6th Civil Chamber Basis No: 2015/4311 Decision No: 2016/2084
“Legal Precedent” COURT: Civil Court of Peace TYPE OF LAWSUIT: Cancellation of Objection – Eviction
The decision regarding the cancellation of objection and eviction lawsuit rendered by the local court, whose date and number are indicated above, having been appealed by the plaintiff within the legal time limit; all documents in the file were read and discussed:
The lawsuit concerns the request for the cancellation of objection to the execution proceeding initiated for the collection of lease arrears and the eviction of the leased premises due to default (temerrüt). Upon the court’s decision to partially accept the request for the cancellation of objection and to reject the requests for execution denial indemnity and eviction, the judgment was appealed by the plaintiff’s counsel.
There is no dispute between the parties regarding the lease agreement dated 22.05.2011 with a term of one year and a monthly rent of 1,000 TL. The agreement stipulates that the monthly rent shall be paid between the first and the fifth day of each month. In the execution proceeding initiated by the plaintiff on 13.03.2013, the collection of a total of 6,996.08 TL (comprising 30.99 TL balance from September 2012, 6,600 TL principal rent for October 2012 through March 2013 at 1,100 TL per month, and 396.08 TL accrued interest) and the eviction of the premises were requested. The “Sample 13” payment order, containing the legal payment period and the eviction warning, was served on the defendant on 27.03.2013. The defendant debtor, in a petition dated 01.04.2013, stated that they accepted the debt excluding interest and attorney fees and would pay the rent debts in due time. It is understood from the bank payment receipt dated 07.08.2013 and the execution file collection receipt of the same date that the defendant debtor made a total payment of 7,245.25 TL.
In the lawsuit filed on 12.06.2013, the plaintiff’s counsel requested the eviction of the defendant due to default, stating that the defendant debtor did not make the payment within the 30-day period following the service of the Sample 13 payment order, along with the cancellation of the objection and execution denial indemnity. The defendant argued that the rent was paid within 30 days, that the parties had agreed to deduct expenses made for the premises from the rent because the premises were delivered before the execution proceeding, and that the interest amount was exorbitant; thus, they requested the dismissal of the lawsuit. The court decided to cancel the objection regarding the 365.09 TL interest and other claims but rejected the requests for execution denial indemnity and eviction. This judgment was appealed by the plaintiff’s counsel.
1-) Regarding the plaintiff’s appeal objections against the judgment concerning the debt: The principal rent claim was accepted by the defendant debtor and became finalized. Since the amount subject to appeal regarding the accessories of the principal debt is below 2,080 TL as of the date of the judgment (pursuant to the Code of Civil Procedure), the judgment is final (kesin). Therefore, the request for appeal in this regard is REJECTED.
2-) Regarding the plaintiff’s appeal objections against the judgment concerning eviction: Pursuant to Article 315 of the Turkish Code of Obligations, for an eviction decision to be rendered due to default, the requested rent or ancillary expenses must be due (muaccel), must not have been paid within the granted period, and the legal notice must explicitly state that the contract will be terminated if the payment is not made. In residential and roofed workplace rentals, the period to be granted to the tenant is at least thirty days. Rent is a “debt to be carried” (götürülecek borç); therefore, it must be paid in person to the lessor or sent via PTT as a “payment at residence” with costs borne by the tenant. Payments not made in the explained manner are not considered legal payments.
In our case: The Sample 13 payment order, which included the request for payment within 30 days and the 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 execution file on 07.08.2013, after the expiry of the period granted by the payment order. Since the debt was not paid within the legal thirty-day period, the conditions for default were met. Consequently, the eviction lawsuit should have been accepted. Rejecting the lawsuit was erroneous.
The judgment must be reversed for this reason.
CONCLUSION: It was unanimously decided on 16.03.2016 to REJECT the appeal objections regarding the debt due to the amount (Point 1), and to ACCEPT the appeal objections regarding eviction (Point 2); thus REVERSING this part of the judgment and returning the advance appeal fee to the appellant upon request.