T.C. SUPREME COURT OF APPEALS 6th Civil Chamber
File No: 2015/4311 E. Decision No: 2016/2084 K.
“Case Text”
COURT: Civil Court of Peace TYPE OF CASE: Annulment of Objection – Eviction
The decision regarding the lawsuit for the annulment of objection and eviction, whose date and number are written above and which was delivered by the local court, was appealed by the plaintiff within the legal period. After reviewing all the documents in the file and considering the merits:
The lawsuit relates to a request for the annulment of the objection to the enforcement proceedings initiated for the collection of rent arrears and a request for the eviction of the leased property due to default (temerrüt). Following the court’s partial acceptance of the request for the annulment of the objection and the rejection of the requests for execution refusal indemnity and eviction, the judgment was appealed by the plaintiff’s attorney.
There is no dispute regarding the lease contract between the parties, which commenced on 22.05.2011, for a one-year term with a monthly rent of 1000 TL. The contract stipulated that the monthly rent would be paid between the 1st and the 5th of each month.
The enforcement proceedings initiated by the plaintiff on 13.03.2013 sought the collection of a total of 6,996.08 TL, consisting of:
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30.99 TL remaining rent arrears for September 2012;
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6,600 TL principal rent for October, November, December 2012, and January, February, and March 2013 (at 1,100 TL per month);
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396.08 TL accrued interest; and also requested the eviction of the leased property.
The Sample 13 payment order (including the statutory payment deadline and the eviction warning) was served on the defendant on 27.03.2013. The defendant debtor, in his petition dated 01.04.2013, stated that he accepted the debt excluding interest and attorney fees, and would pay the rent within the due period. It was understood from the bank payment receipt dated 07.08.2013 and the enforcement file collection receipt of the same date, found within the enforcement file, that the defendant debtor made a total payment of 7,245.25 TL.
In the lawsuit filed by the plaintiff’s attorney on 12.06.2013, the plaintiff stated that the defendant debtor did not make the payment within the 30-day period from the date the Sample 13 payment order was served, and requested the eviction of the defendant from the leased property due to default and the annulment of the defendant’s objection to the enforcement proceedings, along with execution refusal indemnity. The defendant defended that the rent was paid within 30 days, that the parties had agreed that expenses incurred due to the delivery of the leased property before the enforcement proceedings would be deducted from the rent, and that the interest amount was excessive, arguing that his objection to the interest was justified and seeking the dismissal of the case.
As a result of the trial conducted by the court, it was stated that the defendant debtor only objected to the interest, and there was no lawsuit filed for the annulment of the objection regarding the principal debt. The court also noted that the principal amount was paid within the due period, and the requested interest would not form the basis for default. Consequently, the court ordered the annulment of the defendant’s objection regarding 365.09 TL of interest and other claims, and rejected the plaintiff’s requests for execution refusal indemnity and eviction. This judgment was appealed by the plaintiff’s attorney.
1) Regarding the plaintiff’s appeal objections concerning the judgment on the claim:
The principal rent claim requested in the enforcement proceedings was accepted by the defendant debtor, and the enforcement proceedings became final regarding this part. In the lawsuit filed, the annulment of the objection was sought only regarding the ancillary claims (interest, etc.) of the principal debt. Considering the provision of Provisional Article 3 added to the Law on Civil Procedure (HMK) No. 6100 by Law No. 6217, in conjunction with the amended Article 427 of the former Law on Civil Procedure (HUMK) by Law No. 5219 dated 14.07.2004, and the ruling of the General Assembly of Civil Chambers of the Supreme Court of Appeals dated 02.03.2005 with file no. 9-82 E. and 126 K., since the claim subject to appeal was below 2,080 TL on the date of the judgment (the court’s decision), the judgment is final, and therefore, the request for appeal had to be REJECTED due to the amount limit.
2) Regarding the plaintiff’s appeal objections concerning the judgment on the eviction:
Pursuant to Article 315 of the Turkish Code of Obligations, for an eviction decision based on default, the requested rent or ancillary expenses must be due (muaccel – demandable), the rent and ancillary expenses must not have been paid within the given period, and the warning notice must clearly state that the contract will be terminated if the rent is not paid within the given period. The period to be given to the tenant is at least thirty days for residential and roofed workplace leases, at least sixty days for usufructuary leases, and at least ten days for other lease relationships. Since rent is a debt that must be taken and paid (götürülüp ödenmesi gereken borç), it must be taken and paid to the lessor in person or sent via PTT (Post) as a payment on delivery, with the cost borne by the tenant. Furthermore, if a special condition is agreed upon in the contract, this must also be taken into consideration. Payments made in a manner other than the one described cannot be accepted as legal payment. However, if a payment method has become customary (teamül), payment made in that manner is also valid.
In the present case, the Sample 13 payment order, which included a request for the payment of rent within a 30-day period and a warning that an eviction lawsuit would be filed, was served on the defendant on 27.03.2013. The defendant paid the rent requested in the enforcement proceedings to the enforcement file on 07.08.2013, after the expiration of the period given by the payment order. Given the non-payment of the debt within the statutory thirty-day payment period, the conditions for default were met. Therefore, the decision to reject the eviction lawsuit due to default with the written justification was incorrect.
The judgment must be reversed for this reason.
CONCLUSION: For the reasons explained in paragraph (1) above, the plaintiff’s attorney’s appeal objections concerning the judgment on the claim are REJECTED due to the amount limit. For the reasons explained in paragraph (2) above, the plaintiff’s attorney’s appeal objections concerning the judgment on the eviction are ACCEPTED, and pursuant to Article 428 of the former Law on Civil Procedure (HUMK), in view of Provisional Article 3 added to the Law on Civil Procedure (HMK) No. 6100 by Law No. 6217, this part of the judgment is REVERSED. The prepaid appeal fee shall be returned to the appellant upon request, by UNANIMOUS VOTE on 16.03.2016.