T.C.
JUDGMENT
12TH CIVIL COURT
E. 2020/1175
K. 2020/2309
T. 9.3.2020
* REMOVAL OF OBJECTION AND DEMAND FOR EVACUATION (It is seen that the commitment in the contract is an eviction commitment given while the lease relationship continues, but the commitment does not include a specific date, and since the eviction date is not included in the eviction commitment in a certain way, it cannot be mentioned that there is an eviction commitment in the sense required by Article 352 of the Turkish Code of Obligations / It is necessary to decide to dismiss the case for the stated reason)
* EVACUATION COMMITMENT ( The Eviction Commitment in the Lease Agreement Does Not Include a Certain Date / Eviction Request Will Be Rejected Since It Cannot Be Mentioned That There is an Eviction Commitment in the Meaning Required by Article 352 of the Law)
* THE EVACUATION COMMITMENT DOES NOT CONTAIN A SPECIFIC DATE (Since it cannot be mentioned that there is an Evacuation Commitment within the meaning of Article 352 of the Code, the Evacuation Request Should be Rejected)
6098/m.352
2004/m.272-275
SUMMARY : The lawsuit is related to the removal of the objection and eviction request.
In the concrete case; There are lease agreements dated 01.02.2005 and 01.05.2012 between the parties, the signature in the agreements is not denied by the defendant, in Article 1 of the agreement dated 01/05/2012, it is stated that the agreement is made for the purpose of extending the lease term of the lease agreement made between the parties on 01/02/2005, determining the new period rental price and adapting it to the changing conditions, in Article 5 “The lease term is agreed as 3 + 2 years starting from 01. 05.05.2012 and at the end of this period, the tenant shall vacate the premises and deliver it to the lessor unconditionally.”, the defendant has been in the leased immovable since this date according to the lease agreement dated 01/02/2005, the commitment in question is an eviction commitment given while the lease relationship continues, but the commitment does not include a specific date.
Since the date of eviction is not clearly stated in the eviction commitment, it cannot be said that there is an eviction commitment in the sense sought by Article 352 of the Turkish Code of Obligations. In that case, the court of first instance should decide to dismiss the case with the stated reasoning and the Regional Court of Justice should decide to reject the appeal on the merits.
CASE : Upon the request of the debtor to examine the decision given by the Regional Court of Appeal with the date and number written above, the file related to this matter was sent to the department, and after the report prepared by the Examining Judge for the case file was listened to and all documents in the file were read and examined, the matter was discussed and considered:
DECISION : The creditor started an execution proceeding without judgement based on the eviction commitment, the debtor was notified of the eviction order numbered sample 14, the debtor objected to the proceeding on the grounds that there was no eviction commitment letter given in accordance with Article 352 of the Turkish Code of Obligations together with other objections, and the execution proceeding was stopped by the execution directorate, the creditor applied to the execution court and requested the removal of the objection and eviction, and the court; 272-275. According to the provisions of articles 272-275 of the BEC, in order for the tenant to be evicted at the end of the lease period written in the contract, it must be one of the immovable properties that are not subject to the Rent Law No. 6570, and it was decided to dismiss the lawsuit on the grounds that the immovable property is within the scope of the municipal boundaries, and upon the application of the plaintiff-creditor to appeal against the decision of the court of first instance, the Regional Court of Justice decided that 05.2012 for a term of 3+2 years, according to Article 5 of the agreement, it is agreed that the lessee will evacuate the immovable and deliver it to the lessor unconditionally and unconditionally at the end of the contract, and as such, the provision in question is in the nature of an evacuation undertaking that aims to evacuate the leased property at the end of the lease period, forcing the evacuation, and the defendant is in the immovable property 01.05.2005. 2005, even if a new lease agreement dated 01.05.2012 is made later, it is understood that the eviction commitment subject to the trial is valid since it is in the nature of an eviction commitment given while the lease relationship continues (while living in the leased property), and it is decided to remove the decision of the court of first instance, to remove the objection and to evacuate by accepting the appeal application.
Although other appeal objections are not relevant;
In the first paragraph of Article 352 of the Turkish Code of Obligations No. 6098; “If the lessee, after the delivery of the lease, has undertaken in writing to the lessor to vacate the lease on a certain date, but has not vacated it, the lessor may terminate the lease agreement within one month from this date by applying for execution or filing a lawsuit”
In the concrete case; there are lease agreements dated 01.02.2005 and 01.05.2012 between the parties, the signature in the agreements is not denied by the defendant, in Article 1 of the agreement dated 01/05/2012, it is stated that the agreement is made for the purpose of extending the lease term of the lease agreement made between the parties on 01/02/2005, determining the new period rental price and adapting it to the changing conditions, in Article 5, “The lease term is agreed to be 3 + 2 years starting from 01. 05.05.2012, and at the end of this period, the tenant shall vacate the premises and deliver it to the lessor unconditionally.” It has been seen that the defendant has been in the leased immovable since this date according to the lease agreement dated 01/02/2005, the commitment in question is the eviction commitment given while the lease relationship continues, but the commitment does not include a specific date.
Since the date of eviction is not clearly stated in the eviction commitment, it cannot be said that there is an eviction commitment in the sense sought by Article 352 of the Turkish Code of Obligations.
In that case, while the court of first instance should decide to dismiss the case with the stated reasoning and the Regional Court of Justice should decide to reject the appeal on the merits, it is inappropriate to render a written judgement.
CONCLUSION : With the partial acceptance of the debtor’s appellate objections, the decision of the 36th Civil Chamber of the … Regional Court of Appeals dated 18/10/2019 and numbered 2018/487 E. – 2019/1823 K. is DISMISSED for the reasons written above, in accordance with Article 373/2 of the CCP No. 6100, which should be applied by referring to Article 364/2 of the EBL amended by the Law No. 5311, the prepaid fee shall be refunded upon request, and the file shall be sent to the Regional Court of Appeals that made the decision, it was unanimously decided on 09.03.2020.
You can access our other article examples and petition examples by clicking