Article 352 of the Turkish Civil Code states: “If the tenant, after the delivery of the leased property, fails to vacate the property on a specified date despite having undertaken this in writing, the landlord may terminate the lease agreement by applying for enforcement or filing a lawsuit within one month from that date.
If the tenant, in lease agreements shorter than one year, fails to pay the rent within the lease term; or, in lease agreements of one year or longer, fails to pay the rent within one lease year or more, and this results in two justified written warnings being issued, the landlord may terminate the lease agreement by lawsuit within one month from the end of the lease term (or, in leases longer than one year, from the end of the lease year in which the warnings were issued).
If the tenant or their spouse residing with them owns a habitable residence within the same district or municipality, and the landlord was unaware of this at the time the lease agreement was established, the landlord may terminate the agreement by lawsuit within one month from the end of the agreement.” As seen, the first reason for eviction stemming from the tenant is that the tenant has given a written commitment to vacate the rented property. The second reason is that the law stipulates that two justified warnings must be given within the same rental period in case of non-payment of rent. Furthermore, the last paragraph of the article states that if the tenant and their spouse, with whom they live, own a habitable dwelling within the same district and town, and the landlord was unaware of this at the time the lease agreement was established, the landlord may terminate the contract through legal action within one month of the contract’s expiration date.
As can be seen, in lawsuits filed for eviction based on two justified warnings, in order for an eviction order to be issued, the tenant must have received two justified written warnings for non-payment of rent: within the rental period if the lease agreement is for less than one year, but within a rental year or more if the lease agreement is for one year or longer. The delivery of the warning is a prerequisite here. However, if payment is made after the warning, the provisions regarding two justified warnings remain the same. If the lease agreement is for an indefinite period and the rent is to be paid annually, then the requirement for two justified notices does not arise.
Article 346 of the Turkish Code of Obligations states: “No payment obligation other than rent and ancillary expenses may be imposed on the tenant. In particular, agreements stipulating that a penalty will be paid if the rent is not paid on time, or that subsequent rent payments will become due, are invalid.” According to this article, if a lease agreement contains a clause regarding acceleration, the rent payments that have become due must be demanded with a single notice. Therefore, it should not be considered to divide this rent and subject it to two justified notices.
However, although acceleration clauses in lease agreements are invalid under the Turkish Code of Obligations, if the leased property is a business premises, it is subject to deferment under Law No. 6217, as amended by Article 53 of Law No. 6353. In other words, the acceleration clause remains valid. In light of the above, if we examine the Supreme Court decisions:
The Supreme Court of Turkey, 3rd Civil Chamber, in its ruling dated May 2, 2017 (Case No: 2017/3239, Decision No: 2017/6395), stated: “The court ruled for the eviction of the leased property, noting that the plaintiff had proven the existence of two justified notices.
According to Article 352/… of the Turkish Code of Obligations, an eviction lawsuit based on two justified notices must be filed within one month of the end of the lease year in which the notices were given, in leases longer than one year.
For an eviction order to be issued in a lawsuit based on two justified notices, the tenant must have received two written notices for non-payment of rent within the lease term in lease agreements shorter than one year, and within one lease year or more in lease agreements of one year or longer. Payments made after the notice is served do not invalidate the existence of two justified notices.” In indefinite contracts and cases where rent is payable annually, two valid notices are not required.
If the lease agreement includes an acceleration clause, the rent that has become due must be demanded with a single notice. Therefore, it is not possible to divide this rent and demand it with different notices, thus creating two valid notices.
Regarding our case; the written lease agreement dated 01/01/2008, with a duration of one year, which forms the basis of the lawsuit, includes the following provision in its special conditions section: “If one month’s rent is not paid to the administration within the specified period, the entire annual rent becomes due immediately.” Although the second sentence of Article 346 of the Turkish Code of Obligations No. 6098, which came into force on 01/07/2012, invalidates the acceleration clauses included in lease agreements, since the leased property is a business premises and the defendant tenant is a joint-stock company considered a merchant under the Turkish Commercial Code, the acceleration clause agreed upon in the contract is subject to postponement pursuant to the provision of temporary article … of Law No. 6217, as amended by Article 53 of Law No. 6353. In other words, the acceleration clause remains valid. The plaintiff requested payment of the rent for March and April 2014 with a notice dated April 29, 2014. However, according to the acceleration clause in the contract, the rent for June 2014, which is the subject of the enforcement proceedings, became due on April 29, 2014, the date of the first notice. While this rent could have been requested with the first notice, it was not possible to make it the subject of a separate notice. Therefore, the court should have ruled that the condition of two valid notices was not met, and the decision to order eviction in writing is deemed incorrect, and this matter necessitates reversal.
(Source: Supreme Court of Turkey, 3rd Civil Chamber, Case No: 2017/3239, Decision No: 2017/6395, Decision Date: May 2, 2017)