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"Eviction Due to Personal Need" Within the Scope of the Turkish Code of Obligations and Established Precedents of the Turkish Supreme Court

"Eviction Due to Personal Need" Within the Scope of the Turkish Code of Obligations and Established Precedents of the Turkish Supreme Court

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Pursuant to Article 350 of the Turkish Code of Obligations; the lessor, his/her spouse, his/her descendants or ascendants or persons who are legally dependent on the lessor; should have a need to use the leased property for residency or workplace purposes for lessor to request the eviction of the property due to personal needs.

According to the doctrinal opinions and decisions of the Turkish Supreme Court, the lessor’s need for eviction must be real and genuine. In this respect, the lessor claiming the existence of a real and genuine need, is obliged to prove this need before the court.

Eviction Decisions of the Turkish Supreme Court Due to Need for "Residency"
Pursuant to the decisions of the Turkish Supreme Court, the lessor must have valid reason for residing separately, to request an eviction due to need for residency. Accordingly, the grounds listed hereinbelow are accepted as valid reasons for the eviction request:

  • Currently residing in a leased property,
  • Wishing to reside closer to the persons who are responsible to take of the lessor or wishing to reside closer to a hospital,
  • Moving to the city where the property is located,
  • Property being physically, economically or locationally more convenient, etc.

Besides, if the leased property located in a metropolitan city as Istanbul or in case the leased property is close to lessor’s workplace or to the school of lessor’s children, it is accepted that there is a real and genuine need in terms of convenience for location. Moreover, in today’s conditions, leased property being economically more convenient can be considered as a valid reason for the eviction request.

Decisions of the Turkish Supreme Court for Eviction Due to Need for "Workplace"
In addition to the above-mentioned reasons regarding the need for a workplace, the Turkish Supreme Court seeks existence of a current threat of eviction for the Lessor.

In the light of the Turkish Supreme Court precedents, the Lessor may be deemed to have a valid reason to request eviction in the following cases:

  • Lessor leaving his/her current job and becoming unemployed,
  • Expansion of the business activities,
  • The property which the lessor wishes to move being more eligible for business purposes or
  • The property being more suitable for the work without the need for renovations.

The cases that are not accepted as valid reasons for eviction can be exemplified as follows:

  • Temporary or possible needs of the lessor,
  • The lessor having another immovable property in the city where the leased property is located,
  • In case there has been a dispute between the lessor and the lessee regarding the rental fees and if the lessor has resorted to eviction due to such dispute.

The Terms for Filing a Lawsuit
Since the period to file an eviction lawsuit due to need is subject to a "period of prescription" as per the laws, it is essential to determine whether the lease agreement is executed for a definite or an indefinite term.

For the lease agreements executed for a definite term, the eviction lawsuit must be filed within 1 month from the expiration date of the lease agreement. However, if the Lessor notifies the Lessee in writing that he/she will file a lawsuit within 1 month period, the period to file a lawsuit will be extended until the end of the same lease period.

For the lease agreements executed for an indefinite term, the Lessor must notify the Lessee 3 months in advance to terminate the lease agreement at the end of the 6-months’ lease period. Following the termination notification, the eviction lawsuit must be filed within1 month as of the end of the 6-months’ lease period.

Implementation During the Litigation Processes
One of the most common disputes encountered during the eviction lawsuit is lessee’s refusal to pay the rental fee. In that case, the eviction process can be accelerated through initiation of an execution proceeding to collect the receivables and to evacuate the property, which then can be followed by initiation of an eviction lawsuit.

Another common issue raised within this respect is that, whether the lessor can file rental fee determination lawsuit during the eviction proceedings.

Turkish Supreme Court is in the opinion that the lease agreement is still in force until finalization of the eviction lawsuit, and that, therefore it is possible to request an increase in the rental fee through a rental fee determination case while the eviction lawsuit is still ongoing.

Prohibition of Re-Lease
Pursuant to the Article 355/1 of the Turkish Code of Obligations, if the lessor requests for eviction through an eviction lawsuit due to personal needs, the lessor cannot rent such property to any third parties for three years as of the eviction date, without a valid reason.

Within the scope of the same article, in case the lessor violates this obligation and leases the property to any third parties within such 3 years’ period, the lessor is obliged to pay the lessee a compensation in the amount of not less than one year's rental fee. The lessee can request this amount in the form of a penalty corresponding to his/her damages pertaining to a 1-year period, without the need to prove any damages.

By Ozgur Guner, Partner, Cerensu Cetin Yenigun, Senior Associate, Moral, Kinikoglu, Pamukkale, Kokenek