I. Generally
The removal of objection and eviction precedure are generally legal avenues pursued together in the enforcement court.
To file a request for “removal the objection and eviction” in the enforcement court, it is necessary to have an execution file initiated with a request for eviction.
The Execution and Bankruptcy Law provides two types of execution procedures for “ordinary rent and revenue rents” (Sample NO: 13) and “execution for the eviction of immovables leased by contract” (Sample No: 14) concerning the eviction of leased real estate.
The execution procedure for ordinary rent and revenue rents is a recourse to be taken in case of non-payment of rent.
The execution procedure for the eviction of immovables leased by contract is a method that can be applied when the period expires in ordinary lease agreements or, in residential and roofed commercial property lease agreements, with the ‘eviction commitment.’
Not all objections and eviction requests can be made to the execution court. However, objections to matters that do not require a trial can be raised in requests for lifting the objection and eviction.
In Cases of Ordinary Rent and Revenue Rents:
In execution proceedings initiated due to non-payment of rent, the debtor tenant can object within 7 days against the payment order issued in the execution proceedings. Whether to resort to the avenue of lifting the objection and eviction will be determined based on the debtor’s objection. If the debtor does not object to the execution proceedings, there is no need to file a “lifting the objection” request.
Instances where the execution proceedings cannot be brought to the execution court for lifting the objection and eviction include:
- Starting the execution proceedings as an oral lease rather than based on a written lease agreement.
- Explicit denial by the tenant of the signature in the lease agreement subject to execution.
- The condition of commencing the lease relationship.
- Objections made regarding expenses incurred for the leased property according to the agreement.
- Objections to non-payment due to renovations in the lease relationship.
- The lessor entering into multiple lease agreements for the same dates with different parties.
- Inability to determine the starting date of the lease in the lease agreement and denial of the existence of the lease relationship by the tenant.
- Objections to additions made to the lease agreement at a later date.
- Uncertainty about the amount of the lease fee in the lease agreement and objection by the tenant.
- Objection by the tenant regarding failure to maintain and deliver the leased property in a suitable condition.
In such cases, the request for lifting the objection and eviction cannot be made in the execution court, and a case can be filed in the general court, namely the peace court.
In Cases of Execution Based on the Eviction Commitment:
Similar rules apply in execution proceedings initiated based on the eviction commitment. The debtor tenant cannot file an objection in the execution court against:
- Explicitly objecting to the signature in the eviction commitment.
- Objecting to the later completion of the dates stated in the eviction commitment.
- Claiming that the eviction commitment is conditional and asserting that the condition has not been fulfilled.
II. Procedure for Removal the Objection and Eviction Request in the Execution Court
The examination in the execution court will be conducted according to the simplified trial procedure of the Code of Civil Procedure. Witness hearings, oath proposals, expert examinations on ledger records, and discovery of evidence are not conducted in the execution court. Only the evaluation of written evidence is possible in the execution court. Therefore, the court does not technically conduct a trial and is a “narrowly specialized” court.
The request for “removal the objection and eviction” is subject to a six-month statutory limitation period. This period is limiting, and the judge examines whether the request is within the timeframe.
The lifting of the objection and eviction requests can be made separately. However, most of the time, both requests are filed together.
If there are multiple tenants in the lease agreement, the execution proceedings for eviction must be initiated against all tenants. Since the eviction debt is indivisible, the eviction request must also be directed to all tenants. Otherwise, the execution court will decide to reject the eviction request.
The execution court will conduct the examination of the lifting of the objection and eviction requests in a trial. Examination through case files is not allowed. After inviting the parties to the hearing and collecting evidence, the decision will be made.
The necessary procedures for the execution court can be summarized as follows:
1. Procedural Examination of Removal the Objection and Eviction
It is necessary to examine whether the court fees have been paid along with the request. A fixed application fee and upfront court fees must be paid together with the request for lifting the objection and eviction in the execution court.
Determination of the hearing date and sending notifications to summon the parties to the hearing.
Retrieval of the execution file.
Examination of whether the lessor who initiated the execution file requested “eviction.”
Examination of the adequacy of the payment order sent to the tenant. Especially in execution proceedings related to ordinary rent and revenue rents, at least a thirty-day period must be given according to Article 315 of the Turkish Code of Obligations.
Examination of whether the lifting of the objection and eviction request is within the six-month period.
2. Substantive Examination of Removal the Objection and Eviction
If there are no deficiencies in the procedural examination, a substantive examination will be conducted.
If the periods or months for which the rental claims are subject to eviction are not clear, the lessor requesting eviction will be given a period to clarify.
The tenant is bound by the objections stated in the execution file. For example, a tenant who denies the lease relationship cannot later claim to have paid the rent.
If the tenant asserts in the objection that they are not a debtor, payment documents can be submitted during the examination.
A tenant who did not object to the execution proceedings can provide documents related to payments made within the notice period. Even if payments were made before, this objection cannot be examined in the execution court.
Along with lifting the objection, if requested, a default denial compensation of no less than twenty percent will also be awarded.
In case of acceptance or rejection of the lifting of the objection and eviction request, a fixed attorney fee will also be awarded according to the Attorney Minimum Fee Tariff. Litigation costs will be borne by the losing party.
In the event of the approval of the lifting of the objection and eviction request, if the decision of the execution court is submitted to the enforcement office, eviction procedures will continue as usual. Additionally, there is no need to send an eviction order to the debtor. However, it should be requested that the eviction decision be implemented within one year at the latest. Otherwise, the lease agreement will be considered as renewed.
The decisions of the execution court do not constitute final judgments. The decision of the court does not need to be finalized for enforcement. The debtor tenant must take a separate decision for the execution to be postponed. Even if an appeal is filed against the objection to the execution proceedings based on the eviction commitment, a postponement of the execution cannot be requested.
The execution court cannot examine issues requiring the complaint of procedural irregularities or the cancellation of enforcement officer actions, such as improper service of process or the cancellation of payment orders in execution proceedings.
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