I. In Genaral
In residential and/or roofed workplace lease agreements, the reasons for evicting the tenant are limited. It is possible to file a lawsuit for the eviction of the tenant on the grounds specified in the law. The landlord may file an eviction lawsuit based on the need for a residence or workplace for himself, his spouse, descendants, descendants or other persons he is obliged to look after by law.
If the landlord needs the leased property, he can only terminate the lease through an eviction lawsuit. The most distinctive elements of this case are that the landlord’s need is sincere, that the case is filed within due time, and that the lessor cannot rent out the leased property again for three years if he wins the case.
The landlord does not need to be the owner to request eviction due to necessity. He can file an eviction lawsuit due to necessity even if he is the usufruct or residence right owner or if he is the sub-lessor.
If the landlord is a legal entity, an eviction lawsuit cannot be filed due to housing needs. The legal entity may request evacuation for its workplace needs.
In case of a plurality of parties in the lease agreement, all transactions must be carried out by all parties. For example, if there are many tenants, the notice, mediation application or lawsuit to be sent should be directed to all tenants. Similarly, if the landlord is multilateral, all landlords must act jointly and follow the process.
II. Warning Requirement in Evacuation Due to Necessity Case in Turkey
The warning requirement in residential and roofed workplace lease agreements will be understood depending on whether the contract is for a definite or indefinite period.
1. Period of Notice for Evacuation Due to Need in Fixed-Term Lease Agreements
As a rule, in fixed-term rental agreements, there is no obligation to send a notice before filing for eviction due to necessity. However, in fixed-term rental agreements; For the notice requirement, it will be necessary to check whether such an obligation is imposed on the landlord in the lease agreement. Because if there is a notice obligation imposed on the lessor in the lease agreement, the courts look for this condition to be fulfilled.
For example; in the rental agreement; “Unless the parties notify at least 2 months in advance, the lease agreement is extended under the same conditions.” If there is a provision like; It will also be necessary to send a warning in a fixed-term rental agreement. In fixed-term lease agreements, the notice period for eviction due to need will be determined accordingly if the landlord is obliged to do so in the lease agreement. Otherwise, in fixed-term rental agreements, there is no obligation to send a notice before filing an eviction lawsuit due to necessity.
2. Period of Notice for Evacuation Due to Necessity in Indefinite Term Lease Agreements
In indefinite-term lease agreements, the notice for eviction due to need must reach the tenant at least three months before the end of the lease agreement. To explain with an example, due to a need for an indefinite-term lease agreement that started on 01.09.2021, the notice must have reached the tenant on 01.06.2024 at the latest; An eviction lawsuit can be filed due to necessity within 1 month from 01.09.2024.
Since verbal rental agreements will also be considered as rental agreements for an indefinite period, the same condition applies during the notice period for eviction due to necessity. In other words, the notice must reach the tenant at least three months before the lease is due to be renewed.
3. Sample Warning for Evacuation Due to The Landlord’s Needs in Turkey
The people mentioned in the warning are fictitious.
III. Case Condition Mediation Before Evacuation Case Due to Necessity
According to Article 18/B of the Law on Mediation in Civil Disputes, it is regulated as a condition of litigation that a mediator must be consulted before filing a lawsuit in rent disputes.
It will be decided to reject the case filed without applying for mediation on procedural grounds.
There is no provision in the Turkish Code of Obligations or the Law on Mediation in Civil Disputes regarding when mediation should be resorted to. Despite this, applying to a mediator before the stipulated time to file an eviction lawsuit due to necessity is interpreted by some courts as not fulfilling the “mediation requirement” within the prescribed period. For this reason, it is recommended that the mediation requirement be fulfilled within the 1-month or 1-year filing period. The time period stops between the mediation application and the date the disagreement report is uploaded to the system. For this reason, the period of mediation period starting from the application date will be added to the 1 month or 1 year period.
IV. When is a Case for Eviction Due to Necessity Filed?
The lessor concludes the lease agreement due to the need for housing or workplace; In fixed-term contracts, it can be terminated at the end of the term, and in indefinite-term contracts, it can be terminated by filing a lawsuit within one month starting from the date to be determined by complying with the termination period and termination notice periods stipulated in the general provisions of the lease agreement.
In Article 353 of the Turkish Code of Obligations; “If the lessor has notified the tenant in writing that he will file a lawsuit within the stipulated time for filing the lawsuit at the latest, the period for filing a lawsuit is deemed to have been extended for one lease year.” provision is included. The lessor may notify the tenant in writing within one month that he/she will file a lawsuit. In this case, the period for filing a lawsuit will be extended by one lease year.
If the eviction case is not filed in accordance with these deadlines, the case will be rejected due to procedural reasons. The court examines ex officio whether the case was filed within the prescribed period.
A lawsuit for eviction due to necessity must be filed within 1 year at the latest, provided that a notice is sent, otherwise within 1 month from the end date of the contract.
V. The Court in Charge and Competent in the Case of Evacuation Due to Necessity
The “Civil Court of Peace” is responsible for eviction cases due to residential and roofed workplace lease agreements. For this reason, the case must be filed in the civil court of peace. It is not possible to file an eviction lawsuit due to necessity for immovable properties that are not residences or roofed workplaces.
A lawsuit for eviction due to necessity must be filed at the tenant’s residential address or in the civil court of peace where the leased property is located.
VI. Sincerity of Landlord’s Needs in Turkey
When the lessor files an eviction lawsuit due to need, the court requires that this need be sincere, real and mandatory. If the lessor’s need is not sincere, real and mandatory, his case is rejected. The need is examined meticulously by the court.
The lessor must prove the existence of the need for housing and workplace before the court. Te tenant, on the other hand, can prove with all kinds of evidence that the need is real, sincere and not mandatory.
In addition, the court requires that the lessor’s needs have been met and that they have continuity. For this reason, a situation that does not occur or is not certain to occur in the future is not considered a need.
The need is continuous and lasts for a certain period of time. The judge makes a decision by evaluating all these elements according to the concrete case. According to the Supreme Court, the decision should continue until the decision becomes final. (Supreme Court 3rd Civil Chamber, 2017/9396 Merits, 2019/4734 Decision, 21.05.2019)
In some of its decisions, the Supreme Court has come to the conclusion that posting advertisements for sale undermines the reality and sincerity of the need. A temporary need that is not permanent cannot be considered as a reason for evacuation, and a need that has not yet arisen or whose realization depends on a long period of time cannot be considered as a reason for evacuation. (Supreme Court 3rd Civil Chamber, 2019/2702 Merits, 2019/4829 Decision, 22.05.2019.)
Situations Where the Need Is Accepted Sincerely in Turkey
In some cases, the need of the lessor has been accepted as sincere, real and mandatory by the Supreme Court.
If the lessor is renting or living with someone else, his need is deemed genuine by the Supreme Court. According to the Supreme Court; “In eviction cases based on housing reasons, the fact that the needy person lives in a rented house is the main evidence of the existence of the need.” Therefore, the fact that the lessor lives as a tenant in another residence is a presumption of housing need. There is no difference between a lessor claiming to need housing and living in a house belonging to someone else as a tenant or living free of charge. The fact that the lessor’s children also live in the rental house is a presumption that there is a need for housing. (Supreme Court 3rd Civil Chamber, 2018/7751 Merits, 2019/493 Decision, 23.01.2019.)
The lessor who needs a house must prove that he lives in another house. However, the tenant can always prove the opposite of this presumption. For example, someone who rents may have a house that is closer to their job and has better physical conditions. If he does not file an eviction lawsuit for this residence, but files an eviction lawsuit for a residence that is further away from his work and has worse physical conditions, the case should be rejected. If the tenant owns a property, a decision must be made based on whether the property is vacant or not. (Supreme Court 3rd Civil Chamber, 2017/7503 Merits, 2017/16791 Decision, 30.11.2017.)
The existence of a housing need is also accepted if the lessor has difficulty in covering the expenses of the house he lives in due to his financial situation being worse than before. It has also been seen as a justified reason for the lessor who lives in a luxury flat to want to move to a smaller rented flat due to financial difficulties.
1. Definite Return from Abroad
The housing need will be considered real and sincere, provided that the lessor living abroad returns to the country for sure. (Supreme Court 6th Civil Chamber, 23.02.1999, 1999/1397 Merits, 1999/1443 Decision.) The General Assembly of the Supreme Court of Appeals found it sufficient that the need continues while the trial is ongoing and that the necessary steps have been taken for definitive return to the country. (Supreme Court of Appeals General Assembly, 29.06.2021, 2017/1540 Principles, 2021/878 Decision, 3rd Civil Chamber of the Supreme Court of Appeals, 2017/3075 Principles, 2017/7795 Decision, 23.5.2017.)
2. Summer Residence
The lessor may have to rent another place if the tenant is not evicted from the summer residence. In this case, it is accepted that the rented person’s need for summer housing is real and sincere. In the Supreme Court jurisprudence, the need for summer housing has been accepted as a part of the housing need. (Supreme Court 6th Civil Chamber, 12.01.2015, 2014/13336 Merits, 2015/39 Decision.)
The house that is requested to be evacuated due to the need for a summer house must also be built as a summer house in terms of architecture. In addition, the rental agreement should be aimed at meeting the needs of the summer house. Otherwise, according to the Supreme Court, the eviction request should be rejected because the residence requested to be evacuated cannot meet the need for a permanent summer residence. The situation here is not that you spend every day of the year in the rented property. For example, if one wants to work abroad and spend the holiday periods of the year at home, the existence of the need is accepted.
3. Needs of Adults
In order for the landlord or his/her relatives to be considered as needy, the person must be of legal age. According to the Supreme Court, a person who has reached adulthood cannot be forced to live with his family. (Supreme Court, 6th Civil Chamber, 22.03.2007, 2007/1360 Merits, 2007/3234 Decision.)
- Marriage of the landlord or his children,
- Having a child
- their children’s growth,
- Their children living in another city at the university complete their education and return to the landlord ,
If your child reaches adulthood and wants to move to a separate home, the need is considered to be genuine. (Supreme Court 6th Civil Chamber, 2016/3380 Merits, 2016/3343 Decision, 25.4.2016.)
4. Preparing for Marriage
The Supreme Court finds the need of the landlord , who is preparing to get married, to be real and sincere. However, it does not consider engagement alone in this context. In addition, it requires some concrete preparations to be made for the marriage, such as purchasing some belongings and determining the wedding day. (Supreme Court 6th Civil Chamber, 25.10.2004, 2004/6759 Merits, 2004/7239 Decision.)
5. If the Landlord is Unemployed
If the lessor is unemployed or will leave his/her current workplace, the need for a workplace is accepted. (Supreme Court 6th Civil Chamber, 09.03.2015, 2015/1449 Merits, 2015/2323 Decision.)
6. Divorce of Spouses
Divorce of spouses also indicates the existence of a need. In addition, the fact that one of the spouses lives separately is accepted as a situation where the need for housing is mandatory. As with marriage, housing needs due to divorce must be based on concrete evidence. (Supreme Court, 6th Civil Chamber, 13.02.2007, 2006/12620 Merits, 2007/1193 Decision.)
Needing a house as a result of a divorce is also considered sincere. (Supreme Court 3rd Civil Chamber, 2017/3224 Merits, 2017/15164 Decision, 2.11.2017)
7. Health Reasons
The lessor may request the evacuation of the rented property, citing the need for housing due to health reasons. However, the health reasons put forward by the lessor as a housing need must necessitate the lessor’s residence in the rented house and it must be beneficial for the health of the rented person. (Supreme Court 6th Civil Chamber, 08.12.2003, 2003/8731 Merits, 2003/8796 Decision.)
8. For Persons Living Abroad
The housing need of those who live abroad and do not return for sure but want to spend certain periods of the year (leave, holiday, etc.) in Turkey can also be considered real and sincere. Te fact that the lessor wants to live in his own house when he comes to Turkey is related to the right of ownership. The right of ownership should be prioritized over the right of tenancy. (Supreme Court of Appeals General Assembly, dated 28.11.1990, 1990/6- 466 Principles, 1990/593 Decision, Supreme Court 6 Civil Chamber, 13.06.2012, 2012/5810 Principles, 2012/8832 Decision)
9. Needs of the Landlord’s Child
An eviction lawsuit can be filed due to necessity in cases such as the appointment of the landlord’s children to civil servants, their education, or their health condition. (Supreme Court of Appeals General Assembly, 23.10.2015, 2014/224 Principles, 2015/2354 Decision.)
According to the law, the need for descendants is also shown among the reasons for the eviction case. For this reason, the grandchild’s needs also give him the right to file an eviction lawsuit due to the landlord’s needs in Turkey.
VI. Litigation Process
The case of eviction due to necessity is a case subject to simple trial procedure. Therefore, it is possible to submit 1 lawsuit petition and 1 response petition. The case will be followed in the order of preliminary examination, investigation, oral trial and verdict.
Depending on the claims and defenses of the plaintiff and the defendant, more than one discovery and expert examination may be possible. If the defendant denies or objects to the plaintiff’s allegations, the sincerity of the need is examined by the court.
Witnesses, oaths, discovery, experts, written evidence and all kinds of evidence in accordance with the law can be used as a means of proof in the case.
In case of a claim of superior qualifications, the person who makes this claim is obliged to prove his claim.
VII. Consequences of Eviction Case and Re-rental Prohibition
If the lessor wins the eviction case filed due to necessity; The contract will be terminated with the decision. Moreover, the tenant is obliged to deliver the rented property to the landlord empty, together with its attachments and keys. Otherwise, the lessor may evict the leased property through compulsory enforcement.
If the landlord wins his case and terminates the lease due to need, he cannot rent the leased property to anyone other than the evicted tenant for three years.
In the first and third paragraphs of Article 355 of the Turkish Code of Obligations; “When the lessor ensures the evacuation of the leased property for necessity purposes, he cannot rent the leased property to anyone other than the former tenant, unless three years have passed, without a justified reason. If the lessor acts contrary to these provisions, he is obliged to pay compensation to his former tenant, not less than one year’s rent paid in the last lease year.” provision is included.
The lessor may violate the re-rental prohibition. In this case, the former tenant must pay compensation not less than one year’s rent. The purpose of the re-rental ban is to prevent the lessor, who has no real need, from abusing his right just to evict the tenant. Supreme Court; In order for compensation to be awarded for violating the re-rental prohibition, the lessor requires the tenant to be evicted by lawsuit. (Supreme Court 3rd Civil Chamber, 21.02.2021, 2017/4632 Merits, 2019/1687 Decision)
VIII. Appeal Process and Postponement of Execution
In an eviction case due to necessity, the case value will be calculated according to the annual rental value on the date it is filed. However, the appeal limit is calculated according to the decision date. If the case value remains below the appeal limit in terms of monetary value, the court will give a final decision. Otherwise, the right to appeal will be decided expressly.
It is possible to file an appeal within two weeks from the notification of the reasoned decision to the parties. As a rule, cases for eviction of the rented property can be carried out without finalization. If the defendant tenant loses the case, he must proceed with the suspension of enforcement against the eviction decision. Otherwise, the plaintiff may request the eviction of the leased property through the lessor’s enforcement office.
Ece Deniz Vardar
Attorney at Law | Lawyer in Turkey
Landlord Tenant Attorney Services
Call us : +90 212 909 86 34
Send mail : info@ballawfirm.com
