According to the provisions of the Enforcement and Bankruptcy Law, the lessor can only evict his tenant by non-judgmental enforcement in two cases. The first of these cases is non-payment of the rent, while the other is the expiration of the lease agreement.

In the first of the cases that allows the eviction of the rented real estate by non-judgmental enforcement, which is the non-payment of the rent, the lessor can demand eviction in addition to his receivable. However, if the debtor tenant pays his debt, the eviction cannot be carried out.

In the eviction of the rented real estate by non-judgmental enforcement due to the expiration of the lease term, there is no claim; only the eviction of the rented property is requested. In fact, the lessor can apply to this pursuit only due to the expiration of the lease agreement, even if there is no rent receivable.

There are two important issues in terms of both pursuits. The first of these issues is that there must be a lease agreement between the parties. The second issue is that the subject of the lease agreement is a real estate.

Eviction Without Judgment Due to Non-Payment of Rent

If the tenant does not pay the rents due, the landlord can apply for non-judgmental enforcement only for the unpaid rents, or can also request eviction in addition to the payment of the rents. It should be noted that in this case, the request for eviction must be written in the request for enforcement.

In addition, it is not mandatory to have a written lease agreement in order to request the eviction of the tenant in the request for eviction due to non-payment of rents. If the tenant does not deny the lease relationship or object to the enforcement, the tenant is deemed to have accepted the lease relationship and the eviction continues.

The tenant who is served a payment order upon the enforcement request may object to the lease relationship and/or the rent receivable within 7 days. The enforcement is stopped upon the tenant’s objection. Another possibility is that the tenant does not object to the payment order and, in accordance with the Turkish Code of Obligations, within 10 days for ordinary leases; in residential and roofed workplace leases, the debt is paid within 30 days. In this case, the pursuit ends and the lessor cannot request the eviction of the tenant. It should be noted that if the tenant does not pay the entire rent, the lessor can request the continuation of the pursuit for the unpaid rent and the eviction. If the tenant does not object to the payment order and does not pay the debt, the creditor can request the seizure of the debtor’s assets from the enforcement office. However, it should be noted that in this case, the eviction request cannot be directed to the enforcement office. The eviction must be requested from the enforcement court. The creditor must request the eviction within 6 months following the end of the payment period.

It is possible to apply to legal remedies against the eviction decision of the enforcement court, but applying to legal remedies does not prevent the eviction decision from becoming final. In other words, even if legal remedies are applied, the eviction is carried out based on the eviction decision of the enforcement court. The only condition required for eviction is that 10 days have passed since the decision was notified or served on the tenant.

If the tenant objects to the payment order, the landlord must apply to the enforcement court to lift the objection within 6 months in order to ensure that the suspended enforcement proceedings continue. If no eviction request is made for the purpose of lifting the objection, the enforcement court will not decide to vacate, it will only decide to lift the objection.

If the debtor has objected to the lease agreement or signature, but the creditor does not have a document approved or issued by a notary, the creditor cannot request the enforcement court to lift the objection.[1] In this case, the landlord may file an eviction lawsuit in the civil court of peace.

If the debtor has raised an objection other than the signature and the lease agreement, and the creditor has requested the enforcement court to lift the objection, in this case, the tenant must prove the reason for the objection with the documents included in Article 68 of the Enforcement and Bankruptcy Law.

In addition, in the non-judicial enforcement proceedings due to non-payment of rental fees, the enforcement court may also rule for denial compensation and bad faith compensation, provided that it is requested, in addition to the removal of the objection.

The last issue to be emphasized is the case of more than one tenant. If only unpaid rent is requested, then enforcement proceedings can be initiated for each tenant separately or together. In this case, voluntary enforcement partnership is in question. However, if eviction is requested in addition to the rent receivable, since the eviction debt is an indivisible debt, compulsory enforcement partnership is in question for the tenants. In other words, the enforcement request must be directed to all tenants. The Court of Cassation’s 12th Civil Chamber’s Merits No. 2015/111 and Decision No. 2015/9607 regarding the subject is as follows;

The right to eviction is an indivisible right, and if there are more than one tenant, since there is compulsory enforcement partnership between them, if enforcement proceedings are initiated for only one of the debtors, even if this enforcement proceedings are finalized in this case, the debtor cannot be evicted from the real estate.

Eviction Through Execution Without Judgment Due to Expiration of Lease Term

In order to apply for an eviction without judgment due to the expiration of the lease term, the lessor must have a written lease agreement. In addition, in residential and workplace leases, the expiration of the lease agreement alone does not allow for eviction, in which case the tenant must have made a written eviction commitment. The Court of Cassation stipulates that the eviction commitment must be valid on a date after the lease agreement. In addition, enforcement proceedings must be initiated within 1 month from the end of the lease term. The 1-month period in question is of a prejudicial nature. After this period has elapsed, the lease agreement is deemed to have been extended, in other words, eviction cannot be requested.

Upon the request for enforcement proceedings, the enforcement office sends an eviction order to the tenant. Upon the eviction order, the debtor may object within 7 days or may vacate the immovable within 15 days. Otherwise, the enforcement office will forcibly remove the property. If the debtor objects to the eviction order, the pursuit is stopped and the lessor must apply to the enforcement court and request the removal of the objection. The pursuit becomes final upon the enforcement court’s decision to remove the objection, but if the debtor does not evacuate the property despite this or does not object to the eviction order and does not evacuate the property within 15 days, the debtor is forcibly evicted upon the creditor’s request. It should be noted that the enforcement court cannot award denial and bad faith compensation in non-judgmental pursuits due to the expiration of the lease term.

Another issue that needs to be emphasized is the presence of third parties in the real estate. The debtor’s blood and in-laws, husband or wife, blood or in-law relatives up to the second degree, business partners and those living in the real estate dependent on the debtor are not considered third parties. Therefore, their presence in the real estate does not constitute an obstacle to eviction. However, persons other than these are considered third parties. If third parties present an official document showing that they are right to occupy the real estate, they cannot be evicted from the real estate. If third parties declare that they have been in the real estate since a date prior to the lease agreement and this declaration is verified, the enforcement officer postpones the eviction and notifies the enforcement court of the situation within three days. The enforcement court may decide to evict or may decide that one of the parties file a lawsuit in the general court within 7 days. The party that does not file a lawsuit is deemed to have waived its claim. Regarding the issue, the Court of Cassation 12th Civil Chamber’s Merits No. 2015/7444 and Decision No. 2015/17397 is as follows;

According to the final article 276 of the Execution and Bankruptcy Law, since the complainant resides in the real estate subject to the debtor (his father), he is not considered a third party in the application of the provision of this article.

It is seen that the complainant did not submit an official document indicating that he was right to occupy the real estate requested to be evacuated, in accordance with the first paragraph of the same article, and it is inappropriate to decide to accept the complaint with written justification, while it should have been rejected.

REFERENCE

Atalı, Ermenek, Erdogan, İcra ve İflas Hukuku, Yetkin Publisher, Ankara, 2021

The Court of Cassation’s 12th Civil Chamber’s Merits No. 2015/111 and Decision No. 2015/9607

The Court of Cassation 12th Civil Chamber’s Merits No. 2015/7444 and Decision No. 2015/17397

Enforcement and Bankruptcy Law and Relevant Legislation

[1] Atalı, Ermenek, Erdogan, İcra ve İflas Hukuku, Yetkin Publisher, Ankara, 2021