Being a Joint Owner Before the Acquisition in Eviction Cases Due to the Necessity of the New Owner
Introduction
Article 351 of the Turkish Code of Obligations (“TCO”) regulates the new owner’s right to evacuate the immovable property for its needs following the acquisition of the right of ownership. Whether this provision applies to the new owners who were previously joint owners of the immovable property has been the subject of various judicial decisions. The General Assembly of the Court of Cassation (“General Assembly”) has recently evaluated this issue1 . In this article, it is examined whether the rights granted to the new owner can be utilized if the owners, who were previously joint owners of the immovable property, acquire the entire immovable property later on.
In General, the New Owner’s Right to Evict on Grounds of Necessity
Article 351 of the TCO provides for the possibility of the new owner of immovable property to terminate the lease agreement with the tenants and vacate the immovable property when their first-degree relatives have serious and justified housing needs, and this provision aims to enable the owner to effectively exercise his right to property and to meet basic family needs. However, within the legal framework, to prevent the abuse of these rights, the owner’s need must be real, sincere, continuous, and compulsory. In addition, when and under what circumstances the new owner took over the property, the current housing situation of the owner and his/her family, and the social and economic conditions of the tenant to be evicted are also taken into consideration. This assessment process aims to take a balanced approach to protect the rights of the new owner while ensuring that the tenant is not victimized. This regulation ensures that the rights of both parties are fairly represented in the legal process by protecting tenants from arbitrary evictions while allowing property owners to freely use their property when necessary. This balanced approach is intended to contribute to the healthy functioning of tenancy relations in the Turkish legal system.
Matter in Dispute
This case, which was examined by the General Assembly, involves an eviction claim for a workplace acquired through inheritance. The plaintiff acquired the workplace from the previous owner as a result of a division transaction and filed an eviction lawsuit against the defendant because he needed his own workplace. The plaintiff’s workplace was inherited from other heirs, including his father, and then converted from joint ownership to share ownership and sold to the plaintiff. At this stage, the plaintiff claimed that he became the new owner by purchasing all the shares of the workplace in dispute and wanted to use the right to evict the tenant granted to the new owner under Article 351 of the TCO.
As a result of its assessment, the court of first instance rejected the plaintiff’s claim for eviction of the workplace. The main justification for the decision is that the new owner should not have been a shareholder in the immovable before, under Article 7/d of both the TCO and Law No. 6570 on Real Estate Leases, which was in force in the previous period. In this case, the court of first instance determined that the plaintiff inherited the immovable property subject to the lawsuit and that the plaintiff became a full owner of the immovable property after the conversion of the co-ownership into joint ownership. In this case, the court of first instance concluded that the plaintiff was not in fact the ‘new owner’ referred to in Article 351 of the TCO and could not benefit from the rights granted to the new owner and dismissed the lawsuit.
Subsequently, the Court of Cassation examined this rejection decision and stated that the person who acquires residential or commercial real estate may file an eviction lawsuit based on the contract between the former owner and the tenant or under Article 351 of the TCO. It is also stated that the plaintiff has preserved the time limit for filing a lawsuit and is in due time, and therefore, the court of first instance should examine the merits of the case. For these reasons, the decision of the court of first instance regarding the dismissal of the case was reversed and it was emphasized that the merits of the case should be examined. Subsequently, upon the Court of First Instance’s decision of insistence on the Court of Cassation’s decision, the matter in dispute was examined by the General Assembly.
Eviction on the Grounds of Necessity in the Case of Being a Joint Owner Before Acquisition
It is significant to note that Article 351 of the TCO expressly provides that the new owner may evict the workplace due to necessity, and there is no dispute as to the existence of this right. Indeed, Article 351 of the TCO only requires the acquisition of the leased property by any means, and the inheritance of the immovable property should also be considered within this scope. However, there is no legal provision on whether the person to be deemed as the new owner shall be deemed as the new owner in cases where the person to be deemed as the new owner previously held ownership in the relevant immovable property. In other words, the scope of the term ‘the person who subsequently acquires the leased property’ is not clearly defined in the text of the law and there is no explanation as to which persons are deemed to subsequently acquire the immovable property as the new owner.
Before the assessment made by the General Assembly, it should be evaluated whether being a joint owner before the acquisition will affect the title of being the person who subsequently acquires the leased property within the framework of the decisions of the Court of Cassation and the opinions in the doctrine. Indeed, the situation where the heir, who previously held ½ of the shares in the relevant immovable property, subsequently purchases all the ownership rights and owns the entire immovable property should be examined. Following the jurisprudence of the Court of Cassation, an assessment has been made on this issue and it has been stated that if the plaintiff purchases the other shares of the immovable property in which the plaintiff was initially a co-owner and becomes a full owner, this new owner should not have been a joint owner in the immovable property before, otherwise s/he will not be able to gain the title of ‘new owner’2 .
In the same direction, in the doctrine, the issue of whether the person who acquired the immovable property will be deemed as the new owner under Article 351 of the TCO if the persons who were previously joint owners and then acquire the entire immovable property and become the owner of the immovable property have been examined. In the evaluation made on the subject, it is clearly stated that although the person who acquires a part of the immovable property may file a lawsuit by obtaining the consent of the other joint owners, if the owner was a joint owner in the same immovable before the lawsuit, the new acquisition will not give the right to file an eviction lawsuit due to necessity 3. In other words, it is also detailed in the doctrine that the new acquisition will not give the right to file this lawsuit if the person who subsequently acquired partial ownership was a joint owner of the same immovable property before the lawsuit.
Conclusion
In the discussions made by the General Assembly regarding the decision subject to dispute, it was argued and discussed that the immovable property became a joint ownership with the death of the deceased, the plaintiff relied on Article 351 of the TCO in both the notice and the statement of claim, whereas the person who was previously a joint owner cannot file an eviction lawsuit as a new owner by relying on this provision, the lawsuit filed should be dismissed, the decision to dismiss the lawsuit by evaluating this situation as a condition of the lawsuit is appropriate and the decision of insistence should be upheld. This evaluation, which is in parallel with the doctrine and the decisions of the Court of Cassation, was conducted by sending the file back to the Court of Cassation for the examination of the reasons explained due to the different reasons for the Court of Cassation’s reversal of the decision of the court of first instance. At this stage, following the current practice of the Court of Cassation and the opinions of the doctrine, the statement that the person who acquired the immovable property later cannot have the title of new owner and cannot benefit from the right to file a lawsuit and evacuation based on this, in case s/he was a joint owner in the same immovable property before the lawsuit, is still valid.
- Decision of the Court of Cassation General Assembly of Civil Chambers numbered 2022/990 E., 2023/51 K. and dated 08.02.2023
- Decision of the 6th Civil Chamber of the Court of Cassation numbered 2006/4938 E., 2006/6758 K. and dated 13.06.2006
- Tunaboylu, Müslim: Kira Sözleşmesinde Fesih ve Tahliye Davaları, Ankara 2013
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