Today, many disputes arise in the field of lease law due to economic conditions. The lease agreement is regulated under the Turkish Code of Obligations. A lease agreement is a contract in which the lessor undertakes to leave the use of a thing or to benefit from it together with its use to the lessee, and the lessee undertakes to pay the agreed rental price in return. With the lease agreement, the lessor and the lessee are under certain obligations.

Upon the lessee's failure to properly fulfill its obligation, the lessor has the possibility to request the lessee to evacuate the immovable property. The subject to be discussed in this article is the eviction of the immovable property through execution without writ of execution due to non-payment of the rent. The eviction of the leased immovable property through execution without writ is regulated between Articles 269-276 of the Enforcement and Bankruptcy Law. In the absence of an authorization agreement in the lease agreement, the authorized enforcement office is the residency of the debtor, which is the general authority. In addition, the place where the immovable is located is also authorized. One of the reasons for the eviction of the leased immovable property through execution without writ of execution is the tenant's failure to pay the rent. We will discuss this in detail in our article.

I. INTRODUCTION

The primary obligation of the lessee is the obligation to fulfill the lease. Article 315 of the Turkish Code of Obligations about conditions for the default of the tenant who does not pay the lease debt in due time states that "If the lessee does not fulfill the obligation to pay the rent or ancillary expenses due after the delivery of the lease, the lessor may give the lessee a period of time in writing and notify the lessee that he will terminate the contract in case of non-performance within this period. The period to be given to the lessee is at least ten days, and at least thirty days for residential and roofed workplace leases. This period starts to run from the day following the date of the written notification to the lessee."

The relevant article in the TCO stipulates that the lessee must give a written deadline for default. In this case, it is possible for the tenant to be in default with the notification of the payment order. For this reason, the thirty-day period for the eviction of the tenant starts with the notification of the payment order to the tenant. There is no need to make a different written notice in any way. If the lessor has chosen to benefit from the general provisions of the EBL, an Example no: 13 enforcement proceeding can be initiated through general attachment for the collection of the rent receivable.

As a rule, the preparation of the request for proceedings without writ of execution, which also includes the request for eviction of the leased immovable, is the same as in the proceedings through general attachment. In this proceeding, in addition to the request for the collection of the rent receivable, a proceeding without judgment may be initiated, including the request for the eviction of the leased immovable. The following entries must be included in the follow-up request. As a rule, the lessor is the owner; if the lease agreement is concluded by a person other than the owner, this person may also initiate an eviction proceeding as the lessor. 1 If the lessor has assigned the immovable property to another person, the assignee may also pursue eviction proceedings without writ. 2

In the case of multiple tenants, since eviction is one of the indivisible debts, the enforcement proceedings must be made against all tenants. 3 If the tenant is deceased, the eviction proceedings must be filed against the tenant's heirs.4 The items to be included in the follow-up request consist of rent or ancillary expenses. The rent that can be requested for the first lease period is the rent agreed in the lease agreement. If there is an amount agreed by the parties for the subsequent lease periods, that amount can be requested. 5

If the lessor does not include the eviction request in the eviction request without judgment, the sample no: 13 proceeding cannot be sent. For this reason, if the eviction of the tenant is requested, the eviction request must be added. If it is not added, this proceeding will be in the nature of a proceeding without judgment through general attachment as sample no:7 proceeding. The establishment of the lease agreement is subject to the provisions of the TCO. For this reason, there is no form requirement in the lease agreement. Since the lease agreement can be made in writing or orally, there is no requirement to attach the lease agreement as the basis of the proceeding. 6

After the follow-up request is prepared, the enforcement office serves the debtor with a payment order sample no: 13. The payment order includes a notice stating that the period to be given to the lessee pursuant to Article 315 of the TCO is at least ten days, and at least thirty days for residential and roofed workplace leases. Again, Article 362 of the TCO contains a parallel regulation regarding ancillary expenses, and a period of at least sixty days must be given.

If no objection is made to the payment order within the legal period, the eviction proceeding without writ is finalized. If the debtor pays the debt within ten days, thirty days or sixty days after the finalization of the proceeding, the eviction proceeding without writ is terminated, the lessor can no longer request seizure and eviction for this reason. If the debtor has paid the rent debt within the payment period but has not paid the enforcement costs, the creditor can no longer request eviction from the enforcement court. However, it can apply foreclosure proceedings such as proceedings without writ. When the proceedings are finalized and the debtor fails to pay the rent debt within the payment period, the lessor may request an eviction order from the enforcement court within six months following the expiration date of the notice period. In this case, the only claim of the tenant in the eviction case may be that he/she paid the payment before the proceedings were finalized. If he proves this, the eviction request is rejected.

According to Article 269/a of the BEC, if the enforcement court determines that the execution request and the payment order are in accordance with the law, the debtor has not objected within the time limit and has not paid the rent debt within the notice period, it decides to evict the tenant.

II. OBJECTION TO PAYMENT ORDER

If the debtor has an objection to some or all of the debt or to the creditor's proceedings, it is written in the payment order that he/she must notify the enforcement office within seven days from the date of notification of this payment order, clearly and with the reasons, by petition or orally in accordance with the provision of Article 62 of the EBL. Again during this period, the debtor must notify his/her objections in accordance with the provision of Article 269 of the BEC: "If the debtor does not explicitly and unequivocally reject the lease contract and his/her signature in the contract, if any, he/she is deemed to have accepted the contract.". Since these issues must be included in the payment order, if they are missing, the payment order may be canceled by the debtor by filing a complaint. In the event that eviction is requested before the expiration of the periods specified in the payment order, the eviction request must be rejected. 7

The objection to the payment order is made to the enforcement office. The objection to the enforcement office must be made according to the provisions of Article 62 of the EBL. In this case, the debtor may object to the lease agreement and the signature. If he does not include these issues in his objection, he is deemed to have accepted the contract. Although the debtor accepts the lease agreement, he/she may object that the rent has been paid, that the rent is not due, and that there is an exchange.

  • Removal of Objection and Eviction

The lessor may ask the enforcement court to lift the objection of the debtor and evacuate the leased property due to non-payment of the money within the notice period. The lawsuit must be filed within 6 months from the notification of the objection. If it is not filed within this period, the claim cannot be filed again due to the grace period. The competent enforcement court is the court where the proceeding is filed. The Enforcement Court examines the request for lifting the objection and evacuation with a hearing. Making a decision on the paperwork without a hearing is a reason for reversal. 8

The Enforcement Court first examines whether the payment order complies with the relevant provisions. Since there is a 6-month grace period for the filing of the lawsuit, it is obliged to examine this period ex officio. While objecting to the payment order by the debtor, it is necessary to file a lawsuit for lifting the objection and eviction in any case where there is no objection to the lease contract (in the absence of a notarized or notarized contract).

  • If the lessor has relied on an oral lease agreement and the lease agreement has been rejected by the debtor, the creditor may request the removal of the objection and the eviction of the leased premises due to non-payment of the money within the notice period, if the creditor relies on a contract officially issued by a notary public or whose signature has been certified (Art. 269b/I of the EBL).
  • Moreover, if the creditor has relied on an ordinary written lease agreement and the debtor objects to the signature in the lease agreement, the creditor may request the removal of the objection and the evacuation of the leased property due to non-payment of the money within the notice period, if the creditor relies on a contract ex officio issued by the notary public or whose signature has been certified.
  • If the creditor has initiated an eviction proceeding without judgment on the basis of a lease agreement that has been ex officio issued or signed by a notary public, even if the debtor rejects the signature in his objection, the creditor may request the enforcement court to lift the objection and evacuate the leased property due to non-payment of the money within the notice period.
  • Eviction Case (Magistrate Law Court)

As can be seen from the issues we have mentioned above for the lifting of the objection and eviction case, in order for the lessor to file an eviction case in the Civil Court of Peace, the lessor must have objected to the signature in the lease agreement. However, although the objection alone does not cause this, if the lessor also has a lease agreement that has been issued ex officio by the notary public or whose signature has been certified by the notary public, the lessor may file a lawsuit for removal of the objection and eviction.

As a rule, in order for the lessor to file an eviction lawsuit in the Civil Court of Peace, the lessee must have been notified. The payment order with notice sent to the tenant with the eviction proceeding replaces the notice in Article 315 and Article 362 of the TCO.

If the lessor has to file an eviction lawsuit in the general court upon the objection made by the lessee and wins this lawsuit, the lessee will be sentenced to a fine pursuant to Article 269/b-5 of the EBL, since the lessee has wrongfully objected to the proceedings.

III. CONCLUSION

Considering the length of the proceedings, it takes a long time to file a lawsuit to finalize the dispute. In order for the lessor to evacuate the immovable property in a shorter period of time, it is more practical for the lessor to apply for execution without writ of execution. Both in terms of procedural economy and in terms of reducing the workload of the judges, it seems to be the easiest way to evict the leased immovable property through execution without writ. Although the process will still go to the litigation stage in the event that the tenant objects to the proceedings, we believe that it will be much more beneficial in terms of resolving the dispute more quickly if the enforcement proceedings are initiated without a judgment first.

Footnotes

1 KURU, Baki, İcra iflas Hukuku El Kitabı, 2. Publish, Türkmen Kitabevi, İstanbul, January 2006, p. 693

2 UYAR, Talih, İcra ve İflas Kanunu Şerhi, Serial II:İİK. 265-277, 3. Publish, June 2010, p. 17520

3 Uyar, p. 17526.

4 Kuru, p. 694.

5. Kırmızı, Mustafa, Kira Hukuku, 2. Publish, Bilge Yayınevi, Ankara 2020, p. 861.

6. "... There is no provision stating that the copy of the contract submitted to the enforcement directorate together with the request will be notified to the debtor in the annex of the payment order ..." (Yargıtay 12. H.D. 01.03.2005, 2005/690-3978)

7. "..Pursuant to Article 260 of the Code of Obligations with reference to Article 269/1 of the EBL, the creditor cannot request eviction from the enforcement court before the expiration of the 30-day payment period. ..." (Yargıtay 6. H.D. 10.05.2012, 2012/3986-7050)

8. Kırmızı, Mustafa p.895.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.