The Tenant’s Obligation to Use the Leased Property with Due Care and to Respect Neighbours (Article 316 of the TCO)
Article 316 of the Turkish Code of Obligations No. 6098 (“TCO”), titled “Duty of Care in Use and Respect for Neighbours,” regulates the fundamental obligations that the tenant must observe while using the leased property. Pursuant to this provision, the tenant is obliged to use the leased property with due care and in accordance with the lease agreement. In addition, the tenant must act in a manner that does not disturb other persons residing in the building where the leased property is located and must show the necessary respect to neighbours.
The second paragraph of Article 316 of the TCO regulates the legal remedies available to the lessor in the event that the tenant breaches these obligations. Accordingly, in residential and roofed workplace leases, the lessor must first send a written notice to the tenant. Such notice must grant the tenant a period of at least thirty days to remedy the breach and must clearly state that the lease agreement will be terminated if the breach is not remedied within the specified period.
Conversely, in lease relationships other than residential and roofed workplace leases, the lessor is not obliged to grant the tenant a prior period to remedy the breach. In such lease agreements, the lessor is entitled to terminate the lease agreement immediately by means of a written notification.
On the other hand, the third paragraph of Article 316 of the TCO provides for certain exceptional circumstances. Accordingly, even in residential and roofed workplace leases:
• if the tenant intentionally causes serious damage to the leased property,
• if it is clearly understood that granting the tenant a period would be futile, or
• if the tenant’s conduct becomes intolerable for the lessor or for other persons residing in the same property or for the neighbours,
the lessor may terminate the lease agreement immediately by written notification without granting any period to the tenant.
In light of these provisions, it is evident that one of the tenant’s fundamental obligations under the TCO is to use the leased property in accordance with the lease agreement and to respect the peace and tranquillity of neighbours. Article 316 of the TCO establishes the legal framework of the sanctions that may be applied in the event that this obligation is violated.
Scope of the Obligation to Use the Leased Property in Accordance with the Agreement and to Respect Neighbours
Pursuant to Article 316 of the TCO, the tenant is obliged to use the leased property in accordance with the purpose of use agreed upon in the lease agreement, as well as with the nature and characteristics of the immovable property. Within this framework, the tenant must refrain from conduct that may damage the leased property, impair the structural integrity of the immovable property, or negatively affect its useful life.
If the tenant acts in breach of this obligation, the lessor may send a written notice to the tenant in residential and roofed workplace leases requesting that the breach be remedied within at least thirty days. If the breach is not remedied within this period, the lessor will acquire the right to terminate the lease agreement.
In lease agreements, the intended purpose for which the leased property will be used is often expressly determined. This issue is particularly important in terms of whether the property will be used as a residence or as a workplace. For instance, the agreement may stipulate that an immovable property of a residential nature may only be used as a dwelling. In addition, other restrictions regarding the use of the leased property may also be envisaged. Limitations on the commercial activities that may be carried out in the leased premises constitute examples of such regulations.
In determining the purpose of use of the leased property, the provisions of the lease agreement shall primarily be taken into consideration. If the agreement does not contain an explicit provision in this respect, the ordinary purpose of use shall prevail. When determining the ordinary purpose of use, the nature of the immovable property as well as local customs and practices are taken into account. For example, the use of an independent unit located within a shopping mall as a residence would be contrary both to the nature of the property and to local usage practices.
Consequently, using the leased property in a manner contrary to the agreed purpose of use constitutes a breach of the lease agreement and grants the lessor various legal remedies under Article 316 of the TCO, including the right to terminate the contract.
Court of Cassation 3rd Civil Chamber, Merits No: 2018/6432, Decision No: 2018/11200;
“The manner of use of the leased property is determined as a cafeteria in the agreement. Since the lessor has leased the property solely for use as a cafeteria, any use contrary to his consent constitutes a use in breach of contract. Whether such use causes damage to the leased property is not important.”[1]
Use Contrary to the Purpose of Use and Breach of Contract
As also emphasized in the jurisprudence of the Court of Cassation, using the leased property in a manner contrary to the form of use determined in the lease agreement constitutes a breach of contract. In the decisions of the Supreme Court, it is stated that where the leased property is used beyond the scope of the purpose of use stipulated in the agreement, such use constitutes a breach of contract; moreover, whether the leased property has suffered physical damage is not a decisive factor in determining the existence of such breach.
Indeed, the Court of Cassation states in its decisions that the tenant is obliged to act in accordance with both the purpose of use agreed in the lease agreement and the nature of the immovable property while using the leased premises. Any use to the contrary shall constitute a violation of the tenant’s obligation to use the leased property in accordance with the agreement.
In one of its decisions, the Court of Cassation expressed this matter as follows:
“When the tenant uses the leased property, the tenant must use it in accordance with its essence and with the purpose of use stipulated in the agreement. Otherwise, the tenant shall have acted in breach of the obligation to use the leased property in accordance with the agreement.”
Similarly, in another decision of the Court of Cassation, it was emphasized that one of the tenant’s important obligations is to use the leased property in accordance with the purpose for which it was allocated, and particular attention was drawn to the distinction between residential and workplace use:
“One of the important obligations of the tenant is to use the leased property in accordance with the purpose of allocation stipulated in the lease agreement. For instance, using a place leased as a residence as a workplace constitutes a breach of the obligation to use it in accordance with the purpose of allocation.”
Within this framework, although it is explicitly stipulated in the lease agreement that the immovable property has been leased for residential purposes, the tenant’s use of the property for purposes other than this—such as carrying out commercial activities in an independent unit leased as a residence—will constitute a breach of the lease agreement.
Nevertheless, even in the absence of an explicit provision in the lease agreement regarding the purpose of use of the immovable property, the nature of the property and local usage practices will be taken into account. In this context, conducting commercial activities in an immovable property of a residential nature may still be considered a breach of contract since it would be contrary to local customs and usage practices.
The Tenant’s Obligation to Use the Leased Property with Due Care
The tenant is obliged not only to use the leased property in accordance with the purpose specified in the agreement but also to use it with due care. This obligation encompasses the protection of the physical integrity of the leased property and the prevention of unnecessary deterioration of the immovable property.
Within this scope, making permanent alterations to the leased property without the explicit consent of the lessor shall be considered a breach of the duty of care. Likewise, using the leased property in a manner that exceeds the limits of ordinary use or causes damage to the property will also constitute a violation of the tenant’s obligation of care.
The Obligation to Respect Neighbours
Pursuant to Article 316/1 of the TCO, another important obligation of the tenant is to show the necessary respect to neighbours. While using the leased property, the tenant must refrain from conduct that would disturb the peace of other persons residing in the same building and the neighbours.
If the tenant acts in breach of this obligation, namely by engaging in conduct that adversely affects the lives of neighbours, the termination of the lease agreement may come into consideration for the lessor. In such cases, the lessor may send a notice to the tenant requesting that the breach be remedied in accordance with the conditions set forth in Article 316 of the TCO and, where the necessary conditions are met, may terminate the lease agreement.
Breach of the Tenant’s Obligation to Use the Leased Property with Due Care and to Respect Neighbours
If the tenant acts in breach of the obligations regulated under Article 316 of the Turkish Code of Obligations, certain legal remedies arise for the lessor. Pursuant to this provision, in residential and roofed workplace leases, the lessor must first send a notice to the tenant before resorting directly to termination.
Within this scope, the lessor must notify the tenant in writing and request that the conduct in breach of the agreement be remedied within at least thirty days. The notice must clearly state that the lease agreement will be terminated if the breach is not remedied within the specified period. If the breach is not remedied within the period granted to the tenant, the lessor may exercise the right to terminate the lease agreement.
The provisions regarding the period set forth in Article 316 of the TCO are of a relatively mandatory nature. Therefore, it is possible to extend the period granted to remedy the breach in favour of the tenant. However, arrangements made in favour of the lessor—such as eliminating the obligation to send a notice to the tenant, shortening the period that must be granted to the tenant, or similar provisions—are not considered legally valid.
Accordingly, including provisions in the lease agreement stating that the lessor may directly exercise the right of termination without granting a period to the tenant or that the statutory period will be applied for a shorter duration will not produce legal consequences.
Court of Cassation 3rd Civil Chamber, Merits No: 2017/8658, Decision No: 2018/173;
“By the notice dated 20/07/2015 sent by the plaintiff lessor, it was stated that the use of the leased property by a third party constituted a breach of contract and the removal of the breach was requested within 15 days from the notification of the notice. Since the leased property subject to the dispute is in the nature of a roofed workplace, the plaintiff should have sent a notice granting at least 30 days to the defendant within the framework of the principles explained above; granting a period of 15 days is not correct. Therefore, while the case should have been dismissed, the acceptance of the case in writing is contrary to procedure and law and required reversal.”[2]
Within this framework, the written notice to be addressed to the tenant must grant a period of at least thirty days in residential and roofed workplace leases. The notice must request that the tenant remedy the conduct in breach of the agreement within the specified period and must clearly state that the lease agreement will be terminated if the breach is not eliminated within that period.
However, the third paragraph of Article 316 of the Turkish Code of Obligations provides certain exceptional circumstances. Pursuant to this provision, if the tenant intentionally causes serious damage to the leased property, if it is clearly understood that granting a period to the tenant would not produce any result, or if the tenant’s conduct in breach of the obligations becomes intolerable for the lessor or for other persons residing in the same property or for the neighbours, the lessor is not obliged to send a notice.
In such cases, the lessor may exercise the right to terminate the lease agreement immediately by means of a written notification to the tenant. Thus, the legislator has granted the lessor the possibility to terminate the agreement promptly, particularly in situations where the leased property suffers serious damage or the situation becomes intolerable for the persons residing in the property.
Court of Cassation General Assembly of Civil Chambers, Merits No: 2017/1770, Decision No: 2021/1738;
“According to the statements of the parties and the contents of the file, the plaintiff filed a complaint against the defendant for the offences of insult and simple injury; as a result of the proceedings conducted before the İzmir 10th Criminal Court of Peace, the defendant was acquitted of the alleged offences on the ground that there was insufficient and convincing evidence for conviction. The defendant also filed a complaint against the plaintiff for the offences of insult and slander; as a result of the proceedings conducted before the İzmir 18th Criminal Court of First Instance, the plaintiff was convicted of the offences of insult and slander and a decision was rendered for the postponement of the announcement of the judgment. In this case, considering that the plaintiff and the defendant filed complaints against each other, that criminal proceedings were conducted against them before criminal courts, and that thus the lease relationship became intolerable for the lessor, it should have been decided to accept the case by accepting that the conditions set forth in Article 256/2 of the Code of Obligations (Article 316/3 of the TCO) were fulfilled.”[3]
The Lessor’s Obligation to Send a Notice and the Possibility of Termination
Within this framework, the lessor must evaluate, in light of the specific circumstances of the case, whether the tenant’s conduct in breach of the agreement falls within the exceptional situations regulated under the third paragraph of Article 316 of the Turkish Code of Obligations. If, as a result of this assessment, it is determined that the tenant’s conduct does not fall within the serious circumstances listed in the aforementioned provision, the lessor must first send a written notice to the tenant.
In such notice, the tenant must be requested to remedy the conduct in breach of the agreement within at least thirty days, and it must be clearly stated that the lease agreement will be terminated if the breach is not eliminated within the specified period.
Conversely, if the tenant’s conduct in breach of the agreement falls within one of the situations specified in Article 316/3 of the TCO, the lessor is not obliged to grant the tenant a period or to send a prior notice. In such circumstances, the lessor may terminate the lease agreement immediately by means of a written notification addressed to the tenant.
Failure of the Tenant to Remedy the Breach Within the Granted Period
If the tenant violates the obligation to use the leased property with due care and to respect neighbours, the tenant must be granted a period of at least thirty days to remedy the breach, except for the exceptional situations that may fall within the scope of Article 316/3 of the TCO. Accordingly, the written notice sent by the lessor to the tenant must clearly state that the lease agreement will be terminated if the breach is not eliminated within the specified period.
If the tenant continues the conduct in breach of the agreement despite the notice and fails to remedy the breach within the granted period, the lessor will have the opportunity to apply to judicial remedies. In such a case, the lessor may file a lawsuit before the Civil Court of Peace requesting the eviction of the leased property due to breach of contract.
However, there is an important procedural requirement that must be fulfilled before filing a lawsuit. Pursuant to Article 18/B, which was added to the Law on Mediation in Civil Disputes by Article 37 of Law No. 7445 and entered into force on 1 September 2023, mandatory mediation has been introduced as a condition of action for a significant portion of disputes arising from lease relationships. Therefore, in disputes arising from lease relationships within the scope of the Enforcement and Bankruptcy Law, it is necessary to apply to mediation before filing a lawsuit.
Accordingly, in order for the lessor to request eviction due to the tenant’s conduct in breach of the agreement, it is legally mandatory to complete the mandatory mediation process before filing a lawsuit.
[1] Court of Cassation 3rd Civil Chamber, Merits No: 2018/6432, Decision No: 2018/11200.
[2] Court of Cassation 3rd Civil Chamber, Merits No: 2017/8658, Decision No: 2018/173.
[3] Court of Cassation General Assembly of Civil Chambers, Merits No: 2017/1770, Decision No: 2021/1738.