Whether a tenant is obliged to vacate the leased property depends on the lease relationship coming to an end or on one of the specific situations provided for in the statute arising. Turkish law affords the owner no free area of discretion on this point: the eviction of a tenant takes effect only where reliance is placed on one of the grounds exhaustively listed in the statute and that ground is advanced in the proper form.
Identifying the wrong legal ground at the outset, or overlooking the procedural and time-limit rules laid down in the statute, results in practice in the claim being dismissed or in the process being prolonged unnecessarily. For that reason the legal characterisation of the file and the order of the steps to be taken often become more decisive than the merits of the dispute.
In this briefing note we address systematically the legal grounds that permit a tenant to be removed from the leased property; we assess in detail how the action is brought, how the process advances and the errors frequently encountered in practice.
The Concept of Tenant Eviction
Eviction denotes the tenant coming under an obligation to vacate the leased property upon the termination of the lease agreement or upon one of the grounds regulated in the statute arising. So long as the lease relationship stands, the tenant’s power to use the property is preserved; bringing that power to an end requires the existence of a legally valid ground for eviction.
The Legal Basis of the Concept
In Turkish law, the bulk of the provisions on removing a tenant from the leased property is found in the Turkish Code of Obligations No. 6098. The statute regulates in detail the termination of the lease agreement and the cases of vacating that follow from it, and eviction is possible only where one of those cases arises. The purpose behind the provisions is to preserve the balance between the interests of the parties and to secure the tenant’s ability to have a home or to carry on an activity.
The Principle That Grounds for Eviction Are Limited in Number (Turkish Code of Obligations No. 6098, Art. 354)
Whether a tenant may be removed from the leased property depends on reliance being placed on one of the grounds expressly provided for in the statute. In academic writing and in practice this is referred to as the principle that grounds for eviction are limited. The principle has two practical consequences: the owner cannot seek vacation on a justification that does not appear in the statute; nor can the parties, by inserting a clause into the contract, create a new ground for eviction that the statute does not recognise.
The statute reinforces this protection with a mandatory provision:
Turkish Code of Obligations No. 6098, Art. 354
"The provisions concerning the termination of a lease agreement by way of an action may not be amended to the detriment of the tenant."
The principle seeks to secure the tenant’s legal certainty in the lease relationship and to forestall arbitrary demands to vacate. It is at the same time a fundamental rule making it essential that the ground to be relied upon in the action to be brought is correctly determined.
What Are the Grounds for Evicting a Tenant?
Removal from the leased property arises only where certain situations regulated in the statute exist. It is not legally possible for the owner to remove the tenant whenever he pleases; the claim must always have a statutory basis. The legislature has determined these grounds exhaustively and has provided a separate regime of procedure and time limits for each of them.
The grounds for eviction most frequently relied upon in practice are gathered below under main headings.
Eviction Based on Non-Payment of the Rent
Failure to pay the rent on time amounts to a breach of the principal obligation of performance arising from the lease agreement. Where the conditions required by the statute are met, the landlord may rely on that breach to seek the removal of the tenant from the leased property. Non-payment is the most widespread justification for eviction claims.
This justification may be pursued along two distinct legal routes:
- Eviction of a Non-Paying Tenant on the Basis of Two Justified Formal Notices
Where two justified formal notices have been served on the tenant because the rent was not paid when due within a single lease year, vacation may be sought by bringing an action at the end of the lease term. This is the classic route resorted to in files where the rent has been paid late from time to time.
- Eviction by Way of Enforcement Proceedings on the Ground of Default
Where the rent is not paid, the landlord may commence enforcement proceedings and seek both to collect the accrued debt and to have the tenant removed from the leased property. It stands out as the method that reaches a result more quickly where the rent has not been paid at all or has not been paid for a long period. This route calls for separate examination under the heading Eviction by Way of Enforcement Proceedings.
Eviction Based on Conduct in Breach of the Contract
A breach by the tenant of the obligations arising from the contract may give rise to a claim to vacate on the landlord’s part. Breach of contract is not confined to non-payment of the rent; use of the property in a manner different from that provided for in the contract, disturbance of the neighbours or damage to the leased property are also assessed within this scope.
In cases of this kind the landlord serves a formal notice containing a period for the breach to be remedied; where the state of breach persists, he may make a claim to vacate.
- Eviction on the Ground of Breach of the Lease Agreement and Disrespect Towards the Neighbours (Turkish Code of Obligations No. 6098, Art. 316)
Where the property is used in breach of the contract, the neighbours are caused disturbance or the leased property is damaged, the landlord may by written formal notice require the breach to be brought to an end. If the breach continues despite the period granted, the contract may be terminated and vacation of the leased property may be sought.
- Eviction on the Ground of the Tenant’s Bankruptcy and Failure to Provide Security (Turkish Code of Obligations No. 6098, Art. 332)
Where bankruptcy is adjudged in respect of the tenant, the landlord may require the rent to be secured. If the tenant or the bankruptcy administration does not provide sufficient security within a reasonable period, the contract may be terminated and vacation may be sought.
Eviction on the Ground of Need
Where the landlord, the landlord’s spouse, descendants, ascendants or the persons the landlord is obliged by law to maintain have need of the leased property as a residence or as commercial premises, that constitutes a basis for a claim to vacate. The need advanced here must be genuine, sincere and compelling; the court makes that assessment on the concrete material in the file.
Two situations stand out under this heading:
- Eviction Action on the Ground of Need
Where the landlord or the relatives listed in the statute have a genuine and compelling need for the property, termination of the lease relationship and vacation of the leased property may be sought. It is one of the routes to eviction most frequently resorted to in practice.
- Eviction Action on the Ground of the New Owner’s Need
Where the leased property changes hands, the person who purchases it may make a claim to vacate if he has a need for himself or for the relatives listed in the statute. In this situation compliance with the notification periods provided for in the statute is decisive.
Eviction on the Ground of Reconstruction or Substantial Alteration
Where it becomes necessary for the leased property to be rebuilt or substantially altered, vacation may be sought because it will not be possible to use the property while those works are under way. What is required here is not a simple repair, but construction or alteration work of a nature that renders use of the property in fact impossible.
- Eviction of the Tenant on the Ground of Construction or Alteration
Where the property must be rebuilt, extended or substantially altered, the landlord may terminate the lease relationship and claim vacation of the leased property. In this situation it should not be overlooked that the tenant may have a right of priority should the property be let again. The subject is addressed in detail under the heading Eviction Action on the Ground of Reconstruction or Substantial Alteration.
Grounds for Eviction Based on the Term and on the Contract
Even where the lease agreement has been made for a fixed term, in certain situations the landlord is afforded the power to bring the relationship to an end and to seek vacation before the term expires or upon the passage of certain periods. The grounds in this group rest not on fault on the tenant’s part or on non-payment, but on the nature of the contract, its term, or the relationship having become unsustainable for the parties.
- Eviction of the Tenant on the Basis of an Undertaking to Vacate
Where the tenant has undertaken in writing to vacate the property on a particular date but does not leave it on that date, the landlord may make a claim to vacate. The route based on an undertaking is one of the methods that reaches a result in the shortest time; the decisive point, however, is that the undertaking has been drawn up in valid form.
- Termination and Eviction in Lease Agreements Exceeding Ten Years (Turkish Code of Obligations No. 6098, Art. 347)
In contracts of indefinite duration, or where a fixed-term contract has been extended, the landlord may bring the relationship to an end without showing any justification once the ten-year extension period has expired, and may seek vacation of the leased property. Compliance with the notification period provided for in the statute is mandatory on this route.
- Eviction on Substantial Grounds (Turkish Code of Obligations No. 6098, Art. 331)
Where a substantial ground arises that renders the lease relationship intolerable for the parties, either party may seek the termination of the contract. The court here weighs the circumstances of the concrete case and examines whether continuation of the relationship can be expected as a matter of the rule of good faith.
How Is an Eviction Action Brought?
Vacation of the leased property is mostly achieved by a judgment of the court or by way of enforcement proceedings. For the claim to be allowed, however, it is not enough on its own that a ground for eviction exists; that ground must be advanced in a manner consistent with the procedural and time-limit rules laid down in the statute. Selecting the correct legal basis, making the necessary notifications and formal notices, and conducting the proceedings in proper form are the decisive elements of the process.
The principal headings to be observed at the stage of the action are gathered below.
The Preconditions for Bringing an Action
First, a valid ground for eviction regulated in the statute must exist. In addition, in the case of certain grounds it is mandatory to serve a written formal notice on the tenant before the action is brought, or to wait for certain periods to expire. Where these preconditions are not satisfied, dismissal of the action brought may arise.
The Court with Subject-Matter and Territorial Jurisdiction
In actions to vacate, subject-matter jurisdiction as a rule belongs to the Civil Court of Peace; as to territorial jurisdiction, the court of the place where the leased property is situated generally comes to the fore. Even so, differences may arise as to jurisdiction according to the nature of the lease relationship and the legal result sought. Bringing the action in the correct court is important if the process is to advance without interruption.
Time Limits for Bringing an Action
The time limit for bringing an action varies according to the ground for eviction relied upon. For many grounds the landlord is obliged to bring the action within the period fixed in the statute. Where that period is missed, the right to seek eviction is not wholly extinguished, but the opportunity to make a claim in respect of the lease period concerned may be lost.
Calculating the period correctly is of critical importance in particular for eviction on the ground of need, eviction based on two justified formal notices and eviction based on the ten-year extension period. For that reason, separately determining the period applicable to each ground for eviction and observing it is decisive for the success of the claim.
Evidence
In actions to vacate the ground relied upon must be proved. The lease agreement, the formal notice, payment records, witness statements, on-site examination and examination by a court-appointed expert are the items of evidence that come to the fore in this context. Which items of evidence will be required varies according to the ground for eviction advanced.
The Most Common Errors in Eviction Actions
Actions to vacate are technical processes bound to particular procedural and time-limit rules. It is not sufficient that a ground for eviction exists; that ground must be advanced correctly and the procedure prescribed by the statute must be observed. In practice it is frequently seen that actions are dismissed, or that the process takes far longer than expected, because of shortcomings that appear insignificant at first sight.
- Reliance on the Wrong Legal Ground
Resting the claim on a ground for eviction that does not fit the nature of the concrete case may lead to the dismissal of the action. The confusion of distinct legal routes such as need, two justified formal notices and the undertaking to vacate is a frequently encountered situation in particular.
- Missing the Time Limits
Time limits for bringing an action vary according to the ground for eviction. In situations such as eviction on the ground of need and eviction based on two justified formal notices, failure to bring the action in time may cause the opportunity to make a claim for the lease period concerned to be lost.
- Failure to Serve the Formal Notice in Proper Form
In the case of certain grounds it is essential that a written formal notice be served on the tenant before the action. Fixing the period granted in the notice incorrectly, leaving its content incomplete or effecting service improperly may render the notice invalid and may result in the claim being dismissed.
- Incomplete or Incorrect Presentation of Evidence
The ground relied upon must be proved. Where the necessary documents are not placed in the file or the allegations are not supported by sufficient evidence, the claim may be dismissed.
- Invalidity of the Undertaking to Vacate
The undertaking being drawn up on the same date as the lease agreement, or being obtained otherwise than by the tenant’s free will, may render the undertaking invalid and lead to the dismissal of the claim. It is one of the shortcomings most often encountered in practice.
- Applying to the Wrong Court or Taking the Wrong Route
Advancing the claim before a court lacking subject-matter or territorial jurisdiction, resorting to enforcement where an action ought to have been brought, or the converse, causes loss of time and prolongs the process. Selecting the legal route that fits the ground for eviction is important for that reason.
- Failure to Establish the Genuineness of the Need
In actions based on need it must be proved that the need is genuine, sincere and compelling. Where this matter cannot be supported by sufficient evidence, dismissal of the claim arises.
- Improper Conduct of Service and Notification Steps
Improper service of the formal notice or of the statement of claim, errors of address or miscalculation of periods may lead to the process being prolonged or to the steps taken being regarded as invalid.
Frequently Asked Questions
How long do eviction actions take?
Although the length of the proceedings varies according to the type of action and the workload of the court, in practice actions to vacate are seen to conclude within a few months to a year. On certain routes, such as eviction pursued by way of enforcement, a result may be reached in a shorter time.
When does an eviction judgment become final, and can it be enforced before it does?
The judgment becomes final where the parties do not resort to an appeal or where the period for doing so expires. The landlord may commence proceedings by way of enforcement of a judgment without waiting for the judgment to become final; the other party may, by depositing three months’ rent as security, seek a stay of execution.
How does the process work once an eviction judgment has been given?
Following the judgment, the landlord applies to the enforcement office and requests that the judgment be carried out. The Enforcement Office grants the tenant a particular period; if the property has not been vacated at the end of that period, forcible vacation may be carried out.
In what situations can a tenant who does not pay the rent be removed?
For vacation to be sought on the ground of non-payment, the existence of a rent debt that has fallen due is sufficient. If payment is not made within the period granted, the removal of the tenant from the leased property may be sought. In addition, having given cause for two justified formal notices by reason of late payments within a single lease year constitutes a separate basis.
Can the landlord remove the tenant whenever he wishes?
No. It is not legally possible for the owner to remove the tenant from the leased property whenever he pleases. Vacation may be effected only where the grounds regulated in the statute exist and in the proper form.
Is it always necessary to bring an action in order to obtain eviction?
It is not essential in every case that an action be brought. In particular, in situations where enforcement proceedings are commenced in reliance on an undertaking to vacate, vacation can be achieved without an action being brought.
Is representation by a lawyer mandatory in an eviction action?
There is no obligation to be represented by a lawyer in order to bring the action. Even so, since these actions are subject to technical procedural rules, obtaining legal support is important if the process is to be conducted correctly and swiftly.
What does an eviction action cost?
The items of expenditure vary according to the type of action and the course of the proceedings; the court fee, service costs and, where required, the fees of court-appointed experts fall within this scope. The costs of the proceedings are as a rule imposed on the party who is unsuccessful in the action.
Does the rent continue to be paid while the action is pending?
Yes. Since the lease agreement remains in force for as long as the proceedings continue, the tenant’s obligation to pay the rent persists. Failure to pay may in addition give rise to a fresh ground for eviction.
How much time is granted to the tenant once the judgment has become final?
Following finality the enforcement office generally gives the tenant a short period; if the property is not vacated within that period, forcible eviction may be proceeded with.
Can an evicted tenant claim damages?
That varies according to the ground for eviction relied upon. In particular, where a property vacated on the justification of need or of alteration is let to another person within the period provided for in the statute, the opportunity for the tenant to claim damages may arise.
What happens if the undertaking to vacate is invalid?
Where the undertaking is regarded as invalid, the landlord cannot seek vacation in reliance on it. In such a situation the claim must be rested on another legal ground.
Independent Legal’s Assessment
In eviction disputes the element that determines the outcome is most often not the parties’ sense of who is in the right, but the fit between the legal route chosen and the concrete case. The same set of facts may produce different results depending on whether it is put as two justified formal notices, enforcement proceedings on the ground of default, an undertaking to vacate or need. For that reason the characterisation made at the first stage of the file shapes every step to be taken and the regime of time limits to be applied.
The second decisive element is procedure. A formal notice not served in time, an undertaking drawn up defectively or improper service can render even the strongest argument on the merits inoperative. In a concrete file we recommend giving priority to the following headings:
- Determining the ground for eviction definitively before the action and resting it on a single legal basis
- Calculating the preclusive period specific to that ground by reference to the lease year and the commencement date of the contract
- Making formal notices and notifications in writing and recording the dates of service by document
- Completing the mandatory mediation stage and adding the final minutes to the file
- Making the choice between the route of an action and the route of enforcement by assessing the ground and the state of the evidence together
- Anticipating from the outset secondary risks such as damages after eviction and the prohibition on re-letting
Independent Legal provides advisory and litigation services throughout the whole of the process in disputes arising from lease relationships, from the formal notice stage to the enforcement of the eviction judgment.