Termination of the Lease Agreement by Undertaking to Evict

Termination of Lease Agreement by Eviction Undertaking | Karşıyaka Lawyer

The person who prepared the eviction undertaking TBK Article 352/1 stipulates that, "If the tenant, after the delivery of the leased property, undertakes in writing to vacate the property on a specified date but fails to do so, the landlord may terminate the lease agreement by applying for enforcement proceedings or filing a lawsuit within one month from that date (the date of the eviction undertaking).".

Additionally, Article 7/1-a of Law No. 6570 on Real Estate Leases states that "If the property is not vacated despite written notification from the tenant, the lessee may apply to the enforcement office to request eviction or file an eviction lawsuit.".

2. Validity Conditions of the Eviction Undertaking

In cases where a lease agreement is terminated with an undertaking to vacate the premises, the undertaking to vacate must meet certain conditions to be valid. These conditions are:;

• It must be in written form.,
• The eviction undertaking must have been given by the tenant in person or by their representative.
• The eviction undertaking must specify a particular date for the eviction.,
• The undertaking to evacuate was given freely,
• The undertaking to vacate the premises is given after the handover of the leased property and for a date later than the date specified in the lease agreement. (This is a doctrinal view; according to the Supreme Court's practice, it is valid even if the dates are filled in later.))

According to current Supreme Court rulings, an eviction undertaking signed on the same day as the lease agreement is invalid. It must be signed at least one day after the lease agreement's commencement date. Furthermore, according to Supreme Court jurisprudence, tenants are obligated to bear the consequences of undated eviction undertakings signed by the tenant at the landlord's request during the drafting of a lease agreement.  In this case, the tenant whose name, surname, and signature appear on the eviction undertaking will be obligated to vacate the property, even if the dates of preparation and eviction were filled in later, as the undertaking is considered valid.

In its decision numbered 2008/11 and 2008/2784, dated March 11, 2008, the 6th Civil Chamber of the Court of Cassation stated: ;

“"Although the tenant argued that the undertaking was obtained at the time the lease agreement was drawn up and the date of preparation was filled in later, he admitted in the undertaking that he was residing in the apartment belonging to the plaintiff, which he 'currently leased and occupied,' and that he gave the undertaking to vacate while residing in the rented property. On the other hand, since the signature binds the signatory tenant, the objection that the dates in this document containing the undertaking to vacate were filled in later cannot be accepted. Even if it is accepted that the date of preparation in the undertaking was left blank and given to the plaintiff, the defendant tenant must bear the consequences of this behavior. A decision should be made for the eviction of the rented property.".

3. What to do if the tenant does not vacate despite an agreement to do so?

• Quick Facts : A landlord who wishes to terminate a lease agreement with an eviction undertaking has two options. The first is to initiate enforcement proceedings based on the eviction undertaking. The second is for the landlord (without first applying to the enforcement office) to directly apply to mediation and then to the Civil Court of Peace, based on the eviction undertaking. In this case, if the conditions are met, the Civil Court of Peace will order the eviction of the tenant from the leased property.

A landlord who wishes to terminate a lease agreement with an eviction undertaking can initiate enforcement proceedings for eviction within 30 days of the eviction date, without prior notice or warning, either personally or through a lawyer, at the enforcement offices where the property is located. If an objection is raised against the enforcement proceedings, the landlord can then apply to the enforcement court to have the objection dismissed and sue for the eviction of the property. If an eviction undertaking exists, even if an objection is raised against the enforcement proceedings, the enforcement court will issue an eviction order at the first hearing.

4. Processes and Regulations in the Field of Enforcement Law

The eviction process through enforcement proceedings is regulated in Articles 272 and subsequent articles of the Enforcement and Bankruptcy Law. According to Article 272 of the Enforcement and Bankruptcy Law, 'Eviction of a property leased under a contract may be requested within one month of the expiration of the contract, by submitting the contract to the enforcement office. Upon this, the enforcement officer shall issue an eviction order, ordering the property to be vacated and delivered within fifteen days.' When initiating enforcement proceedings for eviction, the landlord must submit the original lease agreement and eviction undertaking to the enforcement office. Only the landlord can initiate this eviction procedure. The owner does not have the right to initiate enforcement proceedings based on an eviction undertaking.

A frequently encountered issue here, requiring interpretation, is whether, in the event of the sale of a leased property, the new owner can demand eviction based on an eviction undertaking obtained from the previous owner. As stated in the decision of the 3rd Civil Chamber of the Supreme Court of Appeals, numbered 2018/3080 and 6171, 'Law No. 6098...' Turkish Code of Obligations According to Article 352/1, an eviction lawsuit based on a commitment must be filed by the landlord. A landlord who is not the landlord does not have the right to sue. However, the new landlord, as the successor of the previous landlord and lessor, can file a lawsuit based on a commitment made during the previous landlord's time. If the tenant does not object to the payment order served on them within the prescribed period, the enforcement becomes final, and the landlord can request the eviction of the leased property from the enforcement office and have the property vacated.

5. How long does the process of terminating a lease agreement through an eviction undertaking take?

If the tenant undertakes in writing to vacate the rented property on a specific date, they must vacate it on that date. Otherwise, the process of terminating the lease agreement through this undertaking will begin. In this case, the landlord can terminate the lease agreement by applying for enforcement proceedings or filing a lawsuit within one month of the written eviction date. The eviction request is made to the competent enforcement office or court. The eviction process initiated through enforcement proceedings varies depending on whether the tenant objects or not.

If no objection is raisedIf the process of terminating a lease agreement through enforcement proceedings is initiated with a commitment to vacate, the enforcement office sends the tenant an eviction order, instructing them to vacate and hand over the property within 15 days. If the tenant does not object to this order, after 15 days the landlord or their representative requests the finalization of the enforcement proceedings. After the enforcement proceedings are finalized, a date for eviction is requested after the necessary fees and travel expenses are paid to the enforcement office. Subsequently, on the determined date, the eviction is carried out by enforcement office officers, the landlord's representative, and law enforcement if deemed necessary. If no objection is raised to the eviction commitment, the tenant is evicted in approximately one month.

If an objection is raised If an eviction undertaking process is initiated through enforcement proceedings, the enforcement office sends the tenant an eviction order demanding the property be vacated and handed over within 15 days. The tenant may object to the eviction undertaking within 7 days of receiving the order if the undertaking is deemed invalid. If an objection is filed, the landlord may request the dismissal of the objection in the enforcement court, or request a general court to dismiss the objection and order eviction, depending on the content of the objection and the contract. If the objection is dismissed, the property is forcibly vacated by the enforcement office and handed over to the landlord. This process can take approximately 4-5 months. In practice, objections are generally unfounded and aimed at prolonging the process. In this regard, the contents of the enforcement file are examined by the judge, and an eviction order is often issued at the first hearing. If the court decides to accept the case, the court decision does not need to be final in order to request eviction from the enforcement office. In other words, the tenant's appeal against the court decision or objection to the enforcement proceedings alone does not stop the enforcement proceedings and therefore the tenant's eviction.

6. Mediation is a Prerequisite for Filing a Lawsuit in Rental Disputes.

According to Law No. 6325 on Legal Disputes, disputes arising from lease agreements, excluding provisions regarding eviction through summary execution, are subject to mandatory mediation. To more clearly explain the types of disputes referred to as "disputes arising from lease agreements" in mediation legislation, it is necessary to define the lease agreement concretely. A lease agreement is a fully bilateral contract regulated by the Turkish Code of Obligations. The lessor undertakes the use of something, while the lessee agrees to pay a fee for this use. Examples of disputes falling under the scope of lease mediation, stemming from this relationship, include eviction, determination of rent, and adjustment of rent. In this procedure, when a lawsuit needs to be filed in the Civil Court of Peace, mediation must be sought first as a prerequisite for filing the lawsuit. If an agreement is not reached through mediation, then a lawsuit can be filed.

7. Processing the Blank Undertaking

In practice, landlords obtain a blank eviction undertaking from tenants when signing a lease agreement. The tenant simply writes their name and surname and signs the undertaking. When the landlord wants to evict the tenant, they fill out the blank eviction undertaking themselves. Then, they apply to the enforcement office or court to evict the tenant. In practice, a blank eviction undertaking is a frequently used method.

According to Article 6 of the Turkish Civil Code, unless otherwise stipulated in the law, each party is obligated to prove the existence of the facts upon which they base their claim. According to Article 190 of the Code of Civil Procedure, unless there is a specific provision in the law, the burden of proof rests with the party who derives a right in their favor from the legal consequences attached to the alleged fact. In accordance with these articles, the tenant must prove that the blank eviction undertaking was given before the delivery of the leased property, that it was given without specifying the dates of issuance and eviction, and that it was filled in later by the landlord. Therefore, Filling in the dates on a blank eviction undertaking form at a later date does not invalidate the undertaking.

Similarly, according to Supreme Court precedents, an eviction undertaking signed and given blank by the tenant before the delivery of the property is considered valid if it is subsequently filled out by the landlord. The burden of proof for the eviction undertaking to be deemed invalid rests with the tenant. If the tenant cannot prove that the eviction undertaking was drawn up before the delivery of the leased property and filled out in a manner contrary to the agreement between the parties, the blank eviction undertaking will be considered valid.

 8. Is a notice required for the termination of a lease agreement with an undertaking to vacate?

A common misconception in rental agreements is whether or not a notice of termination is necessary. A "Undertaking to Eviction" is a written and signed commitment by both parties to terminate a lease agreement. In this context, it is clear that both parties are aware of the termination of the contract. For example, it is unpredictable for either party that the landlord might need housing during the lease. If a housing need arises, it is legally mandatory to send a notice to the tenant. However, if the tenant has undertaken to evict, a notice is not necessary. This is because an undertaking to evict means that the tenant will vacate the rented property on the specified date without the need for a notice or warning, and without setting any conditions.

 Therefore, if the tenant is not vacated by the specified date without prior notice, the landlord can initiate enforcement proceedings or file a lawsuit within one month of that date to evict the tenant. The landlord can pursue enforcement proceedings or litigation to evict the tenant. The quickest way to evict a tenant is through enforcement proceedings, as this is a faster and more practical method, while litigation takes much longer.

We previously mentioned that certain timeframes must be observed in order for proceedings to be initiated based on an eviction undertaking. Accordingly, if the tenant fails to vacate the rented property within the period specified in the eviction undertaking, enforcement proceedings can be initiated within one month of that date, and an eviction lawsuit can also be filed. If the landlord sends a notice demanding that the rented property be vacated on the promised date before the date specified in the eviction undertaking, this one-month lawsuit period can be extended to up to a year. Therefore, notices sent without consulting a lawyer can postpone the right to file a lawsuit for up to a year. Since the process requires legal knowledge and experience, legal advice should be sought to prevent loss of rights.

While establishing a rental agreement is easy, terminating it is a process that requires experience, legal knowledge, and procedural requirements. Therefore, seeking legal assistance is crucial for the swift eviction of a tenant. For detailed information and to schedule an appointment, please contact us. Contact page.

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