In a recent landmark decision, the Court of Cassation has deemed legally valid the practice of landlords and real estate agents obtaining tenants’ signatures on blank documents as “eviction undertakings.”
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According to the ruling by the Court of Cassation’s 3rd Civil Chamber, the eviction request based on a tenant’s signature on an ‘eviction undertaking’ was upheld. The case stems from an incident in 2012 when an authorized representative of a company leasing a commercial space in Ankara signed a blank document as an eviction undertaking and handed it over to the property owner. In 2020, the property owner filled out the document stating that the tenant committed to vacating the premises by February 28, 2021, and subsequently requested eviction when the property was not vacated.
Following objections to the execution proceedings initiated after the objection to the eviction, the property owner filed an eviction lawsuit. The local court handling the case determined that the signature on the undertaking belonged to the authorized representative of the tenant company and issued an eviction order.
Upon appellate review of the case, the 15th Civil Division of the Ankara Regional Court of Justice found the local court’s decision legally sound, stating that how the document was to be filled out was considered accepted by the party who signed it.
The tenant, arguing that the date on the eviction undertaking was filled in by the landlord and that their objections were not considered by the courts, filed an appeal.
The Court of Cassation’s 3rd Civil Chamber, in its review of the appeal, upheld the eviction decision as legally valid.
Legal Grounds of the Decision
In its ruling, the Chamber noted that according to the Turkish Code of Obligations, if a tenant fails to comply with an eviction undertaking, the landlord can apply for enforcement or file a lawsuit for the property to be vacated within a month. The decision stated that the signature on the eviction undertaking in question, as confirmed by expert reports, belonged to the authorized representative of the tenant company. The Court of Cassation’s General Assembly had previously stated in its rulings that ‘signatures on blank documents are considered valid as evidence.’
The decision concluded that there were no inaccuracies in the decisions made by the lower courts and, in accordance with Law No. 6100 on Civil Procedure, the eviction decision was unanimously affirmed.
What is an Eviction Undertaking?
An eviction undertaking is a written statement by a tenant, assuring that they will vacate the leased property on a specified date. This statement is personally signed by the tenant; relatives or a third party cannot provide this commitment. The date for vacating the property is also mentioned in the eviction undertaking.
Validity Conditions for Eviction Undertakings
While the legal nature of an eviction undertaking may be debated in legal doctrine, the conditions for validity are explicitly defined within the law:
- The Undertaking Must Be in Writing:
While the Turkish Code of Obligations No. 6098, doesn’t impose restrictions on the form of lease agreements, a formal requirement is placed on eviction undertakings. In this context, the ordinary written form is deemed sufficient. To eliminate the possibility of the tenant claiming the signature is not theirs, the undertaking can be notarized. If there is more than one tenant, all tenants must sign the undertaking for it to be valid.
- Given by the Tenant or Authorized Representative:
The tenant can personally provide the eviction undertaking, or it can be given by an authorized representative. Whether a special authorization is required for this is a subject of doctrinal debate. While one viewpoint argues for specific authorization, the prevailing opinion suggests that an authorized representative capable of entering into a lease agreement can also provide the eviction undertaking.
- Contains a Statement by the Tenant to Vacate the Leased Property on a Specific Date:
As per the TCO (Turkish Code of Obligations), eviction undertakings made by the tenant or an authorized representative must specify the date of eviction. While one perspective asserts that the undertaking must include a precise and determinable date, another view suggests that the undertaking can specify only the month without a specific eviction day, and the last day of the stated month will be considered the eviction day.
- Given After the Delivery of the Leased Property to the Tenant:
It’s crucial to note that eviction undertakings provided before the lease agreement or even after the agreement but before the delivery of the property to the tenant are considered invalid. The law explicitly ties the validity of eviction undertakings to the delivery of the property. In cases where the date of the signature on the undertaking is left blank and filled in later, it’s a common occurrence. In such situations, according to judicial precedents, the burden of proof lies with the tenant. If the tenant fails to prove, the undertaking is considered valid.
Objective and Major Effects of Validly Executed Eviction Undertakings
When a validly executed written eviction undertaking exists, the tenant is obligated to vacate the leased property on the specified date mentioned in the undertaking. If the tenant fails to vacate under the valid undertaking, the landlord has the right to initiate enforcement or legal proceedings for eviction. It’s essential to emphasize that the eviction undertaking does not automatically terminate the lease agreement. Before resorting to enforcement or legal actions, the crucial aspect to consider is that the landlord must apply for eviction within one month from the undertaking’s notification date. This period is qualitatively a statute of limitations, and failure to adhere to it will render eviction requests invalid in the eyes of the court.
Eviction Through Enforcement
If the tenant does not vacate the property per the undertaking, the landlord can initiate enforcement proceedings within a month from the agreed date as per Article 272 of the Execution and Bankruptcy Law No. 2004. After the enforcement order is served, the tenant has seven days to object. If the objection is made, the process will stop. Within six months of the objection, the landlord can apply to the execution court to lift the objection for the property’s eviction. Alternatively, within one year of the objection, the landlord can apply to the peace court for the cancellation of the objection. If the eviction undertaking is notarized, the landlord can expedite the process by filing a lawsuit to lift the objection.
Eviction Through Legal Action
If the tenant has committed in writing to vacate the leased property on an agreed-upon date and fails to do so, the landlord can file an eviction lawsuit in the competent Peace Civil Court within one month from the specified date. Importantly, the one-month period specified by law is a statute of limitations, and if not utilized, the landlord cannot demand the eviction based on the eviction undertaking. Another critical consideration is that, as per Article 353 of the Turkish Code of Obligations, if the landlord notifies the tenant of their intention to vacate within the time frame set for filing a lawsuit, the time limit for filing the lawsuit will be extended by one lease year. However, if the ownership of the property changes during the lease term, the new owner can file a lawsuit based on the valid eviction undertaking.
Conditional Eviction Undertakings
The question of whether eviction undertakings can be made conditional is a matter of debate in legal doctrine. According to one view, since contracts can be made conditional under Article 170 of the TCO, lease agreements can also stipulate conditional termination. For example, an eviction undertaking can be given if the tenant fails to pay the rent by a certain date or if the leased property is sold to a third party. Another perspective argues that since conditional eviction undertakings make the eviction date uncertain, and there should be no ambiguity about dates according to the law, such undertakings are invalid. Conditional eviction undertakings will be enforced in the same manner as unconditional undertakings once the condition is met. However, according to Court of Cassation practice, making a written eviction undertaking conditional is possible.
The legal landscape surrounding eviction undertakings is complex, and adherence to legal procedures and timelines is crucial for both landlords and tenants.
Overall, navigating the complexities of eviction undertakings and real estate law in Turkey demands professional expertise. Alfa Law, a distinguished law firm in Turkey with experienced lawyers in Istanbul, İzmir, Ankara, and Antalya, stands ready to assist you. Our team of English-speaking Turkish lawyers specializes in real estate law matters, ensuring effective communication and understanding of your legal needs. As one of the best law firms in Turkey, we pride ourselves on delivering top-notch legal services. Whether you’re facing challenges related to eviction undertakings or require assistance with broader real estate issues, our skilled and qualified attorneys are here to provide legal advice tailored to your situation. Contact Alfa Law today, the trusted name among international law firms in Istanbul, for comprehensive and reliable legal support.