EVICTION ACTION BASED ON TWO JUSTIFIED NOTICES
An eviction action based on two justified notices is regulated under Article 352, paragraph 2 of the Turkish Code of Obligations. This provision constitutes a special ground for eviction, granting the landlord the right to evict the tenant before the expiration of the lease term. In practice, it most commonly arises due to the non-payment of rent.
Conditions of the Eviction Action
Existence of a valid lease agreement:
First and foremost, in order to file an eviction action, there must be a valid lease agreement between the parties. In practice, a written lease agreement is generally required. Where no written agreement exists, the existence of the lease relationship must be proven by other means.
Two justified notices within the same lease year:
The tenant must have been served with two notices by the landlord within the same lease year due to failure to pay the rent at all or payment of the rent in an incomplete manner. The term “lease year” is determined according to the commencement date of the lease agreement and should not be confused with the calendar year. For example, if the lease started on 1 September 2023, the lease year runs from 1 September 2023 to 31 August 2024. Within this period, if the landlord serves two justified notices on the tenant by one of the methods explained below, an eviction action may be filed at the end of the lease year within the statutory filing period (within one month following the end of the lease year).
Qualification of the notice as a “justified notice”:
The notices served must genuinely be based on the non-payment of rent. Notices sent for unjustified or unrelated reasons cannot constitute grounds for an eviction action. Furthermore, the notices must be duly issued in a manner that clearly establishes the tenant’s default.
Time limit:
The eviction action must be filed within one month following the end of the lease year in which the notices were served. This period is a forfeiture period (peremptory time limit) and is taken into consideration by the court ex officio. Accordingly, the court may dismiss the case on its own motion due to failure to comply with the time limit.
Notices must relate to the same lease year:
The notices must pertain to the same lease agreement and the same lease year. Notices served in different lease periods or arising from different lease relationships cannot be combined to form grounds for eviction.
Methods of Serving Two Justified Notices
Although certain methods are listed and recommended below for ease of proof, the concept of a justified notice is not subject to a statutory formal requirement.
“…Article 7(e) of Law No. 6570 does not impose any formal requirement for notices. It is sufficient to remind and demand the payment of rent that has not been paid on time…”
Court of Cassation (Yargıtay) 6th Civil Chamber, E. 1998/6835, K. 1998/6808, dated 10.09.1998
Notice via a notary public:
The landlord may send a notice to the tenant through a notary public stating that the rent has not been paid. As of the date of service, the notice becomes official and may later be used as evidence in an eviction action.
Notice through enforcement proceedings:
The landlord may initiate enforcement proceedings before the enforcement office for the collection of unpaid rent. The payment order served on the tenant by the enforcement office constitutes a notice. If the tenant fails to pay the debt, both the enforcement proceedings continue and the situation is recorded as a justified notice.
Notice through court proceedings:
When the landlord files a lawsuit for the collection of rent, notifications served through the court also qualify as notices. For instance, the statement of claim served on the defendant tenant in a rent collection lawsuit may be deemed a notice.
3. Important Practical Considerations
- For both notices to be valid, the tenant must have failed to pay the rent on time. Even if the tenant pays the debt after a delay but before the eviction action is filed, the notice is still deemed a justified notice. As established by the Court of Cassation precedents cited below, this does not prevent the filing of an eviction action.
“…Payments made after the service of the notice do not prevent the formation of two justified notices…”
Court of Cassation 6th Civil Chamber, E. 2016/51, K. 2016/5316, dated 20.09.2016
“…In order for an eviction decision to be rendered in an action based on two justified notices, the tenant must have caused two justified notices within a single lease year. Payments made after the service of the notice do not prevent the formation of two justified notices…”
Court of Cassation 6th Civil Chamber, E. 2012/4890, K. 2012/8344, dated 04.06.2012
- When filing the eviction action, the landlord must submit the notices and proof of service to the case file. The court will examine these documents to determine whether the condition of “two justified notices” has been met. The rent must not have been paid prior to the service of the justified notice.
- The landlord may have collected the rent despite serving a notice; this does not affect the validity of the notice. What matters is that the tenant has fallen into default regarding payment.
- The eviction action may only be filed at the end of the lease year in which the notices were served. In other words, an action cannot be filed immediately after serving the notices. This regulation aims to protect the tenant’s right to housing throughout the lease term.
4. Conclusion
Eviction based on two justified notices is a legal mechanism that allows the landlord to evict the tenant for just cause as a result of the tenant’s faulty conduct in failing to pay the rent. In this way, the tenant’s breach of contractual obligations becomes a ground for eviction. However, in order to rely on this mechanism, the notices must be duly served, must fall within the same lease year, and the statutory time limit for filing the action must be strictly observed. Otherwise, the eviction action filed by the landlord will be dismissed.