ENTRANCE
Lease agreements are ongoing contracts that impose mutual obligations and responsibilities on the parties. Just as the lessor has the right to use the leased property as stipulated in the agreement, the lessee also has the obligation to abide by the lease. However, in practice, the use of the leased property for purposes other than its intended purpose or in an unlawful manner due to the lessee’s breach of contract is a common problem. In such cases, Article 316 of the Turkish Code of Obligations (TCO) allows the lessor to file an eviction lawsuit under certain circumstances.
In this study, the case of eviction due to breach of contract within the scope of TCC Article 316 will be examined in detail and evaluated in the light of the opinions in the doctrine and judicial precedents.
DEVELOPMENT
1-) Legal Basis: Turkish Code of Obligations, Article 316
The tenant is obliged to use the rented property with care in accordance with the contract and to show due respect to the people living in the property where the rented property is located and to the neighbors.
If the tenant violates this obligation, the landlord must give written notice, in the case of residential and commercial leases, at least thirty days to rectify the violation, or to terminate the contract. In other leases, the landlord may terminate the contract immediately, without prior notice, by giving written notice to the tenant.
In residential and workplace leases, if the tenant intentionally causes serious damage to the leased property, if it is understood that the period given to the tenant will be useless, or if the tenant’s behavior contrary to this obligation is intolerable for the lessor or the people living in the same property or the neighbors, the lessor may terminate the contract immediately with a written notice.
2-) Types of Contradiction
Breach of contract may occur in different ways:
– Violation of the intended use:Use of real estate rented as a residence as a workplace (TBK 316)
-Behaviors that violate the rules of common life:Disturbing neighbors, misusing real estate
-Unauthorized Subleasing or Transfer of the Leased Property:The tenant rents or transfers the real estate to a third party. (TBK 322)
-Unauthorized Renovation or Repair:The tenant makes structural changes such as demolishing walls or changing plumbing. (TBK 317/1)
-Behavior Violating Neighborhood Rights:Noise, foul odor, disruption or environmental damage.
-Violation of the Tenant’s Duty of Care:Damaging the rented property and not fulfilling cleaning and maintenance obligations. (TBK 316)
-Not Paying Insurance, Dues, Taxes or Common Expenses:Not paying apartment dues or real estate taxes.
3-) Warning and Time Condition
The tenant is obligated to use the leased property diligently, in accordance with the contract, and to show due respect to the occupants of the property and neighbors. If the tenant violates this obligation, the landlord must give a written notice, for residential and commercial leases, at least thirty days, to remedy the violation, or to terminate the contract. Eviction proceedings cannot be initiated without a direct notice. The minimum period granted to the tenant is thirty days for residential and commercial leases. In other leases, the landlord may terminate the contract immediately, without prior notice, by giving written notice.
In practice, it is preferred for the notices to be sent through a notary, by registered letter or during the mediation process in terms of evidence.
4-) Mediation Process Regarding Contract Violation
As of September 1, 2023, mandatory mediation has become a condition of litigation in eviction cases arising from tenancy relationships. In this context:
-A lawsuit cannot be filed without resorting to mediation.
-The mediation report must be attached to the petition.
-Statements that serve as warnings during a mediation session may also be legally considered. Statements made as warnings during this process may also be considered; however, a separate, explicit written warning is legally recommended.
CONCLUSION
Eviction based on breach of contract is a right granted to the landlord if the tenant violates their obligations under the lease. However, to exercise this right, concrete proof of the breach of contract and a written notice to the tenant (for residential and commercial leases) are legal requirements.
Whether the violation is a single incident or a persistent violation, and whether the notice was given in a timely and valid manner, should be evaluated alongside the tenant’s defenses. Therefore, each case should be considered on its own merits. The Court of Cassation’s precedents have also adopted the eviction order as a factor of consistency if it is proven that the violation continued after the notice.
In this respect, an eviction lawsuit due to breach of contract is an important tool for both protecting the landlord’s property rights and establishing the rules of trust, loyalty and honesty, which are the basic principles of tenancy law.
MOST WONDERED QUESTIONS ABOUT EVICTION CASE DUE TO BREACH OF CONTRACT
1-) What is an eviction case due to breach of contract?
Based on Article 316 of the Turkish Code of Obligations, if the tenant does not use the leased property in accordance with the contract or acts contrary to the duty of care, the lessor can send a written warning to the tenant and request that this behavior be remedied, and if this request is unsuccessful, the lessor can terminate the contract for just cause and file an eviction lawsuit.
2-) What situations does nonconformity cover?
-Behavior contrary to the intended use (e.g. using a property rented for residential purposes as a workplace)
-Careless use and violation of neighborhood law
-Unauthorized use of the leased property despite the prohibition on subleasing or transferring it
3-) Is a written warning required before the eviction case?
-For residential and workplace leases, unless the tenant’s fault is clearly serious, a written notice must be sent, giving at least 30 days.
-However, in case of serious damage or intolerable situations, the contract may be terminated by direct written notice.
4-)What is the definition of careless use?
This refers to behavior such as the tenant’s use of the property in a way that harms its features or intended use, or causes a nuisance to neighbors. If these violations are fundamental and persistent, they are grounds for eviction.
5-) What level of nonconformity should there be?
The contradiction“essential”Simple and remediable violations are not considered sufficient grounds for eviction; rather, behaviors that cause permanent or serious harm are considered.
6-) Which court has jurisdiction and authority?
The competent court is the Civil Court of Peace. The competent court is the court where the leased property is located. In other words, the Civil Court of Peace in the province or district where the property is actually located has jurisdiction.
7-) Can an authorization agreement be made?
Yes, parties (traders and public entities) may authorize a different court by entering into a jurisdiction agreement. However, such agreements must be made in writing and clearly (HCP Article 17).
😎 What are the elements of evidence?
The lease agreement, written notice, witness statements, discovery and expert reports can be used as evidence.
9-) What documents can be used to prove non-compliance?
Written notices, witness testimony, inspection reports, and other legally acceptable evidence that can document a breach of contract may be used. The lessor must prove the validity of this action.
10-) In what cases can termination be made without a notice requirement?
-The tenant intentionally causes serious damage,
-Understanding that the time given will not be useful,
If the tenant’s behavior becomes intolerable to the landlord, the occupant, or neighbors, direct termination with written notice is possible. However, in all such terminations, a court order for eviction is required.
11-) In what cases can this case be filed?
It can be opened in case of obvious breaches of the contract, such as using the leased property contrary to its intended use, unauthorized subleasing, damaging the building, or causing a disturbance to neighbors.
12-) Is subletting grounds for eviction?
Subleasing without the written consent of the lessor constitutes a violation of Article 322 of the Turkish Code of Obligations and is grounds for eviction.
13-) Is the tenant’s disturbance of the neighbors grounds for eviction?
Yes. Behaviors that violate neighborly laws, such as noise and unrest, are grounds for eviction (TCO Art. 316).
14-) Is direct eviction possible if the tenant damages the property?
If the damage is serious and irreparable, the lessor may file an eviction lawsuit without the need for written notice.
15-) Is a written warning mandatory in case of non-compliance with the contract?
A written notice of at least 30 days is required for residential and commercial leases. However, in cases of serious violations (such as the tenant deliberately causing serious damage to the property, the extension granted to the tenant being deemed ineffective, or the tenant’s behavior being intolerable to the lessor, residents, or neighbors), the lease may be terminated without a notice, with a written notice of termination.
16-) Is non-payment of membership fees or common expenses grounds for eviction?
The tenant is obligated to contribute to common expenses. If the tenant fails to contribute to or pay these expenses, they are in breach of their obligations and may be evicted for this reason.
17-) Can a behavior that is not prohibited in the contract be grounds for eviction?
If the behavior violates the rules of integrity or the law (for example, illegal activities), it may be grounds for eviction.
18-) Is a verbal warning sufficient?
Verbal notices are not sufficient for residential and commercial leases. The law stipulates that if a tenant violates their contractual obligations, the landlord must provide a written notice, at least 30 days in advance. Sending the notice to a notary or via PTT e-telegram provides the landlord with easier proof.
19-) Is eviction still possible after the tenant corrects the violation?
If the tenant has resolved the violation within the allotted timeframe, eviction is not possible. However, if the tenant fails to resolve the violation within the allotted timeframe and resolves the violation after the allotted timeframe, eviction is possible.Supreme Court 6th HD., E. 2011/3335 K. 2011/7058 T. 27.06.2011)
| “…In our case, it is alleged that the defendant allocated the leased property to a third party and that the breach of contract persisted despite a timely notice. The property in question is an apartment and is subject to Law No. 6570. A 15-day notice to remedy the breach of contract was served on the defendant on July 31, 2009. An on-site assessment by an official of the plaintiff foundation, dated October 21, 2009, determined that a third person, other than the tenant, was residing in the property. Indeed, this was confirmed by the sworn statement of witness R. Ö. The fact that the third person left the property much later than the 15-day notice period does not eliminate the breach of contract. Since the defendant failed to remedy the breach of contract within the time period provided in the notice, it is incorrect to dismiss the case on erroneous grounds, when the defendant should have evicted the property. |
20-) Is it necessary for the plaintiff to be the owner of the property?
The person who can file an eviction lawsuit based on breach of contract is the landlord. The landlord does not necessarily have to be the property owner.
COURT OF APPEALS DECISIONS REGARDING EVACUATION CASE DUE TO VIOLATION OF CONTRACT:
1-) Supreme Court of Appeals 6th HD., E. 2011/3335 K. 2011/7058 T. 27.06.2011:Supreme Court decision stating that the lessor has the right to terminate the contract even though the violation has been remedied after the period given in the notice has passed.
| “…In our case, it is alleged that the defendant allocated the leased property to a third party and that the breach of contract persisted despite a timely notice. The property in question is an apartment and is subject to Law No. 6570. A 15-day notice to remedy the breach of contract was served on the defendant on July 31, 2009. An on-site assessment by an official of the plaintiff foundation, dated October 21, 2009, determined that a third person, other than the tenant, was residing in the property. Indeed, this was confirmed by the sworn statement of witness R. Ö. The fact that the third person left the property much later than the 15-day notice period does not eliminate the breach of contract. Since the defendant failed to remedy the breach of contract within the time period provided in the notice, it is incorrect to dismiss the case on erroneous grounds, when the defendant should have evicted the property. |
2-) Supreme Court of Appeals 6th HD., E. 2014/2794 K. 2014/7241 T. 03.06.2014:In case of late return of the leased property by the tenant, it has been decided that the lessor’s damages should be calculated based on the rental income lost by the lessor between the time the leased property should be returned and the time it is returned.
| “…The extent of damages resulting from the late evacuation and return of the leased property must be determined based on objective criteria. In this context, it must be accepted that the damages to be compensated are limited to the rental income the plaintiff lost between the date the leased property was promised to be evacuated and the date it was actually vacated. While the court should make this calculation and render a decision based on the results, it is inappropriate to issue a written judgment based on a legally unfounded justification. |
3-) Supreme Court of Appeals 3rd HD., E. 2017/4792 K. 2017/12245 T. 19.9.2017:According to the Supreme Court, it considers disrespectful behavior by a tenant toward the landlord or their relatives, even if they do not live in the same property, to be contrary to Article 316 of the Turkish Code of Obligations. Insults by a tenant against, kicking out, or assaulting the landlord or their relatives, etc., have been deemed contrary to the obligation to respect the residents of the property and neighbors, as stipulated in Article 316 of the Turkish Code of Obligations.
| “… On August 2, 2014, the plaintiff went to ask when the shop would be evacuated and the defendant and his wife insulted and beat the plaintiff’s daughter, granddaughter and son-in-law. He also insulted the plaintiff who went to the balcony after the fight. He claimed that a public lawsuit was filed against the defendant and his wife for insult and intentional injury in the investigation file numbered 2014/4889 of the Office of the Chief Public Prosecutor. After this incident, the plaintiff and his relatives were insulted by the plaintiff and his relatives passing by, the rental relationship became unbearable for his client, and for this reason, the rented property was openly misused. He requested the termination of the lease agreement dated June 10, 2013 and the eviction of the defendant from the rented property. Although the court decided to dismiss the case because the conditions for open misuse were not met on the grounds that the argument between the parties did not constitute a breach of contract, the court ruled that “observing the neighborly relations expected from the tenant, not causing disturbance to the tenant and his family” as regulated in Article 316 of the TCC. The obligation to “refrain from inappropriate behavior” does not refer to whether these behaviors (insult and intentional injury) constitute a crime within the meaning of the Turkish Penal Code. For the conditions for eviction due to open misuse stipulated in Article 316 of the TCC to be met, it is sufficient for the behavior of the tenant and those acting together to become intolerable for the landlord or neighbors. |
4-) Supreme Court Decision – 6th HD., E. 2003/3726 K. 2003/3879 T. 26.5.2003:The Supreme Court ruled that in an eviction case filed due to non-conformity to the contract, the lessor must give the tenant a written notice and a suitable period of time to remedy the non-conformity to the contract before the eviction case is filed, and that if an eviction case is filed before these conditions are met, the case must be rejected.
| “…Before filing a lawsuit for termination of the contract and eviction of the leased property, which is referred to in practice as a breach of contract, as stipulated in Article 256 of the Code of Obligations, the landlord must grant the defendant tenant a reasonable period of time to remedy the breach, and the lawsuit must be filed at the end of this period. Because the necessary notice was not provided, the lawsuit should have been dismissed. However, the issuance of a written eviction order based on this omission was deemed unlawful and unlawful, and therefore, the judgment should have been overturned. |
5-) Supreme Court Decision – 6th HD., E. 2005/7428 K. 2005/8987 T. 4.10.2005:In this decision, the Supreme Court did not accept the non-fulfillment of issues that are not directly related to the use of the leased property and the failure to fulfill an issue that can be resolved with a simple repair as a breach of contract.
| “…According to Article 3 of the special conditions section of the contract, “withholding taxes, garbage and cleaning taxes, and general expenses related to site management are the responsibility of the tenant.” Failure to pay the items listed in this article is not considered a breach of contract, as they are not directly related to the use of the leased property. “…replacing radiators is a simple process and can be carried out at any time. Failure to carry out a matter that can be remedied with a simple repair cannot be considered a breach of contract…” |
The Importance of Legal Support
Tenancy law, eviction cases, and contractual disputes require technical knowledge, legislative expertise, and in-depth expertise in judicial practices. While the legal provisions are clear, each case has its own unique circumstances, and even a small mistake can lead to loss of rights. Therefore, working with an experienced attorney from the beginning of the process is crucial to determining the right strategy, protecting your rights, and achieving the swiftest resolution.
It’s important to remember that every step taken during the litigation process has legal and financial implications. A professional lawyer will guide you not only in preparing the petition but also in gathering evidence, representing the court, negotiating, and pursuing potential alternative solutions.
In order not to risk your rights and to manage the process safely, it is recommended that you consult a specialist lawyer.