Need for Residency in Eviction Lawsuits
Introduction
In general terms, eviction due to the need for residency is a lawsuit regulated under Article 350 of the Turkish Code of Obligations No. 6098 ("TCO") and is filed in the event that the lessee is obliged to use the leased property as a residence or workplace for himself/herself, his/her spouse, descendants, ascendants or other persons who are legally dependent on him/her.
In practice, eviction due to the need for residency is among the most common cases. This newsletter article discusses the circumstances in which the Court of Cassation considers the need for residency as genuine, real, and compulsory.
The Need Must Be Genuine, Real and Compulsory
As stated in many decisions of the Court of Cassation, in eviction lawsuits due to the need for residency, the need should be genuine, real, and compulsory.
At the same time, this need must have arisen, it is not sufficient for there to be a possibility of arising.[1] According to the Court of Cassation, the need should continue throughout the proceedings and it will not be enough if the need is only present at the time of filing the lawsuit.[2] In parallel, while the need that may arise in the near future can also be addressed, if this need takes a long time to materialize, it cannot be claimed that the need is genuine.[3]
For this reason, the burden of proof is on the lessor; the need and the fact that this need is real, genuine, and compulsory can be proved with all kinds of evidence.[4]
Residency of the Lessor or a Person in Need in a Leased Property
The fact that the lessor or the person in need resides in a leased property is accepted as a presumption that the need is genuine, real, and compulsory.[5] The Court of Cassation in many lawsuits for eviction based on the need for residency in recent years, has accepted that if the person in need or his/her descendants are lessors as well, it will prove the existence of the need and that the need is real and genuine.[6]
The Court of Cassation also states that living with another person, even if he or she does not live in the leased property, shows the need to live in his/her own residence and that no one can be forced to live with another person.[7]
The Court of Cassation also has decisions in which it decided that a minor cannot be forced to live with his/her family.[8]
Other Grounds Considered as a Need
The Court of Cassation does not only recognize the need for residency when the lessor leases his or her residency, but in some cases, the lessor may need the leased property even if he/she lives in his/her own residence. Some of the grounds for the need, which are accepted as real and genuine by the Court of Cassation, are health problems, marriage, proximity to the workplace or school, security, leased property being more economically or physically convenient, the need to store goods, the need of lessors who reside abroad and the need for temporary needs such as the need for a summer house.
Health Problems
Even if the lessor lives in his/her own residence, he/she may claim that the leased property is more beneficial for his/her health.[9] This reason is considered real and genuine by the Court of Cassation.[10] However, in case of a need for the leased property due to health problems, the Court of Cassation has stated that the need should be put forth through a medical report showing the health problem.[11]
Emergence of New Circumstances
Another type of need recognized by the Court of Cassation is marriage. Here, the Court looks for concrete steps to be taken for the marriage and whether the marriage is materialized.[12] In addition to marriage, the Court of Cassation has accepted the following as other grounds having children[13], marriage of the lessor's children[14] or starting a new business.[15]
The Leased Property Being More Economic or Physically Convenient
Situations in which the costs of the lessor's own residence increase significantly and at the same time the economic situation of the lessor deteriorates and the expenses of the leased property are more economical such situations also appear as grounds for eviction lawsuits due to the need.[16]
At the same time, the fact that the leased property is physically more convenient has also been claimed as a need.[17] There are decisions of the Court of Cassation in which physical convenience is accepted as real and genuine. However, the Court of Cassation deems claims that arise solely from the need for more comfortable conditions to be insufficient.[18]
Need to Store Goods in the Leased Property
The Court of Cassation has accepted the need to store goods in the leased property or the need to use the leased property as a warehouse as a real reason for the need for residency.[19] However, it is also stated in the doctrine that the lessor cannot evict the lessee for the purpose of using the house as a warehouse other than the need for residency.[20]
Need of Lessors Who Reside Abroad
The Court of Cassation has rendered different judgements regarding the need for residency of lessors who reside abroad.[21] In some of its decisions, the Court of Cassation has accepted that the need for residency is compulsory in cases where the lessors residing abroad make a definitive return to Turkey. The Court of Cassation stated that, in order to prove that the need is real and genuine in these cases, the definitive return must be demonstrated by a relevant institution such as the Turkish consulate with a stamp.[22]
Besides such a decision, in a decision by the General Assembly of Civil Chambers, the fact that the persons working abroad have to stay in other places when they visit Turkey was considered as a need, even though they have not returned definitively.[23]
Temporary Need
The Court of Cassation also considers some temporary needs as real and genuine. The need for a summer residence can be given as an example of these temporary needs.[24] The Court of Cassation has taken into consideration conditions such as location and architecture when assessing whether the property is a summer residence.[25] In the doctrine, it is accepted that the eviction lawsuits filed by workers who work abroad and spend their vacations in Turkey should be accepted.[26]
Conclusion
The Court of Cassation accepts the existence of the need for residency on many grounds, the most important issue here is to demonstrate that this need is real, compulsory, and genuine. Otherwise, various non-genuine reasons will be put forward by the lessor for the eviction of the lessees and the principle of protection of the lessees will be violated.
- The decision of the 6th Civil Chamber of the Court of Cassation dated 24.10.2005 and numbered 8261/9755, www.kazanci.com.tr; Tandoğan, Haluk: Borçlar Hukuku Özel Borç İlişkileri, C. 1.2, Vedat Kitapçılık, Istanbul 2008, p. 249.
- The decision of the 6th Civil Chamber of the Court of Cassation dated 22.03.2012 and numbered 814/4701, www.kazanci.com.tr; The decision of the 6th Civil Chamber of the Court of Cassation dated 02.04.2014 and numbered 3336/4259, www.kazanci.com.tr.
- The decision of the 6th Civil Chamber of the Court of Cassation dated 26.12.2005 and numbered 11224/12202, www.kazanci.com.tr.
- Keskin, Nur: 6570 Sayılı Gayrimenkul Kiraları Hakkında Kanun’a Göre İhtiyaç Sebebiyle Kira Sözleşmesinin Sona Erdirilmesi, Unpublished Master Thesis, Ankara, Gazi Üniversitesi Sosyal Bilimler Enstitüsü, 2007, p. 84.
- For the view that the presumption of need is contrary to equity, since, the mere fact of living in a leased property, without any reason requiring the owner to prefer the rented house to the house he lives does not demonstrate the genuine need, see: Tandoğan, Haluk: Borçlar Hukuku Özel Borç İlişkileri, C. 1.2, Vedat Kitapçılık, Istanbul 2008, p. 244, 245.
- The decision of the 3rd Civil Chamber of the Court of Cassation dated 23.01.2019 and numbered 7751/493, www.kazanci.com.tr; The decision of the 6th Civil Chamber of the Court of Cassation dated 02.04.2014 and numbered 3336/4259, www.kazanci.com.tr.
- The decision of the Court of Cassation General Assembly of Civil Chambers dated 04.07.2001 and numbered 6-577/575, www.kazanci.com.tr.
- The decision of the 6th Civil Chamber of the Court of Cassation dated 22.03.2007 and numbered 1360/3234, www.kazanci.com.tr; Tandoğan, Haluk: Borçlar Hukuku Özel Borç İlişkileri, C. 1.2, Vedat Kitapçılık, Istanbul 2008, p. 248, 249.
- The following are also considered as grounds for eviction; the fact that the flat in which the lessor, who has a heart disease, lives on the top floor and there is no elevator in the building, whereas the leased flat is on the lower floor, or the flat in which the lessor, who has rheumatism, lives is humid, while the leased flat is not. Zevkliler, Aydın/ Gökyayla Emre: Borçlar Hukuku, Özel Borç İlişkileri, Ankara 2016, p. 371.
- The decision of the 6th Civil Chamber of the Court of Cassation dated 4.2.2002 and numbered 474/641, www.kazanci.com.tr; The decision of the 6th Civil Chamber of the Court of Cassation dated 19.02.2015 and numbered 424/1619, www.lexpera.com; Similarly for the health of the lessor's spouse: The decision of the 3rd Civil Chamber of the Court of Cassation dated 28.2.2018 numbered 8780/1853, www.kazanci.com.tr; Tandoğan, Haluk: Borçlar Hukuku Özel Borç İlişkileri, C. 1.2, Vedat Kitapçılık, Istanbul 2008, p. 246.
- The decision of the 6th Civil Chamber of the Court of Cassation dated 11.3.2002 and numbered 1372/1582, www.kazanci.com.tr; The decision of the 6th Civil Chamber of the Court of Cassation dated 18.2.1999 and numbered 1162/1242, www.kazanci.com.tr; The decision of the 6th Civil Chamber of the Court of Cassation dated 16.3.1999 and numbered 2405/2386, www.kazanci.com.tr; Tandoğan, Haluk: Borçlar Hukuku Özel Borç İlişkileri, C. 1.2, Vedat Kitapçılık, Istanbul 2008, p. 246.
- The decision of the 6th Civil Chamber of the Court of Cassation dated 26.12.2005 and numbered 11224/12202, www.kazanci.com.tr; The decision of the 6th Civil Chamber of the Court of Cassation dated 24.02.2004 and numbered 763/1100, www.kazanci.com.tr.
- Akgün Akay, Merve: Konut ve Çatılı İşyeri Kira Sözleşmelerine Özgü Sona Erme Sebepleri, Seçkin, Ankara 2017, p. 43, 44.
- The decision of the Court of Cassation General Assembly of Civil Chambers dated 5.2.1992 and numbered 6-595/32, www.kazanci.com.tr; On the grounds that the engagement does not necessarily result in marriage, and that the need of the lessor's child has not yet arisen, see: the decision of the 6th Civil Chamber of the Court of Cassation dated 25.04.2006 and numbered 2442/4402, www.lexpera.com; In addition, in some of its decisions, the Court of Cassation ruled that the need of the minor child living with the lessor is genuine, as he/she cannot be forced to live with his/her family, even if he/she is not preparing for marriage see: the decision of the 6th Civil Chamber of the Court of Cassation dated 25.4.2016 and numbered 3380/3343, www.lexpera.com.
- The decision of the 6th Civil Chamber of the Court of Cassation dated 25.4.2016 and numbered 3380/3343, www.lexpera.com.
- The decision of the Court of Cassation General Assembly of Civil Chambers dated 23.5.1984 and numbered 6-145/581, www.kazanci.com.tr; The decision of the 6th Civil Chamber of the Court of Cassation dated 25.3.2003, numbered 1704/1853, www.kazanci.com.tr.
- Sonkurt, Mustafa: Konut ve Çatılı İşyeri Kiralarında Sözleşmenin İhtiyaç Sebebiyle Sona Ermesi, Diyarbakır, Dicle Üniversitesi Sosyal Bilimler Enstitüsü, 2018, p. 37.
- Akgün Akay, Merve: Konut ve Çatılı İşyeri Kira Sözleşmelerine Özgü Sona Erme Sebepleri, Seçkin, Ankara 2017, p. 48.
- The decision of the 6th Civil Chamber of the Court of Cassation dated 11.3.1999 and numbered 2150/2123, www.kazanci.com.tr; The decision of the Court of Cassation General Assembly of Civil Chambers dated 16.11.2021 and numbered 6-1290/1411, www.kazanci.com.tr; Akgün Akay, Merve: Konut ve Çatılı İşyeri Kira Sözleşmelerine Özgü Sona Erme Sebepleri, Seçkin, Ankara 2017, s. 44; Yavuz, Cevdet: Türk Borçlar Hukuku Özel Hükümler, Beta, Istanbul 2014, p. 678.
- Zevkliler, Aydın/ Gökyayla Emre: Borçlar Hukuku, Özel Borç İlişkileri, Ankara 2016, s. 367, 368; The fact that the leased property is registered as a warehouse in the title deed does not mean that it cannot be subject to the eviction lawsuit filed for the need for residency. See: the decision of the 6th Civil Chamber of the Court of Cassation dated 08.10.1979 and numbered 5569/7524, www.kazanci.com.tr.
- Akgün Akay, Merve: Konut ve Çatılı İşyeri Kira Sözleşmelerine Özgü Sona Erme Sebepleri, Seçkin, Ankara 2017, p. 46
- The decision of the 6th Civil Chamber of the Court of Cassation dated 14.9.1995 and numbered 7908/8072, www.kazanci.com.tr.
- The decision of the Court of Cassation General Assembly of Civil Chambers dated 23.12.1992 and numbered 6-667/755, www.kazanci.com.tr; The decision of the Court of Cassation General Assembly of Civil Chambers dated 28.11.1990 and numbered 6-466/593, www.kazanci.com.tr.
- The decision of the 6th Civil Chamber of the Court of Cassation dated 29.1.1992 and numbered 359/1137, www.kazanci.com.tr.
- The decision of the 6th Civil Chamber of the Court of Cassation dated 27.10.2014 and numbered 11405/11609, www.kazanci.com.tr.
- Zevkliler, Aydın/ Gökyayla Emre: Borçlar Hukuku, Özel Borç İlişkileri, Ankara 2016, p. 372.
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