As it is known, the tenant’s eviction can be ensured based on an eviction notice. However, many legal experts state that the eviction notice is invalid when the rented property is a “family residence.” However, the issue is not as simple as expressing it in a single sentence. Does the objection to a family residence against an eviction notice render the eviction notice invalid? Can a tenant win an eviction case with a family home objection?
I. Legal Framework
Legal Provisions
Article 194, paragraph 1 of the Turkish Civil Code stipulates that “one of the spouses cannot terminate the lease agreement related to the family residence, transfer the family residence or restrict the rights on the family residence without the explicit consent of the other spouse.” The fourth paragraph of the same article states that “if the family residence is rented by one of the spouses, the other spouse who is not a party to the agreement becomes a party by notifying the lessor, and the notifying spouse is jointly and severally liable with the other spouse.“
Article 349, paragraph 1 of the Turkish Code of Obligations regulates that “the tenant of immovable property rented for use as a family residence cannot terminate the lease agreement without the explicit consent of their spouse.” The last paragraph stipulates that “if the non-tenant spouse acquires the status of a party to the lease agreement by notifying the lessor, the lessor must notify both the tenant and the spouse separately of the payment period subject to the termination notice and payment demand.“
Supreme Court General Assembly Decisions
In the decision numbered 2005/12-652 Esas and 2005/583 Karar dated 19.10.2005 and the decision numbered 2005/676 Esas and 2005/600 Karar dated 26.10.2005, the Supreme Court General Assembly ruled that:
“Therefore, the court should first examine this claim and investigate whether the complainant has filed a lawsuit to determine that this place is a ‘family residence’ and whether there is a determination made by the family court. If necessary, the complainant should be given the opportunity and authority to file a lawsuit with the family court to prove that the property subject to eviction notice is a family residence, and a decision should be made accordingly.“
II. Evaluation
According to the regulations in the laws, the reason for the legislator to make a decision regarding the family residence is to protect the spouse who is not a party to the lease agreement against the other spouse. This is clearly evident from the phrases “one of the spouses” and “in leased properties used as a family residence.“
Both legal provisions state the following in their article justifications: “...Thus, in this case, in order to protect the marriage union, it was intended to prevent one of the spouses from terminating the contract unilaterally as a tenant without the express consent of the other spouse.” and “…However, in our country, the non-contracting spouse may also suffer during the continuation of the marriage due to lease agreements.“
The purpose of legal provisions is to provide protection for the continuation of marriage against possible hostility between spouses. It is certain that if the leased property used in the marriage union is terminated by the tenant spouse unilaterally without the express consent of the other spouse, the non-contracting spouse may be harmed.
In the final paragraphs of both legal provisions, the non-contracting spouse is granted the right to become a party to the lease agreement by giving unilateral notice to the lessor.
Regarding the lessor, there is no special regulation stating that they cannot initiate an eviction process against a leased property used as a family residence in the legal provisions.
Regarding the decisions of the General Assembly of the Court of Cassation;
In both decisions, lawsuits were filed by the non-contracting spouse for the cancellation of execution proceedings initiated based on eviction notices. In both Court of Cassation decisions, divorce cases between the tenant spouse and the non-contracting spouse were at issue. The issue raised in court is also based on the tenant spouse giving an eviction notice to harm the non-contracting spouse.
It should not be overlooked that both reviews are based on enforcement law and lawsuits based on the request for the cancellation of enforcement proceedings.
III. Practice
Many tenants or their representatives object to eviction proceedings or eviction lawsuits initiated by the landlord based on the commitment to vacate the rental property by claiming that the rented property is a “family residence.” However, as explained above, the purpose of legal regulations is not to prevent the landlord’s right to eviction.
In our opinion, two points should be evaluated in objections that claim the rented property is used as a family residence against the landlord who initiates the legal process based on the commitment to vacate or any other eviction reason.
Firstly, has the spouse who is not a party to the lease made any notification to the landlord to become a party to the lease?
Secondly, if the spouse who is not a party to the lease has made a notification, is the timing of this notification before or after the legal application for eviction?
If the spouse who is not a party to the lease has made a notification before the landlord initiates the legal process for eviction, they will become a party to the lease as a “tenant.” Due to the indivisibility of the eviction debt, the existence of the eviction reason will be required for both tenants. Therefore, the eviction process must be initiated for all tenants based on the lease agreement for the tenant’s eviction. In such a case, the tenant who did not sign the commitment to vacate will not be evicted.
However, if the spouse who is not a party to the lease did not make a notification before the landlord initiates the legal process based on the commitment to vacate, how will the objection that the rented property is a “family residence” affect the process?
In my opinion, if the spouse who is not a party to the lease did not become a party to the lease before the legal process was initiated by the landlord, objections that claim the rented property is a family residence should not be considered. Because the legislator provides the right to become a party to the lease to the spouse who is not a party to the lease with a unilateral notification in both legal regulations. Therefore, the spouse who is not a party to the lease must exercise this right in a timely manner. Otherwise, the landlord who has obtained a valid and lawful eviction notice will be harmed. The landlord should not be obliged to investigate whether the tenant will use this rented property as a “family residence” for every rental relationship.
The Practice of the 12th Civil Chamber of the Court of Cassation
As it is known, the 12th Civil Chamber of the Court of Cassation decides on legal disputes related to enforcement law as the appellate court. Disputes arising from enforcement proceedings and lawsuits initiated based on eviction notices are resolved by this chamber.
As explained in detail above, if the lessor becomes a party to the lease agreement through unilateral notification by the non-party spouse before initiating enforcement proceedings based on the eviction notice, it may be possible to file a lawsuit in the enforcement court for the cancellation of the initiated enforcement proceedings. (Court of Cassation Decision – 12th Civil Chamber, E. 2016/4773 K. 2016/22776 T. 1.11.2016 Court of Cassation Decision – 12th Civil Chamber, E. 2016/30367 K. 2018/3319 T. 18.4.2018 Court of Cassation Decision – 12th Civil Chamber, E. 2016/12341 K. 2017/3837 T. 14.3.2017)
In the Court of Cassation Decision – 12th Civil Chamber, E. 2016/4773 K. 2016/22776 T. 1.11.2016, the lessor initiated an enforcement proceeding based on the eviction notice against the tenant spouse who was in the process of divorce and did not pay the rent. The non-party spouse, who became a party to the lease agreement, filed a lawsuit for the cancellation of the enforcement proceedings, claiming that the lessor and the tenant spouse had made a fraudulent transaction in order to victimize him/herself. The 12th Civil Chamber of the Court of Cassation upheld the decision without the need to investigate whether there was any fraud or whether the rented property was a family residence, as stated in the dissenting opinion. (Similar decision; Court of Cassation Decision – 12th Civil Chamber, E. 2016/4773 K. 2016/22776 T. 1.11.2016)
IV. Conclusion
As a result, the legal regulations regarding the family home aim to prevent the non-party spouse from being victimized by the tenant spouse. The objection to the eviction notice regarding the family home should not be interpreted in a way that would prevent the landlord’s right to evict. The non-party spouse has the right to become a party to the lease agreement through a unilateral notification. I believe that this right should have been exercised before the legal process was initiated based on the eviction notice by the landlord. Otherwise, the landlord’s legal protection would be compromised by an excessive interpretation that goes beyond the purpose of the legal regulations.
When facing a legal problem, the assistance of a lawyer can be very valuable. However, finding the right lawyer can be a time-consuming and challenging process. Contact our lawyers for assistance.
Memduh Remzi BAL
Lawyer / Attorney in Turkey
Our Articles on Rental Law in Turkey
Send Mail : info@ballawyer.com
Call Us : +90 212 909 86 34
