TC
JUDICIAL LAW
GENERAL ASSEMBLY
E. 2005/6-732
K. 2005/740
T. 21.12.2005
TERMINATION OF THE LEASE AGREEMENT DUE TO DEFAULT (EVICTION REQUEST SHOULD BE ACCEPTED SINCE DEFAULT OCCURS AGAINST PAY MADE AFTER THE LEGAL PERIOD HAS ELAPSED)
REQUEST FOR RELEASE (PAYMENT PAID AT THE END OF THE LEGAL PERIOD MUST BE ACCEPTED BECAUSE DEFAULT HAS OCCURRED)
PAYING PAID IN PART (THE DEFENDANT MADE A PARTIAL PAYING COMMITMENT TO DISPUTE THE AMOUNT OF THE DEBT – SINCE THE PAYMENT WAS MADE AFTER THE LEGAL PERIOD HAD ELAPSED, THE DISCHARGE REQUEST HAD TO BE ACCEPTED BECAUSE DEFAULT HAD OCCURRED) 818/M .260
SUMMARY :
The case relates to the request for termination of the lease agreement and eviction of the lessor due to default.
Although the defendant has explicitly accepted the rental relationship in the objection petition in the follow-up file, but objected to the amount of the debt and made a commitment to pay partial, it is mandatory to accept that default occurred in the face of the act. the payment was paid after the legal period had elapsed; in the case in question, it was deemed appropriate to accept the case, since the petition did not contain a request to remove the objection.
Gaziosmanpasa Dec. 2004 dated 08.09.2004 and numbered 2004/378-748 CASE: At the end of the trial held due to the “eviction” case between the parties; Upon examination of the decision of the Gaziosmanpaşa Enforcement Court dated 08.09.2004 and numbered 2004/378-748, the Court of Cassation 6 upon the request of the defendant. 6 Of the Law Department. 14.03.2005 and numbered 2005/255-2192;
( …Case is about the removal of the objection to enforcement proceedings due to rent arrears and the eviction of the rented property. The court made an eviction order, and the decision was appealed by the defendant.
The plaintiff stated that the defendant was a tenant for a rental price of 50 million TL per month in 2001, 75 million TL per month in 2002, 100 million TL per month in 2003, and 150 million TL per month in 2004, and opened enforcement proceedings for this. between Dec 2001/4 and Dec 2004/3, the total 6.340.125.000.TL rent arrears. although the defendant stated in his objection that the monthly rental price was 40 million TL, he agreed to pay this amount 1.480.000.000.TL he claimed that he had not paid, that the objection had been lifted and that he had been evicted. suspect. Defendant defended the dismissal of the case by stating that there are no tenants here.
There is no written lease agreement between the parties.Dec. The defendant objected to the oral contract, which was the basis of the trial. In this case, the resolution of the dispute requires a trial. The court should have decided to dismiss the case on the grounds that the resolution of the dispute requires a trial, but it is not correct to make a decision in writing, so the decision should be overturned…),
When the case was disrupted, the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
By examining the decision of the General Assembly of Law, it was understood that the decision to resist was objected to within the time limit and after reading the documents in the file, the necessity was discussed:
DECISION :
The case concerns the termination of the lease agreement due to default and the eviction of the lessor.
Plaintiff Saadettin Kılıç’s lawyer stated that the defendant is a tenant in the plaintiff’s real estate, enforcement proceedings have been initiated against him for the collection of unpaid rent, and the defendant objects to the monthly rent paid in the amount of 40,000,000 TL. he stated that he had paid the rent, debt and interest debt and that he would deposit a total of TL 1,480,000,000 over the monthly rental fee. Although the defendant’s objections regarding the amount of rent are not correct, the monthly rental price is 40.000.000 TL. pay paid was accepted by the plaintiff in order not to prolong the case and to provide release, but the defendant defaulted by not paying even the amount he committed to pay within the legal period and demanded a decision for termination and release of the contract. Rented property.
The defendant Ramazan Barmanbay did not file a response petition; then, in his petition dated 08.09.2004, he claimed that he had purchased the real estate subject to the lawsuit from the plaintiff under a contract dated 06.08.2002, that the title deed had not been issued due to foreclosure and that he was not a tenant. he demanded the dismissal of the case in real estate.
The Local Court ruled that the defendant did not deny the tenancy deed and the lease relationship in the objection petition in the enforcement follow-up file, and in the current case, he defended that he purchased the real estate with a contract dated 06.08.2017. 2002, which was not considered valid due to the fact that it was an extension of the defense and was not consented by the plaintiff; Pay paid pay Dec. 51 together with the eviction notice was notified to the defendant on 02.04.04.2004, the amount accepted by the defendant was paid to the enforcement file on 06.05.2004, after the 30-day legal payment period passed, it was decided to accept the case, to terminate the lease agreement between the parties due to the default and to evict the tenant, it was understood that the partial default in this case was fixed.
The decision appealed by the defendant was overturned by the Special Chamber on the above grounds; the Local Court resisted its previous decision by repeating its reasoning; the decision to resist was appealed by the defendant’s lawyer.
There is no written lease agreement between the parties.Dec. The enforcement pursuit was also based on verbal agreement.
In the objection petition submitted to the execution follow-up file, the defendant admitted that he was a tenant in the real estate, the response petition was not filed in the current case, the defendant’s lawyer did not attend the first session as an excuse, submitted the lawsuit petition. In the petition stating that he withdrew from being a lawyer before the second session, the defendant, who personally participated in the third session, argued that he was not a tenant in the real estate, but lived Decently in the real estate based on the foreign sales contract concluded between the parties. the plaintiff and himself, and the plaintiff’s lawyer, on the other hand, did not approve, arguing that this explanation was intended as an extension of the defense.
Preliminary issue and its evaluation: Before the discussion held at the General Assembly of Jurisprudence, the preliminary question of whether the file should be returned to the Local Court was examined as a preliminary issue. It will be the basis for the evaluation to be made in terms of whether the defendant’s lawyer, who appealed the decision, should be considered to have abandoned the appeal.
The reason for raising such a preliminary question is as follows:
The Local Court told the defendant’s lawyer who objected to the decision to resist, “…the defendant’s lawyer, who objected to the decision of our court numbered 2005/439 esas-2005/563, did not pay the appeal fees and the appeal costs together. Together with the appeal request, the appeal fee of TRY 11.20, which is the appeal fee, must be deposited within 10 days from 10.06.2005, the return fee for the file to the Supreme Court is TRY 15, the cost of notification of the appeal petition to the other party and notification of the Supreme Court decision to the parties is TRY 10.50, and the cost of photocopying the execution file is TRY 3.00. Total: 28,50 USD. The objection fee must be paid to the teller of our Court within 7 (seven) days from the notification of the notification, otherwise the objection will be considered abandoned …”.
The minutes were notified to the defendant’s lawyer on 15.06.2005 and the appeal fee amounting to TRY 11.20 was deposited at the court teller on 21.06.2005. Paying paid paid paid objection expenses requested in the minutes, however, there is no document or explanation in the file regarding the date of payment if it has been paid.
Pays payable in this aspect of the file (in order to document or explain on the basis of records whether the costs of the appeal have been paid within the period specified in the minutes) Regarding the preliminary question of whether the appeal should be returned to the Supreme Court. With or without a local court, the following assessment was made:
According to the article in question, it is understood from the content of the receipt that the appeal costs were paid within the legal period. It was understood that the appeal costs subject to the memorandum were also paid due to the fact that the file was sent to the Supreme Court for review. Pays paid expenses There are no documents and explanations in the file related to the date, but it was accepted that it was paid on the same day along with the appeal fee and therefore the legal period was not exceeded; after the preliminary issue was unanimously exceeded in this way, the merits of the issue were examined.
According to the mutual claims and defenses of the parties, the minutes and evidence in the file, the compelling reasons explained in the court decision, the absence of any inaccuracies in the evaluation of the evidence and, in particular, the defendant’s explicit acceptance of the defense. Pay paid on 06.05.2004 after the legal period passed, despite the fact that he entered into a rental relationship in the objection petition dated 05.04.2004 in the follow-up file, he objected to the amount of the debt and made a partial payment commitment, but made the payment on 06.05.2004.
After the expiration of the legal period in 2004, since there was no request to remove the objection in the case in question, the Local Court’s justification for resisting based on these facts was deemed appropriate; writing the date of the decision in the title of the decision to resist as 08.09.2004 instead of 10.06.2005 was considered a material error that could be corrected on the spot.
However, since the defendant’s lawyer’s other appeals on the merits have not been examined by the Special Chamber, the file must be sent to the Special Chamber for examination from this point of view.
CONCLUSION :
The file for the examination of the other appeal objections of the defendant’s lawyer was filed on 21.12.2005 on 6. It was unanimously decided to send it to the Legal Department.
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