Turkey: Evaluation Of The Lease Agreement Under Article 350 Of The Turkish Code Of Obligations

Lease Of Residential Houses and Roofed Workplaces in General

The provisions on residential houses and roofed workplaces leases are regulated separately from the general provisions on lease agreements in the second part of the fourth chapter of the Turkish Code of Obligations Law No. 6098 ("TCO"), and these provisions are not applicable to the lease of properties that are dedicated to temporary use for a period of six months or less. Since the purpose of regulating residential houses and roofed workplaces leases separately from ordinary lease agreements is to protect the lessee, the provisions regarding the termination of the agreement are also subject to certain conditions.

Termination of Residential Houses and Roofed Workplaces Leases

Pursuant to the TCO, residential houses and roofed workplaces leases can be terminated in two ways: notification and litigation. For fixed-term residential houses and roofed workplaces leases, the lessee may terminate the lease agreement by giving a written notice 15 days before the end of the agreement period. However, the right to terminate the lease agreement by notice is only granted to the lessee and the lessor cannot terminate the lease agreement based on the expiration of the agreement period. Likewise, in indefinite-term residential houses and roofed workplaces leases, the lessee has the right to terminate the agreement at any time, while the lessor does not have such a right.

First of all, it should be noted that, pursuant to the provision in Article 347 of the TCO, residential houses and roofed workplaces leases have an implied ten-year extension period, and the lessor may terminate the agreement only at the end of the ten-year extension period, provided that the lessor notifies in writing at least three months before the end of the extension year. In other words, the lessor may terminate the agreement only after ten years from the beginning of the lease by giving a notice of termination in accordance with the general provisions. At this point, the lessor is implicitly allowed to prevent the extension of the lease agreement through litigation in the presence of certain limited circumstances.

In this article, we have analysed the rights of termination of the lease agreement for residential houses and roofed workplaces through litigation for reasons arising from the lessor within the scope of Article 350 of the TCO.

Termination of the Lease Agreement through Litigation for the Reason Arising from the Lessor

We have already mentioned that the most important protection provided to the lessee in residential houses and roofed workplaces leases is the limitation of the reasons for termination by the lessor. It is stipulated in Article 354 of the TCO that these cases are limited to the cases listed in the law with the regulation as follows: "The provisions regarding the termination of the lease agreement through litigation cannot be changed against the lessee." As stated above, the lease agreement does not automatically terminate with the expiration of the specified period in the leases of residential houses and roofed workplaces, and the right to terminate the agreement is granted to the lessor limited to the cases specified in the law. These limited cases are specified in Article 350 of the TCO and the reasons for termination, also known as the reasons for evacuation.

Termination due to the Need of the Lessor or his Relatives for the Leased Property

Paragraph 1 of Article 350 of the TCO regulates the termination of the lease agreement on the grounds of necessity as follows: "The lessor may terminate the lease agreement if the lessor is obliged to use the leased property for himself, his spouse, his spouse, his descendants, his ascendants or other persons who are legally dependent on him due to the need for residential house or workplace." The basic condition for the application of this article is that the lessor or his relatives listed in the aforementioned provisions need to personally use the property subject to the lease agreement. It is not possible to request eviction for the needs of the lessor's relatives other than the persons specified in the article. The need in question may be a housing need or a workplace need. For example, the fact that the lessor resides in another property supports the existence of the need without having to face the threat of eviction. At this point, it should be noted that the need is real and sincere, and continuity is not sought. In other words, the lessor's intention to settle is not required. For example, if the property subject to the lease agreement is suitable for use as a summer residence, the intention to use it as a summer residence makes it possible to terminate the lease agreement through litigation. Likewise, in workplace leases, as in residential houses leases, in order for the need for a workplace to be in question, this need must arise for the persons regulated in the law and the need must be real and sincere. As a matter of fact, in a decision of the Supreme Court General Assembly of Civil Chambers, even the lessor, who has optician shops in five different locations, accepted the eviction lawsuit filed by the lessor in order to open a sixth shop. Another criterion to be mentioned at this point is that there must be a need that has already arisen, in addition to reality and sincerity. However, it should not be forgotten that even if future needs can be subject to the lawsuit provided that it is certain that the need will arise, possible needs cannot be subject to the lawsuit.

Termination for the Reconstruction or Zoning of the Leased Property

One of the cases of termination of the lease agreement by the lessor through litigation is the case of reconstruction and zoning, which is regulated in Article 350, Paragraph 2 of the TCO as "If substantial repair, extension or alteration is necessary for the purpose of reconstruction or zoning of the leased property and the use of the leased property is impossible during these works". It is usual for a property to age over the years and require substantial repair. However, sometimes it is not possible to make such a renovation if there is a lessee in the property. The main condition for this provision to be applicable is that the lessor intends to reconstruct or zonate the property, and the use of the leased property should not be possible during the repair, alteration or extension works. Since the purpose of the relevant provision is the interest of the lessor, the reconstruction or zoning should be evaluated in terms of the lessor's interest, not aesthetics. As a matter of fact, the purpose of making it aesthetically more beautiful is not included in this scope. The provision states that repairs and alterations must be substantial. In this respect, renovations that are not essential do not lead to the termination of the lease agreement. Another condition that is not included in the provision but adopted by the Supreme Court is that the project for the substantial repair, extension or alteration of the property must be submitted in the eviction lawsuit and the project must be scientifically and legally possible.

Eviction Lawsuit

Upon the realization of the conditions mentioned above, the lessor has the opportunity to terminate the lease agreement by filing an eviction lawsuit. These rights granted to the lessor in Article 350 of the TCO must be exercised through litigation, and it is not possible to terminate the agreement with a termination declaration. In this case, the lessor has the right to file a lawsuit and the lawsuit will be filed against the lessee. Paragraph 3 of Article 350 of the TCO clearly regulates the prescription period for filing a lawsuit. According to the aforementioned provision, "For fixed-term agreement, it may terminate the agreement at the end of the term, and for indefinite-term agreements, it may terminate the agreement within one month starting from the date to be determined by complying with the termination period and the periods stipulated for the notice of termination in accordance with the general provisions regarding the lease." Accordingly, as will be explained in detail below, the starting date of the lease agreement is important in order to calculate the beginning of the one-month period.

Duration of Eviction Lawsuit for Fixed Term Residential Houses and Roofed Workplace Leases

In fixed-term residential houses and roofed workplace leases, the eviction lawsuit may be filed at the end of the lease term. For example, the one-year lease agreement dated 30.11.2011 is a fixed-term lease agreement. According to Article 347 of the TCO, unless the lessee notifies at least fifteen days before the end of the term of the fixed-term lease agreement, the lease agreement will be deemed to be extended for one year with the same conditions, the lease agreement was extended to 30.11.2013 and the lease agreement was renewed for one year. Pursuant to Article 350 of the TCO, 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, he can file an eviction lawsuit due to need within one month from the end of the term in fixed-term agreements, the end of the lease agreement is 30.11.2013 and the lawsuit must be filed on 30.12.2013 at the latest. In addition, it should be noted that pursuant to Article 353 of the TCO, if the lessor has notified the lessee in writing that it will file a lawsuit within the period stipulated for the filing of the lawsuit at the latest, the period for filing a lawsuit is deemed extended for one lease year. Therefore, if the lessor notifies the lessee in writing that a lawsuit will be filed within the one-month period set by the law, the lessee will be able to file an eviction lawsuit until the end of the new lease term. This provision is only foreseen for residential houses and roofed workplace leases and applies only to the lessor; therefore, this provision will not apply to the lessee's termination of the agreement.

Duration of Eviction Lawsuit for Indefinite Term Residential houses and Roofed Workplace Leases

For indefinite-term residential houses and roofed workplace leases, the eviction lawsuit can be filed within one month starting from the date to be determined by complying with the termination period and the periods stipulated for the termination notice according to the general provisions regarding the lease. According to the general provisions, as of the date of the lease agreement, each 6 months is the termination period, and in order to be able to terminate at the end of this 6-month period, the lessor must give a notice of termination to the lessee whose eviction is requested at least 3 months in advance. For example, for the indefinite-term lease agreement dated 01.05.2009 and concluded by the parties, in accordance with Article 350 of the Turkish Code of Obligations, the last six-month lease period is between 01.11.2012-01.05.2013 compared to the date of the establishment of the agreement on the assumption that the lessor is obliged to use the leased property for himself, his spouse, his spouse, his descendants, his ascendants or other persons he is obliged to take care of by law due to the need for housing or workplace. Therefore, the termination notice must be notified to the lessee by the lessor three months before the end of the term, between 01.11.2012-01.02.2013, and the lawsuit must be filed until 01.06.2013.

Conclusion

In residential and roofed workplace leases, since the legislator aims to protect the weaker party, i.e. the tenant, the provisions regarding the termination of the lease agreement are regulated in favor of the tenant and it is stipulated that the lease agreement will be extended implicitly for periods of one year. In this context, pursuant to Article 350 of the TCO, it is stipulated that the lessor may prevent such implied extension. Considering all the processes mentioned above, the cases under Article 350 of the TCO can only be asserted through litigation and this lawsuit is an eviction lawsuit. The eviction lawsuit may be filed within one month starting from the end of the lease term for fixed-term agreements and within one month starting from the date to be determined by complying with the termination period and the periods stipulated for the termination notice in accordance with the general provisions regarding the lease for indefinite-term agreements. The lawsuit filed without complying with the termination period and termination notice periods will be rejected procedurally. However, it should be added that, 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.

In addition, it should be kept in mind that after the eviction of the lessee due to necessity pursuant to paragraph 1 of Article 355 of the TCO, the lessor cannot rent the leased property to anyone other than the evicted lessee unless 3 years have passed without a justifiable reason.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.