In residential lease agreements, the reasons for the eviction of the tenant are limited by law. Therefore, the landlord can only evict the tenant for reasons specified in the Turkish Code of Obligations. One of the eviction reasons regulated in Article 352 is the tenant having a residence.
If the tenant or their spouse living together has a suitable residence within the municipal boundaries of the same district or township, and if the landlord is unaware of this at the time of entering into the lease agreement, the landlord can terminate the agreement through legal action within one month starting from the expiration of the agreement.
I. Conditions for Filing a Lawsuit
The Residence Alleged to Exist Must Be Within the Same District or Municipality Boundaries.
Before initiating an eviction lawsuit based on the tenant having a residence, it would be appropriate for the landlord to conduct some inquiries. Filing an eviction lawsuit without conducting these inquiries may result in a favorable outcome for the tenant.
Firstly, the landlord should investigate whether the tenant or their cohabiting spouse has a residence within the boundaries of the same district or municipality. Since the law specifically mentions the requirement of being within the same district or municipality boundaries, even if the residences are close to each other, if the residence is in different municipality boundaries, the condition for eviction will not be met. (Court of Cassation 6th Civil Chamber, Case No: 2010/2660, Decision No: 2010/9071, Date of Decision: 13/07/2010)
The Residence Being Registered in the Name of the Tenant or Their Cohabiting Spouse
Even if other individuals are living in the property rented by the tenant, the residence must be registered in the name of the tenant or their cohabiting spouse. Therefore, the residences of the tenant’s parents, children, or siblings, even if they live together, will not fulfill the condition required by the law.
However, if the residence is registered in the name of the tenant’s spouse, the tenant can present defenses stating that they do not live with their spouse; there is a decision of separation, abandonment, or an ongoing divorce case, even if not finalized. Since the law specifically requires the condition of “living together” in the context of a spouse, in such a defense situation, the court will need to investigate whether this condition is met.
The Habitable Condition of the Residence.
Even if it is a property owned by the tenant or the tenant’s spouse, the residence must be in a habitable condition for the tenant or their family to live in. The social situation of the tenant, the suitability of the residence for living based on the family population, can also be examined in the lawsuit. For example, even if the tenant has purchased an apartment within the same district, if another tenant lives in the property, it will be concluded that the residence is not in a habitable condition.
Whether the residence is habitable or not will be determined during the lawsuit through a site inspection (keşif). Therefore, when the landlord who wants to file a eviction lawsuit based on the tenant having a residence includes the “site inspection” and “expert witness” evidence in the lawsuit petition.
The Residence Being Acquired at the Time of the Lease Agreement
According to the law, the provision stating, “if they do not know about it when the lease agreement is established,” can be interpreted as the residence owned by the tenant or their spouse existing at the time the lease agreement is made.
In a precedent-setting case, the tenant argued that the immovable property registered in the name of the tenant did not exist at the time the lease agreement was made but was acquired two years later. The judge of the Peace Civil Court ruled to dismiss the case on the grounds that the existence of an immovable property concealed by the defendant at the time of establishing the lease agreement could not be mentioned. However, at the appeal stage, the 49th Civil Chamber of the Istanbul Regional Court of Appeal concluded that the acquisition of a habitable residence by the tenant after the establishment of the lease agreement did not affect the outcome. (Istanbul Regional Court of Appeal 49th Civil Chamber 2020/862 Esas and 2020/742 Karar dated 15/12/2020)
Therefore, the date on which the tenant acquired the residence does not have any significance in terms of practice. However, it is necessary for there to be an immovable property registered in the name of the tenant or their cohabiting spouse at the time the lawsuit is filed.
II. Filing Period
The landlord must file an eviction lawsuit due to the tenant or spouse having a residence within one month at the latest from the expiration date of the lease agreement. This period is a statute of limitations and will be taken into consideration by the court ex officio. However, if the landlord files an eviction lawsuit before the lease agreement ends or requests eviction citing a reason after the expiration date of the lease agreement, the lawsuit filing period is extended by 1 year.
III. Competent Court
An eviction lawsuit due to the tenant having a residence falls within the jurisdiction of the Peace Civil Court. The eviction lawsuit can be filed in the court where the leased property is located or at the court with jurisdiction over the tenant’s residential address.
In Conclusion
In eviction lawsuits, the value of the claim is calculated as a 12-month rental fee. The losing party in the lawsuit will also have to pay the attorney fees and litigation costs.
The conditions for filing an eviction lawsuit due to the tenant having a residence are quite strict. The landlord needs to prepare thoroughly before filing the lawsuit; otherwise, they might not be able to evict the tenant and may end up paying attorney fees and litigation costs.
Memduh Remzi BAL
Lawyer / Attorney in Turkey
Landlord Tenants Attorneys in Turkey
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Sen Mail : info@ballawyer.com
