdiction
Court with subject-matter jurisdiction: the Civil Court of Peace.
Court with territorial jurisdiction: the court for the place where the leased property is situated, or the court for the respondent’s place of domicile.
- Proof and Evidence
The decisive evidence in such actions is as follows:
- The lease agreement,
- Examination by a court-appointed expert,
- The documents to be taken as the basis for comparison of the signature
At this stage the burden of proving that the signature belongs to the tenant lies with the landlord.
The Course to Follow Where the Lease Relationship Is Disputed
Where the tenant contends that no lease agreement was ever concluded between the parties, or that there is no tenancy relationship, the dispute turns directly into a fundamental disagreement as to the existence of the lease relationship. In such a case eviction cannot be secured by way of enforcement law and the dispute is resolved within the framework of the general provisions.
Objections of this kind are generally expressed as follows:
- “I am not a tenant.”
- “No lease agreement was concluded.”
- “I did not lease the property.”
- “I use the property under a different legal relationship.”
The course to be taken in that event is to bring an action for the annulment of the objection and for eviction before the Civil Court of Peace.
- Period for Bringing the Action
An action for the annulment of the objection and for eviction must be brought within 1 year of the notification of the objection to the landlord. That period is preclusive.
- Court with Subject-Matter and Territorial Jurisdiction
Court with subject-matter jurisdiction: the Civil Court of Peace
Court with territorial jurisdiction: the court for the place where the leased property is situated, or the court for the respondent’s place of domicile.
- Proof and Evidence
The matters the landlord must establish in such actions are as follows:
- That the tenancy relationship was established
- The existence of the lease agreement
- That the rent debt arose
- That the property was used by the tenant
The principal evidence that may be relied upon is as follows:
- Witness statements
- The written agreement
- Electricity, water and natural gas subscription records
- Bank records
- Correspondence and message transcripts
- The record of handover of the keys
At this stage the burden of proof lies with the landlord.
Appeals Against an Eviction Judgment and Stay of Execution
The delivery of judgment in an eviction action does not mean that the process has come to a close. The parties may appeal against that judgment, and the suspension of its execution likewise depends on certain conditions being met. Since eviction judgments may as a rule be put into execution without having become final, grasping correctly the difference between lodging an appeal and requesting a stay of execution is of great importance. In this section we address, in practical terms, the appeals available against the judgment and the conditions in which an eviction may be halted.
The Effect of an Appeal on Eviction
The parties may appeal against the judgment given at the conclusion of an eviction action. The principal course open against a judgment of the court of first instance is an appeal. That course allows the lawfulness of the judgment to be reviewed by the Regional Court of Appeal.
The appeal must be lodged within 2 weeks of the judgment being notified to the parties. That period is preclusive. If no application is made in time, the judgment becomes final and the landlord may have the eviction order enforced.
The most important matter to be aware of at this point is the following: an appeal does not, of itself, halt the eviction.
Eviction judgments are as a rule among those that may be put into execution without waiting for them to become final. Accordingly, even if the tenant has lodged an appeal, the landlord may put the judgment into effect through the enforcement office.
What Is a Stay of Execution, and on What Conditions Does It Depend?
A stay of execution is the legal means by which the execution of an eviction judgment may be temporarily suspended even though an appeal has been lodged against it. Since eviction judgments may be put into execution before becoming final, the tenant must additionally obtain an order for a stay of execution if it is to halt the eviction.
The fundamental rule here is this: unless an order for a stay of execution is obtained, the eviction is not halted.
Put another way, the lodging of an appeal is not in itself sufficient. For the eviction to be halted, a request for a stay of execution must be made and the security prescribed must be deposited.
For a request for a stay of execution to be granted, the following conditions must be satisfied together:
- The deposit of the security determined by the court or by the enforcement office
- The lodging of an appeal in time against the eviction judgment
- The production to the enforcement file of the endorsement showing that an appeal has been lodged
The most decisive element in practice is the requirement of security. So long as the security is not deposited, the request is not granted and the eviction proceedings continue from where they left off.
The Amount of the Security, Where and How It Is Deposited
Security is taken with a view to safeguarding the losses the landlord may suffer by reason of the delay in the enforcement of the eviction judgment. For further detail on the subject, reference may be made to our note entitled Suspension of Enforcement and Stay of Execution.
How Much Is the Security?
The security the tenant must deposit in order for the execution of the eviction judgment to be suspended is, in accordance with settled case law and enforcement practice, an amount equal to at least three months’ rent.
The enforcement office or the court may, having regard to the particular features of the case, order security in excess of that figure. Security may be increased in particular where the rent is high, or where the likelihood of the landlord suffering loss by reason of the delay is greater.
Where and How Is the Security Deposited?
The security is deposited into the account of the enforcement office, in cash or in the form of a letter of guarantee, as the court sees fit.
Enforcement of the Eviction Judgment
In proceedings with an eviction claim brought against a tenant who fails to pay the rent, the court’s delivery of an eviction judgment does not mean that the process is complete. For the tenant to be physically removed from the property, the judgment must be enforced through the enforcement office. This stage is the final link, at which the legal ruling is converted into an actual eviction.
The procedure to be applied here departs from the general provisions on the enforcement of judgments and is subject to the special eviction regime laid down in Article 269 et seq. of the Enforcement and Bankruptcy Act No. 2004. How the judgment is to be executed, the period to be allowed to the tenant and the manner of forcible eviction are therefore determined within the framework of those special provisions.
Putting the Judgment into Execution
Having obtained an eviction judgment from the enforcement court, the landlord must apply to the enforcement office and request eviction in order for the judgment to be carried out. The judgment is not executed of its own motion; it must invariably be carried out through the enforcement office.
The following points stand out in particular at this stage:
- The eviction cannot be set in motion until the judgment is submitted to the enforcement file
- An application to the enforcement office is required once the eviction judgment has been obtained
- The process is conducted by the enforcement office
- Where the tenant does not vacate the property of its own volition, the enforcement office steps in
There is, moreover, a very important period that must not be missed: the landlord must request eviction from the enforcement court within 6 months of the expiry of the warning period. If that period is allowed to elapse:
- The right to evict lapses
- Eviction can no longer be sought on the same proceedings
- Fresh enforcement proceedings may have to be commenced
Indeed, one of the errors most frequently made in practice is overlooking the period for requesting eviction.
The Eviction Order and the Period Allowed to the Tenant
Once the judgment has been submitted to the enforcement office, the office issues the tenant with an eviction order. That order is an official notification informing the tenant that the property is to be vacated within a specified period.
Under Article 269/c of the Enforcement and Bankruptcy Act No. 2004, the tenant is allowed 10 days to vacate the property. As regards that period:
- Time begins to run on the date the eviction order is served on the tenant
- The tenant may vacate the property of its own volition within the period
- Forcible eviction may not be undertaken before the period has expired
Carrying out a forcible eviction before the 15-day period has expired is unlawful.
Forcible Eviction
If the tenant does not vacate the property within the 10 days allowed to it, forcible eviction is carried out by the enforcement office. The process is performed by the enforcement director or an enforcement officer and, where necessary, the assistance of law enforcement may be sought.
The steps followed in a forcible eviction are as follows:
- The enforcement office fixes a day for the eviction
- The date fixed is notified to the tenant
- Where required, the assistance of the police or the gendarmerie is provided
- The goods in the property are removed
- The goods are delivered to the tenant or left with a judicial custodian
With the completion of these steps the eviction process is actually concluded and the landlord resumes use of the property.
Independent Legal Assessment
Enforcement proceedings with an eviction warning, when properly constructed, allow the landlord to pursue its claims for payment and for eviction through a single file. In practice, however, a significant proportion of files come to nothing not because of any deficiency going to the merits, but because an element of the payment order has been omitted, because service was irregular, or because preclusive periods have been missed. Setting the process up correctly from the outset will often save the cost of a second set of proceedings and the months lost with it.
In planning an eviction on the ground of rent arrears we recommend that the following headings be given priority:
- Verifying that the payment order expressly sets out the 30-day period for payment and the eviction warning
- Confirming, before time begins to run, that service has been effected in due form
- Correctly identifying the court with subject-matter jurisdiction and the course of action according to the type of the tenant’s objection
- Diarising the preclusive period of 6 months where the debt is disputed and of 1 year where the signature or the lease relationship is disputed
- Not overlooking the 6-month period for requesting eviction, which runs from the expiry of the warning period
- Including the possibility of a stay of execution and of security in the recovery plan following an eviction judgment
Independent Legal provides advisory services and file management in matters concerning the recovery of rent arrears and the eviction of leased property, from the commencement of enforcement proceedings through to the stage of forcible eviction.