Pehlivan & Güven Law FirmPublished:
Under today's economic conditions in Türkiye, with rents rising, and especially since the pandemic, legal proceedings between tenants and landlords over rent and eviction have increased. The fact that more than ten new Civil Courts of Peace dealing with rent and eviction cases have been opened in the province of Ankara alone also shows this. Likewise, as we have seen from our experience, appeal proceedings before the regional courts of appeal (istinaf) have also become considerably longer. This shows that conflicts between tenants and landlords have increased.
Mediation has become mandatory in rent and eviction cases as of 01.09.2023. This means that, in rent and eviction matters, a mediation stage is mandatory before filing an action in many types of cases, such as rent increase cases, eviction cases, eviction on grounds of need and eviction on grounds of breach of contract. Because of this requirement, the parties come together through a specialist mediator and are expected to find a solution to the dispute through the meetings held. The mediation process ends the dispute within a short period of 3+1 weeks, which we can describe as one month in total.
The statistics of the Mediation Department dated 18.12.2023 on mediation files in rent disputes show that almost half of the files were resolved during the mediation process.
"Minister of Justice Yılmaz Tunç said that, out of 76,780 files subject to mandatory pre-action mediation in rent disputes, the parties shook hands and reached agreement in 32,098." (Source: Ministry of Justice announcement, 18 December 2023)
We see that, even in the short period between 01.09.2023, when mediation became mandatory, and 18.12.2023, when the statement was made, almost half of the disputes were quickly resolved.
However, the number of cases is still very high. According to the 2023 Judicial Statistics prepared by the Directorate General of Criminal Records and Statistics of the Ministry of Justice, in 2023 the civil courts had 91,183 case files on eviction from leased property, 65,000 on rent, 30,039 on eviction from leased property (enforcement) and 28,026 on removal of objection and eviction. A total of 214,248 cases concern rent and eviction.
As mentioned above, disputes that are not resolved in mediation go to court. Court proceedings have become relatively faster with the increased number of courts. Although proceedings have become faster in the first-instance courts, we cannot yet say that proceedings have become faster at the appeal (istinaf) stage.
In Türkiye, we see that the relationship of trust between tenants and landlords starts off on the wrong foot. Landlords often ask tenants to sign, together with the lease agreement, an eviction undertaking (tahliye taahhütnamesi) with the eviction date and the date of signing left blank. Eviction undertakings drawn up on the same day as the lease agreement are invalid, yet tenants who feel morally pressured into signing them in order to get the lease sometimes face eviction cases based on these undertakings years later.
The requirement that an eviction undertaking between tenants and landlords be in writing is laid down in Article 352 of the Turkish Code of Obligations. Under this provision, the eviction undertaking must be in writing. The only other condition is that the undertaking must be given in writing "after delivery of the leased property". In practice, however, landlords or estate agents actually obtain the eviction undertaking together with the lease agreement, before the leased property is delivered. In eviction undertakings, the dispute actually begins as soon as the lease agreement is signed.
In cases concerning eviction undertakings, tenants claim that the eviction undertaking was signed on the same day as the lease agreement, while landlords claim that the tenant did not comply with the eviction date stated in the undertaking. This is the main issue in dispute examined by the court. However, there are also secondary claims. With these other secondary claims, such as lack of the spouse's consent, the family home argument and objection to the signature, the parties aim to win the case or to prolong the proceedings.
There are many Court of Cassation decisions on eviction undertakings in rent cases. In a brief search we carried out, the oldest decision we came across was a 1957 decision of the Grand General Assembly of the Court of Cassation. While this decision actually shows that these cases have a longer history, even taking 1957 as the basis, we understand that we are talking about a litigation history of 67 years.
The first solution has been mediation. Mediation, the first step taken towards a solution for eviction undertakings, has proved genuinely useful. For example, a tenant facing a risk of eviction in the winter months because of an eviction undertaking agrees in the mediation process to vacate in June. In this way, by saying "I will move when the children's school ends in June", the tenant concludes the dispute by vacating the leased property on a date that is both advantageous for themselves and certain and relatively advantageous for the landlord.
The second solution could be a statutory amendment. Before the second proposed solution, one might think: let landlords or estate agents simply stop taking eviction undertakings together with the lease agreement, and that would be the end of it. But this is a one-sided view. Landlords regard eviction undertakings as an additional legal safeguard. For estate agents, who are professionals working on commission, not taking an eviction undertaking creates the impression that they do not know the job or are doing it incompletely. In a competitive business environment, if some estate agents present the eviction undertaking as a requirement, those who do not ask for one reduce their chances of winning business.
Ultimately, considering the legal proceedings that have continued, rightly or wrongly, for 67 years, the conditions that an eviction undertaking need only be in writing and be obtained after delivery of the leased property increase legal disputes between the parties. At this point, notarial services are defined in Notaries Law No. 1512 as follows: "Notarial service is a public service. Notaries authenticate transactions in order to ensure legal certainty and prevent disputes, and perform other duties assigned by law." Perhaps simply requiring the eviction undertaking to be drawn up before a notary and obtained after delivery of the leased property would be enough on its own.
In summary, cases based on eviction undertakings create a loss of trust between tenants and landlords from the outset; the number of cases remains high even though some of the resulting disputes are now settled through mediation within a month; and the problem has persisted for 67 years. Taken together, these points make it clear that a common path must be found despite the parties' conflicting interests.
