According to Article 350 of the Turkish Code of Obligations (TCO), if the lessor is obliged to use the leased property due to the need for housing or workplace for himself, his spouse, his spouse, his descendants, his ascendants or other persons he is obliged to take care of by law
According to Article 350 of the Turkish Code of Obligations (TCO), the lessor may terminate the lease agreement with a lawsuit if the lessor is obliged to use the leased property due to the need for housing or workplace for himself, his spouse, his descendants, his ascendants or other persons he is obliged to take care of by law. For this purpose, the landlord may file an “eviction due to necessity” lawsuit against the tenant.
However, in this case, the landlord must prove that the “housing need”, which is the cause and claim of the lawsuit, is compulsory, real and must be continuous. If the landlord proves this claim in the lawsuit against the tenant, the landlord may evict the tenant with a court decision. The housing need claimed by the landlord must be real, sincere and continuous.
In order to decide on eviction in cases based on the claim of need, it must be proven that the need is real, sincere and compulsory. Temporary need that is not permanent cannot be a reason for eviction, nor can a need that has not yet arisen or whose realization depends on a long period of time be accepted as a reason for eviction. It is not enough to have a reason for need at the time of filing the lawsuit, this need must continue during the trial.
For example, if the eviction lawsuit is filed with the claim of “my child will get married, my child will live there”, it must be proven that the child really needs a new residence due to the marriage. If there is another residence belonging to the child to be married, the eviction lawsuit will be rejected as the ‘need’ will not be sincere.
Or, in an eviction case filed by an expatriate citizen claiming “I will return to Turkey for good, I will live in the house myself”, he/she must prove that he/she will indeed return for good. It is clear that the need for a dwelling just to spend a few months in Turkey in the summer is not permanent.
The fact that the immovable will be constructed and reconstructed is a reason for eviction. However, it must be impossible to use the immovable during this process. If there is renovation and repair work that can be carried out while the tenant is living in it, eviction cannot be requested.
The landlord will have to prove in court that there is a need for major repairs, repairs, alteration or expansion in accordance with the zoning legislation and that the house should be empty during this process.
Article 350/1 of the TCO stipulates that the person who acquires the leased property may request eviction due to the need for housing or workplace for himself, his spouse, his spouse, his descendants, his descendants or other persons who are obliged to take care of him by law. According to the provision of the law and the established jurisprudence of the Court of Cassation, a real person cannot request eviction due to the company’s need.
WHEN SHOULD THE LESSOR AND THE LESSEE FILE A LAWSUIT FOR EVICTION DUE TO NECESSITY?
According to Article 350/1 of the TCO No. 6098; the eviction lawsuits to be filed based on the claim of need must be filed within one month starting from the date to be determined by complying with the periods stipulated for the termination notice in Article 328 of this law for fixed-term contracts and for indefinite-term contracts.
Pursuant to Article 353 of the TCO, if the lessor has notified the lessee in writing that it will file a lawsuit before or at the latest within the period stipulated for the filing of the lawsuit, the lawsuit may be filed until the end of an extended lease year following the notification.
The period for filing a lawsuit is a matter of public order and should be taken into consideration by the court automatically, even if the defendant does not assert it.
CAN THE LESSOR RE-RENT THE PLACE I WAS EVICTED DUE TO NEED WITH A NEW LEASE AGREEMENT?
The landlord cannot rent out the place that has been evicted due to necessity unless 3 years have passed, except for justified reasons.
Article 355 of the TCO prohibits renting out the house to another person for three years, except for justified reasons, if the tenant is evicted from the house due to need.
Article 355 of the Turkish Code of Obligations clarifies the issue.
“ARTICLE 355 – When the lessor evacuates the leased property for the purpose of necessity, the lessor may not rent the leased property to anyone other than the former lessee unless three years have passed without just cause.
Immovable immovables which have been evacuated for reconstruction and reconstruction purposes may not be rented to anyone else in its former condition unless three years have passed without just cause. The former lessee has the priority right to lease the immovable immovables that have been reconstructed and reconstructed with the new condition and new rental price. This right must be exercised within one month following the written notification by the lessor; unless this priority right is terminated, the immovable cannot be leased to another person before three years have passed.
If the lessor violates these provisions, he is obliged to pay compensation to the former lessee not less than one year’s rent paid in the last lease year.”
This prohibition was introduced to prevent abuses by landlords in order to prevent them from evicting their tenants and re-letting them to others at high rents.
The prohibition of renting for 3 years applies not only to evictions due to necessity, but also to evictions for reconstruction and reconstruction purposes. In this case, if the owner is going to rent the dwelling for three years, he/she may rent it to the former tenant, but not to another tenant.
“According to Article 350./2 of the TCO, it is possible to terminate the lease agreement due to reconstruction and reconstruction. Although the lease relationship has ended, in case of termination due to reconstruction, Article 355 of the same law imposes certain limitations and obligations on the lessor in order to re-lease the immovable property. Article 355.2 of the TCO stipulates that “…Immovable properties that have been vacated for reconstruction and reconstruction purposes cannot be rented to another person in their former condition unless three years have passed without just cause. The former lessee has the priority right to lease the immovable immovables that have been reconstructed and reconstructed with the new condition and new rental price. This right must be exercised within one month following the written notification by the lessor; unless this priority right is terminated, the immovable cannot be leased to another person before three years have passed. If the lessor violates these provisions, the lessor is obliged to pay compensation to the former lessee not less than one year’s rent paid in the last lease year…”.
In our case, the defendant evicted the plaintiff tenant from the leased premises on the grounds of reconstruction. Pursuant to Article 355.2 of the TCO, the plaintiff tenant has the right of priority to rent the immovable immovable immovables that have been rebuilt and reconstructed with the new condition and new rental price, and the defendant lessor cannot rent to another person until 3 years have passed without terminating the plaintiff’s right of priority under this article. However, this right does not give the plaintiff lessee the right to force the lessee to conclude a contract through litigation and to determine the rental price. The behavior of the lessor in violation of this article requires compensation in favor of the lessee if the conditions are met. Therefore, while the Court should decide to dismiss the lawsuit, it is not correct to decide to force the defendant to make a contract and to determine the new rental price with the written justification.” T.C JUDICIARY
6th Civil Chamber Art: 2015/ 7205 Arar: 2016 / 102 Date of Decision: 19.01.2016
WHAT RIGHTS CAN A TENANT WHO IS EVICTED DUE TO NECESSITY EXERCISE AGAINST THE FORMER LANDLORD WHO RENTED OUT THE LEASED PROPERTY BEFORE 3 (THREE) YEARS HAVE PASSED?
The landlord who does not comply with the 3-year prohibition of renting to anyone other than the former tenant may be obliged to pay compensation to the former tenant not less than one year’s rent paid in the last lease year.
In other words, Article 355 of the Turkish Code of Obligations No. 6100 titled the prohibition of re-lease;
“When the lessor evacuates the leased premises for the purpose of necessity, he may not, without just cause, rent the leased premises to anyone other than the former lessee until three years have elapsed. … If the lessor violates these provisions, he is obliged to pay compensation to the former lessee not less than one year’s rent paid in the last lease year.”
There is a regulation.
According to this article, the owner who wrongfully evicts the rented dwelling and rents it to someone else is obliged to pay at least one year’s rent to the tenant he evicted as compensation.
Of course, depending on the nature of the situation and the circumstances, the court will decide on the compensation and whether the tenant has suffered any further damage.
However, in order for this compensation or lawsuit to be concluded in favor of the tenant, the eviction of the tenant is possible only if there is a court decision or an execution. In other words, if the tenant has not evacuated the leased premises without a court decision or by execution, in other words, if the tenant has evacuated the leased premises voluntarily, he cannot benefit from this provision of law. As a matter of fact, the Court of Cassation clarified this issue in one of its decisions and stated that “It is understood that the defendant lessor did not file an eviction lawsuit for the purpose of necessity, and the plaintiff tenant did not evacuate the immovable property through a judicial decision or execution. In this case, the conditions for compensation pursuant to Article 355 of the Turkish Code of Obligations No. 6098 did not occur.” (Court of Cassation 3rd Civil Chamber, Esas: 2017/ 4956
Decision: 2019 / 871 Decision Date: 07.02.2019)
