Written eviction commitment in residential and roofed workplace lease agreements and the rights granted to the lessor

Residential and Roofed Workplace Lease Agreements (hereafter RRWAs) are one of the most common types of contracts encountered in our daily lives. According to the Turkish Statistical Institute, approximately seven million people in our country have concluded a lease agreement as tenants. The principle of freedom of contract, which is one of the basic principles of the Turkish Code of Obligations, is limited in favor of the tenant in RRWAsThe main purpose of the RRWAs is to protect the tenant, who is considered as the weak party of the contract. The greatest protection for the tenants in these RRWAs regulated under Articles 339 to 356 of the Turkish Code of Obligations concerns the conditions for termination of the lease agreement and the rent increases. This is because the lessor will want to rent the leased premises with the highest possible rent by considering its own interest and will demand rent increases in line with prevailing market rates. If these demands are not met, he will aim to evict the tenant. Unlike other lease agreements, in RRWAs as regulated in Article 347 of the Turkish Code of Obligations, the lessor does not have the opportunity to terminate the lease agreement through unilateral notification unless ten years have passed since the beginning of the lease agreement. The lessor's need for dwelling or workplace, the necessity of rebuilding and reconstruction, new owner requirement, the tenant's or his spouse's habitable residence, two justified notices for failure to pay the rent on time, the default of the tenant, violation of contract and the written commitment of eviction which is the subject of the thesis, must be based on one of the cases listed in the law. Some of these situations arise from the lessor and some from the lessee. "The Written Commitment of Eviction", which is the subject of the thesis, is one of the eviction cases initiated by the tenant. In a written commitment of eviction, the lessee promises the lessor to evacuate the leased premises on a certain date. If the tenant fails to evacuate on the promised date, the lessor may resort to lawsuit or proceed of execution. If the written commitment of eviction, is issued by a notary public or the signature and date are certified by a notary public, the defense of the lessee is limited to submitting a document of the same nature or a document whose date and signature are certified, and proving that the term in the lease agreement has been extended. In such cases, it is possible for the lessor to provide eviction only by submitting a commitment that meets the validity conditions. However, for other eviction reasons, the burden of proof of the lessor is much higher. For example, in cases of eviction due to need, it is necessary to prove that the persons listed in Article 350 of the Turkish Code of Obligations need dwelling and workplace, that this need is sincere and that it persists throughout the lawsuit. Likewise, in eviction cases based on substantial repair and alteration for rebuilding and reconstruction purposes, the reconstruction of the leased premises must be mandatory. Arbitrary renovations and repairs do not justify the eviction of the tenant. In the written commitment of eviction, it is sufficient for the lessor to have a valid commitment. At this stage, it is up to the tenant to prove the invalidity of the commitment or the extension of the lease agreement. Thus, the written commitment of eviction which is a practical way for the lessor who wishes to evict the lessee, is a lifeline for the lessor among the reasons for eviction. In periods such as today, when the rent in the existing lease agreements are melted in the face of the increase in inflation, and the rent in the new lease agreements increase, the aim of the lessor is to ensure the evacuation of the leased premises as soon as possible. However, it is no longer possible for the lessor to ensure the eviction of the tenant quickly, regardless of the reason. Following the introduction of a twenty-five percent limit on the rate of increase in the rent for two consecutive years, the number of applications for eviction and rent determination cases has increased considerably. The growing caseload causes postponement of hearing dates, opening of hearing intervals and consequently prolonging the proceedings. In order to reduce the burden of lawsuits and quickly resolve disputes, it was decided to apply mediation, which is one of the alternative dispute resolution methods, to rental disputes as a condition of lawsuit as of 01.09.2023 and a regulation was made in this direction in the lawsuit. Despite the prolonged trial periods, the fact that the written commitment of eviction provides an advantage to the lessor cannot be denied. Since the written commitment of eviction facilities the eviction of the tenant more easily than other eviction reasons, it has strict validity conditions. While some of these conditions are not yet regulated in the law, they have emerged with the practices of the Court of Cassation in order to protect the tenant. In order for the commitment to be valid, it must be made a written declaration, must include the date of evacuation, must be given by the lessee to the lessor and be given after the delivery of the leased premises to the lessee. However, the reality is that, due to the ease of evacuation it provides, lessors obtain a written commitment of eviction from the lessee without complying with the validity conditions, leaving the evacuation date blank when the lease has not yet been delivered to the lessee. Generally, it is not an commitment of eviction given by the tenant, but a written commitment of eviction obtained by the lessor under pressure. Although there is no doubt that the commitments given while the leased have not yet been delivered are invalid, in practice, tenants have problems in proving the invalidity of the written commitment of eviction they have given. The Court of Cassation, which creates conditions that are not included in the law in order to protect the tenant, ironically limits the tenant's means of proof to written documents. For example, in cases where the promised eviction date is left blank, there is a "signature in white", and it is accepted that the person who has given his signature in this way by trusting the other party to the contract must bear the consequences of this behavior. However, in a blank signature, which is generally encountered in commercial relations, both parties are equal and it is quite possible that the signatory has another written document showing the will of the parties. As the lessee is the weaker party of the contract, it is unlikely that the lessor would give a second document to the lessee to invalidate the written commitment of eviction. On the contrary, it is known that lessors have developed different methods in order to validate the invalid commitment of eviction. Upon the tenants' objection to the signature in the commitment of eviction in order to gain time even if the signature belongs to them in the enforcement proceedings initiated based on the ordinary written commitment of eviction, the lessors have started to prevent the possibility of objecting to the signature and date by obtaining the written commitment of eviction through a notary public. Although these notarized commitments are actually invalid because they are made simultaneously with the first lease agreement and without the delivery of the leased premises, the lessors aim to eliminate the invalidity of the commitment by arranging the lease agreement as if it was made on an earlier date. As the law and the Supreme Court take measures to protect the lessee, the lessor will aim to circumvent these measures and develop solutions accordingly. The lessee, who finds it almost impossible to prove the invalidity of the commitment given before the delivery of the leased premises with a written document with the date part blank in the hope of concluding a lease agreement as soon as possible, loses all the protection provided to him by the law. For these reasons, the written commitment of eviction is of great importance. Recently, it has been observed that lessors do not want to conclude a lease agreement without an commitment of eviction and it is almost routinely demanded from every tenant. Thus, it can be easily predicted that there will be an increase in the number of lawsuits and enforcement proceedings based on the written commitment of eviction in the coming years. As a result of this situation, with the effect of the current economic conditions, there is also the possibility that rent will increase further, leading to a housing crisis. New regulations are required in order to ensure the validity of the written commitment of eviction. The thesis starts with a history section explaining how the written commitment of eviction was introduced in our law. It continues with the changes in the legislation over time and its current definition. Then, the scope of the written commitment of eviction is explained and the lease agreements in which it applies are mentioned. Different opinions in the doctrine on the legal nature of the written commitment of eviction, which is a unique reason for termination, are included. The validity conditions of the written commitment of eviction are explained in detail, along with the opinions of the doctrine and the Court of Cassation. The differences between the written commitment of eviction in ordinary or qualified written form, making the commitment through a representative, the conditions of capacity, the case of more than one tenant or lessor, the responsibilities of the heirs in case of the death of the tenant or lessor are examined. The necessity of the consent of the spouse in case the leased premises is a family dwelling, the validity of the conditional commitment of eviction and the validity of the successive commitment of eviction are explained. The characteristics of the dates in the written commitment of eviction and the effects of the commitment of eviction signed in blank as a signature in blank on the validity of the commitment are explained. Additionally, the burden of proof of the parties, what the parties should prove, the problems experienced by the tenant in proving the invalidity of the written commitment of eviction and the suggestions of the doctrine on this issue are included. The first part concludes with the effect of the will defect on the written commitment of eviction and the validity of the penal clause imposed on the tenant in case of non-compliance with the written commitment of eviction. In the second part, the termination of the lease agreement with a written commitment of eviction and the remedies available to the lessor are explained. First of all, the legal remedies based on the written commitment of eviction are explained by and against whom. The validity of the lease agreement and the written commitment of eviction in the event of the transfer of the lease agreement and the leased premises, as well as the issue of the adverse party, are examined. The period within which the lessor may apply for legal remedies is clarified. The opinions of the doctrine and the Court of Cassation on the issue that the written notification made pursuant to Article 353 of the Turkish Code of Obligations preserves the period of litigation and follow-up are included. Additionally, opinions on the effect of the mediation application on the eviction request period are given. The enforcement and litigation remedies, which are the remedies that the lessor may apply against the lessee who does not vacate the leased premises on the promised date, are discussed. In the event that the tenant objects to the enforcement procedures and the tenant's objection, the ways that can be applied depending on the content of the objection, namely the removal of the objection, the cancellation of the objection and the eviction lawsuit are explained. In the event that a lawsuit is filed, the duty and authorization and mediation as a condition of litigation are mentioned. The legal remedies that the parties may apply against the decision given by the court are mentioned. In case of an eviction decision, the possibility of the tenant to postpone the eviction until the finalization of the decision and the opinions on this issue are examined. The second part concludes with an explanation of when the lease agreement will be deemed to be terminated and the conclusion. The aim of the thesis is to define the written commitment of eviction regulated in paragraph 1 of Article 352 of the Turkish Code of Obligations, to examine the validity conditions in detail, to provide solutions by including the doctrine and the opinions of the Court of Cassation on the special issues and proof, and to convey the legal remedies to be applied and how the lease agreement will end with the commitment of eviction. Key words: Written Commitment of Eviction, Residential and Roofed Workplace Lease Agreement, Mediation, Eviction by Execution Without Execution Based on Written Commitment of Eviction, Annulment of Objection, Eviction Lawsuit