6th Civil Chamber 2015/7331 E. , 2015/9163 K.
“Case Law Text”
COURT : Istanbul 5th Civil Court of Peace
DATED : 11/12/2013
NUMBER : 2013/657-2013/740
The decision on the eviction case given by the local court, dated and numbered above, has been appealed by the defendant within the time limit and by the plaintiff after the expiry of the time limit, and all the papers in the file have been read and discussed and considered.
Dispute is related to the eviction case based on the claim of the plaintiff lessor that the lease agreement has become unbearable for him. The court decided to evict the tenant and the judgement was appealed by the defendant and the plaintiff.
1- The judgement was notified to the plaintiff’s attorney on 04/02/2014, and since the petition for appeal was filed on 6/3/2014 after the eight-day legal period had elapsed, the plaintiff’s attorney’s request for appeal is not in due time in accordance with Article 432/4 of the Code of Civil Procedure and the Unification of Case Law Decision dated 1.6.1990 and numbered 1989/3, 1990/4.
2-As for the appeal of the defendant’s attorney; The plaintiff’s attorney stated in the petition that he initiated enforcement proceedings against the defendant for non-payment of the rent money and that the rent money was paid after the proceedings, and that the site management also initiated enforcement proceedings against the tenant due to non-payment of the site dues, and that the lease agreement, which is for one year, has expired and that he has not been evicted although he has been notified that the contract has been terminated, and stated that the lease agreement has become unbearable for him and requested the evacuation of the lease in accordance with Article 331 of the TCO. The defendant defended the rejection of the lawsuit.
Extraordinary termination is an opportunity to terminate fixed and indefinite-term permanent debt relations for just cause, prematurely and prospectively. The characteristic of extraordinary termination in comparison to ordinary termination is that its validity is based on a contractual or legal reason for termination (just cause). Extraordinary reasons are listed in the law and one of them is the termination of the lease agreement for important reasons regulated in Article 331 of the TCO. For any reason, in the lease agreement, which is within the scope of continuous performance contracts, if a situation of unbearability has arisen for any of the parties, that party cannot be expected to be bound by the contract.
Unbearability within the scope of the important reason is the situation where the party cannot endure the contract. An example of this situation is the assignment of the tenant officer to another city. In such a case, the continuation of the lease agreement for the tenant officer is considered an intolerable situation. In the presence of an intolerable situation, either party may exercise the right to terminate the contract at any time, provided that the termination period is observed. This right of termination, which is a general rule, can be used in all types of lease relationships, including residential and roofed workplace leases, whether the contract is definite or indefinite. In order to use this type of termination regulated in Article 331 of the TCO, the existence of a valid lease agreement concluded between the parties, the existence of justified reasons that make the continuation of the lease agreement unpredictable for the parties, and the lessor and the lessee based on the just cause must make a notice of termination in accordance with Article 329 (three months) and Article 330 (three days) of the TCO.
As for the concrete case; There is no dispute between the parties regarding the one-year lease agreement dated 9/7/2012, which is relied upon in the case and taken as the basis for the judgement. The leased place is a residence and is subject to the provisions of the TCO No. 6098 on residential and roofed workplace rent. In the petition, the plaintiff relied on the reason that the rent and subscription fees were not paid regularly as the reason why the contract became unbearable for him.
The default of the tenant in the payment of the rent or ancillary expenses is regulated in Article 315 of the TCO. Separately, Article 352/2 of the TCO regulates the termination due to two justified warnings in case the rent or ancillary expenses are not paid on the day. The plaintiff does not rely on these reasons for eviction. For this reason, while the court should decide to dismiss the case due to the reason relied on by the plaintiff (Article 331 of the TCO), it is not correct to decide to accept the case by characterising it as an eviction case due to default as written.
The judgement should be reversed for this reason.
CONCLUSION:
For the reasons explained in subparagraph 1 above, since the plaintiff’s appeal is not in due time, the appeal request is rejected, for the reasons explained in subparagraph 2 above, the defendant’s appeal objections are accepted and the judgement is reversed pursuant to Article 428 of the Code of Civil Procedure in accordance with the provision of the provisional Article 3 added to the Code of Civil Procedure No. 6100 with the Law No. 6217, and the prepaid appeal fee from the parties shall be returned to the appellants, if requested, it was unanimously decided on 27/10/2015.
You can access our other article examples and petition examples by clicking here.