Eviction Undertaking and Its Validity Requirements (Article 352 of the Turkish Code of Obligations)
An eviction undertaking is a written declaration by which the tenant voluntarily undertakes to vacate the leased property on a specified date. This legal institution is regulated under Article 352 of the Turkish Code of Obligations (TCO).
In practice, eviction undertakings are frequently used as a form of security for landlords, particularly to eliminate uncertainty regarding whether the tenant will vacate the property at the end of the lease term. However, undertakings signed at the time of the lease agreement are often deemed invalid. Therefore, for validity purposes, it is essential that the undertaking be given after the delivery of the leased property and based on the tenant’s free will.
Fundamental Validity Requirements of an Eviction Undertaking under Article 352 TCO
Based on judicial decisions, the principal conditions required for the validity of an eviction undertaking can be summarized as follows:
1. Time of Execution
The eviction undertaking must be given after the lease agreement has been concluded and the leased property has been delivered to the tenant.
Undertakings obtained on the same date as the lease agreement or prior to it are generally deemed invalid, since they are considered not to reflect the tenant’s free will.
2. Written Form
The undertaking must be in writing. An ordinary written form is sufficient, and notarization is not mandatory.
However, if an undertaking without notarization is challenged regarding signature or date, the dispute may require judicial examination. In such cases, the matter may be brought before general courts (in practice, the Civil Court of Peace) rather than the enforcement court.
3. Free Will
The undertaking must be given voluntarily and without coercion.
Undertakings executed after the commencement of the lease relationship are generally presumed to reflect the tenant’s free will.
4. Definite Eviction Date
The undertaking must clearly specify the date on which the tenant will vacate the property. This date must be explicit and determinable.
5. Time Limit for Legal Action
The landlord must initiate enforcement proceedings or file an eviction lawsuit within one month from the promised eviction date.
This period constitutes a peremptory time limit (hak düşürücü süre).
1. Time of the Undertaking and the Principle of Free Will
In practice, the most frequently contested issue is the timing of the undertaking.
The Court of Cassation assumes that at the stage of establishing the lease relationship, the tenant may be in a relatively weaker position due to the need for housing or workplace premises. For this reason, undertakings obtained at the same time as the lease agreement are generally deemed invalid.
The 6th Civil Chamber of the Court of Cassation (1991/1187 E.), referring to the Unification of Judgments Decision dated 4 October 1944 (20/28), held that eviction undertakings obtained before or during the establishment of the lease relationship should be considered invalid because they are not based on free will.
Similarly, the 6th Civil Chamber (2015/7505 E.) explicitly stated that an undertaking executed on the same date as the lease agreement does not possess legal validity.
Conversely, undertakings provided after the lease relationship has begun and the tenant has taken possession of the property are regarded as valid.
The 6th Civil Chamber (1991/10363 E.) held that once the lease relationship has been established, the tenant is already protected by statutory provisions. Therefore, undertakings given at this stage are presumed to be based on free will.
Regarding renewed lease agreements, the 8th Civil Chamber (2017/4868 E.) ruled that an undertaking included as a clause in a renewed lease agreement is not rendered invalid merely because it appears within the special provisions of the contract.
2. Formal Requirements and Content (Written Form, Date, Blank Documents)
Article 352/1 of the TCO requires the undertaking to be made in writing. Judicial decisions also emphasize several content-related requirements.
Written Form and Notarization
The 6th Civil Chamber of the Court of Cassation (2010/2015 E.) held that preparing the eviction undertaking in ordinary written form does not constitute any procedural irregularity.
However, where the undertaking is not notarized and objections are raised concerning the signature or the date, it may not be possible to directly seek removal of the objection before the enforcement court under Article 275 of the Enforcement and Bankruptcy Law. Instead, the dispute may require adjudication before a competent civil court (Court of Cassation, 6th Civil Chamber, 2013/15016 E.).
Certainty of Dates
The undertaking must include both:
- the date of execution, and
- the date of eviction.
The 12th Civil Chamber (2020/1175 E.) emphasized that the eviction date must be clearly specified.
Similarly, the Bakırköy 4th Civil Court of Peace (2019/1559 E.) held that leaving the year section of the execution date blank rendered the undertaking unenforceable.
Undertakings Signed in Blank
If the tenant claims that the undertaking was signed in blank and later filled in contrary to the agreement, this claim must be proven through written evidence.
Otherwise, established case law holds that a person who signs a blank document must bear the consequences of doing so (Court of Cassation, 6th Civil Chamber, 2011/13867 E.).
3. Legal Proceedings and Enforcement (One-Month Peremptory Period)
Under Article 352/1 of the TCO, the landlord must, within one month from the promised eviction date:
- initiate enforcement proceedings, or
- file an eviction lawsuit.
This one-month period is a peremptory time limit.
Initiating enforcement proceedings within this period preserves the right to file a lawsuit. The 6th Civil Chamber (2014/9023 E.) held that once enforcement proceedings are initiated within the one-month period, an eviction lawsuit may still be filed even after the expiration of that period.
Standing to Sue
As a rule, the eviction action must be filed by the landlord.
A property owner who is not the contractual landlord does not ordinarily have standing to bring the action. However, if the property is transferred to a new owner, the new owner may rely on the eviction undertaking given during the period of the previous landlord as the legal successor (Court of Cassation, 6th Civil Chamber, 2011/1107 E.).
4. Special Situations and Defences
Conditional Undertakings
An eviction undertaking may be made conditional.
The 6th Civil Chamber (2009/10107 E.) held that an undertaking conditional upon the payment of a certain amount to the tenant is valid. However, eviction may only be requested once the condition has been fulfilled.
New Lease Agreement Invalidating the Undertaking
If, after the eviction undertaking has been given, a new lease agreement covering the promised eviction date is executed, the previous undertaking becomes invalid.
The 6th Civil Chamber (2012/9893 E.) confirmed that in such circumstances the eviction undertaking loses its legal effect.
Claim of Duress (İkrah)
If the tenant claims that the undertaking was signed under duress, the burden of proof rests on the tenant.
The allegation of duress may be raised:
- as a defence during the proceedings, or
- through an action for annulment within one year from the date of the undertaking.
The existence of duress may be proven by any kind of evidence, including witness testimony (Court of Cassation, 6th Civil Chamber, 2009/10994 E.).
Conclusion
In light of judicial decisions, the validity of an eviction undertaking depends on a delicate balance concerning its timing, form, content, and the subsequent conduct of the parties.
While the Court of Cassation adopts a strict approach to protect the tenant’s freedom of will at the beginning of the lease relationship, it consistently recognizes the legal consequences of eviction undertakings that are properly executed during the continuation of the lease relationship and based on the tenant’s free will.
For this reason, before initiating legal proceedings based on an eviction undertaking, it is essential to carefully assess whether the undertaking satisfies all of the above-mentioned legal requirements.
Frequently Asked Questions
What is an eviction undertaking?
An eviction undertaking is a written declaration in which the tenant undertakes to vacate the leased property on a specified date and is regulated under Article 352 of the Turkish Code of Obligations.
When is an eviction undertaking considered invalid?
Undertakings obtained at the time of signing the lease agreement or before the delivery of the property are often considered invalid in practice because they are presumed not to reflect the tenant’s free will.
Is notarization required?
No. Ordinary written form is sufficient, and notarization is not mandatory. However, in the absence of notarization, disputes concerning the signature or date may require judicial examination.
Within what period must the landlord take action?
The landlord must initiate enforcement proceedings or file an eviction lawsuit within one month from the promised eviction date. This period is peremptory.
Legal Assistance in Eviction Proceedings Based on an Eviction Undertaking
Eviction proceedings based on an eviction undertaking involve technical legal considerations, including the evaluation of the undertaking’s validity requirements, monitoring peremptory time limits, and managing potential objections or defences.
For this reason, conducting the process with the assistance of a lawyer specialized in tenancy law is essential in order to prevent potential loss of rights.