In residential and roofed workplace leases, unless the tenant gives notice at least fifteen days before the end of the fixed-term contracts, the contract is deemed to be extended for one year with the same conditions. The lessor cannot terminate the contract based on the expiration of the contract period. However, at the end of the ten-year extension period, the lessor may terminate the contract without giving any reason, provided that it notifies at least three months before the end of each subsequent extension year.
Since the legal regulations in question mostly contain provisions in favor of the tenant, who is the weaker party of the lease contract, lessors in residential and roofed workplace leases frequently resort to terminating lease contracts through written undertakings to evict.
Termination of the lease contract through written undertakings to evict is one of the cases of termination of the lease contract due to reasons originating from the tenant. According to Article 352 of the Turkish Code of Obligations; If the tenant, after the delivery of the leased property, has undertaken in writing to vacate the leased property on a certain date but has not done so, the lessor may terminate the lease agreement by applying for enforcement or filing a lawsuit within one month from this date.
According to Article 352/1 of the TCC, with a written eviction commitment, the tenant undertakes to vacate the leased property on a certain date against the lessor through a transaction in written form after the contract is established and the leased property is delivered to him/her. In this way, the lessor has the opportunity to terminate the lease relationship without having to rely on the limited number of reasons listed in the law and without paying any compensation.[1]
It should be noted that while the lease agreement is not subject to any validity condition, the validity of the eviction commitment depends on it being made in writing. Here, the validity condition sought for the eviction commitment is the ordinary written form. The eviction commitment may be in the form of a provision of the lease agreement or may be the subject of a separate document. In addition, since only the tenant assumes a debt with the eviction commitment, it is sufficient for the tenant’s handwritten signature to be the only document related to the eviction commitment. However, if the parties wish, they can also establish the eviction commitment as a contract.
Although the ordinary written form is sufficient for the written eviction commitment, the lessor can have the written eviction commitment drawn up or approved by a notary in order to prevent the tenant from objecting to the signature later.
In the presence of a written eviction commitment, the lessor can apply for enforcement or file an eviction lawsuit within one month from the determined eviction date. If the lessor does not request the eviction of the rented real estate through non-judicial execution from the enforcement office or file a lawsuit within 1 month from the eviction date, the written eviction commitment loses its legal validity. It should be noted that only the owner of the real estate can file the lawsuit in question. Therefore, if the owner of a real estate does not have the status of lessor, he/she will not be able to file this lawsuit. Whoever has the status of lessor has the right to file a lawsuit. In addition, if the ownership of the rented real estate is transferred to someone else after the written eviction commitment, the new owner can benefit from the eviction commitment given to the previous owner.
Another issue that needs to be emphasized is that if the rented real estate is a family home, only one of the spouses must have given a written eviction commitment. If the rented real estate is a family home, the other spouse must have given their consent or approval for the eviction commitment to be valid. A tenant who is subject to a written eviction commitment may invalidate the eviction by claiming that their spouse, who is not a party to the lease agreement, did not give consent to the eviction commitment. At the same time, if the other spouse claims that their consent was not obtained, they may apply to the enforcement court for a complaint and request that the family home determination case be put on hold. The burden of proving the existence of express consent lies with the lessor. If it is revealed that the real estate in question is a family home and that the other spouse did not give his/her express consent, the eviction commitment becomes invalid and the enforcement proceedings based on this are cancelled.[2]
Another situation frequently encountered in practice regarding written eviction commitment is open signature. Open signature is when the tenant signs a blank document. In this case, the lessor can later fill in the document and determine the date the commitment was given and the promised day the eviction will take place. The dominant view in the Court of Cassation and the Doctrine accepts that the condition of written eviction commitment is fulfilled in case of open signature. Regarding the issue, the General Assembly of Law has ruled in its Merits No. 2008/6-369 and Decision No. 2008/394 as follows;
Although the tenant has claimed that he signed a blank piece of paper for the purpose of eviction commitment and that it was filled in later, this cannot be relied upon. The person who signs a blank piece of paper must suffer the consequences. The determined practice of our Department is in this direction, as well as the decision of the General Assembly of Law of the Court of Cassation dated 12.12.1990 and numbered 1990/6 E-1990/628 K., the decision dated 1.7.1992 and numbered E.357-K.422 and the decisions dated 17.1.1999 and numbered 1999/6-28-10. Because by signing a blank piece of paper, the plaintiff is deemed to have been given the authority to fill it in the way he/she wishes.’
In addition, the written eviction commitment must clearly state the date on which the eviction will take place in the form of day/month/year. If no such date is clearly stated, in this case, the day on which the eviction will take place must be clearly understood from the commitment. Otherwise, the written eviction commitment is invalid.
If the lessor determines the day the lease agreement is drawn up or a day before the actual delivery of the leased property to the tenant as the date on which the eviction commitment is given, the commitment is invalid. In order for the written eviction commitment to be valid, it must have been drawn up after the delivery date of the leased property.
According to the Court of Cassation, the claim that the eviction commitment was prepared and signed on a date before the delivery date of the leased property can only be proven with written evidence. Again, according to the Court of Cassation, the tenant who claims to have signed in white and that the dates in the eviction commitment were later filled in by the lessor must also prove this claim with a promissory note.[3]
In addition, the Court of Cassation ruled that if an eviction commitment is given due to the renewal of the lease agreement, these eviction commitments are valid. The Court of Cassation 3rd Civil Chamber’s Merits No. 2012/15259 and Decision No. 2012/22635 is as follows;
The plaintiff tenant claimed that the eviction commitments given with the lease agreement renewed every year are not valid, and although the court accepted this claim of the plaintiff; the eviction commitments given with the lease agreement renewed after the establishment of the tenancy relationship are valid. In an ongoing tenancy relationship, it cannot be said that the commitment given later was given under pressure. The eviction commitments given with the consecutive and renewed lease agreements are valid. Regarding this issue, the principles accepted in the justification of the decision of the Supreme Court of Appeals Unification Board dated 04.10.1985 and numbered 2/7 and the decision of the Supreme Court of Appeals Civil Law General Assembly dated 17.05.1989 and numbered 1989/6-264/350 are also in this direction.
Finally, it is necessary to mention the issue of the lessor requesting the eviction of the immovable by issuing a forged document even though there is no written eviction commitment given by the tenant in reality. According to Article 209 of the Code of Civil Procedure, when the writing or signature on an ordinary promissory note is denied, that promissory note cannot be used as the basis for any transaction until a decision is made in this regard. Therefore, in such a case, the enforcement office cannot carry out an eviction based on the written eviction commitment until the decision regarding the forgery of the promissory note becomes final. Regarding the issue, the 6th Civil Chamber of the Court of Cassation has ruled as follows in its Merits No. 2015/5729 and Decision No. 2015/6841;
Article 209/1 of Law No. 6100 states that “When the writing or signature on an ordinary promissory note is denied, that promissory note cannot be subject to any transaction until a decision is made in this regard.” The regulation states that in the event of denial of the writing and signature on a promissory note, the promissory note cannot be used as a basis for any transaction until a decision is made regarding its forgery.
As for our case; Based on the written eviction commitment regarding the plaintiff tenant, the plaintiff tenant was evicted from the rented property on 31/07/2010 as a result of the enforcement proceedings initiated by the Enforcement Office in the case file numbered 2010/6239. Among the files… According to the decision numbered 2010/1262, case numbered 2012/1074 of the Criminal Court of First Instance dated 26/09/2012, the lawsuit was filed against the defendants for the crime of forgery of a private document, since the Court had doubts about who committed the act and for what purpose, and since no definite conclusion was reached regarding the credibility of the document, the defendants were acquitted, and the decision has not yet been finalized. Although the acquittal decision given by the criminal judge due to insufficient evidence is not binding on the civil judge, in accordance with the mandatory provision of Article 209/1 of the Law explained above, since a decision should be given according to the result of the criminal case filed on the allegation that the release commitment, which forms the basis of the case, was forged, after waiting for the decision to become final, the verdict had to be overturned for this reason.
REFERENCE
Sağlam, İ. (2023). Konut ve Çatılı İşyeri Kiralarında Yazılı Tahliye Taahhüdü ve Uygulamada Karşılaşılabilecek Sorunlar. Sakarya Üniversitesi Hukuk Fakültesi Dergisi, 11(1), 29-48.
General Assembly of Law Merits No: 2008/6-369 and Decision No: 2008/394
Court of Cassation 3rd Civil Chamber, Merits No: 2012/15259 and Decision No: 2012/22635
Court of Cassation 6th Civil Chamber, Merits No: 2015/5729 and Decision No: 2015/6841
Turkish Code of Obligations and Related Legislation
[1] Sağlam, İ. (2023). Konut ve Çatılı İşyeri Kiralarında Yazılı Tahliye Taahhüdü ve Uygulamada Karşılaşılabilecek Sorunlar. Sakarya Üniversitesi Hukuk Fakültesi Dergisi, 11(1), 29-48.
[2] Sağlam, İ. (2023). Konut ve Çatılı İşyeri Kiralarında Yazılı Tahliye Taahhüdü ve Uygulamada Karşılaşılabilecek Sorunlar. Sakarya Üniversitesi Hukuk Fakültesi Dergisi, 11(1), 29-48.
[3] Sağlam, İ. (2023). Konut ve Çatılı İşyeri Kiralarında Yazılı Tahliye Taahhüdü ve Uygulamada Karşılaşılabilecek Sorunlar. Sakarya Üniversitesi Hukuk Fakültesi Dergisi, 11(1), 29-48.