Evacuation Commitment and Validity Conditions

What is a written eviction undertaking?

The lessor’s eviction of the lessee from the leased premises is subject to certain conditions by the legislator.

In our law, housing and roofed workplace lease agreements are regulated in the Turkish Code of Obligations (TCO) numbered 6098. Article 352 of the Turkish Code of Obligations regulates the termination of the lease agreement for reasons arising from the tenant in residential and roofed workplace leases. In the first paragraph of this article, “the written eviction commitment given by the tenant” is included among the reasons arising from the tenant as one of the reasons for the termination of the lease agreement.

The aforementioned provision is as follows; “If the lessee has undertaken in writing to vacate the leased premises on a certain date after the delivery of the leased premises, but has not vacated the leased premises, the lessor may terminate the lease agreement within one month starting from this date by applying for execution or filing a lawsuit.“

In this context, the written eviction undertaking can be briefly stated as the written undertaking of the lessee to vacate the leased premises on a certain date.

What are the validity conditions of the eviction commitment?

The validity of the eviction commitment is crucial in practice. Without meeting the conditions specified in the legislation, the eviction commitment is considered invalid, and the tenant cannot be evicted. Therefore, the following validity conditions must be met:

The eviction commitment must be in writing.

As stipulated in Article 352 of the Turkish Civil Code, the eviction commitment, which is one of the reasons for the termination of the lease agreement, must be in writing.

The requirement of writing in this article is not a form of proof but a validity requirement that the eviction commitment must have a legal consequence[1]. Therefore, a verbal eviction commitment given by the tenant does not constitute a valid reason for eviction[2].

All the elements required in the eviction commitment must be stated in writing. This written document must also be signed by the tenant who gives the commitment. On the other hand, one of the frequently asked questions in practice is how the eviction commitment should be given for a residential property when the property is used as a family residence. If the person listed as the tenant in the lease agreement is married and the leased property is used as a family residence, the eviction commitment must also be signed by the other spouse.

Although an ordinary written eviction commitment provided by the tenant is sufficient, in practice, eviction commitments prepared by a notary or signed by a notary are also encountered. Eviction commitments prepared by a notary have the advantage of facilitating the process for the landlord. This allows the landlord to initiate enforcement proceedings based on the written eviction commitment.

According to the Yargıtay (Supreme Court of Appeals) Judgment of Unification of Decisions dated 04.12.1957, No. 11/26, and precedent Yargıtay decisions, if an eviction commitment is not prepared by a notary or the signature is not certified by a notary, if the tenant denies the signature during the enforcement process, the landlord has the opportunity to request the lifting of the objection from the enforcement court[3]. However, the process of examining the signature through enforcement may prolong the process, so the party wishing to extend the process maliciously may refrain from making the commitment through a notary. In the presence of a written eviction commitment obtained through a notary, the tenant cannot deny their signature and delay vacating the leased property[4].

“The decision, issued by the enforcement court and numbered as written above, was appealed by both the plaintiff and the defendant within the legal period. After reviewing all the documents in the file and considering the arguments and defenses of the parties, the appeal objections of the defendant’s attorney are rejected based on the mutual allegations and defenses of the parties, the documents they rely on, and the reasons stated in the appealed decision. Regarding the examination of the plaintiff’s appeal objections: there is no dispute between the parties regarding the lease agreement dated 14.9.2009 and valid for 2 years, which forms the basis of the enforcement, and the enforcement is based on the eviction commitment dated 15.9.2009, prepared by the notary ex officio. In this commitment, it was pledged that the leased property would be vacated on 15.9.2011. Since Article 275/2 of the Execution and Bankruptcy Law stipulates that if the eviction request is based on a contract drawn up ex officio by a notary or certified with date and signature, and if the tenant cannot present a document of the same nature and content showing that the lease has been renewed or extended, the objection shall be lifted, considering the eviction commitment prepared ex officio by the notary, it should be decided to lift the objection and order the eviction; however, since the decision to reject the request is not correct, the decision should be reversed.” (Supreme Court of Appeals (Closed) 6th Civil Chamber 2012/4203 E., 2012/6900 K.)

The written eviction commitment is a unilateral declaration of intention given by the tenant. However, it has been stated that it is not considered a ground for invalidity if the landlord also includes in the written eviction commitment and declares that they accept it[5].

The eviction commitment must be given by the tenant or their authorized representative.

Another validity requirement of the eviction commitment is that it must be signed by the tenant or the tenant’s authorized representative. As can be understood from Article 352 of the Turkish Civil Code, the person giving the eviction commitment is the tenant. Although there are different opinions in doctrine, it is generally considered that the tenant’s representative can give the eviction commitment on behalf of the tenant under the general rules of obligations law[6].

In this context, it should be noted that if multiple individuals share the same property or workplace as tenants, according to doctrine and precedent Yargıtay decisions, the commitment must be given by all tenants, and they must all make the eviction commitment for the same date[7].

The eviction commitment must not be subject to any conditions or reservations.

The written eviction commitment is a declaration of intention that does not accept any conditions or terms. In this context, if the tenant includes conditions such as “if I find a new residence” or “if my ongoing workplace construction is delivered to me” in the commitment, this commitment will be invalid[8].

The eviction commitment must be given after the delivery of the leased property.

The legislator has stipulated that the eviction commitment must be given after the establishment of the lease agreement, with the tenant expressing their free will without any pressure. Therefore, the eviction commitment must be given after the delivery of the leased property.

If the tenant writes the eviction commitment in the special terms section of the lease agreement and signs it or writes it on a separate paper with only the date of the lease agreement and signs it, the landlord cannot evict the tenant based on this commitment. Because the tenant is in a weak and helpless position at the time the contract is concluded. The tenant is inclined to accept any condition put forward by the landlord. Therefore, it has been accepted in the Yargıtay Judgment of Unification of Decisions dated 04.10.1994 and many subsequent decisions that a written document given under such circumstances is not valid, and the tenant cannot be evicted based on it[9].

On the other hand, another issue that is of interest in practice is whether a blank eviction commitment form provided will be accepted for eviction by the court. As mentioned above, if the date of the eviction commitment is written and given, and if the date written is the same as the date of the lease agreement, the Court of Cassation does not accept this commitment.

However, in cases where the tenant has provided a blank eviction commitment form, it is also observed that the lessor fills in these blank sections and resorts to the legal process. In this regard, in precedent decisions of the Court of Cassation, it has been stated that the fact that the tenant has provided a blank eviction commitment form and that the dates in the commitment are later written does not invalidate the document.

The eviction commitment must specify a certain date.

In accordance with Article 352/1 of the Turkish Civil Code, the date specified in the eviction commitment must be specified in a concrete manner by showing a specific day, month, and year. If the tenant’s eviction commitment does not contain a specific date, it is invalid. Therefore, we can say that a written eviction commitment requires a maturity condition. In this context, for example; it can be said that commitments containing vague elements such as “at the end of summer, at the beginning of winter, when schools are on vacation, at the end of the year 2020” are invalid. On the other hand, it has been stated in doctrine that the eviction commitment made on the Republic Day of 2012 (i.e., on October 29, 2012) can be accepted because this date is a day understood by everyone.

On the other hand, when a written eviction commitment is given simultaneously with the lease agreement, in order to prevent invalidity, it may be encountered that the date of preparation is given in the form of a blank date or a subsequent date. In this case as well, it must be accepted that this commitment is invalid. However, it should be noted that it is difficult to prove allegations of invalidity due to the inability to determine exactly the date the writing was written or later filled in.

How is eviction done with the eviction commitment?

In the presence of a valid written eviction commitment given by the tenant to the lessor, the rented property must be vacated on the promised date. If the tenant fails to vacate the rented property despite this commitment, the lessor may terminate the lease agreement by “applying to the execution office or filing a lawsuit within 1 (one) month starting from the promised date”.

In terms of requesting eviction, the lessor has the option to apply to the execution office or file a lawsuit. A one-month period for filing a lawsuit has been envisaged regarding filing a lawsuit. The date on which this period starts to run is the date on which the tenant promised to vacate the rented property in the written eviction commitment. After one month has passed, the lessor cannot request eviction by filing a lawsuit. As stated in the law, only the lessor who made the eviction commitment can file an eviction lawsuit. It is accepted that the owner who is not the lessor cannot file an eviction lawsuit.

It should be emphasized here that; with the Law numbered 7445 published in the Official Gazette on April 5, 2023, mediation process has become mandatory in disputes related to leases as of September 1, 2023.

In accordance with the amendment made; In eviction lawsuits based on the eviction commitment filed in the Conciliation Courts, the mediation process has been made mandatory. Again; In cases where the tenant objects to the eviction order while objecting to the signature on the eviction commitment in the execution proceedings initiated based on the eviction commitment, in this case, the mediation process has also been made mandatory in the lawsuit filed in the Conciliation Courts for the Cancellation of Objection and Eviction.

What is the period of the eviction commitment?

It is observed in practice that written eviction commitments are obtained in various forms and at various times. It is important for lessors to obtain an eviction commitment that meets the criteria specified in the legislation and in precedent decisions of the Court of Cassation to prevent the preparation of a written eviction commitment that may be considered invalid by the court. On the other hand, tenants may face problems due to signing the eviction commitment presented by the landlord without examining it, which may lead to sudden eviction lawsuits. For this reason, it is important for both lessors and tenants to seek legal assistance from a lawyer specializing in rental law if they encounter a situation such as signing an eviction commitment.

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RESOURCES:

1. ARAL, Fahrettin / AYRANCI, Hasan, Borçlar Hukuku Özel Borç İlişkileri, Yetkin Yayınları, 2019, s. 334; AYDOĞDU, Murat / KAHVECİ, Nalan, Türk Borçlar Hukuku Özel Borç İlişkileri Sözleşmeler Hukuku, Adalet Yayınevi, 2019, s. 650; DELİPINAR, Yusuf Can, Kiracıdan Kaynaklanan Sebeplerle Konut ve Çatılı İşyeri Kiralarında Sözleşmenin Sona Ermesi, On İki Levha Yayıncılık A.Ş., 2016, s. 32; EREN, Fikret, Borçlar Hukuku Özel Hükümler, Yetkin Yayınları, 2019, s. 428; YAVUZ, Cevdet / ACAR, Faruk / ÖZEN, Burak, Türk Borçlar Hukuku Özel Hükümler, Beta Yayıncılık, 2014, s. 691.
2. KILIÇOĞLU, Ahmet, Borçlar Hukuku Özel Hükümler, Turhan Kitabevi, 2019, s. 303.
3. AYDOĞDU / KAHVECİ, s. 653; KILIÇOĞLU, Ahmet, Borçlar Hukuku Özel Hükümler, Turhan Kitabevi, 2019, s. 303.
4. DELİPINAR, s. 34; YILDIRIM, Mehmet Kamil / YILDIRIM, Nevhis Deren, İcra ve İflas Hukuku, Beta Basım, 2015, s. 80 vd.
5. AYDOĞDU / KAHVECİ, s. 655; ZEVKLİLER, Aydın / GÖKYAYLA, K. Emre, Borçlar Hukuku Özel Borç ilişkileri, Vedat Kitapçılık, 2020, s. 386.
6. ARAL / AYRANCI, s. 335; AYDOĞDU / KAHVECİ, s. 650; DELİPINAR, s. 39; EREN, s. 429.
7. ARAL / AYRANCI, s. 334; AYDOĞDU / KAHVECİ, s. 651; DELİPINAR, s. 39; ZEVKLİLER / GÖKYAYLA, s. 388.
8. KILIÇOĞLU, s. 303.
9. ARAL / AYRANCI, s. 334; AYDOĞDU / KAHVECİ, s. 651; EREN, s. 429; YAVUZ / ACAR / ÖZEN, s. 691.
10. KILIÇOĞLU, s. 303.
11. AYDOĞDU / KAHVECİ, s. 651.
12. AYDOĞDU / KAHVECİ, s. 653.
13. AYDOĞDU / KAHVECİ, s. 650; ZEVKLİLER / GÖKYAYLA, s. 388.