Removal of Objection and Eviction Case in Turkey

I. Generally

Removal of objection and eviction are generally legal remedies filed together in the enforcement civil court. It is a continuation of the eviction of rented real estates through non-judgmental enforcement.

In order to apply to the enforcement civil court for “removal of objection and eviction”, first of all, an enforcement file initiated with an eviction request is required.

The Enforcement and Bankruptcy Law also provides the opportunity for the eviction of rented real estates through enforcement proceedings with two types of proceedings as “pursuit for ordinary leases and revenue leases” (Example NO: 13) and “pursuit for the eviction of real estates rented by contract” (Example No: 14).

Pursuit for ordinary leases and revenue leases is a remedy to be applied in case of non-payment of rent debt.

Pursuit for the eviction of real estates rented by contract is a remedy that can be applied for in ordinary lease contracts upon the expiration of the term and in residential and workplace lease contracts with an ‘eviction commitment’.

It is not possible to request the removal of all kinds of objections and a request for eviction to the enforcement civil court. However, a request for removal of objections and eviction can be made against matters that “do not require trial”. The removal of objections cannot be requested from the enforcement court against objections that require trial. (Court of Cassation 6th Civil Chamber’s decision numbered 2015/1019 Main and 2015/1686 Decision dated 23/02/2015)

In Proceedings Regarding Ordinary Leases and Revenue Leases;
In enforcement proceedings initiated due to non-payment of rent, the debtor tenant may object to the payment order within 7 days. Depending on the debtor’s objection, it will be understood whether the objection will be lifted and whether an eviction will be applied for. If the debtor does not object to the enforcement proceedings, it will not be necessary to request “lift of objection”.

In pursuit of ordinary rents and revenue rents;

Initiation of enforcement proceedings based on a verbal lease agreement rather than a written lease agreement and the tenant’s rejection of the lease relationship.

• The tenant’s clear denial of the signature on the lease agreement subject to the pursuit.
• Conditioning the commencement of the lease relationship
• An objection has been made regarding the expenses made to the leased property according to the agreement
• An objection has been made regarding non-payment due to renovations in the lease relationship,
• The lessor has made multiple lease agreements with different persons for the same dates,
• It is not possible to determine the lease start date from the lease agreement and the tenant denies the existence of the lease relationship,
• An objection is made regarding the existence of later additions to the lease agreement
• The amount of the rent is not clear in the lease agreement and the tenant objects
• The tenant objects regarding the failure to fulfill the obligation to keep and deliver the leased property in a usable condition

In such cases, the removal of the objection and a request for eviction cannot be made to the enforcement court. It is possible to cancel the objection and file an eviction lawsuit in the general court of peace.

In Proceedings Initiated Based on Eviction Commitment;

A similar rule applies to enforcement proceedings initiated based on eviction commitment. If the debtor tenant,

• Clearly objects to the signature included in the eviction commitment,
• Objects to the arrangement or eviction dates included in the eviction commitment being filled in later,
• If the eviction commitment is conditional and the tenant claims that the condition was not met,
• Since this will require litigation,

the objection cannot be removed and an eviction request cannot be made in the enforcement civil court. The objection can be cancelled and an eviction case can be filed in the civil court of peace.

II. Procedure in the Enforcement Court Against the Removal of Objection and Request for Eviction

The examination in the enforcement court will be conducted according to the simple trial procedure according to the Code of Civil Procedure. Witness hearing, oath proposal, expert examination of book records, and discovery evidence are not examined in the enforcement court. Only written evidence evaluation is possible in the enforcement court. Therefore, the court does not conduct a trial in the technical sense and is a court with “narrow-limited jurisdiction”.

The request for “removal of objection and eviction” is subject to a six-month limitation period. Te period in question is limitation period and the judge examines whether the request is timely or not. The period starts from the end of the payment period.

It is possible to submit separate requests for removal of objection and eviction. However, most of the time, the two requests are requested together. It is not necessary for the thirty-day notice period to expire in order to file a lawsuit for removal of objection. However, the thirty-day period will have to expire for the eviction lawsuit. If the cases are to be filed together, the thirty-day period must be waited for. In addition, it is not possible to request eviction alone without requesting the removal of objection.

If there is more than one tenant in the lease agreement, the enforcement proceedings with the request for eviction will need to be initiated against all tenants. Due to the indivisibility of the eviction debt, the eviction request must also be directed to all tenants. Otherwise, the enforcement court will decide to reject the eviction request.

The enforcement court will examine the objection removal and eviction requests with a hearing. It cannot examine the file. The decision will be made after the parties are invited to the hearing and their evidence is collected. In objection removal and eviction requests, the defendant’s attorney must also be indicated in the petition. In addition, the court must make notifications to the attorney in the enforcement file. Because objection removal and eviction request are a continuation of the enforcement proceedings.

1. Review of the Procedure for Removal of Objection and Release

The procedures that the enforcement court must perform can be briefly summarized as follows;

It will be necessary to examine whether the court fees have been paid along with the request. The objection requested from the enforcement court must be removed and the flat application and advance fee must be paid together with the eviction request.

• Determination of the hearing date and sending a notification to invite the parties to the hearing.
• Summoning the enforcement file.
• Examination of whether the lessor who initiated the enforcement file under review has requested an “eviction” request,
• Examination of whether the payment order sent to the tenant is in accordance with the procedure, In particular, in the pursuit of ordinary rents and revenue rents, a period of at least thirty days must be granted in accordance with Article 315 of the Turkish Code of Obligations.
• Examination of whether the objection is removed and the eviction request is within the six-month period,

2. Removal of Objection and Evacuation Substantive Review

If there is no deficiency in the procedural review, the substantive review will be conducted.

If it is not understood which period or months the rental receivables subject to the eviction request are related to, the requesting lessor will be given a period to explain this.

The tenant is bound by the objection reasons he/she has notified to the enforcement file. (EBL Art. 63) For example, it will not be possible for a tenant who rejects the lease relationship to later claim that he/she has paid the rent debt. Objection to the debt also includes objection to the amount of rent.

If the tenant claims that he/she is not in debt in his/her objection, he/she will be able to present the payment documents during the examination.

The tenant who does not object to the enforcement proceeding will only be able to present documents regarding the payments he/she has made during the notice period. Even if the payment has been made before, this objection will not be examined by the enforcement court.

Article 269/a of the Enforcement and Bankruptcy Law does not consider it sufficient for the pursuit to become final. It seeks an eviction decision to be given by the enforcement court. In case of a request for eviction due to default, the principle of being brought by the parties is applied.

However,

• Whether the warning is justified, that is, whether there is a valid follow-up request and a payment order in accordance with it,
• Whether the legal periods are indicated in the payment order,
• Whether the follow-up request includes an eviction notice,
• Whether the rent was paid within the thirty-day payment period,
• Whether the eviction notice is justified

the enforcement court is obliged to examine it ex officio. (Court of Cassation Civil General Assembly, Docket No. 2018/6-828 and Decision No. 2022/201 and Decision dated 24/02/2022)

If the request is made together with the removal of the objection; an enforcement denial compensation of not less than twenty percent will also be ruled.

In case of removal of the objection and acceptance or rejection of the eviction request, a fixed attorney fee will also be ruled in accordance with the Attorney Minimum Fee Tariff. The trial expenses will also be charged to the losing party. Since the removal of the objection and the eviction request are two separate requests, the attorney fee should be decided separately for each request.

In case the objection is removed and the eviction request is accepted, if the decision given by the enforcement court is submitted to the enforcement office, the eviction procedures will continue as is. In addition, an eviction order will not be required to be sent to the debtor. However, the eviction decision should be requested to be fulfilled within one year at the latest. Otherwise, the lease agreement will be deemed to have been renewed.

The decisions of the enforcement court do not constitute a final judgment. Th court’s decision does not need to be final in order to be enforced. The debtor tenant will need to make a decision regarding the suspension of enforcement. Even if the objection to the enforcement proceedings regarding the eviction commitment is lifted and an appeal is filed against the eviction request, the enforcement cannot be requested to be postponed.

The enforcement civil court cannot examine on its own initiative the issues that require a complaint about the enforcement officer’s treatment, such as irregular notification or cancellation of the payment order or cancellation of the pursuit. However, the absence of notification will be examined by the court ex officio. Even if the tenant debtor submits the payment order in a different way, notification is a must. Otherwise, it will not have a legal consequence.

Since the removal of the objection and the eviction case to be heard in the enforcement court are two separate requests, the limits of finality of the appeal should be evaluated separately for each case.

III. Effect of Removal of Objection and Eviction Decision

The enforcement court’s decision to lift the objection and eviction is a final judgment only for the enforcement courts. As a result of the enforcement court’s trial procedure, it does not contain a final result in terms of substantive law. For this reason, even if the decisions of the enforcement court are final, it is possible to file a negative determination and/or recovery lawsuit in the general court.

The general court is a civil court of peace in terms of rental law. Both the negative determination and recovery lawsuit are subject to the condition of mediation. However, it is possible to stop the execution of the enforcement court’s decisions regarding the removal of objection and eviction decision, provided that a security is deposited. This issue applies to the pursuit of ordinary leases and revenue leases, as well as the pursuit due to the end of the lease term. Only filing a negative determination or recovery lawsuit does not stop the execution of the enforcement court’s decision.

IV. Regional Court of Justice Appeal Against the Removal of Objection and Evacuation Decision

According to Article 363 of the Enforcement and Bankruptcy Law, there is a monetary limit for appeal. The monetary limit for appealing against the decision of the enforcement court for the year 2024 is 66,090 Turkish Lira.

The appeal legal remedy for the removal of objection and eviction should be examined separately for both requests.

Th amount subject to pursuit will be considered for the removal of objection.

The annual amount of the rental fee will be taken as basis for the eviction decision.

The decision will not need to be final for the removal of objection and eviction. Therefore, postponement of execution is possible against decisions that are not final. (* Postponement of execution is not possible against the decision to remove objection due to the expiration of the written lease agreement -Example 14- due to the pursuit.)

V. Removal of Objection and Appeal to the Supreme Court Against the Release Decision

According to Article 364 of the Enforcement and Bankruptcy Law, there is a monetary limit for appeals. The enforcement court’s appeal limit for 2024 is 378,290 Turkish Lira.

Separate examinations should be made for appeals for the removal of objections and eviction.

The exit of the follow-up will be taken as the basis for the removal of objections.

The appeal limit for eviction decisions is the annual amount of the rental fee.

VI. Removal of Objection and Execution of Eviction Decision

The removal of objection and eviction precedure are generally legal avenues pursued together in the enforcement court.

To file a request for “removal the objection and eviction” in the enforcement court, it is necessary to have an execution file initiated with a request for eviction.

The Execution and Bankruptcy Law provides two types of execution procedures for “ordinary rent and revenue rents” (Sample NO: 13) and “execution for the eviction of immovables leased by contract” (Sample No: 14) concerning the eviction of leased real estate.

Memduh Remzi BAL
Attorney at Law | Lawyer in Turkey

Landlord Tenant Attorney

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