Civil Chamber 2016/4558 E. , 2016/3822 K.
“Case Law Text”
COURT :Magistrate Law Court
TYPE OF CASE : Evacuation of the lease
The decision on the eviction case given by the local court and dated and numbered above has been appealed by the plaintiff and the defendant within the time limit, all the papers in the file have been read and discussed and considered.
The lawsuit is related to the new owner’s request for termination of the lease agreement and eviction of the leased property due to substantial repair and modification. The court, based on the reason that the immovable property was evacuated after the lawsuit was filed, ruled that there was no need to make a decision due to the fact that the lawsuit was not subject to the lawsuit and that the defendant caused the lawsuit to be filed, the collection of the trial expenses from the defendant and a fixed attorney fee in favour of the plaintiff, and the judgment was appealed by the plaintiff and the defendant’s attorney for the trial expenses.
Article 350 of the Turkish Code of Obligations No. 6098 titled “Necessity, reconstruction and reconstruction due to reasons arising from the lessor. Article; “If the lessor is obliged to use the lease agreement due to the necessity of housing or workplace for himself, his spouse, his spouse, his descendants, his ascendants or other persons he is obliged to take care of by law, the reconstruction of the leased property or substantial repair for the purpose of reconstruction, If it is necessary to extend or change the lease and it is impossible to use the lease during these works, it may terminate the lease with a lawsuit within one month starting from the date to be determined by complying with the termination period and the periods stipulated for the notice of termination in accordance with the general provisions regarding the lease for fixed-term contracts and indefinite-term contracts. ” is regulated as follows.
Pursuant to Article 331/1 of the CCP; if there is no longer any need or reason to make a positive or negative decision on the claim that is the subject of the lawsuit due to an event that occurs after the lawsuit is filed, it may be mentioned that the lawsuit is not subject to the lawsuit. In such a case, the court must decide that there is no need to make a decision on the merits as a determination provision and make a decision on the costs of the proceedings according to the justification status at the time the lawsuit was filed.
Article 6 of the Lawyers’ Minimum Fee Tariff stipulates that “If the dispute is resolved until the preliminary examination report is signed, half of the fees determined by the provisions of the tariff shall be awarded, and if the dispute is resolved after the preliminary examination report is signed, the full amount shall be awarded. This article shall not apply to contractual attorney fee agreements calculated by judicial authorities”.
As for our case; the plaintiff’s attorney stated in the petition that the plaintiff purchased the immovable property, where the defendant was a tenant with a lease agreement dated 18.08.2010, on 03.12.2013, that he notified the defendant of the purchase, that the immovable property was subject to substantial repair and renovation
the plaintiff stated that he notified the defendants that he had to evacuate due to the lease agreement and requested the termination of the lease agreement and the evacuation of the leased property. The defendant attorney defended the dismissal of the case, stating that the notice was sent by the previous owner and that the plaintiff was notified that the immovable would be evicted on 18.08.2014.
The court should decide on the trial expenses and attorney’s fee in the case that is not subject to the case, taking into account the rightfulness of the plaintiff and the defendant. In the expert report dated 07.07.2014 received as a result of the discovery made by the court; it is seen that it is stated that the immovable subject to the lawsuit is registered within the scope of cultural heritage to be protected and in this context, it is a historical monument, therefore, it can be decided whether the lawsuit will be accepted or not if a new renovation project approved by the municipality is obtained and a new renovation licence is obtained accordingly and the decision of the Istanbul No. 7 Regional Board for the Protection of Cultural and Natural Heritage is known for the construction of this project. In this case, it is not correct to decide on the trial expenses and attorney’s fee in writing without the necessary research on the grounds that the defendant caused the lawsuit to be filed without eliminating the deficiencies stated by the experts.
The judgement should be reversed for this reason.
CONCLUSION: For the reasons explained above, it was unanimously decided on 10.05.2016 to accept the objections of appeal and to VACATE the judgement pursuant to Article 428 of the Code of Civil Procedure in accordance with the provision of the provisional Article 3 added to the Code of Civil Procedure No. 6100 with the Law No. 6217, and to refund the prepaid appeal fee to the appellant, if requested.
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