LEXIST

Responsibility of the Lessor to the Tenant in the Case of Eviction and Demolition of Risky Buildings within Law No. 6306 on Transformation of Areas Under Disaster Risk

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    1. Eviction and Demolition of a Risky Building

    If the building is determined as a risky building by the earthquake resistance test carried out within the scope of Law No. 6306 on Transformation of Areas Under Disaster Risk (“Law”); the Ministry of Environment, Urbanization and Climate Change will decide to evict and demolish the building.

    The eviction and demolition of the risky building is regulated in Article 5 of the Law titled “Eviction and demolition”. In accordance with paragraph 4 of Article 5 of the Law, the Ministry will notify the Administration in writing to demolish the risky buildings that have not been demolished in due time. Thereafter, buildings that have not been demolished will be demolished by the Ministry. The expenses for the identification, eviction and demolishing of risky buildings incurred by the Ministry or the Administration will be collected from the owners in proportion to their shares according to Law No. 6183 on the Procedure for Collection of Public Receivables.

     

    1. Liability of the Lessor to the Tenant with the Decision of Eviction and Demolition of the Risky Building

    Article 301 of the Turkish Code of Obligations (“TCO”) No. 6098 regulates the main debt of the lessor, which is the obligation to deliver the leased property. Article 301 of the TCO states “The Lessor shall be obliged to hand over the leasehold on the agreed date in a state suitable for the use intended under the agreement and to maintain such state throughout the duration of the agreement. This provision may not be revised to the disadvantage of the lessee in the case of houses or roofed work places, whereas in other lease agreements, no procedure contrary to this provision may be ruled by way of common procedure conditions.”

    Within the scope of the aforementioned provision, the lessor is required to keep the leased property in a condition suitable for the intended use, not only when delivering it, but also during the term of the contract. As a matter of fact, a lease contract is a contract that creates a permanent performance obligation1.

    It is argued by some authors in the doctrine that if buildings are destroyed or severely damaged due to earthquakes, if the renewal of the leased property is extremely costly, the obligation of restoring the leased property cannot be imposed on the lessor, and in such cases it would be appropriate to accept that the lease agreement be terminated due to economic impossibility2.

    In the settled jurisprudence of the Court of Cassation, in accordance with Article 301 of the TCO, the lessor is obliged to deliver the leased property in a condition suitable for the intended use in the contract and to keep it in this condition during the term of the contract, and in cases where it is proven that there is a risk of collapse in the event of an earthquake or the leased property becomes unusable in accordance with the purpose of the contract, it is ruled that this situation is a just cause for termination of the contract for the tenant and that reliance damages can be compensated from the lessor:

    “…As a result of a trial conducted by the court in accordance with the reversal; it was determined that the leased building was at risk in the event of an earthquake in such a way that it would not inhabitable, and in the main case, since the plaintiff’s termination was justified, the compulsory expenses totalled TL42,590.09; in the merged case, the building subject to the lawsuit was a risky building, was evicted by other tenants was still empty, and had not been rented to other people, it was ruled that it is not possible to claim the damage cost of the risky building from the tenant; It was decided to partially accept the main lawsuit, to collect TL42,590.09 from the defendant with the legal interest to be accrued from the date of payment and to give it to the plaintiff, and to dismiss the merged case, and the judgement was appealed by the defendant/merged file plaintiff.

    1-) In the expert report taken as a the basis for the judgement, it was stated that the building poses a high risk in terms of life safety, the earthquake safety level is insufficient, and there is no irregularity in the court’s acceptance that the termination of the tenants is justified. In this case, the tenants may claim the reliance damages incurred due to the termination of the contract. However, it is seen that the compensation claims of the plaintiffs are the expenses related to the maintenance, repair, relocation and settlement of the new workplace.

    It is not possible for the plaintiffs to evaluate and demand the the relocation and repair costs of the rented place for the new leased place within the scope of the damage (reliance damage) incurred due to the termination…”(Court of Cassation 3rd Civil Chamber, 2021/7454 E., 2022/4131 K., 26.04.2022).

    “…According to Article 301 of the TCO, the lessor is obliged to deliver the leased property in a condition suitable for the use intended in the contract and to keep it in this condition for the duration of the contract. It is clear that the building where the leased property subject to the lawsuit is located does not have an earthquake resistance report. The defendant should have known about this legal defect in the leased property and should have informed the plaintiff tenant about this defect when the lease agreement was concluded. Because the parties are obliged to provide each other with complete and accurate information during the conclusion of the contract. It is essential that a leased building has an earthquake resistance report obtained in accordance with the legal legislation, and giving a misleading appearance or violating the obligation to inform about the defects and defects in the lease is a breach of the contract. Therefore, it should be accepted that the termination is based on just cause for the plaintiff tenant. While the court should evaluate the plaintiff’s claims according to the provisions of the termination of the contract for just cause, it is not correct to decide to reject the case with a written justification…” (Court of Cassation 6th Civil Chamber, 2015/3006 E., 2015/5316 K., 02.06.2015).

    “…As a rule, the lessor is obliged to deliver the property in a condition suitable for the use intended by the contract and to keep it in this condition for the duration of the contract. Since the contract of sale is not a reason that automatically terminates the lease relation, the new owner who purchases the leased property is also under the obligation to keep the leased property in a condition suitable for use. This obligation of the lessor also includes the obligation to guarantee against defects. In other words, the lessor is obliged to repair the defects and deficiencies that occur in the leased property during the contract period, unless the tenant is at fault. If the need for repair and maintenance of the leased property arises due to subsequent defects, the tenant is obliged to notify the lessor of this situation according to the importance and nature of the defects and to give an appropriate period of time for repair. The resolution of the dispute depends on whether the contract between the parties was terminated for just cause. If it is determined that the leased property is at risk in the event of an earthquake in such a way that it cannot be inhabited, just cause termination can be mentioned…” (Court of Cassation 6th Civil Chamber, 2015/7564 E., 2015/11172 K., 17.12.2015).

    Even if the tenant has terminated the lease agreement for just cause due to the earthquake risk, the obligation to duly deliver the keys of the leased property to the lessor (with a written document) continues. If the tenant fails to prove that he/she has duly delivered the keys of the leased property, the obligation to pay the rent will continue until it is proven that the leased property has actually passed into the possession of the lessor. Cassation regarding the tenant’s obligation to pay the rent until it is proven that the keys of the leased property have been duly delivered or that the leased property has actually passed into the possession of the lessor is as follows:

    “…With the enforcement proceeding initiated by the plaintiff on 01/12/2015, it was requested to collect the rent receivable of TL333,502.47 for the months of December 2014, January, February, March, April 2015. The defendant tenant declared that the lessor was notified that the leased property was evicted on 09/03/2015. In order to accept that the leased property had been evicted (that the tenant has fulfilled the obligation to return the leased property), it is not sufficient to actually evacuate the leased property. The key must also be delivered to the lessor. The tenant is obliged to pay the rent until the legal eviction and delivery of the key. The defendant tenant has the burden of proving with written evidence that the key to the leased property was duly delivered to the lessor. If the key is not delivered, it must be accepted that the leased property is in the use of the tenant. The defendant tenant could not prove the key delivery with written evidence, but if it is determined that the leased property is in the possession of the plaintiff, this date should be accepted as the date of eviction when the leased property passes into the control of the lessor plaintiff. In the petition of the plaintiff lessor requesting determination on 18/03/2015 in file numbered 2015/47 D. of the 2nd Civil Court of First Instance, it was stated that the tenant left the leased property on the evening of 16/03/2015 without delivering the key, it was determined that the leased property was damaged during the inspections and controls made in the leased property, and the damages allegedly caused by the tenant were stated in detail. Evaluating the petition for determination, it should be accepted that the leased property has passed into the possession of the plaintiff as of 18/03/2015, the date of the request for determination. In this case, the Court, considering that the tenant is responsible for the rental costs until the date of eviction and accepting that the leased property was evicted on 18/03/2015, while the defendant should be held responsible for the rental costs until this date, it was not considered correct to make a decision in writing and that it required a reversal…” (Court of Cassation 3rd Civil Chamber, 2018/2863 E., 2019/688 K., 05.02.2019).

     

    1. Conclusion

    Although some authors in the doctrine argue that it shall be appropriate to terminate a lease agreement due to economic impossibility if the renewal of the leased property is excessively costly in relation to the building being destroyed or heavily damaged due to an earthquake, according to Article 301 of the TCO and the settled jurisprudence of the Court of Cassation, it is considered that the lessor is obliged to deliver the leased property in a condition suitable for the use intended in the contract and to keep it in this condition during the term of the contract, and the tenants of the leased property who are evicted or the demolished building by the Ministry within the scope of the Law on the Transformation of Areas Under Disaster Risk may terminate the lease agreement for just cause and compensated with reliance damages by the lessor.

    Although the tenant terminated the lease agreement for just cause due to earthquake risk, as a rule, the obligation to duly deliver the keys of the leased property to the lessor (with a written document) continues, and if the tenant cannot prove that the tenant has duly delivered the keys of the leased property; it is considered that the obligation to pay the rent will continue until it is proven that the leased property has actually passed into the possession of the lessor.

    1 ÖZDEMİR, Hayrunnisa, Kira Hukuku Davaları, Seçkin, Ankara, 2022, s.56-57.

    2 İNCEOĞLU, Murat, Kira Hukuku, 1. Baskı, On İki Levha Yayıncılık, İstanbul, 2014, C. 2, s. 81.

 
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