T.C.
JUDGMENT
8TH CIVIL CHAMBER
E. 2017/694
K. 2017/1353
T. 9.2.2017
CASE : At the end of the trial held in the case between the parties and explained above, the Court decided to accept the case and upon the appeal of the judgement by the defendant, the file was examined and considered by the Chamber.
DECISION : The plaintiff’s attorney stated that his client purchased the land subject to the lawsuit, that there was a base station belonging to …. on the land, that there was no annotation in the land registry records of the land regarding the installation of a base station on this land or leasing it to this company, that a lease contract was not submitted, that a notice was sent to the … General Directorate, but the base station was not removed although 30 days passed, that there was a contract between the former owner of the land and … Hizmet ve İşletmecilik A. Ş., the former owner of the land and … Hizmet ve İşletmecilik A. Ş., but no response was given, they did not pay the rent and did not evacuate the real estate, … 27th Execution Directorate’s evacuation proceedings were initiated with the file numbered 2015/16700 Esas, the objection to the evacuation order was unfair, and the objection was removed and the evacuation was ordered.
The defendant defended the dismissal of the lawsuit by stating that the lease agreement was signed for 5 years, no notice of termination was made within the legal period in accordance with Article 6 of the lease agreement, the first rent was paid on 16/9/2009, the notices were not notified to the parties.
The court stated that according to the general provisions of the Code of Obligations, if an eviction notice is served to the tenant 3 months before the expiry of the 5-year period in the lease agreement, the new owner can request the eviction of the tenant by terminating the lease agreement with the previous owner, that there were 3 eviction notices served by the plaintiff 3 months before the expiry of the 5-year period, that there were 3 eviction notices served by the plaintiff 3 months before the expiry of the 5-year period, and that there were 3 eviction notices added to Article 5 of the lease agreement. Article 5 of the lease agreement, stating the commencement date of the lease as the date on which the payment is transferred will not bind the bona fide third party who purchases the immovable property, because the lease agreement is not annotated in the title deed, and the purchasing owner is not informed about the payment information and the lease agreement, and the new owner, who does not know when and how the payment is made, may become legally unprotected in determining the notice period, it was decided to accept the lawsuit, and the decision was appealed by the defendant’s attorney.
The lawsuit is related to the request for the removal of the objection to the enforcement proceedings initiated due to the expiry of the lease agreement and the evacuation of the leased property.
The plaintiff requested the evacuation of the land subject to the lawsuit in the enforcement proceeding initiated on 31/07/2015 based on the written lease agreement dated 28/08/2009, and the evacuation order was notified on 05/08/2015. The debtor objected to the eviction order by stating that the first rent was transferred on 16/09/2009, the lease expired on 16/09/2014 pursuant to Article 6 of the lease agreement, the enforcement proceeding was not initiated within the legal one-month period and the lease agreement was extended, there was no eviction commitment in the contract, and the notices claimed to have been sent by the creditor were not received.
In article (6/a.) of the lease agreement dated 28/08/2009 concluded between the former owner and the defendant; the commencement date of the lease agreement is the date on which the first year’s rent is sent/remitted after the completion of the installation of the tower, wire fence, energy transmission line and other facilities specified in article 8/a of the agreement, 3. In Article 3; it has been agreed that the contract shall be deemed to be extended with the same conditions and for the same period unless either party notifies the other party exclusively through a notary public that it has terminated the contract 6 months before the expiry of the term, and in the calculation of this period, the date of notification of the termination notice to the other party shall be taken as the basis. The defendant claims that the first transfer was made on 16/09/2009. In this case, the lease agreement does not have a clear and unambiguous start and end date, the termination notice period is included and the issue of whether the lease period has expired for the reasons stated in the defendant’s objection requires judgement. For this reason, while it should be decided to reject the lawsuit, it was not correct to decide to accept it on written grounds, and it required to be reversed.
CONCLUSION : For the reason explained above, it was unanimously decided on 09/02/2017 that the appeal objections of the defendant’s attorney were accepted and the judgement was DISMISSED in accordance with Article 428 of the Code of Civil Procedure No. 1086 with the reference to Article 366 of the EBL and Provisional Article 3 of the CCP No. 6100, and that the parties may request a correction of the judgement within 10 days as of the notification of the Supreme Court of Appeals Chamber decision in accordance with Article 366/3 of the EBL, and that the advance fee be returned to the appellant.
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