The tenant who wants to rent an immovable independently of the lease agreement is called an evacuation undertaking with a written declaration of will that he will evacuate the leased immovable without any conditions being put forward at the end of the contract.
According to Article 352/I of the TCO, “if the lessee has undertaken in writing to the lessor to vacate the leased premises on a certain date after the delivery of the leased premises, but has not done so, the lessor may terminate the lease agreement within one month from that date by applying for execution or filing a lawsuit to the Civil Court of Peace”.
The effect of an eviction undertaking does not mean the termination of the lease agreement on the day specified in the undertaking. An eviction undertaking cannot be characterized as a transaction that automatically terminates the lease agreement on the specified date or a declaration of termination.
The eviction undertaking is recognized as an obligatory transaction that obliges the lessee to vacate on the specified date and gives the lessor the right to ask the lessee to vacate. One of the most important features of the written eviction undertaking is that it provides the lessor with the opportunity to terminate the lease relationship without relying on any other reason and without incurring any compensation obligation against the lessee. If a penalty clause is agreed with the eviction undertaking in case the leased property is not vacated on the specified day, the payment of the penalty stipulated in case of failure to vacate on the specified day may also be requested. A decision of the 6th Civil Chamber of the Court of Cassation is worth examining;
According to the decision of the 6th Court of Cassation, dated 21.1.1982 and numbered E.8949, K;
“…The defendant has accepted that he will vacate the leased premises on the specified date and if he does not vacate the leased premises, he will pay a penalty of 300 liras per day for the elapsed time. This acceptance is outside the lease agreement. It was also accepted with an agreement. Failure to vacate the leased premises on the promised date and failure to fulfill the commitment is a breach of contract. The defendant must be bound by the penalty clause pursuant to Article 158 of the Code of Obligations. However, considering the nature of the work and the fact that the penalty clause exceeds the amount of the annual rent, it is necessary to consider whether the penalty clause should be reduced according to the provision of Article 161 of the Code. In addition, it is obligatory to clearly specify the dates for which the penalty clause will be determined and to award a penalty clause for these days. Without specifying these dates, it is not appropriate to determine the amount by incorrectly calculating the number of days between the date of commitment and the date of evacuation of the leased premises.”.
1-) Validity Conditions of the Eviction Commitment
The validity of the eviction undertaking is subject to certain conditions in the law, doctrine and judicial decisions. The conditions necessary for the validity of the eviction undertaking will be analyzed below.
a) The eviction undertaking must be in writing and must indicate the date of eviction.
It is a condition of validity that the eviction undertaking must be in writing. This is because this rule is a mandatory provision of the Turkish Code of Obligations. If the eviction undertaking is not issued ex officio by a notary public or the date and signature are not certified, the lessor cannot request the removal of the objection from the enforcement inspection authority if the lessee denies the signature of the lessee. He can only file an eviction lawsuit in court.
In addition to the mandatory rule that the eviction undertaking must be in writing as required by law, the Court of Cassation has accepted in various practice decisions that the undertaking may be given in different forms. These forms are also valid during the trial with the acceptance of the lessor, by being recorded in the minutes of the hearing. It is one of the conditions of validity that the date of eviction must be specified in the eviction commitment. It is accepted that the evacuation commitment shall be interpreted only as the last day of the month in which the evacuation will be made. The fact that the date of evacuation is not known or not specified in the commitment is one of the most important reasons affecting the validity of the commitment. However, different practices are encountered in practice. The Court of Cassation has also ruled that the eviction undertaking that does not clearly carry a date should not be deemed invalid. The decisions of the Court of Cassation in this direction are clearly contrary to the mandatory provision of the law. The fact that such decisions have been made in the past does not affect the general, established and accepted system. In practice, commitments without an “eviction date” are deemed invalid even if they are in writing.
b) The eviction undertaking must be given after the first lease agreement is concluded.
In order for the eviction undertaking to be valid, it must be given after the first lease agreement is concluded, during its continuation or in subsequent periods. Eviction commitments given before or during the establishment of the first lease agreement are invalid as they are based on free will.
Since the eviction undertaking will be issued “after the delivery of the leased property”, it is not possible to issue it together with the lease agreement. Another point to be noted is that the invalidity of the eviction undertaking, which is claimed to have been taken before or during the establishment of the lease relationship, must be proved with written evidence.
Pursuant to the decision of the 6th Court of Cassation H.D. dated 19/02/2007 and numbered 12786 E./ 1515 K;
“…In the eviction commitment letter, the signature of which is based on the lawsuit and the enforcement proceedings, which is not denied by the defendant tenant, the phrase “of which I am still a tenant…” is written. It is clearly understood from the content of the letter of commitment that the commitment was given while the lease relationship continued. It should be accepted that the content of the commitment, whose signature is not denied, is correct and that the lessor is authorized to fill in the blank parts later. The defendant’s defense that the commitment was received on the same date as the contract and that the date parts were filled in later must be proved with written evidence of the same strength. Since the defendant cannot bring evidence of this strength, it is not correct to decide to dismiss the case with the written justification, while it is necessary to decide to cancel the objection, to continue the proceedings and to evacuate the leased property by accepting that the commitment letter, which was given with free will and whose signature is not denied, is valid…”
In summary, in accordance with the above-mentioned Court of Cassation decision and the text of the article of the law, the eviction undertaking must be obtained separately from the lease agreement and dated in the future.
c) The eviction undertaking must be made by the tenant himself or by his representative.
The eviction commitment must be made by the tenant or his authorized representative. Otherwise, the commitment will be invalid. Another point to be mentioned here is the situation where one of the spouses is a tenant. As it is known, pursuant to Article 194/1 of the Turkish Civil Code, “One of the spouses cannot terminate the lease agreement regarding the family dwelling, transfer the family dwelling or limit the rights on the family dwelling unless the other spouse has explicit consent”, and it is regulated that one of the spouses cannot limit the rights on the family dwelling and terminate the agreement without the consent of the other spouse. According to an opinion in the doctrine, the eviction commitment given by only one spouse is deemed invalid, since it is accepted that the commitment will have the consequences of termination if the immovable property for which the eviction commitment is given is a family residence. In the practice of the Court of Cassation, it is stated that if the immovable property that is the subject of the enforcement proceedings through eviction is a family dwelling, the spouse who did not consent to the eviction undertaking should be given the right to file a lawsuit in the family court to determine that the immovable property is a family dwelling.
If there is more than one tenant, the eviction undertaking must be given by all tenants. However, it is accepted that the eviction undertaking can be given through an attorney, that it is sufficient to understand the authority of the attorney’s undertaking in the power of attorney, and that there is no need for a special authorization.
However, there are also decisions of the Court of Cassation in the opposite direction. It is necessary to accept that the attorney, who has the right to conclude a lease agreement on behalf of the tenant, is entitled and authorized to sign the eviction commitment.
d) Eviction must be requested within one month from the date of the commitment.
Pursuant to Article 352 of the TCO, the lessor is obliged to request eviction by applying to the execution office or the court within one month from the date the lessee undertakes to evict.
2-) Legal Consequences of Signature in White
In practice, one of the biggest problems and cases encountered in relation to the lease law is whether the eviction commitment given by the tenant by signing on a blank paper, in other words, in white, is valid or not. Although it is contrary to the essence of the condition of delivery of the lease, which is the mandatory rule of the law, the subsequent filling of the eviction commitment does not affect the validity condition, and the commitment is valid as a rule. The person who signs in white must also bear the consequences of his signature in white. The Court of Cassation has accepted that “the lessee is deemed to have accepted the contents of the document in advance”.
Unless the lessee can prove that the document signed in blank was not given as an eviction commitment or that the eviction date and other matters were filled in contrary to the agreement between the lessor and the lessee, they will be valid.
3-) Conditions of the Lawsuit
a) Plaintiff and Defendant
The right to file a lawsuit based on a written eviction notice belongs to the lessor. The owner who is not the lessor has no right of action. In the event of the death of the lessor, the right to sue passes to his heirs who are the heirs of the lessor. This is clearly understood from the law. According to the jurisprudence of the Court of Cassation, in some cases, even the owner may pursue enforcement proceedings and file a lawsuit based on the eviction commitment. Even if the lessee leases the leased property to a sub-lessee under a sublease agreement, the lessor may only file an eviction lawsuit against the main tenant in the event that the lessee has made a written eviction commitment. The eviction decision rendered against the main tenant also binds the sub-tenant.
If the lessor is not the owner, it may assign the right of action arising from the commitment to the owner in accordance with the provisions on assignment of receivables. If there is more than one lessor, as a rule, the lawsuit must be filed by all of them due to compulsory litigation friendship. If this condition is missing in the lawsuit, the lessor who filed the lawsuit must be given a deadline to fulfill this condition. A person who signs the lease agreement on behalf of another person with a power of attorney does not have the right to sue on his own behalf. If a lawsuit is to be filed, this lawsuit can be filed on behalf of the principal.
b) Duration and Venue
Prior to July 1, 2012, the date of entry into force of the Turkish Code of Obligations No. 6098, although there was no special regulation in the laws regarding the period within which eviction requests based on the eviction commitment should be made, it was accepted that the one-month period specified in Article 272 of the Enforcement and Bankruptcy Law was valid by analogy. Accordingly, the enforcement proceedings and lawsuit period was one month from the date of eviction specified in the eviction commitment. The new Turkish Code of Obligations has made this issue uncontroversial by stating this deficiency as 1 month in paragraph 1 of Article 352. Failure to file an eviction request in the execution or to file an eviction lawsuit in the court within this 1-month period will cause the lapse of the forfeiture period and the request will be rejected.
The eviction will previously notified to the tenant does not have a time-protective nature. What protects the period is the execution proceedings based on eviction or the filing of an eviction lawsuit within one month. Since the enforcement proceeding based on the eviction will protect this one-month period, a lawsuit can be filed after the one-month period has passed due to the objection to be made by the tenant to the enforcement proceeding. If this one-month period passes without filing an eviction enforcement proceeding or filing an eviction lawsuit, the lessor’s right to sue will end, as the contract will be deemed to be automatically renewed. Since the one-month period is related to public order, it should be taken into consideration by the court automatically, even if it is not asserted by the defendant.
In enforcement proceedings, until the end of the one-month period starting from the evacuation date specified by the tenant in the evacuation commitment, the lessor or the owner sends an evacuation order, known as sample 14 in practice, to the tenant to evacuate the premises. The legal regulation regarding this situation is regulated in Articles 272, 273 and 274 of the Enforcement and Bankruptcy Law. In this eviction order, if the tenant has an objection regarding the renewal or extension of the contract, it is warned that the tenant must make these objections to the enforcement office within a seven-day period, if there is no objection, to evacuate the place within a fifteen-day period, if he does not object or evacuate within the given time, he will be forcibly and forcibly removed from the place, and if he objects, he will be forcibly evicted in accordance with the provisions of Article 273 of the Execution and Bankruptcy Law in case of a removal decision from the court.
In case of objection of the lessee, the lessor may follow two ways. In the first way, the lessor may request the removal of the objection by applying directly to the Enforcement Court, or in the second way, the lessor may request the evacuation of the premises by filing an eviction lawsuit before the Civil Court of Peace. If the eviction undertaking is given in ordinary written form and the lessee objects to the signature on this document, the lessor can no longer apply to the Enforcement Court and request the removal of the objection. The lessor will now be obliged to file an eviction lawsuit in the Civil Court of Peace. In eviction commitments issued by a notary public or whose signature is notarized, the signature cannot be denied in the enforcement proceedings. If a signature is denied in a notarized eviction undertaking, the matter should be resolved in the Civil Court of Peace, not in the Enforcement Court.
CONCLUSION
While the eviction commitment was regulated under Article 7/a of the GKHK No. 6570, which was a special law and had a limited application area before July 1, 2012, it is now regulated under Article 352 of the new Turkish Code of Obligations, which is a general law.
The eviction undertaking is a document that the lessor holds in its possession regarding the date on which the lessee will take delivery of the immovable property, and its consequences are severe for the lessee. With a duly written eviction undertaking, the lessee is obliged to evacuate the immovable property on the date specified by the lessor. If the lessor does not evacuate the immovable property on the date committed by the lessee, the lessor must apply for execution or file an eviction lawsuit within one month. Here, the one-month period granted to the lessor is a period of forfeiture. Pursuant to Article 347/I of the TCO, “Unless the lessee notifies at least fifteen days before the expiry of the term of a fixed-term contract, the contract shall be deemed to be extended for one year under the same conditions”. Therefore, a heavy responsibility is imposed on the lessor by granting a one-month grace period. Otherwise, the lessor, who has passed the period of enforcement proceedings or filing a lawsuit, can no longer request the eviction of the immovable property based on the eviction undertaking. Therefore, while the lessor is making efforts to obtain the eviction undertaking, the lessee is making efforts not to give the eviction undertaking. However, in practice, in order to prevent this situation, the eviction undertaking is obtained at the beginning of the lease agreement by writing a later date on it.
While it is accepted in the doctrine, practice and jurisprudence that the eviction undertaking becomes valid if it is given after the lease agreement, a new situation has been created in favor of the tenants by adding the condition “after the delivery of the leased property” with the new Turkish Code of Obligations. Although the legislator makes regulations in the form of protecting the lessee, in practice, lessors try to create a situation in their favor by cheating against the law by obtaining empty evacuation commitments with empty dates of issuance and evacuation.
In fact, the most important reason for the lessors to resort to these remedies is the fact that the lessors are not taken into consideration in any way in the laws, while the lessees are tried to be protected by the laws made by the legislator. The fact that the lessors cannot collect the rent receivable and have no choice but to apply to the general judicial remedy for its collection can be considered as a reason for the lessors to try to create law in their own favor.