TERMINATION OF HOUSING AND ROOFED WORKPLACE LEASE AGREEMENTS
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1. The Definitions of Concepts “leasing, housing, roofed workplace”
Turkish Code of Obligations numbered 6098 (“Code”) defined the lease agreement in Article 299. Lease agreement is a type of agreement where the lessor is under an obligation to make the property available for the lessee’s use during the term whereas the lessee is obliged to make periodic payment in exchange for that use. But concepts of "Housing" and "Roofed Workplace" are not explained in the Code. Basically, housing is a place where people live in as their home. Roofed workplace is where economic activities are carried on, which under a roof.
2. The Scope of Application of Housing and Roofed Workplace Lease Agreements
General provisions on lease agreements are applicable to all lease agreements as a rule. However, housing and roofed workplace lease agreements are regulated separately from general provisions in the Code. Rented goods are also within the scope of this contract as well as housing and roofed workplace. There is an exception for the agreements which provide 6 months or less leasing, then it will be subjected to the general provisions.
3. Termination of Housing and Roofed Workplace Lease Agreements
According to the Code, there are two ways to termine the contract: notification and litigation.
Notifications which terminate the agreement occur when the parties declare each other about their will which includes the ending term of the contract. A notice of termination is valid only if it is in writing. The party exercising the right of termination through notification shall not be liable for compensation.
A.1. Notification Made by the Lessee
Notice of termination is required for terminating fixed- term lease agreement of housing and roofed workplace. For residential and roofed workplace rentals, the contract is deemed to be extended for one year with the same conditions, unless the tenant notifies at least 15 days before the end of the fixed-term contracts.
In indefinite term lease contracts, the lessee can always terminate the contract with a notice of termination.
If the leased property is subjected to a family residency, according to the Code, the lessee cannot terminate the contract without the explicit consent of the spouse.
A.2. Notification Made by the Lessor
The lessor cannot terminate the fixed-term contract based on the expiry of the contract period. However, at the end of the ten-year extension period, the lessor may terminate the contract without giving any reason, lessor has to give notice at least three months before the end of each extension year following this period.
In indefinite-term lease contracts, the lessor can use the termination right of the contract via notification after ten years from the begining of the agreement.
B LITIGATION
B.1. Termination of the Lease Agreement through Litigation for the Reason Arising from the Lessor
The right to terminate the agreement is granted to the lessor limited to the cases specified by the law. These limited cases are specified in TCO.
i. Termination due to the Need of the Lessor or his Relatives for the Leased Property (TCO Article 350)
The lessor may terminate the lease agreement if the lessor is obliged to use the leased property for himself, his spouse, his descendants, his ascendants or other persons who are legally dependent on him due to the need for a residential house or workplace. The lessor can terminate the contract by filing a lawsuit upon the expiry of the term of the contract for fixed term lease agreements and within one month, and for the agreements of indefinite duration as of the date to be determined in accordance with general provisions.
When the persons will be specified as “who are legally dependent on him”, the Article 364 of the Turkish Civil Code No. 4721 will be applied. Persons who are liable for alimony are understood from the dependents; these are the spouse, descendant, parent and sibling of the liable person.
Only the lessor can terminate the contract due to need. The lessor is not required to be the landlord. According to the doctrine and Supreme Court decisions, it is accepted that the usufructuary may also bring a lawsuit. It is not possible for legal entities to terminate the contract due to the need for housing, while they do not need accommodation by nature. Legal entities only can file a lawsuit for workplaces. Only legal entities can file a lawsuit on issues falling within the field of activity for workplace needs.
For terminating the agreement through litigation due to need, in addition to the terms which regulated in the Code, the need must be sincere, real, and compulsory. The condition of being real, sincere, and compulsory is embodied in judicial decisions. For example, the Supreme Court rejected the request on the grounds that the requirement was not sincere, even though there can be a future need for this request. In the settled decisions, it has been counted among the real sincere and obligatory requirements: for the lessor who lives in the house with a stove, that relative of the lessor will be settled in the city where the house is located, and also the lessor who has not a valid job will start a business in this specific rented workplace.
The lessor cannot rent the leased property to anyone other than the evicted lessee unless 3 years have passed without a justifiable reason.
ii. Termination for the Reconstruction or Zoning of the Leased Property (TCO Article 350)
The termination for the reconstruction and zoning, which is regulated in Article 350 of the TCO as "If substantial repair, extension or alteration is necessary for the purpose of reconstruction or zoning of the leased property and the use of the leased property is impossible during these works".
The main condition for this provision to be applicable is that the lessor intends to reconstruct or zonate the leased property, and the use of the leased property should not be possible during the repair. Small-scale constructions and changes to be applied in the building do not constitute a basis for evacuation.
The lessor cannot rent the leased property to anyone other than the evicted lessee unless 3 years have passed without a justifiable reason. If the lessor rents the leased property to anyone other than evicted lessee unless 3 years have passed, compensation obligation arises against the lessor.
iii. Termination Due to the Need of the New Owner or His Relatives (TCO Article 351)
If the person who acquired the rented place later, him, himself, his wife, his ascendant, his descant, or his dependents by law, has a requirement to use residential or workplace, may terminate the lease agreement with a lawsuit filed after six months, provided that he notifies the tenant of the situation in writing within one month starting from the date of acquisition.
The person who subsequently acquires the leased property can also use its right to terminate the contract due to necessity through a lawsuit to be filed within one month, starting from the end of the contract period. It does not matter how the new owner acquires. The new owner may have acquired the leased property by contract of sale, inheritance or execution.
The prohibition of re-leasing also applies to the need of the new owner.
B.2. Termination of the Lease Agreement through Litigation for the Reason Arising from the Lessee (TCO Article 352)
i. Due to Commitment to Evict of Lessee
Pursuant to paragraph 1 of Article 352 of the Code, “If the tenant has undertaken to vacate the tenant against the lessor on a certain date in writing after the delivery of the leased, but has not vacated, the lessor may terminate the lease agreement by applying for enforcement or filing a lawsuit within one month starting from this date.”
A commitment to evict is valid only if it is in writing. Verbal commitment is ineffective.
The time to be evacuated must be specific or determinable in the commitment. It might like 16 July 2020 or the first day of the festival of sacrifice. Conditional commitment is void it’s because it does not contain a specific date.
For the evacuation commitment to clearly show the tenant's will, the commitment must be given after the delivery of the leased property.
ii. Due to Two Rightful Notice from the Lessor
Pursuant to paragraph 2 of Article 352 of the Code, if the lessee has caused two rightful notice because he has not paid the rent, the lessor shall, may terminate his contract by litigation. The lessor can terminate the lease within the term of the lease for less than one year. In case of the term of the lease for one year or more, the lessor can use the right of termination due to two notices within one month from ending of rental year.
The notices made by Lessor must be rightful. A notice cannot be sent before the debt became due. A notice is valid only if it is in writing. The payment order to be sent to the tenant
through the enforcement office will also result as the notice.
The notice to be given to the lessee within one rental year from gives the lessor the right to terminate the contract. It should be very noted here that the term is the year of the lease, not the year. For instance in a rental relationship which starts 01.03.2022, notices that given on 01.02.2023 and 01.04.2022, the lessor can not terminate the contract due to two rightful notices because the rental year has ended on 01.03.2023; notice given on 01.04.2023 is belong to the new rental year.
iii. Due to the Tenant's or Spouse's Current House
If the tenant or his/her spouse has a suitable residence within the borders of the same district or town, if the lessor does not know this at the time of the establishment of the rental agreement, he/she may terminate the agreement through a lawsuit within one month from the end of the agreement.
iv. Due to Death of Lessee
The death of the lessee does not constitute a reason for termination of the contract for the lessor. The partners or heirs of the deceased lessee, living in the same residence with the heir, can continue the rental agreement as a party.
REFERENCES
Zevkliler/Gökyayla, Law Of Obligations Private Relations, Ankara, Turhan Publishing, 2017, p. 336-373.
Eren, Fikret, Borçlar Hukuku Özel Hükümler, Yetkin Publishing, 4.Edition, Ankara 2017.
Öztürk, Mehmet, “Termination Of Housing And Roofed Workplace Lease Agreements”, D.E.U. Faculty of Law, Prof. Dr. Şeref ERTAŞ’a Armağan, C. 19, Special Edition-2017, p. 1549-1595
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