1. INTRODUCTION
Lease agreements hold significant importance in private law as they safeguard both the property rights of the owner and the housing or usage rights of the tenant. However, when the ownership of a leased property changes during the lease period, a new legal framework emerges between the parties. Article 351 of the Turkish Code of Obligations No. 6098 grants the new owner the right to request the tenant's eviction under certain conditions. This provision aims to balance the tenant's contractual security with the owner’s property rights.
2. THE PROVISION AND MEANING OF ARTICLE 351 OF THE TCO
Article 351 of the Turkish Code of Obligations states:
"In residential and roofed workplace leases, if the person who later acquires the leased property needs it for themselves, their spouse, descendants, ascendants, or other persons they are legally obliged to support, they may terminate the lease agreement six months after the acquisition date by filing a lawsuit, provided they notify the tenant in writing within one month from the date of acquisition."
This provision provides a legal basis for the actual need of the new owner to use the property, while also attempting to balance the tenant's expectation of secure occupancy.
3. THE CONCEPT OF NEED AND ITS CONDITIONS
The right of the new owner to evict the tenant under Article 351 is not limited to the mere acquisition of the property; certain substantive and formal conditions must also be met. These conditions are strictly examined by courts.
3.1. Acquisition of the Property Post-Lease
A fundamental requirement is that the property must be acquired while the lease agreement is in force. If the person already owned the property prior to the lease, Article 350, not 351, applies.
3.2. Eligible Beneficiaries of the Need
The law restricts eligible beneficiaries to the owner, their spouse, descendants, ascendants, and legally dependent persons. Requests for eviction based on the needs of others (e.g., siblings, in-laws, fiancés) are not deemed valid according to case law of the Court of Cassation.
3.3. Genuine, Sincere, and Compelling Need
Perhaps the most contentious and variable criterion is that the need must be genuine, sincere, and compelling. It must not be temporary or speculative, and there must be a genuine intent to use the property.
3.4. Written Notification and Timing Requirements
A valid eviction lawsuit requires written notice to the tenant within one month of acquiring the property, and if the tenant does not vacate, a lawsuit must be filed at least six months after acquisition. Problems often arise due to failure to notify via a notary or within the prescribed time. Notifications via SMS, email, or verbal communication do not satisfy the written notice requirement. If notice is not duly served or served late, courts reject the case on procedural grounds.⁶ In one decision, the Court of Cassation held that failure to deliver a notarized notice within the one-month period invalidated the legal basis under Article 351.
4. PRACTICAL CHALLENGES ENCOUNTERED IN CASE LAW
Eviction cases based on the new owner's need frequently encounter procedural issues and questions regarding the credibility of the claimed need. These issues often result in the dismissal of the case without an evaluation of the merits.
4.1. Notification and Timing Issues
Many new owners miss the one-month and six-month deadlines or fail to give proper notice. Notifications delivered by hand or message, rather than by notary, are invalid.
4.2. Bad Faith and Abstract Justifications
In some cases, landlords seek eviction to raise the rent, not due to genuine need. The Court of Cassation regards such actions as bad faith and deems the asserted need insincere.
4.3. Tenant Vulnerability and Legal Uncertainty
Tenants often become aware of the ownership change late and are unable to assert their rights in time. The lack of formal transfer or notice from the former to the new owner leads to uncertainty, extended eviction processes, and sometimes excessive rent or damages claims.
4.4. Continuity of Need
The Court of Cassation requires the need to continue throughout the litigation process. If the need ceases (e.g., the beneficiary acquires another property), the case is dismissed. This places owners at a disadvantage in long proceedings.
5. CONCLUSION
While Article 351 allows new owners to exercise their right to use their property, it also aims to prevent abuse of this right. The provision and related case law require that the need be genuine, in good faith, and procedurally sound.
Thus, Article 351 serves as a fundamental component of lease law, balancing the contractual security of tenants with the property rights of owners.
REFERENCES
Özdemir, A. (2020). Türk Borçlar Kanunu Şerhi. İstanbul: Seçkin Yayıncılık.
Ibid.
Aydoğdu, M. (2022). Kira Hukuku Açısından Tahliye Nedenleri ve Uygulamadaki Sorunlar. Ankara: Adalet Yayınevi.
Demircioğlu, S. (2023). "Yeni Malikin Tahliye Talebinde Usuli Şartların Önemi", İstanbul Barosu Dergisi, 97(2), 85–102.
Ibid.
Aydoğdu, M., 2022.
Court of Cassation, 6th Civil Chamber, Decision No: E. 2016/351, K. 2016/2309.
Demircioğlu, S., 2023.
Ibid.