Eviction Cannot Be Requested if the 10-year Period Has Not Expired

Deed Registration Case Petition

T.C. SUPREME COURT OF APPEALS

6th Civil Chamber

File No: 2014/5641 E.

Decision No: 2014/8167 K.

Date: 19.6.2014

Subject: Eviction due to Non-Renewal of Lease Contract at the End of the 10-Year Extension Period

(Application of the Law to Lease Contracts: Five years after the effective date for those where the ten-year extension period has not yet expired but the remaining period is shorter than five years / Two years after the effective date for those where the ten-year extension period has already expired.)

Eviction of Leased Property due to Expiration of Term

(According to TCO No. 6098, the lessor may terminate the contract at the end of the 10-year extension period, provided they give notice at least three months prior to the end of each subsequent extension year. Since the relevant Article is not yet applicable to the immovable property subject to the case in terms of the duration, the case must be dismissed.)

Non-Renewal of Lease Contract

Applicable Laws: TCO arts. 327, 347; Law No. 6101, Provisional art. 2

SUMMARY

The plaintiff’s attorney requested the eviction of the leased property, claiming that the defendant was notified that the lease contract would not be renewed but failed to vacate the property.

Pursuant to Article 347 of the Turkish Code of Obligations (TCO) No. 6098, in residential and roofed workplace leases, the lessor may terminate the contract without giving any reason, provided that they give notice at least three months prior to the end of each subsequent extension year, at the end of the 10-year extension period of the contract.

However, the said Article of the law shall be applied:

Five years after the date the law entered into force, for lease contracts provided for in the last sentence of Article 347 of the TCO where the ten-year extension period had not yet expired but the remaining period was shorter than five years (before the law’s effective date).
Two years after the date the law entered into force, for those where the ten-year extension period had already expired (before the law’s effective date).

Since there is no possibility of applying the last sentence of Article 347 of the Turkish Code of Obligations No. 6098 as of the date the lawsuit was filed, and the case is not based on any of the other grounds for eviction provided in the law, the request must be dismissed.

CASE PROCEDURE

The decision regarding the eviction lawsuit, whose date and number are written above and which was delivered by the local court, was appealed by the defendant within the legal period with a request for a hearing. However, since the case is not subject to a hearing due to its nature, the request for a hearing was rejected, and after reviewing all the documents in the file and considering the merits:

DECISION (REASONING)

The dispute relates to a request for eviction of the leased property due to the expiration of the term. Following the court’s decision to accept the case and order the eviction of the leased property, the judgment was appealed by the defendant’s attorney.

The plaintiff’s attorney, in the petition, requested the eviction of the leased property, stating that the defendant was notified by a notary warning dated 04.03.2013 that the lease contract would end on 01.10.2013 and would not be renewed, but the defendant failed to vacate the property. The defendant’s attorney argued that the application of the articles of the Turkish Code of Obligations regulating lease law was postponed until 01.07.2017 and that eviction could not be requested without stating a reason, requesting the dismissal of the case. The court decided to dismiss the case, taking into account Articles 327 and 347 of the former Code of Obligations (BK), concluding that the notice of termination was given 6 months before the end of the lease term, as stipulated in the contract.

The lease contract relied upon in the case and taken as the basis for the judgment is dated 01.10.2003 with a term of 10 years, under which the leased property belonging to the plaintiff was rented to the defendant to be used as a dialysis clinic. Article 3 of the special conditions section of the contract stipulated that “The lease contract period is 10 years, and if written notice of termination is not given six months before the expiration of the lease period, the lease contract shall be extended for 1-year periods.” The leased property, by its nature, is subject to the provisions of the Turkish Code of Obligations concerning residential and roofed workplace leases.

Pursuant to Article 347 of the Turkish Code of Obligations No. 6098, in residential and roofed workplace leases, if the tenant does not give notice at least fifteen days before the end of the term of fixed-term contracts, the contract is deemed to have been extended for one year under the same conditions. The lessor cannot terminate the contract based on the expiration of the contract term. However, at the end of the ten-year extension period, the lessor may terminate the contract without giving any reason, provided that they give notice at least three months prior to the end of each subsequent extension year.

However, in accordance with Provisional Article 2 of the Law on the Entry into Force and Application of the Turkish Code of Obligations, the aforementioned Article of the law (the last sentence of TCO Article 347) shall be applied:

Five years after the date the law entered into force, for lease contracts where the ten-year extension period had not yet expired but the remaining period was shorter than five years (before the law’s effective date).
Two years after the date the law entered into force, for those where the ten-year extension period had already expired (before the law’s effective date).

Since there is no possibility of applying the last sentence of Article 347 of the Turkish Code of Obligations No. 6098 as of the date the lawsuit was filed (09.10.2013), and the case is not based on any of the grounds for eviction written in Articles 350, 351, or 352 of the Turkish Code of Obligations, the court’s decision to order eviction instead of dismissing the request is contrary to procedure and law.

The judgment must be reversed for this reason.

CONCLUSION

For the reasons explained above, the appeal objections are accepted, and pursuant to Article 428 of the 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, the judgment is REVERSED by UNANIMOUS VOTE on 19.06.2014, with the prepaid appeal fee to be returned to the appellant upon request.