The legal process directed at the vacating of the leased property once the lease relationship has come to an end is called eviction. This process is not, however, a free field that the landlord may set in motion unilaterally whenever it wishes. In lease law, eviction is tied to grounds and conditions determined in advance by the statute.
The Turkish Code of Obligations No. 6098 has enumerated the grounds for eviction exhaustively and has, in addition, prohibited the creation by agreement of new grounds for eviction against the tenant. It is therefore not possible for the landlord to seek eviction on a ground not contained in the statute, nor is every eviction clause inserted into the agreement regarded as valid.
Below, we examine the principle of limited grounds applicable to eviction and the prohibition of terms against the tenant within the framework of Article 354 of the Turkish Code of Obligations No. 6098; we address which contractual clauses are regarded as void and the practical consequences of this provision.
The Principle of Limited Grounds
The principle of limited grounds means that the vacating of the leased property by the tenant may be sought only in the cases expressly indicated in the statute. The landlord cannot seek eviction in reliance on a ground not regulated in the statute, even if it is written in the agreement. Eviction has therefore ceased to be a matter left to the will of the parties; it has become a legal process operating within the limits drawn by the legislature.
The Basis of the Principle: Art. 354 of the Turkish Code of Obligations No. 6098
At the foundation of the principle lie the provisions of the Turkish Code of Obligations No. 6098 governing the lease relationship. The statute has indicated one by one the cases in which the eviction of the tenant is possible, and it allows no extension of those cases or derivation of new grounds for eviction.
Indeed, Article 354 makes it clear that the provisions relating to the ending of a lease agreement by way of an action cannot be altered to the detriment of the tenant. That provision is the concrete expression of the principle of protecting the tenant which governs lease law.
Turkish Code of Obligations No. 6098, Art. 354 – Limited nature of the grounds of action
"The provisions relating to the ending of a lease agreement by way of an action cannot be altered to the detriment of the tenant."
The Purpose and Scope of the Principle
The real purpose in keeping the grounds for eviction limited in number is to safeguard the tenant’s right relating to housing or to the use of business premises against arbitrary interference. The principle prevents the lease relationship from being brought to an end by the unilateral will of the landlord and provides legal certainty and foreseeability for the parties.
The Prohibition of Terms Against the Tenant and the Invalidity of Such Clauses
Under Art. 354 of the Turkish Code of Obligations No. 6098, the insertion into a lease agreement of obligations against the tenant that are not stipulated in the statute, or the placing in it of clauses that would facilitate eviction, is as a rule invalid. It cannot be assumed that every provision contained in the agreement stands in law; clauses relating to eviction that are contrary to the statute in particular produce no binding effect.
Nor does the fact that the tenant accepted such a clause or signed the agreement render it valid. A contractual clause contrary to the statute is void from the outset and produces no legal effect.
The Grounds for Eviction Cannot Be Extended by Agreement
That the grounds for eviction cannot be multiplied by agreement is a natural extension of the principle of limited grounds. The landlord cannot make provisions facilitating eviction by adding new grounds to the agreement; it is not possible to seek eviction in reliance on a ground not contained in the statute.
Within this framework, the following may be given as examples of clauses inserted into agreements that do not on their own constitute a valid ground for eviction:
- Clauses providing that the agreement will come to an end of its own accord in the event of late payment of the rent
- Provisions stipulating that the tenant is under an obligation to vacate the leased property on a predetermined date
- Provisions to the effect that the landlord may bring the agreement to an end without demonstrating any need
For a claim for eviction to succeed, it must without exception rest on a ground regulated in the statute.
The Principal Eviction Clauses Regarded as Invalid in Practice
Although various provisions relating to eviction may be inserted into lease agreements, not all of them stand in law. Under the Turkish Code of Obligations No. 6098, clauses that facilitate the eviction of the tenant or create new grounds not contained in the statute are as a rule regarded as void. The compatibility of the eviction clauses in the agreement with the statute must therefore be reviewed separately in each concrete case.
- Clauses imposing an obligation to vacate on demand
Provisions stipulating that the tenant will vacate the leased property upon the landlord’s request without any reason being given are incompatible with the principle of limited grounds. Clauses in the form of "it shall be vacated when requested" therefore do not create a valid ground for eviction.
- Automatic eviction tied to the expiry of the term
In leases of dwellings and roofed business premises, the expiry of the term of the agreement is not on its own a ground justifying eviction. Clauses providing that the tenant will vacate the leased property of its own accord upon the ending of the term are accordingly invalid as a rule.
- Clauses compelling eviction by means of a penalty clause
Provisions stipulating that a penalty clause of a high amount will come into play if the tenant does not vacate the property on the date determined are addressed within the scope of the prohibition of terms against the tenant, to the extent that they function so as to compel the tenant to vacate, and are in most cases regarded as void.
- Statements that do not have the character of an undertaking to vacate
The validity of an undertaking to vacate depends on the conditions required by the statute being met. Statements that do not meet those conditions, and undertakings of general content taken together with the lease agreement, do not constitute a valid ground for eviction.
The Legal and Procedural Implications of Art. 354 of the Turkish Code of Obligations No. 6098
Article 354 of the Turkish Code of Obligations No. 6098 is a mandatory rule prohibiting the making of terms against the tenant. The validity of the eviction clauses in the agreement is therefore determined not according to whether the parties have agreed on them but according to the criterion of compatibility with the statute. Eviction clauses drafted in a manner contrary to the statute are not regarded as valid and do not form a basis for eviction.
- Not every eviction clause in the agreement is valid
The presence of a clause in the agreement does not of itself render it valid. Provisions resting on a ground not regulated in the statute, or facilitating eviction, are not binding even if they are in writing. Whether a claim for eviction can be granted depends on its resting without exception on a ground indicated in the statute.
- No action may be brought on a ground not contained in the statute
The landlord cannot seek eviction on a ground not regulated in the statute, even if it appears in the agreement. Eviction actions brought in reliance on such a ground are not granted, since they lack a legal basis. For the claim to produce a result, it must without exception be based on a ground for eviction expressly regulated in the statute.
- The court observes these rules of its own motion
The prohibition of terms against the tenant is mandatory in nature. The court therefore takes account of its own motion of the invalidity of an eviction clause contrary to the statute, even if the parties have not raised it. Even where the tenant has not expressly put this point forward as a defence, the judge cannot establish a judgment in reliance on an eviction clause contrary to the statute.
- The invalidity cannot be cured subsequently
An eviction clause contrary to the statute does not subsequently acquire validity because the tenant accepted it or because the clause has been applied over a long period. A void contractual clause produces no effect from the outset and retains its invalidity for as long as the lease relationship continues.
Frequently Asked Questions
Can a new ground for eviction be agreed in a lease agreement?
The special grounds for eviction that allow a lease agreement to be brought to an end by way of an action are indicated exhaustively in the statute. Under Art. 354 of the Turkish Code of Obligations No. 6098, eviction by way of an action is possible only in the cases enumerated in the statute; the removal of the tenant in reliance on a ground not contained in the statute cannot be in question.
The addition of a new ground for eviction to the agreement, or the alteration of the conditions of the existing grounds to the detriment of the tenant, is therefore not valid in law. The settled decisions of the Court of Cassation are likewise to the effect that the grounds for eviction are limited in number and cannot be extended by agreement.
In the decision of the 3rd Civil Chamber of the Court of Cassation dated 19.09.2017, case no. 2017/4869, decision no. 2017/12183, it was likewise expressly stated that, although the parties had stipulated a new right of termination in the agreement, this condition of termination and eviction, not being regulated in the statute, could not be regarded as valid. The decision emphasised that in leases of dwellings and roofed business premises the grounds for termination and eviction are limited, and that contractual provisions contrary to the statute will produce no effect.
In conclusion, the parties cannot create a new ground for eviction by agreement and cannot extend the scope of the statutory grounds to the detriment of the tenant.
Is it possible to make terms in favour of the tenant?
Although altering the grounds for eviction to the detriment of the tenant is prohibited, provisions placing the tenant in a stronger position may be made. In other words, the protection the tenant derives from the statute cannot be narrowed by agreement; it can, however, be widened.
For example, the statute permits the termination of the agreement on account of the need of the landlord itself, of its spouse, of its descendants, of its ascendants or of the persons it is bound to support. If the parties have agreed in the agreement that termination may take place only in the event of the landlord’s own need, a term in favour of the tenant has emerged. The scope of the grounds for eviction is thereby narrowed and the tenant obtains protection wider than that afforded by the statute.
In short, amendments in favour of the tenant may be made; the introduction of new grounds against the tenant or the aggravation of the existing grounds, by contrast, is not valid.
Can the landlord remove the tenant whenever it wishes?
No. The vacating of the leased property may be sought only where one of the grounds for eviction regulated in the Turkish Code of Obligations No. 6098 has materialised. Eviction cannot be sought in reliance on a ground not contained in the statute.
Is every eviction condition in the agreement valid?
No. The fact that it has been written into the agreement does not render an eviction clause valid. Provisions that are not regulated in the statute, or that facilitate the eviction of the tenant, may in particular be regarded as invalid even if they appear in the text.
Can terms against the tenant be made in leases of dwellings and roofed business premises?
In these types of lease, the making of terms against the tenant is as a rule prohibited. Contractual clauses that narrow the tenant’s rights or facilitate its eviction are for that reason accepted as invalid in most cases.
Must the tenant leave of its own accord upon the ending of the term?
In leases of dwellings and roofed business premises, the expiry of the term does not on its own constitute a ground for eviction. Even where it is written in the agreement that the tenant will vacate of its own accord upon the ending of the term, that clause is as a rule not regarded as valid.
Does the tenant’s acceptance of the condition change the result?
No, it does not. The fact that the agreement has been signed or the clause accepted does not render a provision contrary to the statute valid; provisions of this kind are void from the outset.
Can the parties extend the grounds for eviction?
No. The grounds for eviction are enumerated exhaustively in the statute. The creation of a new ground by agreement, or the enlargement of the scope of the existing grounds, is not possible.
Does the court take account of the invalidity of its own motion?
Yes. Since the prohibition of terms against the tenant is a mandatory rule, the court observes of its own motion the invalidity of an eviction clause contrary to the statute, even if the parties do not raise it.
Among the related headings may be counted the tenant’s grounds for eviction and eviction actions, eviction of the tenant by way of enforcement proceedings, the eviction action on account of reconstruction or substantial renovation (Art. 350(2) of the Turkish Code of Obligations No. 6098), the eviction action on account of need (Art. 350(1) of the Turkish Code of Obligations No. 6098) and the eviction action on account of the new owner’s need (Art. 351 of the Turkish Code of Obligations No. 6098).
Independent Legal’s Assessment
In practice, eviction clauses thought to put the landlord at ease are frequently placed in lease agreements. A significant proportion of these clauses produce no effect in the face of Art. 354 of the Turkish Code of Obligations No. 6098. What needs to be done when an agreement is being drafted is not to invent a ground the statute does not recognise, but to secure the conditions of the statutory routes to eviction from the outset.
On the tenant’s side the picture works the other way round: the presence of an onerous eviction clause in the agreement does not mean that the right has been lost; by virtue of the mandatory provision, the invalidity is observed of its own motion in the proceedings. What is decisive for both parties is not the wording of the agreement but whether the claim rests on a statutory ground.
In a concrete dispute the following points should be clarified first:
- Determining whether the lease relationship falls within the scope of leases of dwellings and roofed business premises
- Reviewing which statutory ground the claim for eviction rests on and whether the conditions of that ground are met
- Examining the eviction clauses in the agreement separately in terms of the prohibition of terms against the tenant
- Verifying, where an undertaking to vacate has been taken, whether it meets the conditions as to form and time required by the statute
- Assessing whether the penalty clause provisions attached to eviction function so as to compel the tenant
Independent Legal provides advisory services and conducts litigation in the drafting of lease agreements, the review of the validity of eviction clauses and the conduct of eviction disputes arising from leases of dwellings and roofed business premises.