What Is an Eviction Action?
An eviction action is brought to terminate a lease relationship and require the tenant to vacate the leased property. It most commonly arises in leases of residential premises and roofed commercial premises. However, an eviction action is not a general remedy that is automatically available in every lease dispute. The grounds for eviction must be identified correctly in light of the law, the lease agreement and the specific circumstances.
Because Turkish law contains provisions protecting tenants of residential premises and roofed commercial premises, the grounds for eviction are construed narrowly. A landlord’s desire merely to increase the rent, lease the property to someone else at a higher rent or act because of a personal dispute with the tenant does not, by itself, constitute grounds for eviction.
On What Grounds May an Eviction Action Be Filed?
The available grounds for eviction depend on the circumstances of the case. The most common grounds in practice are:
- The landlord’s need to use the property as a residence or workplace for the landlord, the landlord’s spouse, descendants, ascendants or other relatives specified by law,
- The new owner’s need to use the property for themselves or their relatives,
- A written undertaking by the tenant to vacate the property,
- Non-payment of rent and default,
- Service of two valid notices within one lease year,
- The tenant or the tenant’s spouse owning a residence suitable for occupation within the boundaries of the same district or town,
- The property becoming unusable because of reconstruction or substantial repairs.
Each ground has different filing deadlines, evidentiary requirements and consequences. The first step before filing an eviction action is therefore to place the asserted ground for eviction within the correct legal category.
Eviction Based on Need
Eviction based on need may arise where the landlord has a genuine, sincere and compelling need to use the property for themselves or for relatives specified by law. A need for residential or commercial premises, or use by family members, may be considered within this scope.
The claimed need must not be asserted in abstract terms. Merely stating, “I need the property,” may not be sufficient. The assessment takes into account why the need arose, the existing living or business arrangements, whether another property is available, whether the property is suitable for the intended use and whether the need exists on the filing date. The particular circumstances of the case are decisive.
Eviction Based on an Undertaking to Vacate
An undertaking to vacate (tahliye taahhüdü) is the tenant’s written commitment to vacate the property on a specified date. Reliance on such an undertaking requires it to have been executed validly. Disputes may arise where the undertaking was obtained at the same time as the lease agreement, dates were inserted later, the tenant’s consent was impaired or the signature is contested.
Time limits are important in proceedings based on an undertaking to vacate. Following the agreed vacation date, it may be necessary to commence enforcement proceedings or file an action within the statutory period. If that period is missed, it may no longer be possible to seek eviction on the basis of the same undertaking.
Eviction for Rent Arrears
If the tenant fails to pay the rent, eviction may be pursued through court proceedings or enforcement proceedings. The landlord may commence enforcement proceedings to recover the unpaid rent and seek eviction if payment is not made within the statutory period stated in the payment order. This procedure is known as eviction through enforcement proceedings without a judgment.
In eviction proceedings based on rent arrears, the content of the payment order, the payment period, whether an objection has been lodged, whether the rent has actually been paid and whether the amounts claimed have been calculated correctly are important. If the tenant claims to have paid, bank receipts, other receipts and current account records should be examined.
Eviction Based on Two Valid Notices
An eviction action may be available if the tenant, by failing to pay the rent on time, causes two separate valid notices to be served within one lease year. It is important that the notices are valid, that they are served within the same lease year and that the filing deadline is observed correctly.
Serving a notice through a notary public may make proof easier. However, the content of the notice, the month to which the rent arrears relate and the payment dates must be checked carefully. Repeated notices concerning the same debt may not always satisfy the requirement of two valid notices.
Is Mediation Mandatory?
Mandatory pre-litigation mediation is important in disputes arising from lease relationships. Within the framework of Law No. 6325 on Mediation in Civil Disputes, disputes arising from lease relationships are subject to mandatory pre-litigation mediation, except for provisions concerning eviction from leased property through enforcement proceedings without a judgment under Law No. 2004. Certain disputes concerning dissolution of co-ownership, condominium ownership and neighbour rights may also fall within this scope.
Before filing an eviction action, it must therefore be determined whether the dispute is subject to mediation. If an action is filed without first applying to a mediator where mediation is a prerequisite for filing suit, the action may be dismissed on procedural grounds. It should nevertheless be kept in mind that an exception applies to eviction through enforcement proceedings without a judgment.
Competent Court and Documents
As a rule, the court with subject-matter jurisdiction over eviction actions arising from lease relationships is the Civil Court of Peace (sulh hukuk mahkemesi). Before filing, the lease agreement, title deed record, payment documents, formal notices, undertaking to vacate, final mediation record, identification documents and powers of attorney should be prepared.
Different documents may be required depending on the specific ground. Documents showing the need are important in eviction based on need; the written undertaking in eviction based on an undertaking to vacate; payment records in eviction for rent arrears; and the notice and payment dates in eviction based on two valid notices.
Frequently Asked Questions
May a landlord file an eviction action at any time?
No. One of the statutory grounds for eviction must exist, and the applicable procedural requirements must be followed.
May eviction be sought if the rent has become too low?
The rent becoming too low is not, by itself, a ground for eviction. If the applicable conditions are met, a rent determination action (kira tespit davası) may instead be available.
Is mediation mandatory before filing an eviction action?
Except for eviction through enforcement proceedings without a judgment, disputes arising from lease relationships are subject to mandatory pre-litigation mediation. Whether the specific course pursued involves court proceedings or enforcement proceedings must be assessed separately.
Does an undertaking to vacate always result in the tenant’s eviction?
No. The validity of the undertaking and the requirements concerning its date, signature, consent and applicable time limits must be examined.
Which court hears an eviction action?
As a rule, the Civil Court of Peace has subject-matter jurisdiction over eviction actions arising from lease relationships.
Sources
This article has been prepared for general information purposes and does not constitute legal advice. The assessment may vary depending on the circumstances of each case.