Rent LawEVACUATION OF THE TENANT WITH EVICTION COMMITMENT

EVACUATION OF THE TENANT WITH EVICTION COMMITMENT

The eviction commitment is a written commitment by the tenant, after the delivery of the rented house, to vacate the house on a specified date in writing to the landlord. Thus, as of the date specified in the commitment, the tenant must vacate the house. Otherwise, the landlord can initiate a lawsuit or enforcement proceedings within 1 month based on the eviction commitment to evict the tenant.

The relevant provision regulating this matter is Article 352/1 of the Turkish Civil Code numbered 6098, as follows:

“The tenant, even though he has undertaken in writing to vacate the leased property on a certain date after the delivery of the leased property, fails to vacate it, the lessor may terminate the lease agreement by applying to enforcement within one month or filing a lawsuit.”

Validity Conditions of the Eviction Commitment

The eviction commitment has validity conditions within the scope of Article 352/1 of the Turkish Civil Code. If any of these conditions are missing, the eviction of the tenant cannot be ensured based on the commitment. These conditions are as follows:

– The eviction commitment must be in writing.
– The eviction commitment must be made after a certain period following the lease agreement.
– The signature of the tenant or his representative must be present in the eviction commitment.
– The eviction date must be specified in the eviction commitment.

❖ Requirement of Being in Writing

Although the commitment must be in writing, there is no formal requirement for this. In other words, if the landlord and the tenant make this agreement in their own handwriting, the requirement of being in writing is fulfilled.

❖ Requirement of Being Made After the Lease Agreement

The eviction commitment must be made after a certain period following the lease agreement. Because the eviction commitment made at the same time as the lease agreement is not considered valid. The purpose is for the tenant to sign the eviction commitment with their free will without being under the pressure of the lease. An eviction commitment made simultaneously with the lease agreement will not be valid and will not provide the opportunity for eviction.

If the tenant signs the blank commitment, they will be bound by their signature. When the commitment is filled in later, the contrary to the information in the commitment can only be proven with written evidence. Except for this possibility, the tenant will be bound by the commitment they signed on time.

If the new landlord who owns the tenant-occupied house has also acquired the commitment made by the previous landlord, it can be relied upon. Just as the new owner replaces the previous landlord in the lease agreement, the same applies to the eviction commitment.

❖ Requirement of the Tenant or Their Representative Signing

The eviction commitment must be signed by the tenant or a person authorized to represent the tenant. If the signature of the tenant or their representative is not present in the commitment, the relevant text will not substitute for the commitment.

If there are multiple tenants, it is not sufficient for one of the tenants to sign the eviction commitment. Each tenant must have their signature on the commitment. Otherwise, the eviction of the tenants cannot be ensured with the eviction commitment.

❖ Requirement of Specifying When the Leased Property Will Be Vacated

The eviction commitment must specify the date on which the tenant will vacate the property.

If There is an Eviction Commitment and the Tenant Does Not Leave, What Can the Landlord Do?

If there is an eviction commitment in a lease relationship and the date specified in this commitment has arrived, the tenant must vacate the property. However, if the tenant continues to stay in the property, the landlord has two different options to pursue. The landlord can file an eviction lawsuit within 1 month from the eviction date specified in the commitment. Alternatively, within the same period, the landlord may prefer to initiate enforcement proceedings to evict the tenant from the property.

❖ Eviction of the Tenant through Execution Proceedings Based on the Eviction Commitment

According to the provisions of the Execution and Bankruptcy Law, the landlord can evict the tenant from the property through execution proceedings based on the eviction commitment.

For the eviction of the tenant, enforcement proceedings without a judgment must be initiated within 1 month from the specified eviction date. The competent enforcement office is the one where the property subject to eviction is located. After the initiation of the proceedings, the enforcement office sends a eviction order to the tenant. The tenant is requested to vacate the property within 15 days according to this order.

If the tenant objects to the eviction order within 7 days, this objection will be made to the enforcement office with a petition. If the tenant objects to the eviction order, the enforcement process is suspended. In this case, the landlord must file a lawsuit within 6 months to lift the objection in the Enforcement Court or within 1 year to ensure the cancellation of the objection in the Conciliation Court.

❖ Eviction of the Tenant through Eviction Lawsuit

In order to ensure the eviction of the tenant through the eviction commitment, the conditions specified in Article 352 of the Turkish Civil Code must be met. Accordingly, the landlord must file an eviction lawsuit within 1 month from the eviction date specified in the commitment. This lawsuit is heard in the Conciliation Court. The lawsuit can be filed in the court where the property is located or where the defendant resides.

Objection to the Signature in the Eviction Commitment

If the tenant fails to vacate the leased property on the specified date despite the written eviction commitment given, the lessor may terminate the contract by applying to execution or by filing a lawsuit through Article 272 of the Execution and Bankruptcy Law. During the execution proceedings, if the tenant objects to the eviction commitment within 7 days from the service of the eviction order, the execution proceedings are suspended, and the lessor must file a lawsuit in the Conciliation Court to lift the objection and request eviction.

If the tenant makes an objection to the eviction commitment within 7 days of the service of the eviction order to the Enforcement Office, the tenant must explicitly object to the signature if the eviction commitment is in ordinary written form. If the tenant does not explicitly object to the eviction commitment with their signature, the commitment will bind the parties, and the execution process will continue.

When the tenant’s objections to the signature and date are not made clearly and understandably, it is not considered as a denial of the signature and date. The tenant is considered to have accepted the date and signature in the eviction commitment only if they explicitly object to it. The notification about the non-compliance of the eviction commitment with the laws is not considered as an objection to the signature in the eviction commitment. The objection that the eviction commitment is invalid because it was given blank does not qualify as an explicit objection to the signature and date. The tenant’s objection such as “I did not make such a commitment” is not considered as a denial of the signature and date.

In case of a denial of the signature, the methods specified in Article 211 of the Code of Civil Procedure for examination shall be followed. It may be necessary to conduct an expert examination by taking signature and writing samples of the tenant in court.

Time Limit for Filing an Eviction Lawsuit with the Eviction Commitment

The first period to be observed in filing an eviction lawsuit with the eviction commitment is a period of 1 month. The landlord must file an eviction lawsuit or initiate enforcement proceedings within 1 month from the specified eviction date in the commitment.

Mediation Process in Eviction Cases with Eviction Commitment Declaration

Under Law No. 7445, starting from September 1, 2023, mediation has been introduced as a prerequisite for filing tenant eviction cases. Therefore, those who wish to file an eviction lawsuit must first go through the mediation process. If a lawsuit is filed without fulfilling this requirement, the court will dismiss the case.

How Long Does Eviction Take with an Eviction Commitment Declaration?

With an eviction commitment declaration, if there is no objection to the follow-up request, the eviction process takes 2 months; if there is an objection, it may take up to 1 year. However, it should be noted that these durations are subject to change.

Evidence in Eviction Cases with Eviction Commitment Declaration

If an eviction commitment is given blankly and filled in by the lessor, the issue of signing in blank arises. According to the Supreme Court, the burden of proving that an eviction commitment was signed before the delivery of the rented property in a blank signing manner falls on the tenant. Moreover, the existence of a blank signature can only be proven with a deed, because the counterparty who provides such a deed trusts the other party and must bear the consequences. Furthermore, the validity of the eviction commitment is not affected if the regulation and eviction dates are written with a different pen. In practice, a tenant who signs a blank may claim annulment based on mental disturbance due to intimidation (being under pressure). However, if this right is not exercised within the one-year limitation period (as per Code of Obligations Art. 39), the tenant’s claim will not be credited. The burden of proving why a written eviction commitment was given and the motives behind it lies with the lessor. If the lessor proves this reasoning, then the claim that the eviction commitment was given before the delivery of the property will not be heard, because from the current facts, it can be understood that the commitment was given validly.

Eviction of the Family Residence Due to the Eviction Commitment Declaration

The family residence is the home where the spouses within a marital union continue their cohabitation and meet their need for shelter.

If the rented property qualifies as a family residence, the tenant spouse’s valid eviction commitment declaration is contingent upon the consent of the other spouse. According to the Supreme Court General Assembly decision no. 2005/676 K.2005/600 dated 26.10.2005; “This rule indicates that the family residence has been given a special status and importance, and the authority to dispose of it has been limited by law. If the property subject to foreclosure and eviction is determined to be a family residence, it will be necessary to investigate whether these legal requirements have been met. Therefore, the court should first focus on this claim and research whether there is an ongoing case determining this place as a ‘family residence’ and a determination made by the family court; if necessary, the complainant should be granted the authority and opportunity to file a lawsuit in the family court to prove that the property subject to eviction is a family residence and decide based on the outcome…”

In line with the Supreme Court decision, the tenant can defend the family residence against the foreclosure initiated by the lessor. Accordingly, the spouse who does not consent to the eviction commitment declaration has the right to file a lawsuit in the family court to determine if the property subject to eviction is a family residence. The spouse claiming the lack of consent can apply to the execution court by complaint, presenting the family court’s ongoing case as a preliminary issue. Indeed, if the property is determined to have the characteristics of a family residence and it is understood that the consent of the other spouse is lacking, the eviction commitment declaration can be invalidated, and the foreclosure process can be canceled.

The prevailing view is beginning to accept the eviction commitment declaration as valid even without the consent of the spouse who is not a party to the lease agreement. Because the eviction commitment declaration is a debt that can only be incurred by the person who is the tenant of the relevant property. It should be noted that even though the relevant Supreme Court decision states that a family residence investigation can be requested from the family court during the execution process, current judicial decisions have shown a contrary attitude. In the decision of Antalya BAM 6 HD 2022/1054-1010 dated 24.05.2022; “In an objection to a family residence during the Eviction Commitment enforcement; if the other spouse, who does not have a signature in the contract, has not notified the lessor that the leased property is a family residence by the latest tracking date, the family residence objection will not be heard.” In this case, even if the subject of the lawsuit rented property is a family residence, the spouse who intervened as an accessory claimant does not become a party to the lease agreement if they did not notify the lessor by the tracking date