Where a person who has let out an immovable property comes in time to require that property again, this is one of the grounds recognised by the statute for bringing the lease relationship to an end. An eviction action based on need denotes the route by which the tenant is made to vacate the leased property so that the person holding the capacity of landlord, or that person’s spouse, children or parents, or those whom the landlord is legally obliged to support, may meet a housing or business need.
Nevertheless, a mere reference to a need in the statement of claim does not on its own produce a result. The picture required before the court is a far more demanding one: it is required together that the need asserted be sincere and unavoidable in nature, that it still be continuing at the moment the action is brought, and that the landlord not possess another immovable property capable of meeting that need. Where even one of these criteria is not satisfied, the claim is dismissed; and the landlord may suffer a loss both of time and of the right to bring the action.
In this briefing note we examine the statutory basis of the rule, the circle of persons whose need counts as a ground for eviction, the substantive and time-related conditions of the claim, the conduct of the proceedings, the enforcement of the judgment and the limit imposed on re-letting the property after eviction, together with the way these matters appear in practice.
What an Eviction Action Based on Need Means
This type of action seeks the termination of the lease relationship by judicial decision, and the vacating of the immovable property, where a necessity arises for the leased property to be used as a residence or workplace by the landlord personally, by the landlord’s spouse, descendants or ascendants, or by persons towards whom the landlord is under a statutory duty of support.
The basis of the rule is the first paragraph of Article 350 of the Turkish Code of Obligations No. 6098. The legislature has conferred on the landlord the power to bring the agreement to an end and to demand the return of the leased property where the required conditions are met together.
The wording of the provision is as follows:
Turkish Code of Obligations No. 6098, Art. 350(1)
"The landlord may bring the lease agreement to an end, where there is a necessity to use the leased property as a residence or workplace on account of a need of the landlord, of the landlord’s spouse, descendants, ascendants or other persons whom the landlord is obliged by law to support, by an action to be brought within one month, in fixed-term agreements as from the end of the term, and in open-ended agreements as from the date to be determined in accordance with the general provisions on lease by observing the termination period and the notice periods for termination."
Prominent among the powers conferred on the landlord in lease law, this ground serves to protect the interest of the owner in benefiting personally from the property.
Whose Need Can Found a Claim for Eviction?
A claim for eviction is not confined to the landlord’s personal need; the housing or business need of certain relatives exhaustively listed by the statute may produce the same result. Conversely, that circle is not amenable to extensive interpretation. The need must belong to one of the persons named in the text.
In this respect Article 350 of the Turkish Code of Obligations No. 6098 takes as its basis the landlord’s own person, spouse, descendants, ascendants and the persons whom the landlord is legally obliged to support. The need of relatives falling outside this circle, or of third parties, is as a rule not regarded as a ground for eviction.
The persons whose need may be made the subject of an action are as follows:
- Children falling within the scope of descendants
- Mother and father, who count as ascendants
- The spouse within the marital union
- The landlord personally
- Other persons who are the object of a statutory duty of support
As regards relatives of the landlord such as a sibling, paternal uncle, maternal uncle, cousin, daughter-in-law or son-in-law, in principle no claim for eviction may be made. That said, if in the particular case the existence of a statutory duty of support towards such persons can be established, whether the need will be entertained may be discussed separately.
Accordingly, the first check to be carried out before recourse to an action is to determine whether the person with the need falls within the statutory enumeration. Where this determination is overlooked, an assertion of need advanced on behalf of a person outside the scope results in dismissal of the action.
Conditions Required for the Claim to Be Upheld
Whether an eviction order may be made depends on the landlord’s assertion of need possessing the characteristics laid down in the statute. The courts do not content themselves with an abstract declaration; they assess the material reflected in the case file and examine whether the following conditions are present together.
The Need Must Be Genuine, Sincere and Compelling
The need asserted must be genuine, sincere and compelling in character. It is not sufficient on its own that the landlord wishes to use the property; the need must exist objectively and rest on a reasonable necessity within the ordinary course of life. On this point the courts compare the sincerity of the assertion with the concrete material in the file and examine whether the claim is compatible with the rule of good faith.
The Need Must Concern Use as a Residence or Workplace
The need made the subject of the action must be directed towards the personal use of the leased property as a residence or workplace. A wish to allocate the property to some other purpose, or a wish to have it vacated purely out of investment considerations, does not as a rule constitute this ground of eviction. It is therefore important that the need asserted correspond to the character of the leased property and rest on a direct necessity of use.
The Need Must Persist at the Date of the Action
It is essential that the need asserted exist on the date the action is brought and continue to exist throughout the proceedings. No eviction order may be made on the basis of a need that disappears after the action has been brought or whose materialisation is uncertain. For that reason the courts address the continuity and seriousness of the need separately, both as at the date of the action and as at the moment of judgment.
Absence of Another Property Suitable for the Same Purpose
If the landlord has a suitable immovable property that could be used for the same purpose, the claim for eviction may be dismissed. In particular, where there is a residence or workplace in the same city or the same district capable of meeting the need, the courts additionally question whether the need asserted bears the element of necessity. On that account, for the claim to be upheld it is expected that whether the landlord holds an alternative immovable property be established in concrete terms.
Time Limits for Bringing the Action
Time limits are foremost among the factors that directly determine the outcome in this type of action. Where the action is not brought within the period prescribed by the statute, the claim may be dismissed even if the need genuinely exists. The period must therefore be calculated correctly according to the type of agreement.
Time Limit in Fixed-Term Agreements
In fixed-term lease agreements the action must be brought within one month of the expiry of the term of the agreement. That period is preclusive in nature; once it has been missed, it may no longer be possible to seek eviction on the basis of the same need.
However, if the landlord has, before the end of the term, sent the tenant a written notification announcing that the right to bring an action is reserved, recourse may be had to the action even after the one-month period has passed. In practice, serving a warning notice before the term of the agreement expires, or notifying in writing that the right of action is reserved, provides a serious legal safeguard in this respect.
Time Limit in Open-Ended Agreements
In open-ended agreements, by contrast, the bringing of an action depends on the lease relationship first being terminated in conformity with the termination periods and notice periods for termination laid down in the statute. The landlord may bring the agreement to an end by observing the period prescribed for notice and may bring the eviction action within one month of the date of termination.
In this contract type the calculation requires a more technical assessment than in fixed-term agreements; correctly identifying the termination period and the notice period is of critical importance in practice. An erroneous calculation may lead to dismissal of the action even where the need is well founded.
Bringing the Action and the Course of the Proceedings
A claim for eviction founded on need requires certain procedural rules to be followed. Completion of the mediation step, correct application of the rules on jurisdiction, support of the assertion by suitable evidence and conduct of the proceedings in due form are decisive at this stage. A shortcoming in the procedural rules may lead to dismissal of the action, or to the process being drawn out, even where the need is well founded.
The Mediation Step
In eviction disputes arising from residential and roofed workplace leases, recourse to a mediator is compulsory before an action is brought. The landlord is expected to conduct this process before taking the assertion of need before the court, and to bring the action if the discussions close without agreement.
Where the mediation stage is omitted and an action is brought directly, the claim may be dismissed on procedural grounds. It is therefore essential that the application be made and that the final report drawn up at the end of the process be submitted as an annex to the statement of claim.
Courts with Subject-Matter and Territorial Jurisdiction
In these actions subject-matter jurisdiction belongs to the Civil Court of Peace. Since the dispute arises out of a lease agreement, there is no possibility of applying to any other court 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, by a jurisdiction clause inserted in the lease agreement, have conferred jurisdiction on the court of another place as well. Reviewing the jurisdiction provision in the agreement before the action is therefore important.
Evidence and Proof
In the proceedings it must be proved by concrete evidence that the need is genuine, sincere and compelling. The documents to be annexed to the statement of claim are foremost among the factors directly affecting the outcome.
The items of evidence most frequently relied upon in these actions in practice are as follows:
- The lease agreement between the parties
- Land registry records showing ownership
- A population register extract establishing the family tie
- Certificates of residence relating to the place of domicile
- The business opening plan and documentation showing that a business is to be established
- Reports evidencing the need for care or the state of health
- Witness statements concerning the sincerity of the need
The courts assess the assertion not on the basis of declaration alone, but by looking at whether it is supported by concrete material of this kind submitted to the file.
Appeal and Appeal on Points of Law
The judgments given in these actions are, where the statutory conditions are met, open to review on appeal and on appeal on points of law. The parties may apply to the Regional Court of Appeal against the first-instance decision within the statutory period running from service.
If the judgment given as a result of the appeal is amenable to an appeal on points of law, review may be sought before the Court of Cassation. Since recourse to the legal remedies delays the judgment becoming final, it also directly affects the total period within which the eviction will actually take place.
Enforcement of the Eviction Judgment
For an eviction decision based on need to be enforced, it is not required that it become final. Once the reasoned decision has been drawn up, the landlord may apply to the enforcement office and request that the eviction be carried out.
An eviction order is served on the tenant by the enforcement office; if the tenant does not vacate the immovable property within the period allowed, the eviction may be carried out by force. This is the stage that actually brings the process to a conclusion.
The tenant, on the other hand, also has a means of defence: an appeal may be lodged with a request for a stay of enforcement. By depositing three months’ rent in the enforcement file as security, the tenant may request the enforcement court to stay the enforcement. Where such a decision is given, the eviction process is suspended.
Ban on Re-Letting After Eviction and Liability in Damages
Where the tenant is removed on an assertion of need, the letting of the same immovable property to another person for a certain period of time is restricted by statute. This limit aims to prevent abuse of the ground of need and to protect the tenant. Since the manner in which a landlord who has obtained an eviction order may use the property in the subsequent period is expressly laid down in the statute, going beyond this framework gives rise to legal liability.
Three-Year Ban on Re-Letting After Eviction
An immovable property vacated on the ground of need may not, in the absence of just cause, be let to anyone other than its former tenant until three years have passed from the date of eviction. The period begins at the moment the tenant actually leaves the property.
The legislature prescribed this restriction in order to prevent an assertion of need from turning into a mere means of getting rid of the tenant. The landlord must therefore use the property, following the eviction, in a manner consistent with the purpose declared, and must observe the statutory period as regards re-letting.
Damages Where the Property Is Let to Another
Having had the leased property vacated in reliance on the ground of need, the landlord may not, in the absence of just cause, let the property to persons other than the former tenant until three years have passed from the date of eviction.
Where this rule is breached, damages are awarded in favour of the former tenant of not less than one year’s rent paid in the final year of the lease. The statute has here fixed a minimum amount, and it is also possible for higher damages to be awarded according to the extent of the loss suffered by the tenant by reason of the eviction.
Just Cause as an Exception to the Ban
If the landlord has re-let the property in reliance on just cause, a letting made before the three-year period has expired may not in every case give rise to liability in damages. The existence of just cause is assessed separately by the court in each case.
The following examples may be given of situations capable of being accepted as just cause in practice:
- The property changing hands or its purpose of use changing
- The need disappearing of its own accord after the eviction
- The property being unusable on account of health problems or a compulsory change of location
- The emergence of unforeseeable financial or family necessities
Related Topics
- Eviction Action Based on the Need of the New Owner: Conditions and Procedure (Turkish Code of Obligations No. 6098, Art. 351)
- Grounds for Evicting a Tenant and Eviction Actions
- Eviction of a Tenant by Way of Enforcement Proceedings
- Prohibition on Stipulating Eviction Terms Against the Tenant (Turkish Code of Obligations No. 6098, Art. 354)
- The Liability of the Tenant Arising from Early Vacation
Independent Legal Assessment
Claims for eviction founded on need are files whose legal basis appears straightforward but whose burden of proof is heavy. The fate of the dispute is most often determined not by an argument of substantive law, but by whether the one-month period has been correctly calculated, whether the mediation stage has been completed in due form, and whether the need can be reflected in the file at documentary level. On the tenant’s side, the axis of the defence is generally to establish that the need is not sincere, or that the landlord holds another immovable property capable of serving the same purpose.
Although the fact that an eviction decision may be enforced before it becomes final produces a swift result in the landlord’s favour, the possibility of a stay of enforcement and the three-year ban on letting are two mechanisms that counterbalance that advantage. It should therefore be borne in mind that the process does not end with the eviction, and that the period following eviction must also be planned from the outset.
The headings to be given priority when a road map is drawn up in a specific file are as follows:
- Checking from the outset whether the person with the need falls within the statutory circle of persons
- Calculating the one-month period according to the type of agreement and, where necessary, sending a warning notice before the end of the term so as to reserve the right of action
- Submitting the final mediation report to the file in full as a procedural requirement
- Assembling the documents demonstrating the reality of the need before the action is brought
- Reviewing in advance the other immovable properties registered in the landlord’s name so as to prepare for the likely defence
- Planning the manner in which the property is to be used after the eviction, taking into account the three-year ban and the risk of damages
Independent Legal provides advisory services and conducts litigation throughout the entire process, from the warning notice stage to the enforcement of the eviction judgment, in disputes arising from residential and roofed workplace leases.