Eviction Process Due to Two Justified Warnings in Turkey

In Turkish law, paragraph 2 of Article 352 of the Turkish Code of Obligations forms the legal basis for an eviction lawsuit due to two justified warnings. This article states:

If the tenant has caused two justified written warnings to be given to him/her for not paying the rent within the rental period in lease agreements shorter than one year; or within a rental year or a period exceeding one rental year in lease agreements of one year or longer, the lessor may terminate the lease agreement through a lawsuit within one month starting from the end of the lease period and, in leases longer than one year, from the end of the rental year in which the warnings were made.

In this article, we will answer questions such as what are the conditions for an eviction decision to be rendered due to two justified warnings, whether enforcement proceedings can be initiated, or whether initiating enforcement proceedings can substitute for two justified warnings.

What are the necessary conditions for eviction due to two justified warnings?

The necessary conditions for eviction due to two justified warnings are:

1. The tenant’s default in paying the rent within one year
2. The lessor sending two written warnings to the tenant
3. The warnings being within the same rental year and for different months
4. The warnings being properly served
5. The rent debt being unpaid at the date of service of the warnings
6. The eviction lawsuit being filed within one month from the end of the rental period or the rental year in which the warnings were made

How are enforcement proceedings conducted for eviction due to two justified warnings?

The finalized court decision obtained as a result of an eviction lawsuit due to two justified warnings can be subject to enforcement proceedings with judgment. In this case, the process to be followed is as follows:

1. The enforcement office is applied to with the finalized court decision.
2. The enforcement office sends an enforcement order to the debtor tenant.
3. The enforcement order states that the eviction must be carried out within fifteen days from the date the decision becomes final.
4. If the tenant does not carry out the eviction within this period, the enforcement officer forcibly carries out the eviction process.

The enforcement proceedings process begins from the notification of the finalized court decision and ends with the eviction of the tenant. This process is usually completed within a few weeks to a few months, but it may be prolonged if the tenant resists or resorts to legal remedies.

Can enforcement proceedings substitute for two justified warnings?

Enforcement proceedings do not directly substitute for two justified warnings, but payment orders sent during the enforcement proceedings can be considered as justified warnings. The lessor can send a payment order to the tenant by resorting to eviction without judgment based on non-payment of rent in accordance with Article 269 of the Enforcement and Bankruptcy Law. If these payment orders are prepared and served in accordance with Article 315 of the Turkish Code of Obligations, they constitute justified warnings.

In a Court of Cassation decision, it was explicitly stated that payment orders in enforcement proceedings constitute justified warnings by ruling that “It is seen that the plaintiff has made two separate enforcement proceedings against the defendant tenant, the payment order was served to the debtor, and the debtor did not object to the debt nor pay the debt to the enforcement file within 30 days. The sample 13 payment order served in the enforcement proceedings gives the 30-day period specified in the Law, and this payment order substitutes for the notification in Article 315 of the TCO.”

How long does an eviction lawsuit due to two justified warnings take?

The duration of an eviction lawsuit due to two justified warnings may vary depending on the specific circumstances of each case. Generally, such cases tend to conclude faster than other eviction cases because the existence of two justified warnings is documented, making the proof process easier.

On average, an eviction lawsuit can be concluded within 3 to 12 months. However, factors such as the defenses of the parties, collection of evidence, whether an expert examination is required or not can affect the duration of the lawsuit. Also, the workload of the courts can prolong the case duration.

After the case is decided, if the parties exercise their right to appeal, the process may be further prolonged. Including the appeal examination, the total process may exceed 1 year.

Is mediation mandatory before filing an eviction lawsuit due to two justified warnings?

According to the regulation introduced by Law No. 7445 on Amendments to the Enforcement and Bankruptcy Law and Some Laws, it has been made mandatory to initiate the mediation process before eviction lawsuits due to two justified warnings to be filed from 01.09.2023 onwards. Failure to comply with this obligation will result in the dismissal of the case on procedural grounds.

What is the time limit for filing an eviction lawsuit due to two justified warnings?

In Turkey, an eviction lawsuit due to two justified warnings must be filed within one month starting from the end of the rental period, or in leases longer than one year, from the end of the rental year in which the warnings were made. This one-month period is a forfeiture period. However, according to TCO Art. 353, if the lessor has notified the tenant in writing that he/she will file a lawsuit at the latest within the period stipulated for filing the lawsuit, the lawsuit filing period is deemed to be extended for one rental year.

Does paying the rent debt after the service of the warning prevent the formation of a justified warning?

Rent debt payments made after the service of the warning do not prevent the formation of two justified warnings. However, if the rent debt is paid before the warning notice is served, the warning will not be considered justified, and an eviction lawsuit cannot be filed. In a Court of Cassation decision, it was explicitly stated that “Payments made after the service of the warning do not prevent the formation of two justified warnings.”

Do the two justified warnings need to be made within the same rental year?

Yes, the two justified warnings need to be made within the same rental year. Warnings made in different rental years are not sufficient for filing an eviction lawsuit due to two justified warnings.

It is also important that the warnings pertain to different months. Two warnings for the same month are not sufficient for the application of this provision.

Can two justified warnings be formed in case of annual prepayment of rent?

In case of an agreement for annual prepayment of rent, it is impossible for two justified warnings to be formed. Because in annual prepayment, the entire year’s rent is paid upfront, there will be no unpaid rent debt during the year, and thus there will be no need to issue warnings.

Can two justified warnings be formed in indefinite lease agreements?

Two justified warnings do not form in indefinite lease agreements. As stated in Court of Cassation decisions, eviction lawsuits due to two justified warnings can only be applicable in fixed-term lease agreements.

Is it possible to divide due rent payments and make them subject to separate warnings?

It is not possible to divide due rent payments and make them subject to separate warnings. According to the Court of Cassation, monthly rents due on the date of the first warning cannot be divided and made subject to a separate warning to create two justified warnings. This situation is considered an abuse of rights.

Is a payment order sent through enforcement proceedings considered a justified warning?

Yes, a payment order sent through enforcement proceedings is considered a justified warning. In Court of Cassation decisions, payment orders sent through enforcement proceedings have been accepted as justified warnings. Since an eviction-warned payment order is accepted as a written and justified warning, it is sufficient for filing a lawsuit based on two justified warnings.

How long must the tenant have failed to pay the debt for an eviction lawsuit to be filed due to two justified warnings?

For an eviction lawsuit to be filed due to two justified warnings, the tenant must have failed to pay the rent within the rental period for lease agreements shorter than one year, or within a rental year or a period exceeding one rental year for lease agreements of one year or longer.

Is a prior warning necessary to file an eviction lawsuit due to two justified warnings?

No additional prior warning is necessary to file an eviction lawsuit due to two justified warnings. The existence of two justified warnings is sufficient for filing the lawsuit. However, if an extension of the lawsuit filing period is desired, the lessor must notify the tenant in writing that they will file a lawsuit, according to TCO Art. 353.

What happens if the tenant makes a payment on the day the warning is served?

If the time of service is not specified in the served warning or payment order, and payment is made on the same day of service, a justified warning will not be formed. In this case, it is assumed that the tenant made the payment before the warning was served, and the warning is not considered justified.

Who bears the burden of proof in an eviction lawsuit due to two justified warnings?

In an eviction lawsuit due to two justified warnings, the burden of proof lies with the lessor. The lessor is obligated to prove the existence of two justified warnings and that they were properly served. Additionally, the lessor must prove that the rent debt was not paid.

What happens if the tenant claims that the eviction commitment is invalid?

If the tenant claims that the eviction commitment is invalid, they are obligated to prove this claim. In a Court of Cassation decision, it was explicitly stated that “The defendant tenant claiming that the eviction commitment was signed before the lease agreement is obligated to prove this claim.”

In which court is an eviction lawsuit due to two justified warnings filed?

An eviction lawsuit due to two justified warnings is filed in the Civil Court of Peace, depending on the type of lease agreement. The competent court for disputes related to residential and roofed workplace leases is the Civil Court of Peace.

Can eviction be carried out before the court decision is finalized in an eviction lawsuit due to two justified warnings?

Eviction cannot be carried out before the court decision is finalized in an eviction lawsuit due to two justified warnings. For the decision to be finalized, either the parties must not appeal within the appeal period, or if appealed, the Court of Cassation must approve the decision.

Is the lawsuit dismissed if the tenant pays the rent debt during an eviction lawsuit due to two justified warnings?

In an eviction lawsuit due to two justified warnings, the tenant’s payment of the rent debt during the lawsuit does not cause the lawsuit to be dismissed. This is because payments made after two justified warnings have formed do not eliminate the previously formed justified warnings.

What happens if the tenant changes after an eviction lawsuit due to two justified warnings is filed?

If the tenant changes after an eviction lawsuit due to two justified warnings is filed, the lawsuit continues against the new tenant. However, the new tenant cannot be held responsible for the debts of the previous tenant. The new tenant is responsible for the debts of their own period.

 

 

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