Eviction Commitment (Given in the First Lease Agreement)
TC
JUDGMENT
UNITY OF OPINION GENERAL ASSEMBLY MEETING
E.1944/15
K.1944/28
T.4.10.1944
ASSURANCE OF EVICTION (Given in the First Lease Agreement)
RENT CONTRACT (Nullity of the Eviction Commitment given for the first time)
VIOLATION OF PUBLIC ORDER (Eviction Commitment Given in the First Lease Agreement)
NATIONAL PROTECTION LAW (Not applicable as long as the Conditions and Undertakings for the Eviction of the Leased Property are in force)
818/m.19,20 3780/m.30 6570/m.11 2004/m.275
SUMMARY : The eviction commitment given during the first lease agreement is not valid. The eviction commitments in the first lease agreements are unlawful and invalid as they neutralize the provisions regarding the automatic extension of the lease agreements.
CASE AND DECISION:
The contract processed at the beginning of the Contract between the Decrees of the Third Court of Cassation dated 28/9/1943 and numbered 11185/9698 and the decrees of the Chamber of Commerce dated 8/5/1943 and numbered 863/917 on whether there is a condition of evacuation may be valid in accordance with the thirtieth article of the National Protection Law. The elimination of contradictions and inconsistencies was requested by the First Presidency’s letter dated 22/4/1944 and numbered 3/107, and the file registered with the number 944/20 was merged because the case was the same, and the decisions subject to dispute were reproduced and distributed to the members of the General Assembly.
General Assembly convened at 9.30 am on Wednesday, 27/9/1944, the date set for the negotiation, under the chairmanship of the First Chairman Halil Özyörük, and the issues forming the basis of the dispute were explained in detail by the First Chairman. Chairman, the following names have been mentioned:
O. Nuri Köni: It is contrary to the main lines of the National Protection Law. Such a condition cannot be included in the contract. It is not the time to tell this right, which the National Protection Law gives to the contractor, this condition before the contract is made. This is about public order. He has no right to say such a thing when the contract is made. This also applies to the provision agreements. The waiver of the objection is not valid before the objection is made. The decision of the Chamber of Commerce is correct.
First Chef: A man went to the country house. The other one rented his house during this vacation. If the enforcement letter comes out during this period, can he not be released?
O Nuri Köni: I can accept exceptional situations, and we do.
Cevdet Baybura: The contract is made for four or six months in the countryside and one year in residential areas. Laakal will give fifteen days notice and evacuate. According to the word ”Laakal”, is it valid if he does this one hour after the contract?
If the contract has been finalized and signed and annotated and it says that he will be released after five months, can a temporary contract be made on the same date depending on the status of the parties and the status of the parties? After saying that the residence will be evacuated after a month, can he say that it will not be evacuated due to the National Protection Law? The National Protection Law was taken out of necessity. It is applied in the amount needed.
Compassion Özkutlu: Rights that are in the interest of the order cannot be waived at once. We do not accept things that are consensually voluntary. The National Protection Law applies. Such a condition cannot be stipulated in the contract.
In some special cases, we accept only if such conditions are included in the contract. For example, a man is going to the military. If he says he will enter the store when he returns, such situations are valid.
O.Nuri Köni: We will define a general principle here. It can be considered in some special cases, such as a holiday home. The judge will make a decision on this case, and due to lack of time, the interview has been postponed to continue at the next meeting. 27/9/1944
SECOND SESSION : 4/10/1944
After the formation of the quorum and the explanation of the previous discussion and event by the First President once again, the speech was opened to the podium:
O Nuri Köni: The nineteenth and twentieth articles of the Code of Obligations have accepted that some things cannot be added. If it is included in the contract, it is invalid. Attention is something that is used after it has been possessed. The other is a threat. Because he says if you don’t put this record in, I won’t give it. The legislator, in the name of order and public order, put this article into the thirtieth article of the National Protection Law. Actually, inventors are a little hesitant, but what can we do? Private damage is preferred to eliminate public damage.
The countryside belongs to a class of people. For this reason, the courts are acting more leniently. Objections can also do this. Therefore, for the sake of five or ten huts, 30 in the name of public order. it cannot damage the principles stated in the article. The decisions of the Trade and Enforcement Departments are correct.
Şekhkati Özkutlu: We all accept that the thirtieth article is from public law. When making a contract, he says that he will not benefit from the provision of the thirtieth article or that he will be released when his term expires. Or a piece of paper is taken from his hand. According to these forms, it is necessary to make a judgment according to these facts. If the owner confesses, I signed without any influence, but now my business is broken, I won’t leave, what will happen in this case, how will we handle it? Notification is one of the conditions of the contract according to the Code of Obligations. In my opinion, if the owner made the contractor sign an illegal contract and acted with the intention of violating the provision of the law, this contract is not valid. And when it is not valid, the host sits forever.
Otherwise, a real estate that is not actually rented should be rented for a certain and temporary period due to the fact that it no longer needs to be used, and it is envisaged that it will be evicted at the end of this period. It is correct to accept that this condition is valid during this period. However, even in such a case, the lessee may dismiss the case by proving with all kinds of evidence and presumption that the reasons on which the condition is based are unfounded and fabricated for the purpose of violating the provision of the law. There is no legal provision to prevent this.
Fourth Law Chief Fevzi Bozer: The thirtieth article of the National Protection Law specifies the grounds on which eviction may be requested (2).
1 – The necessity of housing,
2 – Actions of the owner contrary to the provisions of the contract,
3 – At least fifteen days before the end of the contract period, the landlord must inform the owner that he will vacate the property.
The third reason has led to a conflict here Some dear friends of mine are of the following opinion: Since Article thirtieth accepts the evacuation of the house with at least fifteen days’ notice in advance, the contract period can be committed and this commitment is valid.
In my opinion, this commitment is not valid. Because it is against the provisions of the Law. In fact, it is accepted to vacate the house provided that you give at least fifteen days’ notice in advance. However, according to the contract, this is not an eviction notice, but a provision for the eviction when the contract is established. This situation is against the landlord and is contrary to the mandatory provisions of the thirtieth article.
The landlord will not be a victim of this situation in any way. Because if there is a housing obligation, only for this reason the owner has the right to eviction. If there is no housing obligation, he cannot request an eviction based solely on this situation. Because if he is evicted, the house will be rented to someone else again. The rent cannot be more than 939. Therefore, the landlord has no interest in the eviction. He has the intention of harassing the landlord. I believe that a mujir who acts in bad faith cannot benefit from the protection of the law, and that the covenant and the condition are not valid.
Vehbi Yekebaş: There is a notification obligation by law. If it is included in the contract, it becomes a condition of the contract. However, according to the Protection Law, the continuity of the contract depends on compliance with the terms of the contract. Here, the condition of the contract is evacuation at the end of the period. I believe this cannot be allowed. Is the introduction of such a condition not a departure from the truth on behalf of the beneficiary? Can Mr. Şemsettin Temizer inform me about this?
Lady. Third Law Chief Temizer: I was not present at the first hearing of this issue and listened to the arguments repeated by the opponents. Their point of view focuses on the fact that the tenant informs the landlord that he will evict before the deadline written in the lease agreement expires, or rather, all the provisions related to lease agreements are included in the contract in the thirtieth article of the National Protection Law. it is a public order and the allegations are based on it.
So, what is public order and which of the various provisions of this article thirtieth are related to public order and which are not? If we study and solve this issue, we will easily solve this situation. The legal transactions, relationships and issues, the formation, completion and execution of which are legally mandatory and the wishes and consents of the parties must be disclosed within the framework determined by the laws, are well known to your Supreme Council. Matters that are outside the concept of public order, in which the parties can act as they wish and are free to make decisions, are not included in the concept of public order.
When we examine this thirtieth article, we see that the provision in this article that the rent cannot be more than the rent of the year 939 is directly related to public order. Even if the rent between the lessor and the lessee exceeds the rent of 939 years with their consent, this will have no effect. Dec. The part related to the surplus is invalid in violation of the public order provision. The consent of the parties to this transaction is contrary to the provision of public order. Again, this article deprives the landlord of the right to request eviction, and the tenant of the right to leave only because the lease term has expired.
The lessor and the lessee, forcing the lessee to comply with all the terms of the contract, extend the lease period, except with the consent of the parties, until three months after the repeal of the law. The provision regarding the extension of the lease term in this way against the will of the parties is a public order. However, if the lessee offers to exit halfway through the period written in the contract between them, or even before its expiration, and offers to terminate the contract, and the lessor also accepts this offer and terminates the contract, this termination is valid. Dec. Because the thirtieth article does not include the completion of the contract in this way and does not extend the public order up to this.
Again, as I mentioned above, the law, in order to protect both the lessor and the lessee, has extended the lease term to the will and discretion of the parties, but has made it a provision that it can also be dismantled or removed without the need for a lease agreement. the consent of the other. In other words, it gives the lessor the right and authority to evict the tenant who has to live in the apartment on the condition that the contract between them expires, and to evict the tenant on the condition that he Decrees in the contract.
Writing at least fifteen days before the end of the lease term. In fact, this provision has nothing to do with public order, because it gives the parties the right to choose. In other words, the tenant who has to live in the housing and whose contract period has expired with the lessor is free to use this right or not.
Since this review reveals this, it is not correct for worthy opponents to talk about public order in an absolute sense. So why should it be a matter of public order for the renter who has to return to the rented house after six months or a year and the renter who knows this situation to write this fact in the rental agreement? In the same way, why should the tenant write into the contract that he needs a rented house for only one year and that he will leave not only the house but also the country where the house is located after one year and inform the renter of this? and why should the parties accept and sign the contract?
The high dissidents are just saying that this is against public order and cutting it off. They criticize each other, some say it is not permissible to include it in the contract, some say it is not permissible as a notice, some say it is not permissible as a condition.
Whether it is notice, condition, commitment, in short, whatever name is given to the tenant to exercise this right, because this thirtieth article gives the lessee the right and authority to evict the tenant at the end of the lease term. If the tenant is notified in writing at least fifteen days before the expiration of the housing obligation, the tenant is evicted. What is the obstacle to the exercise of this right at the time of the contract? Can it be legally prohibited for them to include this in the contract by realizing the obligation that will arise for them at the end of the period when establishing the contract? Has he not already agreed that the tenant must notify the tenant in writing at least fifteen days before the expiration of the term? Don’t most of these last until the time of the contract?
If competitors accept the written notification of the tenant to the lessor a few hours after the contract, why do they not accept the commitment made a few hours earlier? It was not possible for me to understand this from their arguments. What they are most afraid of is that the landlord will take advantage of the tenant’s difficulty in finding a rental home due to the housing crisis, and during the rental agreement, the landlord may have forced the tenant to accept this commitment. In the event of such a situation, the tenant always has the right to request and prove the invalidity of this consent in accordance with the general provisions, and has the right to claim and prove that this consent has entered into the contract due to the eviction of the requesting landlord. to take advantage of his own auction.
Landlords who know the case law of the Court of Cassation and do not consider it permissible to include such an obligation even in the contract are trying to achieve their goals by obtaining an undated letter from the lessor when renting. This jurisprudence, which is very similar to what was once called fake sharia, is now creating a fake law. Instead of preferring deceptive actions that will complicate the transactions of the right, case law requiring honest action should be strengthened.
As for Mr. Vehbi’s question about the contract and whether the inclusion of such a provision in the contract would mean a deviation from the truth on behalf of the tenant, you can find the answer to this question in my explanation above.
If the landlord has to use the rented house as a residence after a certain period of time, and the tenant, knowing this obligation and the landlord’s necessity, specifically undertakes to vacate the house at the end of the contract period, why should there be a deviation from the truth on behalf of the landlord, if this commitment is considered acceptable according to the jurisprudence of your Supreme Court of Appeals? If the landlord has misled the tenant with such statements, brought him back to life, or made this commitment by taking advantage of the distressed situation the tenant is in and the obligation to make this commitment, our general provisions protect the tenant. Such situations can always be brought forward in any contract.
However, it is understood from the statements of the Head of the Fourth Legal Department Sayin and the statements of Nuri Bey that those who rent all or part of the house as a country house accept such a situation if they have tenants. They commit and write this in the lease agreement, agree that it will be valid and say that this is how decisions are made. In this case, we agree. As I said above, the landlord has to go to another country with his family for a temporary assignment, for example, for a job that will last a year. It is not right for the house to be empty for a year, both economically and from a conservation point of view. He wants to rent on this condition, and in this way he applies for a lease agreement to the tenant.
The tenant also accepts the offer in this way. What is the difference between this and the example of a country house? Dec. Why was it not valid? As for the landlord; in the above example, if the landlord who rents his house and goes to another country to work for a year informs the landlord in writing that he will live in the house he lives in, what difference will it make, what disadvantage will it be? He rents it for a year and then evicts it and returns to his hometown and informs the landlord in writing that he will vacate the house he rented for a year at the end of the year after a month, and informs the landlord of this right and authority in writing. Preparation of the draft lease agreement and inclusion in the contract?
In short, no matter from what point of view, the views and words of the reverend opponents did not cause me to change my mind for the reasons I have listed at length, and I find salvation in this view. In addition, it was stated that the phrase in the thirtieth article requires that this right must be used after the contract if he informs in writing at least fifteen days before the end of the lease term, and this record prevents the fulfillment of the legal eviction obligation. it is included in the contract.
To me, there is nothing justifiable about this justification. Because it is clear that the one who drafted the law used this expression taking into account the fact that the landlord had to leave the house after the contract period and could not stay for more than a year for any period of time. The reason at the time of the contract.
Because the law, using the expression ”at least until the end of the term”, wants to explain that the landlord can use this right for up to fifteen days from the date of establishment of the contract to the end of the term and can use this right if he uses it. after that, he cannot evict the landlord without the consent of the landlord, and if he evicts, he will suffer the legal consequences. Therefore, I don’t know how accurate it is to say that the concept of “notifying” at the time of the contract does not cover the notification made to the landlord.
In short, the jurisprudence of our Chamber is correct in terms of the fact that the issue has nothing to do with public order and the explicit wording of the law.
Chief of Trade F. Hulusi Demirelli: The provisions of Article 30 of the National Protection Law regarding the non-hearing of eviction cases and the extension of the lease term have been enacted into law to constitute an exception to these provisions of the Law. Although it is known that the obligations imposed by the Code of Obligations on the tenant to evict and return the rented property at the end of the term are obligations related to the duration of the crisis. The conditions and commitments contained in the printed articles of the lease and lease agreements confirming the similar provisions of the old Mecelle and the existing Code of Obligations in this regard (for example, number 8) should be null and void as long as they are valid.
Since the thirtieth article of the National Protection Law is in force. This can’t be any other way. Because these conditions and commitments and the Decrees of the thirtieth article cannot work together. The notification specified in the said article is of a different nature from the requirements of the contract and the written or specially written evacuation commitments contained in the contract.
The condition and commitment agreed upon by the parties during the establishment of the contract is one thing, it is another thing for the lessee to voluntarily notify after the contract that the leased property will be vacated at the end of the term. If these are confused and the conditions and obligations at the time of the contract are accepted as notification, 30. the purpose or objective of the article will be weakened, and the exceptional and mandatory provision contained herein will become ineffective in many cases, especially new laws. rental cases.
Compassion Özkutlu: In our case, it can never be a matter of persuasion.
Necati Ünlügil: We have decided that the “expressions” used in the law in the incident should be considered as a notification.
First Chief: Freedom of contract is the freedom of the individual. Everything that violates the freedom of contract should be related to public order. The rights of the parties in the lease agreement are subject to the law.
According to the provisions of the National Protection Law, the landlord cannot ask the tenant to leave when the contract is established. It is possible only under certain conditions. Therefore, the limitation of this agreement is a public order. How long can the obligation of the owner to notify at least fifteen days before the end of the contract be extended? It is natural that such a commitment cannot be based on a reasonable and logical basis. There should be a difference between the condition and Decription. The custom and custom of these fifteen days has a certain time. It cannot be right to link this to the duration of the contract, they said:
The National Protection Law was enacted to prevent the cost of living. Article 30 of the Law was prepared in order to prevent both a home and work crisis and the cost of living that may arise from it. Therefore, like all other provisions of the Law, the provisions in this article are among the Decrees that are mandatory because they arise from public order concerns.
As a matter of fact, the said article extended the periods agreed upon by the parties in the lease agreements and eliminated the provisions of the Code of Obligations contained in the lease agreement, provided that the lessee complies with the provisions of the contract. Pursuant to this condition, it stipulated that the tenant should return the property to the lessor for a temporary period at the end of the agreed period and prohibited the hearing of eviction cases of the lessor based on the Code of Obligations and the explicit writing of the eviction obligations of the tenants in the printed contracts.
Of course, the Article does not and cannot interfere with the termination of the contract with the consent of the parties. However, in reality, there is no such termination with the consent of the parties. The issue is the inclusion of the tenant’s eviction notice in the contract in the form of a condition agreed by the parties during the contract. In a sense, since the eviction obligation will arise if the tenant notifies at least fifteen days before the end of the term, it is acceptable for such a declaration to be included in the contract while the contract is ongoing. its conclusion must have the same result.
However, the intention of the one who drafted the law and the meaning of the term “notification” do not correspond to this. Because although it is accepted that the tenant can get rid of the extension provisions with such a notification when the contract is established or, as in our cases, the commitment to eviction during the contract cannot be considered as the authority for this. don’t notice it. It is well known that it is not unusual for such a notification to be made at the time of the contract.
The contracts contain only terms and conditions. Accordance with the provisions of the law, the eviction commitment that the tenant will accept in order to prevent the extension of the contract period in advance cannot be anything other than the condition that the general provisions and the provisions of the contract related to eviction remain the same. it is contrary to the mandatory and exceptional provisions of the applicable laws.
In most cases, the tenant agrees and signs this condition in order to find a place of housing or art and commerce. In any case, this condition and commitment is invalid and cannot be considered valid in accordance with the nineteenth article of the Code of Obligations due to the fact that it is contrary to the mandatory and exceptional provisions of the thirtieth article mentioned above.The notification specified in the article is a written notification that is not of this nature and that the lessee will make spontaneously after the establishment of the contract.
Even if the tenant has consented to the evaluation of the eviction commitment as a notification in the special terms of the contract, this commitment cannot be other than accepting a condition stipulated by the inventor to consent to the contract, the eviction commitment is a notification of the contract, which means that a condition and commitment contrary to the mandatory provision of the article has been accepted, and there can be no doubt that such commitments should be considered invalid in accordance with the nineteenth article of the Turkish Commercial Code mentioned above. Obligations. Therefore, it is not permissible to consider such contractual provisions as the type of notification provided for in the above-mentioned thirtieth article of the National Protection Law, and it would not be appropriate for the purpose of the Law to think otherwise.
CONCLUSION:
On 4/10/1944, it was decided with more than two-thirds of the votes that the conditions and commitments to be included in the lease agreements would be vacated at the end of the contract period and that the conditions and commitments were not valid. As long as the National Protection Law remains in force.
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