Bad Faith in Evacuation Due to Necessity

In residential and commercial property leases, "eviction due to necessity" is one of the most contentious areas for both landlords and tenants. In practice, some landlords force tenants to vacate the premises, even when there is no genuine or compelling need, citing reasons such as "I will live there myself," "my child will use it," or "I need it for business." The Turkish Code of Obligations ("TBK") foresaw this possibility and introduced the requirement of genuine need ; it also defined strong sanctions such as a "prohibition on re-renting" and compensation in favor of the former tenant after the eviction

This article examines in detail the determination of bad faith , means of proof , procedural strategy , and available remedies for the tenant, in light of legislation (Turkish Code of Obligations, Articles 350–355), current practice, and Supreme Court criteria . The text prioritizes the tenant's rights and practical steps; however, it also systematically explains which actions of the landlord may create legal problems.

1) Legal Framework and Fundamental Principles

1.1. Turkish Code of Obligations Article 350 – Reasons Arising from the Lessor

A lease agreement may be terminated through legal action if the landlord has a compelling need to use the property as a residence or workplace for themselves, their spouse, descendants, ascendants, or persons they are legally obligated to support

• Duration (definite/indefinite contract):
  • fixed-term contracts at the end of the term,
  • In the case of indefinite-term contracts, an eviction lawsuit can be filed within one month from the date determined by adhering to the termination period and notice period .
• Burden of proof: The landlord bears the burden of proving that the need is genuine, sincere, and necessary . This need must have existed at the time the lawsuit is filed and must continue throughout the trial .

1.2. Turkish Code of Obligations Article 351 – The New Owner's Need

If the person who subsequently acquires the leased property needs the property as a residence/workplace for themselves, their spouse, descendants, ancestors, or persons they are legally obligated to support, they may terminate the contract by filing a lawsuit six months after giving written notice to the tenant within one month of the acquisition date . Alternatively, they may file a lawsuit within one month of the end of the contract term .

1.3. Turkish Code of Obligations Article 353 – Extension of Time Limit by Notification

If the landlord gives the tenant written notice no later than the deadline for filing a lawsuit , the lawsuit filing period is considered extended for one rental year. This provides critical flexibility, especially to avoid missing deadlines, such as those lasting one month.

1.4. Turkish Code of Obligations Article 354 – Limitation of Grounds for Action

In residential and commercial lease agreements, provisions for termination through legal action cannot be altered to the detriment of the tenant . This mandatory structure protects the tenant against unfair clauses that may be included in the contract

1.5. Turkish Code of Obligations Article 355 – Prohibition of Re-leasing and Compensation

After an eviction due to necessity , the landlord cannot rent the property to anyone other than the former tenant for three years without justifiable cause . Similarly, in cases of eviction due to reconstruction/renovation, the property cannot be rented out in its original condition for three years ; furthermore, the former tenant is granted priority in renting the renovated property . In case of violation of this prohibition, the former tenant will be paid compensation equivalent to at least one year's rent paid in the last year of the lease . This compensation is a minimum ; the tenant may claim additional damages exceeding this amount

Summary: Articles 350-355 of the Turkish Code of Obligations interpret the claim of need narrowly ; they also provide a three-year protection for tenants after eviction . This protection aims to deter malicious/false declarations of need through economic sanctions .

2) How to Identify "Malicious Intent"?

The claim of need genuine, sincere (in accordance with the principle of honesty), and necessary . In practice, the following indicators suspicion of bad faith :

1. Short-Term Re-renting: The act of subletting the property to a third party shortly after an eviction . In many cases, this indicates a lack of sincerity
2. Preparation for Sale and Sale: Preparations for sale and sale within a short period during/after the litigation phase . Sincerity is compromised if it becomes clear that the landlord's primary aim is to make a profit under market conditions .
3. Alternative Residence/Business Premises Availability: The landlord or the person in need of the property another suitable residence/business premises within the same district/municipality boundaries, and yet eviction is requested despite this.
4. Temporary/Uncertain Need: that are temporary (e.g., a course term) or an uncertain future , needs that have not yet arisen.
5. Cessation of the Need During the Trial: The need must continue throughout the trial; if it disappears, the eviction request will be denied.

Practical note: In assessing "genuine and genuine need," courts consider data such as population records, residential addresses, land registry records, social security records, tax/professional chamber records, health reports , and even children's school information

3) Procedural Roadmap (From the Tenant's Perspective)

3.1. Mandatory Mediation as a Requirement for Filing a Lawsuit

As of September 1, 2023 , in rental disputes other than eviction through summary execution, applying to a mediator before going to court is a prerequisite for filing a lawsuit . In disputes such as compensation claims based on eviction due to necessity, filing a lawsuit without first applying to mediation will be dismissed on procedural grounds .

What should the tenant do? If a violation of the prohibition against re-renting is detected after eviction, as soon as possible ; if no agreement is reached, with the minutes of the meeting .

3.2. Competent and Authorized Court

• Jurisdiction: The Civil Court of Peace has jurisdiction over all disputes arising from lease agreements (except for evictions through summary execution) .
• Jurisdiction: The general jurisdiction is the court of the defendant's domicile ; the court of the place where the contract is to be performed may also have jurisdiction. In practice, applying to the Civil Court of Peace in the location of the immovable property is preferred due to the ease of proof and on-site inspection

3.3. Fees, Expenses and Litigation Procedure

• A compensation lawsuit arising from a breach of eviction due to necessity proportional court fees (based on the amount claimed).
• In civil litigation, a simplified procedure is applied; presentation of evidence and deadlines .

4) Tenant Recourse Options (A to Z)

The following roadmap will guide you step-by-step to mitigate the possibility of a malicious eviction .

4.1. Pre-Evacuation/During Evacuation Strategy

1. Investigating Need and Gathering Evidence: Is there a concrete connection between the person in need (themselves/their spouse/descendants/ancestors/dependents) and the landlord ? Does the landlord have another suitable residence ?
2. Notice Management: Carefully review notices and notifications from the landlord (especially the new owner notification under Article 351 of the Turkish Code of Obligations); the dates of service initiate critical time periods.
3. Agreement and Eviction Undertaking: When submitting an eviction undertaking, clearly state the date and time ; avoid risks such as duplicate signatures or signatures on blank papers .

4.2. Post-Evacuation Monitoring and Detection

1. Online Listings and Listing Archives: whether the property has been relisted soon real estate portals and social media archives ; take screenshots.
2. New Lease Agreement/Electricity-Natural Gas Subscriptions: Documents such as the new lease agreement with the new tenant and invoice/subscription change records are proof of actual usage
3. Neighborhood Witnesses and Apartment Registers: Data such as the homeowners' association register, dues schedules, and building entry records can indicate the presence of a new tenant
4. Property and Address Records: Has the rented property been sold? A sale of insincerity .

4.3. Types of Lawsuits and Claims

1. Compensation Claim Based on Article 355 of the Turkish Code of Obligations:
   • Lower limit: The equivalent of one year's rent paid by the previous tenant in their final rental year .
   • Upper limit: Additional compensation if actual damages (such as relocation costs, loss of deposit, difference in rent, loss of business) can be documented .
   • Statute of limitations: As a general rule, 10 years; the starting point is usually the lease/sale to a third party .
2. Exercise of Priority Rights (In Cases of Reconstruction/Rebuilding): Protect your priority rights in eviction cases due to reconstruction/rebuilding . The landlord must provide written notice ; you can exercise this right within 1 month
3. Precautionary Measures: If there is a risk of evidence being tampered with (e.g., the theft of a lease agreement), precautionary measures may be considered along with requests for identification and evidence gathering .
4. Compensation for Lost Rent and Expenses: Moving/commission/installation costs, loss of deposit, expenses incurred for a new home/business premises, and rent difference (due to market conditions) can be claimed item by item.
5. Determination and Declaration of Bad Faith: In practice, a ruling establishing bad faith is also requested, ensuring that compensation, court costs, and attorney fees are also borne.

Tip: In a compensation lawsuit, a practical strategy is to fix the claim amount the lower limit(one year's rent) and reserve the right to claim more; then, as the actual damages increase during the trial, amendment/increase the claim is possible.

5) Proof of Malice: Basket of Evidence

5.1. Documentary Evidence

• New lease agreement and bank statements for payments
• Electricity, water, and gas subscription/transfer documents (dates of name changes).
• Real estate listings (screenshot and URL archives), datestamped records.
• Property records (sales and mortgage transactions).
• For the workplace: Tax registration certificate, chamber of commerce registration, social security registration forms (date and location of relocation of the business).

5.2. Witness Testimony and On-Site Investigation

• Neighbors/janitors/building management witnesses are often crucial.
• Inspection and expert assessment: In reconstruction/renovation claims, the suitability of the actual situation and the impossibility of use are determined by technical experts.

5.3. Digital/Time Stamp

• Notarized or electronically signed and time-stamped printouts strengthen the historical and content integrity of announcements and correspondence

6) Debates in Practice and Supreme Court Trends

6.1. The Debate on the Requirement of "Eviction Being Achieved by Court Order"

In practice, some court decisions require that eviction under Article 355 of the Turkish Code of Obligations be ordered by a court and enforced through compulsory execution . Accordingly, voluntary departure by the tenant or eviction based solely on a notice may not support a claim for compensation. On the other hand, there are criticisms in legal doctrine that this condition is excessively strict and disregards the tenant's forced consent .

Practical approach: the eviction litigation and enforcement stages, the compensation lawsuit a more secure footing. In voluntary evictions, strong evidence demonstrating bad faith (such as immediate renting/selling) and forced consent must be carefully presented.

6.2. The Criterion of "Genuine, Genuine and Essential Need"

According to the established jurisprudence of the Supreme Court of Appeals; temporary need cannot be a reason for eviction; future /uncertain need is not accepted; the need must exist at the time the lawsuit is filed and must continue throughout the trial . Renting or selling the leased property to someone else shortly after the lawsuit is filed undermines the sincerity of the agreement

6.3. Priority Rights and Implementation Problems in Building/Construction Evictions

The law grants the former tenant priority in renting the renovated property . In practice, failure of the landlord to fulfill their written notification obligation and leaving the new condition of the leased property/rent uncertain are common problems. In such cases, the violation of the priority right can be asserted , along with compensation

7) Durations and Calculations

• Claim for recourse in a fixed-term contract : Within 1 month of the end of the term .
• For indefinite-term contracts : Within one month from the date determined in accordance with the termination period and notice periods .
• New owner : Notification within 1 month of acquisition + lawsuit after 6 months ; alternatively, termination of contract + 1 month .
• Extension of the deadline for filing a lawsuit : With written notification , one rental year .
• Prohibition against re-renting: 3 years.
• Priority right (for development/reconstruction): 1 month following the landlord's written notification .
• Statute of limitations (for compensation): Generally 10 years (starting from the moment a lease/sale to another party, ).

8) Common Mistakes (From the Tenant's Perspective)

1. Failure to create an archive of announcements and evidence: If screenshots and witness notes are not collected in a timely manner, it will be difficult to rectify the situation later.
2. Skipping mediation: Mandatory mediation is a prerequisite for litigation.
3. Understating the requested amount: One year's rent is the minimum; while reserving the right to claim more .
4. Missing the priority right: Failing to follow up with and exceeding one month's deadline.
5. Missing deadlines: The one-month windows in Articles 350-351 of the Turkish Code of Obligations determine the fate of most cases.

9) Sample Case Analyses (Schematic)

Case A – “Short-Term Rental”

• Situation: The tenant was evicted with the statement "my son will live there"; two months later, the apartment was listed on a real estate website, and a contract was signed in the third month.
• Approach: Archives of advertisements + new contract/subscription documents are collected. A mediation application is filed; if no agreement is reached, a compensation lawsuit is filed under Article 355 of the Turkish Code of Obligations . Claim: at least one year's rent + moving/commission/rent difference.

Case B – “Insincerity Regarding Sales”

• Status: Sale of title deed shortly after eviction .
• Approach: Land registry records (e-government), printouts of messages/emails related to the advertisement/sale preparation, witness testimonies. Compensation is sought by emphasizing the lack of sincerity.

Case C – “New Owner and 6-Month Waiting Period”

• Situation: The new owner who acquired the property notified the new owner one month after the acquisition.
• Approach: the time limit is alleged; procedural defenses and prerequisites for litigation are prioritized. If eviction has occurred, a ban on re-renting is pursued.