REQUEST OF EVICTION DUE TO NECESSITY BY LESSORS IN BUSINESS PREMISES

1. Definition Of A Lease Contract, Leases In General And Legislative Basis For Eviction

Article 299 of the Turkish Code of Obligations (“TCO”) defines a lease contract as  a contract whereby the lessor undertakes to grant the lessee the use of an immovable or the use and relevant usufruct right of such immovable and in exchange the lessee undertakes the payment of a certain rent amount during the leased period.

Just as a summary on general provisions of TCO governing lease contracts, kindly note that the right of termination of the lease contract by the lessor is provided within certain limits. In this respect, the lessor cannot terminate the lease on the basis of expiration of the lease’s term. The lessor may only terminate the lease without any just reason following the expiration of the ten (10) year renewal period and is required to serve a three (3) months advance termination notice.

One of the aforesaid limits is foreseen in Article 350 of TCO which provides that a lessor may claim for the eviction of the lessee by terminating the contract through a lawsuit, if there is an obligation to use the rented premises for himself, his spouse, his descendants, his ascendants or other persons who are legally dependent on him, for residential house or roofed business premises (in Turkish, “çatılı işyeri”).

2. Case Law And Scholars’ View

According to the scholars’ view  and case law of Turkish Supreme Court of Appeals, the necessity ground for eviction must be (i) genuine (“gerçek”), (ii) imperative (“zorunlu”), (iii) sincere (“samimi”) and in order for such necessity to be acceptable, it must be (iv) continuous (“sürekli”) and (v) an existing necessity (“hali hazırda doğmuş gereksinim”), all of which must be proved by the lessor in court.

In one lawsuit, the Supreme Court of Appeal determined that “temporary necessity that is not continuous cannot be made a ground for eviction, nor can the necessity that has not yet arisen or whose realisation depends on a long period of time be accepted as a ground for eviction. It is not enough to have a ground for necessity at the time of filing the lawsuit, this necessity must continue during the period of lawsuit.”

Accordingly, the following are circumstances where the Supreme Court of Appeals may not accept as a ground for evicting the lessee:

• Non-continuous and possible necessities of the lessor;
• The lessor, owning another similar immovable in the same region where the subject leased immovable is located;
• Other reasons for bringing an eviction claim such as rent arrears which are used a  reason for eviction whereas such issues may be resolved separately and cannot constitute a ground for eviction.

Nevertheless, some of the grounds that may be acceptable for eviction due to necessity would be suitability of the immovable for the lessor’s business, relevant business growth necessitating larger space for business activities demonstrating equivalance quality (“eşdeğer nitelikte bulunması”) for its business necessity on a continuous basis are some examples of eviction of the lessee.

3.  Litigation Process

Before any eviction to take place, in accordance with Article 350 paragraph 3 of TCO, the lessor must terminate the lease contract by filing an eviction lawsuit. In this respect, “for fixed-term contract, a lessor may terminate the contract at the end of the term, and for indefinite-term contracts, a lessor may terminate the contract within one (1) month starting from the date to be determined by complying with the termination period and the periods stipulated for the notice of termination in accordance with the general provisions regarding the lease.” Hence, the starting date of the lease contract is significant in order to calculate the beginning of the required one-month period.

In the case of lease contract agreed for a definite term, the relevant lawsuit may be filed within one (1) month from the expiration date of the lease contract. Furthermore, the term to file a lawsuit will be extended until the end of the same lease period in the case of the lessor informs the lessee in writing that it will file a lawsuit within one- month period.

In the case of a lease contract agreed for an indefinite term, the lessor must serve on the lessee a three (3) months advance notification at the end of six (6) months of the lessee term. Upon the termination of the notification, the relevant lawsuit must be commenced as from the six (6) months of lease term.

4.  Prohibiting Re-leasing And Lessee’s Right of Indemnity

Pursuant to Article 355 of TCO, the lessor may not lease the immovable (leased property) to any other person other than the evicted lessee for three (3) years without any just cause upon eviction of the lessee due to need for housing/ business place. Otherwise, the lessor shall pay the lessee, evicted by the same due to such need, an indemnification amounting to not less than the one-year rental price which has been paid in the last year of rental term. Upon lapse of such three-year period of time, the lessor may lease the immovable without any restraint.

Lastly, it should be kept in mind that in case of a litigation for eviction of the lessee from the leased property, the lessee should continue to abide with all of its contractual obligations such as payment of full rent price on time and should not be in rent arrears.

Our Law Firm remains at your disposal for any further clarifications you may need.

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