Eviction Of The Leased Property through Enforcement (Eviction Due To Default)
There are two ways to evict a tenant from a leased property due to non-payment of rent. The first, which is more laborious and time-consuming than eviction through enforcement proceedings, is to issue two justified notices within one rental period. This method requires issuing two notices for unpaid rent within one rental period. Although these notices do not have to be in any specific form, it is important that they be drawn up by a notary public for the purposes of determining their content. Another, more practical method is to initiate enforcement proceedings for eviction for unpaid rent, thereby evicting the tenant by default.
There are two practical benefits to evicting the tenant from the leased property through enforcement, i.e., due to default. The first is that the proceedings initiated for the rent claim will be considered a warning, in other words, it will have the same effect as if a warning had been issued to the debtor tenant through the same notary, and it will also be possible to rely on the two valid warnings initially issued. The second practical benefit is that, by resorting to this method, it will be possible to proceed with seizure against the claim even before the eviction takes place and to apply the necessary measures for the collection of the claim. An important point should not be overlooked here. Enforcement offices and some enforcement courts are meticulous about stamp duty. In the case of commercial leases, some enforcement offices will not initiate enforcement proceedings without the stamp duty being paid, and some enforcement courts will not even issue a decision. Particular attention should be paid to this issue when initiating eviction proceedings for leased commercial premises.
In practice, in this method called 7/30 enforcement proceedings, enforcement proceedings will first be initiated at the enforcement office, and the debtor/tenant will be warned in the payment order that “if the debt is not paid within 7 days, seizure will be made, and if the entire rent debt and its accessories are not paid within 30 days, the lease agreement will be terminated and the leased property will be vacated.” The 7-day period here is the general seizure period for enforcement proceedings without a court order. However, the 30-day period does not originate from the Enforcement and Bankruptcy Law. This period originates from the Turkish Code of Obligations No. 6098.
Turkish Code of Obligations, Article 315:
“If the tenant fails to pay the rent or incidental expenses that become due after the delivery of the leased property, the lessor may give the tenant a period of time in writing and notify them that the agreement will be terminated if they fail to pay within that period.
The period to be given to the tenant shall be at least ten days, and at least thirty days for residential and covered workplace leases. This period shall commence on the day following the date of written notification to the tenant.”
Here, the debtor must pay all receivables, such as the rent and the associated fees, as well as enforcement costs, within thirty (30) days. If the tenant fails to pay the entire debt, the lease agreement will terminate due to default. The thirty (30) day period is only applicable to residential and covered workplaces. For other types of leases, a ten (10) day period is sufficient for eviction due to default.
An important point here is that the seven (7) day attachment period is also the debtor’s objection period. If the debtor objects to the debt within these (7) days, the proceedings are suspended. If the objection is only to the debt, i.e., if there is no objection to the signature, then a case must be filed in the enforcement court to lift the objection.
Enforcement and Bankruptcy Law Article 269/c – (Added: 538 – 18.2.1965 / m.110):
“If the debtor has not rejected the contract but has objected by stating that the rent has been paid or cannot be demanded for any other reason, or has requested a set-off, he/she is obliged to prove the grounds for the objection and his/her request with a document drawn up ex officio by a notary public or certified by his/her signature, or acknowledged by the creditor, or with a receipt or document issued by official departments or competent authorities within their powers and in accordance with the procedure.
If the creditor denies the promissory note or receipt, the provisions of Article 68 shall apply mutatis mutandis.
The enforcement of the execution court’s decision regarding eviction does not require finality. However, for eviction, ten days must pass from the date of notification or service of the decision to the debtor. The debtor may avail themselves of the provisions of Article 36 regarding the eviction decision.
If the debt has been contested but the signature has not been contested, there is now a document with a signed acknowledgment as provided for in Article 68 of the Enforcement and Bankruptcy Code. In this case, if the debtor/tenant cannot present documents proving that they have paid the debt/rent, the objection will be lifted. In practice, despite the existence of a written lease agreement, most parties choose to pursue the longer and more costly route of challenging the objection rather than having the objection lifted in cases where the lease agreement has not been denied.
If the 30-day period following the service of the payment order to the debtor has expired and the debt remains unpaid in full, the lease agreement shall be terminated by the lessor. Thereafter, it will be necessary to file an “eviction lawsuit due to default” in the Enforcement Court. It should be noted that this lawsuit is a declaratory action but also includes a judgment of enforcement. In other words, the court will only examine whether the conditions for eviction due to default have been met in this lawsuit. These are briefly: “1- Has a valid and proper enforcement proceeding been initiated, and has a valid payment order been served? 2- Has the payment order been served, and has the debt been paid in full or not, even though 30 days have passed?” If these conditions are met, the court will issue an eviction order based on the enforcement file. However, the debtor may rely on documents such as a payment or release, which, upon examination by the court, are found to belong to the creditor, provided that the debtor submits a document bearing the creditor’s signature confirming that the debt has been paid in full. It should be noted that these documents must indicate that the debt was paid in full before the end of the 30-day period. In other words, if the debtor has not paid the entire debt within 30 days from the date of notification of the payment order, the fact that the debt has been paid after this period until the lawsuit is filed and completed will not affect the eviction. This is because the lease agreement has been terminated under the conditions specified by law at the end of the 30-day period, and the lawsuit to be filed is only for the purpose of determination.
In practice, after the court evaluates the two above-mentioned issues based on the case file, an eviction decision is usually issued at the first hearing. Eviction can take place within 10 days of the decision being announced or served. In other words, if the eviction decision is read in the presence of the debtor, i.e., the tenant, or their representative, it can be enforced after the hearing; if it is issued in the absence of the debtor or their representative, it can be enforced 10 days after its notification. Important points to note for eviction are the payment of the enforcement eviction fee and, if the debtor has nowhere to take their belongings, the payment of the 6-month secure storage fee and the preparation of transportation.
To briefly list the points to consider regarding the eviction of the leased immovable property through enforcement (due to default): 1 – Stamp duty must be paid at workplaces. 2 – Although no documents need to be submitted in cases of enforcement without a judgment, the lease agreement must be submitted to the file as the basis for enforcement. The practical implication of this is to be able to benefit from the procedure in Article 68 of the Enforcement and Bankruptcy Law. 3 – If there is no denial of signature, the objection in Article 68 must be lifted by means of the referral in Article 269. 4 – If the seizure is finalized, it must be carried out, because you may not be able to reach the debtor/tenant for a long time afterwards. 5 – If the eviction decision has been served to the debtor, i.e., delivered to them in person, you can carry out the eviction within 10 days by submitting the decision to the enforcement file without waiting for the notification. 6 – Eviction can be carried out as soon as the 10-day period following the issuance of the eviction decision expires; the enforcement office’s statements that a 2-week period should be granted have no legal basis. 7 – When proceeding with the eviction, you must have with you the six-month security deposit fee and sufficient funds to cover transportation costs. Additionally, the eviction fee must be paid.