Legal Department 2015/7331 E., 2015/9163 K.
“Text of the Case”
COURT: Istanbul 5th Criminal Court of Peace
DATE: 12/11/2013
NUMBER: 2013/657-2013/740
The defendant appealed the decision issued by the local court regarding the eviction case with the above date and number within the specified time period, while the plaintiff appealed after the deadline had passed. All documents in the file have been reviewed and the necessary evaluations have been made.
The dispute concerns the eviction case based on the plaintiff’s claim that the lease agreement had become unbearable for him. The court ruled for the eviction of the tenant, and this decision was appealed by both the defendant and the plaintiff.
1-
The decision was served to the plaintiff’s attorney, who filed the appeal, on 04/02/2014, and the appeal petition was filed on 06/03/2014, after the eight-day statutory period had expired. the plaintiff’s attorney’s appeal was not filed within the time limit pursuant to Article 432/4 of the Code of Civil Procedure and the Judgment Consolidation Decision No. 1989/3, 1990/4 dated 01/06/1990.
2-
Regarding the defendant’s attorney’s objection: The plaintiff’s attorney stated in the complaint that he had filed a lawsuit against the defendant for non-payment of rent and that the rent had been paid after the lawsuit was filed, and also that the site management had initiated enforcement proceedings against the tenant for non-payment of site fees.
The plaintiff’s attorney also stated that despite the expiration of the one-year lease agreement and the notification to the tenant that the agreement had been terminated, the tenant did not vacate the premises, which made the lease agreement unenforceable for the plaintiff. The plaintiff’s attorney requested the eviction of the tenant pursuant to Article 331 of the Turkish Code of Obligations. Th e defendant defended the dismissal of the case.
Extraordinary termination is a method of early and prospective termination of fixed-term and indefinite-term continuous debt relationships for a justifiable reason. Unlike ordinary termination, extraordinary termination is based on a contractual or legal reason for termination (justifiable reason). Extraordinary reasons are listed in the law; one of them is the termination of the lease agreement for important reasons, as regulated in Article 331 of the Turkish Code of Obligations.
In a lease agreement, which is part of a continuous debt agreement, if an intolerable situation arises for either party, that party cannot be expected to remain bound by the agreement. The intolerability covered by important reasons is a situation where the party cannot tolerate the contract. An example of this situation is the tenant employee moving to another city. In this case, the continuation of the lease agreement is considered unacceptable for the tenant employee. In case of hardship, either party may exercise the right to terminate the contract at any time, provided that the notice period is observed.
This general right of termination applies to all types of lease relationships, including residential and commercial leases, regardless of whether the contract is for a fixed or indefinite term. In order to use this type of termination regulated in Article 331 of the Turkish Code of Obligations (TBK), there must be a valid lease agreement between the parties, there must be justifiable reasons that make the continuation of the lease agreement unreasonable for the parties, and the lessor and the tenant must give notice of termination in accordance with Articles 329 (three months) and 330 (three days) of the TCC.
Regarding the case in question, there is no dispute between the parties concerning the lease agreement dated 9/7/2012 and valid for one year, which is the basis of the case and the judgment. The leased property is a residence and is subject to the provisions of Turkish Code of Obligations No. 6098 regarding the leasing of residences and enclosed business premises. In the statement of claim, the plaintiff cited the failure to pay rent and maintenance fees regularly as the reason why the agreement had become unbearable for them.
The tenant’s default in paying rent or additional expenses is regulated in Article 315 of the Turkish Code of Obligations. Furthermore, Article 352/2 of the Turkish Code of Obligations regulates termination with two justified warnings in the event of failure to pay rent or additional expenses on time. The plaintiff does not rely on these grounds for eviction. Therefore, the court should have dismissed the case based on the grounds relied upon by the plaintiff (Article 331 of the Turkish Code of Obligations), but it was erroneous to accept the case as an eviction case due to default, as stated in the written decision.
Therefore, the decision should be overturned.
CONCLUSION:
For the reasons explained in paragraph 1 above, the plaintiff’s appeal was not filed within the time limit and, therefore, the appeal request is REJECTED. For the reasons explained in paragraph 2, the defendant’s appeal has been accepted, and in accordance with the provisions of Article 428 of the Code of Civil Procedure (HUMK) and the provisional Article 3 added by Law No. 6217, the judgment has been REVERSED in accordance with Article 428 of the Code of Civil Procedure. Upon request, the appeal fee previously collected from the parties will be refunded to the appellants. Decided unanimously on 10/27/2015.