EVACUATION OF THE RENTED PROPERTY BASED ON THE EVACUATION UNDERTAKING

EVACUATION OF THE LEASED PROPERTY BASED ON AN EVACUATION COMMITMENT:

As a rule, the subject of non-judicial enforcement consists only of money and collateral receivables. However, the non-judicial enforcement of rented real estates regulated in Articles 269-276 of the EBL numbered 2004 constitutes an exception to this rule. Articles 269-276 of the EBL accept that, in the presence of two reasons, the lessor may directly apply to the enforcement court and request the eviction of the rented real estate without the need to file an eviction lawsuit in the Civil Court of Peace. These two situations are; non-payment of the rent and the end of the lease term.

It is the commitment of the tenant to evict the rented property. The tenant’s commitment to evict and the acceptance of this commitment by the lessor mean the mutual termination of the lease agreement. In that case, this eviction commitment does not create any effect in favor of or against the tenant unless it is accepted by the lessor. Similarly, unless the tenant makes such an undertaking within the freedom of will, the acceptance of the lessor’s offer to vacate does not create an obligation to vacate.

The lessor can obtain the eviction through a lawsuit to be filed in the Civil Court of Peace based on the eviction undertaking, or through Enforcement Proceedings.

CONDITIONS FOR A VALID VACANCY COMMITMENT:

THE COMMITMENT MUST BE GIVEN ON A DATE AFTER THE INITIAL RENTAL AGREEMENT AND THE DELIVERY OF THE LEASED PROPERTY.

The undertakings given during the execution of the lease agreement are not valid. Because such an undertaking made by the tenant who has housing and workplace problems is not based on free will, and the acceptance of the validity of this undertaking renders the provisions regarding the limited lawsuits and follow-up procedures regulated for the eviction of the leased property meaningless.

It is clear that the eviction commitment will not be valid if, although it was given at the time of the lease or before the delivery of the leased property, a later date is written in the eviction commitment or if it is left blank without specifying a date and will be filled in by the lessor later and put into effect. In this case, the date of the tenant’s eviction commitment being a date later than the date written in the commitment, i.e. the delivery date of the leased property, can only be proven with written evidence.

A commitment given by the tenant before actually entering the leased property but on a date after the start date of the lease contract is valid.

THE EVACUATION COMMITMENT MUST BE GIVEN IN WRITING BY THE TENANT PERSONALLY.

It is necessary and sufficient for the eviction commitment to be issued in writing by the tenant that the leased property will be evacuated. (If the tenant is rented by more than one person, the commitment must be given by all of them.)

If the tenant does not evacuate the leased property on the date he/she made a written commitment, the lessor shall, in accordance with Article 10 of the EBL. According to 272, within 1 month from the maturity date, the lessor can request the eviction by applying to the Enforcement Office or by filing a lawsuit in the Civil Court of Peace.

The lessor submits the eviction commitment and the lease agreement to the Enforcement Office and prepares Sample No. 14 from the Enforcement Office and requests the leased property to be vacated within 15 days.

If the tenant denies the lease agreement or the signature stated to belong to him in the commitment within 7 days from the notification of the Payment Order Sample No. 14, the pursuit is stopped.

In this case, in order for the lessor to request the removal of the objection from the Enforcement Court, the commitment must be EXEMPTIONALLY DRAFTED BY A NOTARY PUBLIC OR ITS DATE AND SIGNATURE APPROVED BY A NOTARY PUBLIC. Otherwise, the objection cannot be requested to be removed and the lessor will now file an eviction lawsuit with the Civil Court of Peace based on the same commitment for the termination of the contract.

THE TENANT WHO SIGNS IN WHITE SHOULD BE RESPONSIBLE FOR THE CONSEQUENCES OF HIS SIGNATURE UNLESS HE CAN PROVE THAT THE DOCUMENT WAS FILLED OUT FOR OTHER THAN THE PURPOSE.

Although the document is signed as an eviction commitment, if the arrangement and eviction dates are filled in later, the tenant agrees to the filling of the empty space and the fact that the dates on the document are written later does not necessitate the invalidity of the document.

LEGAL NATURE OF SIGNATURE IN WHITE:

If the other party knowingly fills in the top of a signature made on a blank sheet of paper in a way different from the other party’s wishes, it is not a mistake but an abuse of trust by the signatory.

PROOF AND METHOD IN SIGNATURE IN WHITE:

If a signed blank sheet of paper given to someone to be filled in is filled in by that person in a manner contrary to the agreement, the person who gave the white signature cannot prove with a witness that this document was filled in contrary to the agreement between them. (the proof must be a document of the same power). In this case, the tenant must prove it with a written document.

THE ISSUE OF THE RENTED PROPERTY BEING A FAMILY RESIDENCE:

If the rented real estate is to be rented as a family residence, the consent of the spouse is also required in the eviction commitment. TMK article 194/1 states that ‘One of the spouses cannot terminate the lease agreement regarding the family residence, transfer the family residence or limit the rights on the family residence without the explicit consent of the other spouse’.

The Court of Cassation is of the opinion that ‘Even if there is no family residence annotation, the family residence subject to the eviction commitment-based pursuit cannot be evicted. It must have the signatures of both spouses’ (Court of Cassation 12th Civil Chamber 2012/629 E., 2012/1940 K.). In this context, the tenant can object to the pursuit and file a Family Residence determination lawsuit in the Family Court.

Ankara BAM has a different opinion. Before the enforcement pursuit based on the eviction commitment is initiated, it requires the tenant to serve a family residence notice. If there is no such notice, it considers eviction possible without the spouse’s consent through enforcement pursuit based on the eviction commitment.

LEGAL PROVISIONS

TURKISH CODE OF OBLIGATIONS

ARTICLE 352–If the tenant, after the delivery of the leased property, undertakes in writing to vacate the leased property on a certain date but does not vacate it, the lessor may terminate the lease contract by applying to enforcement or filing a lawsuit within one month from this date.

ENFORCEMENT AND BANKRUPTCY LAW

Evacuation of immovable properties leased by contract:

1 – Eviction order and its content:

Article 272 – (Amended: 3/7/1940-3890/1 art.)

A real estate leased by contract may be requested to be evacuated by presenting the contract to the enforcement office within one month after its expiration.

Thereupon, the enforcement officer orders the evacuation and delivery of the immovable property within fifteen days by serving an eviction order.

In the eviction order:

The names, reputations and residences of the lessor and the tenant and their representatives, if any, and the date of the contract and if there is an objection to the renewal or extension of the lease, if they do not apply to the office within seven days and do not object or do not evict on their own, it is written that they will be forcibly evicted.

2 – Eviction and delivery:

Article 273 – If no objection is made within the period or the objection is removed, the rented real estate will be forcibly evicted and delivered to the lessor at the end of the term. However, the period in the eviction order must have elapsed.

If there are items that do not belong to the lessor in the place to be evacuated, the provision of Article 26 will be applied by analogy.

Objection: 1 – Term and form:

Article 274 – (Amended: 3/7/1940-3890/1 art.)

The tenant who wishes to object shall notify the enforcement office of his/her objection by petition or verbally within seven days from the notification of the eviction order.

The objection made in this manner shall stop the eviction proceedings.

The provisions of articles 63, 64 and 65 are also valid for eviction proceedings.

2 – Removal of objection:

Article 275 – (Amended: 18/2/1965-538/112 art.)

In the event of an objection, the lessor may request the enforcement court to remove the objection.

If the eviction request is based on a contract drawn up by the notary or whose date and signature are certified or acknowledged, and the tenant cannot show a document of the same force and nature that the lease has been renewed or extended, the objection is lifted.

Otherwise, the objection removal request is rejected.

After the objection is lifted and the eviction and delivery are carried out or the request for removal is rejected, the tenant or lessor reserves the right to apply to the court in accordance with general provisions.

(Amended: 9/11/1988-3494/52 art.) The tenant or lessor who is found to have the signature denied during the enforcement proceedings in the lawsuit filed in court shall be sentenced to a fine of one hundred thousand liras to five hundred thousand liras.

JUDICIAL DECISIONS:

Ankara BAM 37 Law Department 2023/1676 E., 2023/125 K 16.03.2023

The court ruled that there is no dispute between the parties regarding the signing of the lease agreement starting from 21/05/2016 and the eviction undertaking dated 02/04/2022, although the defendant claimed that the undertaking was signed before the agreement, the tenant who signed the vacancy undertaking will be deemed to have expressly accepted the issue of filling out the undertaking later, the claim that the undertaking was filled out against the defendant’s will can only be proven with written evidence, this situation cannot be proven, in the examination conducted in terms of the fact that the leased property is a family home, the defendant’s wife did not notify the lessor that the property is a family home in accordance with the legal regulation mentioned above, therefore, she did not become a party to the contract, at this stage, it was understood that the family home claim is an abuse of right, and considering the date of filing a lawsuit in accordance with the legal regulation mentioned above and the date of issuance of the eviction undertaking, the plaintiff is right, and the case is accepted………………………………..

The eviction undertaking is empty If it is given as , the defendant has accepted in advance how the empty part will be filled by signing the document and has given the lessor the authority to write the date he wants, so he has to bear the consequences of this. On the other hand, although it was claimed that the subject of the lease was a family residence, there was no annotation stating that it was a family residence, the lessor was not notified about this, and as stated by the secondary intervenor himself, the lawsuit filed in the family court on this issue was also rejected, so it was determined that there was no irregularity in the decision given by the local court, and for these reasons, the defendant’s attorney’s appeal request against the court decision, which was found to be in accordance with the procedure and law, was rejected on the merits.

Court of Cassation 8th Civil Chamber 2017/4070 E., 2017/14346 K. 01.11.2017

The eviction commitment forming the basis of the enforcement proceedings was not drawn up or certified by a notary public. Unless the creditor relies on a document that has been issued ex officio by a notary or whose date and signature have been certified or acknowledged, in case of an objection to the signature and date of the eviction commitment, the eviction of the rented property cannot be requested from the Enforcement Court. In this case, since the dispute requires a trial, the Court should decide to dismiss the case, but it is not correct to make a written decision with a reason that has no legal basis.

Court of Cassation 8th Civil Chamber 2017/4066 E., 2017/13764 K. 25.10.2017

The eviction commitment that forms the basis of the enforcement proceedings has not been issued or certified by a notary. According to Article 275 of the Enforcement and the Decree Law No. 11/26 dated 04.12.1957, the creditor cannot request the removal of the objection based on the eviction commitment whose date has been denied, even if the signature has been acknowledged, and therefore, the resolution of the dispute requires a trial. In the present case, the defendant tenant objected to the date of the eviction commitment and considering that the dispute requires litigation, it should have been decided to reject the request to lift the objection, but it is not correct to lift the objection in writing and decide to vacate the rented property.

Court of Cassation 12th Civil Chamber 2011/5754 E., 2011/20352 K. 26.10.2011

The basis of the enforcement proceedings is the eviction commitment in the form of a notary, and considering the nature of the supporting document, the enforcement office should have issued and sent an eviction order to the debtor in accordance with Articles 272 and the following of the EBL, but it is irregular to send an enforcement order.

Court of Cassation 3rd Civil Chamber 2017/8734 E., 2018/1505 K. 22.02.2018

According to Article 352/1 of the TCC No. 6098; The eviction lawsuit based on the commitment reason must be filed by the lessor. The owner who is not in the position of the lessor has no right to file a lawsuit. However, the new owner may file a lawsuit based on the commitment given by the previous owner and the previous owner as the successor of the lessor.

Court of Cassation 12th Civil Chamber 2020/1175 E., 2020/2309 K. 09.03.2020

…it is understood that it is an eviction commitment that forces eviction, the defendant started living in the immovable property as of this date according to the lease agreement starting from 01.05.2005, and even if a new lease agreement starting from 01.05.2012 is made later, the eviction commitment in question is valid because it is an eviction commitment given while the lease relationship continues (while living in the rented property), and the appeal is accepted, the first instance court decision is annulled, the objection is annulled and the eviction is decided……Although other appeal objections are not based; …..In the present case; there are rental agreements dated 01.02.2005 and 01.05.2012 between the parties, the defendant has not denied the signature on the agreements, the contract with the starting date of 01/05/2012 states in its first article that the contract is for the extension of the rental period of the rental agreement made between the parties on 01/02/2005, the determination of the new term rental fee and the changing conditions.