One of the instruments most frequently relied upon in practice, in order to anticipate from the outset the eviction problems that may arise at later stages of a lease relationship, is the undertaking to vacate. This document denotes the tenant undertaking in writing that the immovable property will be vacated on a specified day, and it produces powerful consequences for the landlord. Conversely, where the document does not meet the conditions required by the statute, the undertaking may have no legal effect.
Below we examine first the legal nature of the undertaking to vacate and the conditions for its validity, and then a sample text that may be used in practice.
Legal Nature of the Undertaking to Vacate
An undertaking to vacate is a unilateral declaration of intent by which the tenant assumes in writing the obligation to vacate the immovable property being used on a specified day, and which provides the landlord with security to that effect. The Turkish Code of Obligations No. 6098 accepts that a declaration meeting the conditions laid down in the statute confers on the landlord the power to demand eviction.
Indeed, within the framework of Article 352 of the Turkish Code of Obligations No. 6098, where the tenant, after the leased property has been delivered, has undertaken in writing to the landlord to vacate the property on a specified day but does not carry out the eviction on that date, the landlord may apply to the enforcement office or to the court and request eviction.
An undertaking capable of standing in law must have been given by the free intent of the tenant, must be drawn up in writing and must state the day of vacating without any doubt. Where these conditions are met together, the landlord may seek by legal means the vacating of the immovable property on the day undertaken.
For the enforcement and litigation dimension of the subject, see the note entitled Eviction of the Tenant by Means of an Undertaking to Vacate.
Conditions for the Validity of the Undertaking
Whether an undertaking to vacate can produce legal effect depends on certain conditions being met together. Documents drawn up without observing these conditions may not confer on the landlord a right to evict. For that reason the following matters should be particularly observed when the document is prepared:
- It must have been given on a date after delivery. This is the most critical of the conditions. The undertaking must be drawn up after the tenant has actually taken delivery of the immovable property, not at the same time as the lease agreement or before it; otherwise invalidity comes into question.
- It must be drawn up in writing. The document must without exception be reduced to writing; no legal consequence attaches to declarations given orally.
- The day of vacating must leave no room for doubt. The date on which the tenant is to vacate the immovable property must be shown clearly and definitely in the text.
- It must bear the signature of the tenant. The declaration must be signed by the tenant personally or by an authorised representative; unsigned documents produce no effect.
- It must have been given by free intent. Undertakings obtained under threat, pressure or coercion are regarded as legally invalid.
Where all of these conditions are satisfied, the document performs an important protective function for the landlord and, where necessary, makes it possible to seek eviction by way of enforcement proceedings or an action.
Sample Undertaking to Vacate
UNDERTAKING TO VACATE
I currently reside, in the capacity of tenant, in the immovable property located at ………… Province, …………… District, ……….. Neighbourhood, ……….. Street, No: …., Flat: ….. .
As the tenant whose details appear below, I accept, declare and undertake that I shall vacate the immovable property whose address is shown above and which I use in the capacity of tenant, and deliver it to the landlord empty and undamaged on the eviction date shown below, without any need for notice or warning, within the scope of Article 352 of the Turkish Code of Obligations No. 6098.
PARTY GIVING THE UNDERTAKING (TENANT) :
OWNER (LANDLORD) :
ADDRESS OF THE LEASED PROPERTY TO BE VACATED :
DATE OF THE UNDERTAKING :
DATE OF EVICTION :
I accept here and now that, should I fail to vacate the immovable property on the day specified, the landlord may have recourse to legal remedies; and that I shall additionally bear the litigation costs, enforcement costs and attorney fees arising for that reason, together with any and all loss and damage that may arise on account of my delaying the eviction.
TENANT GIVING THE UNDERTAKING LANDLORD
Independent Legal Assessment
In practice, the principal reason why undertakings to vacate are held invalid is that the document is signed together with the lease agreement and left undated. In that situation the tenant may open the document to dispute by arguing that the undertaking was obtained before delivery. For that reason, the ability to document the moment at which the undertaking was drawn up is as important as the content of the text.
The second critical point is how the undertaking is used. Where the eviction does not take place on the day specified, the landlord has the options of applying to the enforcement office and of bringing an action; which route is to be preferred should be decided by assessing together the tenant’s possible objections and the state of the evidence.
The following headings should be observed when the document is prepared and used:
- Recording that the undertaking was drawn up on a day after the date of delivery of the leased property
- Showing the date of execution and the date of eviction separately and legibly
- Verifying that the person signing is the tenant or an authorised representative
- Ensuring, in agreements with more than one tenant, that the undertaking is signed by all of them
- Planning in advance the route to be followed and the timetable for application should the eviction not take place
Independent Legal provides legal support at every stage of the process in disputes arising from the lease relationship, from the drawing up of the undertaking to the conduct of eviction proceedings.