INTRODUCTION
As it is known, under the Turkish Code of Obligations No. 6098 (“Turkish Code of Obligations” or “TCO”), it is possible for lessors to terminate residential and workplace lease agreements before or at the end of their term in limited circumstances specified in the law.For this reason, especially as a result of the recent fluctuations in the market, it is frequently witnessed, that the lessors demand an increase in the rental price in residential and workplace leases, and that the lessors file eviction lawsuits due to the fact that these demands are not accepted by the lessees. Since limited rights are granted under the TCO for the lessors to file such lawsuits, obtaining an evacuation letter by the lessors has become a frequently used method. In this article, the legal nature of the evacuation letter, its validity and the stages of eviction based on a valid undertaking are discussed.
EVACUATION LETTER AND ITS LEGAL NATURE
In the broadest terms, an evacuation letter is a written undertaking by the lessee to the lessor to evacuate the property on a certain date. Pursuant to Article 352/1 of the TCO:
“If the lessee has undertaken in writing to the lessor to evict 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 enforcement or filing a lawsuit.”
In this context, although it is underlined that the evacuation letter can only be regulated in terms of residential and workplace leases, the legal validity of this commitment depends on certain conditions. In other words, the lease agreements concluded subject to general provisions, the provision of TCO 352/1 will not be applicable and an evacuation letter cannot be made within this scope.
The purpose of the evacuation letter is that the lessee undertakes to evacuate the leased premises on a certain date against the lessor, and within this scope, the lessor has the opportunity to terminate the lease relationship without the need for any other reason and without the obligation of compensation.
Although it is regulated in the legislation, the legal nature of the written evacuation letter is controversial in the legal doctrine. In this context, according to the first opinion (i) it is characterized as a contract that obliges the lessee to conclude a mutual rescission agreement on the promised date, according to the second opinion (ii) it is characterized as an obligatory transaction that obliges the lessee to evacuate the leased property on a certain date and gives the lessor the right to request the evacuation within a legal period of one month, and according to another opinion (iii) in addition to the qualification of the commitment in question as a mutual rescission agreement, it is considered that this agreement is conditional and subject to fixed term. In the last opinion, the term is the date on which the lessee undertakes to evacuate the leased premises and the condition is considered as the lessor’s request for eviction within one month from the due date specified in the evacuation letter.
VALIDITY CONDITIONS OF THE EVACUATION LETTER
Although the legal nature of the evacuation letter is argued in the legal doctrine, the validity conditions sought under the law are clearly defined. These are:
The commitment shall be in written form
Although there is no restriction on the form of the lease agreement in the TCO, there is a form requirement for the evacuation letter. In this context, it is deemed sufficient to make the commitment in ordinary written form, as no additional criterion has been set. In order to eliminate the possibility of the lessee claiming that the signature of the lessee does not belong to him, it is also possible to make this commitment text in the form of an arrangement through a notary public. In case the lessee is not a single person, this commitment must be given by all lessees in compliance with the aforementioned form requirement. Otherwise, the commitment will not be valid.
The commitment shall be given by the lessee or its authorized representative
The evacuation letter can be given by lessee in person or their authorized representative. It is argued in the legal doctrine whether special authorization is required to give an evacuation letter with a power of attorney. According to one opinion, it is argued that special authorization is required, but according to the other dominant opinion, it is argued that the attorney authorized to conclude a lease agreement can also conclude an evacuation letter.
The commitment shall include a statement that the lessee undertakes to evacuate the leased premises on a certain date
Pursuant to the Article of the TCO regarding the evacuation letter, it is stipulated that the eviction date must be specified in the evacuation commitments concluded by the lessee or their authorized representative. According to one opinion, it is argued that the commitment must contain a definite and determinable day, while according to another opinion, it is argued that the month of eviction can be specified in the commitment without specifying the day of eviction, and in commitments given within this scope, the last day of the specified month should be accepted as the day of eviction.
Another issue that should be mentioned is that both the signature and the evacuation dates in the evacuation letter being left blank and the signature is put on the printed text. Although the subsequent filling of these blanks is invalid, the proof of this issue belongs to the lessee themself. As such, in the event that this issue cannot be proven by the tenant, the commitment letter will be accepted as valid (General Assembly of Civil Chambers of Supreme Court dated 28.09.2021 and numbered 2017/975 E. 2021/1108 K.).
The commitment shall be given after the delivery of the leased property to the lessee
It is important to note that evacuation letters given before the lease agreement and even those made before the delivery of the leased property to the lessee, although the lease agreement has been concluded, are deemed invalid. The legislation has explicitly made the validity of the evacuation letter conditional upon the delivery of the leased premises. In this context, as in the eviction date, it is frequently encountered that the signature date of the commitment is left blank and filled in later. In this context, it is stated in the case law of the Supreme Court that the burden of proof is on the lessee and if the current situation cannot be proved, the lessee must bear all the consequences. On the other hand, the lessee has the right to request the cancellation of the commitment pursuant to Article 39 of the TCO due to the defect in will, following the signing of the existing commitment under pressure and coercion. The most important point to be considered in such cancellation requests is that the request must be made within the one-year prescriptive period stipulated by law.
EVACUATION BASED ON A VALID EVACUATION LETTER
In the presence of a validly concluded written evacuation letter, the lessee is obliged to evacuate and deliver the leased property to the lessor on the date specified in this commitment. If the lessee fails to evacuate the leased property in violation of the existing and valid evacuation letter; the lessor has the right to apply for enforcement proceeding or initiate lawsuit for eviction. In other words, the evacuation letter will not be deemed to terminate the lease agreement automatically. The most important issue to be considered before applying for the eviction remedies listed below is that this remedy must be applied within one month from the date of the commitment. This period shall be considered as period of prescription and will be taken into consideration by the judge ex officio and the eviction requests applied without complying with this period will not be accepted by the judicial authorities.
Eviction by Enforcement Proceeding
In the event that the lessee does not evacuate the leased property on the commitment date, an enforcement proceeding without judgment can be initiated against the lessee within one month from the commitment date in accordance with Article 272 of the Enforcement and Bankruptcy Law No. 2004 (“EBL”). In this context, a seven-day objection period starts from the notification of the eviction order to the lessee by the relevant enforcement directorate, and the proceedings will be suspended in case of objection within this period. For the continuation of this proceeding, the lessor has the opportunity to apply to the civil courts of enforcement for the evacuation of the leased property within a period of 6 (six) months for the removal of the objection or to the civil court of peace for the cancellation of the objection within a period of 1 (one) year. If the evacuation letter is signed before a notary public, the lessor may file a lawsuit for the removal of the objection for a faster and more practical solution. In the event that the evacuation letter is not signed before a notary public, since the lessee has the right to object to the signature, the court authorized to hear the case will be the civil court of peace in case of objection to the signature.
Eviction by Lawsuit
In the event that the lessee has undertaken to evacuate the leased property on a date agreed with the lessor with a written and valid evacuation letter, the lessor may file an eviction lawsuit against the lessee within one-month from the date specified in this commitment letter at the civil court of peace where the immovable is located. It should be noted that the one-month period specified in the law is a period of prescription of rights and if it is not used, the lessor will not be able to demand the eviction of the immovable property based on the evacuation letter. Another point to be noted is that pursuant to Article 353 of the TCO, if the lessor has stated that it will evict the leased property by notifying the lessee within the period stipulated for the filing of the lawsuit at the latest, the period for filing a lawsuit will be deemed to be extended by one lease agreement year. However, in the event of a change of ownership of the leased property within the lease term, it is accepted that the new owner may file a lawsuit against the lessee based on the valid eviction commitment.
Conditional Evacuation Letter
On the other hand, it is controversial in the doctrine whether the evacuation letter can be issued with condition. According to one opinion, it is claimed that since Article 170 of TCO stipulates that the contracts can be drafted with conditions, it is possible to base the termination of lease agreements on conditions. Evacuation letter can be given in cases such as the lessee’s failure to pay the lease debt by the specified date, or the sale of the leased property to a third party. According to a different view, evacuation letter should be considered invalid since the evacuation date is uncertain, and there should be no ambiguity in legal terms regarding the date according to the law[1]. Conditional evacuation letters offer the option of eviction of the leased property once the condition is met and they will be carried out under the same circumstances as evacuation letters without conditions. It is possible to base the written evacuation letter to a condition according to the case law of the Supreme Court.
The decision of the 6th Civil Chamber of the Supreme Court dated 07.04.2009 and numbered 2009/1388 E. 2009/2938 K.; “The evacuation letter relied upon by the plaintiff lessor in the enforcement proceedings is subject to the condition of payment of rental and dues debts. According to Article 149 of the previous Turkish Code of Obligations, if contracts can be made conditionally, the evacuation letters can also be stipulated with conditions. Under these circumstances, the commitment gains validity upon the realization of the condition, and the enforcement proceedings must be initiated within a month from the fulfillment of the condition.”
The decision of the 6th Civil Chamber of the Supreme Court dated 11.02.2016 and numbered 2015/11188 E., 2016/839 K.; “The conditional evacuation letter is valid according to Article 149 of the previous Turkish Civil Code and Article 170 of the current Turkish Civil Code, and it binds both parties. Given these conditions, the commitment gains validity when the condition is met. Although the defendant claimed in their objection to the enforcement proceedings that the lease amounts were paid, the defendant could not prove this claim with a payment document, the commitment became valid according to the condition in the letter. In this case, since it is understood that the objection to the enforcement proceeding initiated on 30/03/2015 within the legal period of one month from the date of eviction based on the written commitment given while living in the leased property is unfair due to the realization of the condition, the court should have decided to remove the objection, and it is not correct to decide on the dismissal of the case on the grounds that the conditional commitment is invalid.
Conclusion
The evacuation letter is regulated in Article 352 et seq. of the Turkish Code of Obligations and provides the lessor with the opportunity to terminate the lease agreement and evacuate the leased property without incurring any compensation obligation. This commitment includes the obligation to evacuate and return the leased property to the lessor on the date of termination of the lease agreement. However, if the eviction is not carried out in accordance with the commitment date, the lessor has the right to use certain legal remedies to protect its rights. In cases where the lessee fails to comply with the commitment, the lessor may request eviction through enforcement proceeding or initiating a lawsuit.
An important issue to be considered in the eviction process is to apply for enforcement or litigation proceeding within one month from the date of commitment. This period is critical to protect the rights of the parties. If the lessor does not make the eviction request within this period, it may face the risk of not being accepted by the judicial authorities.
Author: Nigar Guliyeva-Elif Delifil
[1] Doç. Dr. Mehmet AKÇAAL – Yargıtay Uygulaması Işığında Yazılı Tahliye Taahhüdü ve Çözüm Önerileri, p. 965