An undertaking to vacate is a document by which the tenant undertakes in writing to vacate the leased property on a specified date. The law makes the right to seek eviction on this basis subject to three conditions (Turkish Code of Obligations art.352/1): the undertaking must have been given after delivery of the leased property, must be in writing and must contain a specified date. If the tenant does not vacate on that date, the landlord may, within one month starting from the date undertaken, commence enforcement proceedings or bring an action.
These provisions concern residential and business premises with a roof. Other ways in which a tenancy may end — need, reconstruction, two justified warnings, default — are covered on the Tenancy and Real Estate Law page. This article deals only with the undertaking itself.
Conditions of validity
The wording of the provision is short, but every word carries a condition. Turkish Code of Obligations art.352/1:
“If the tenant has undertaken in writing towards the landlord, after delivery of the leased property, to vacate it on a specified date but has not vacated it, the landlord may terminate the tenancy agreement by commencing enforcement proceedings or bringing an action within one month starting from that date.”
Four elements follow from this:
- It must have been given after delivery. The decisive point is not when the agreement was signed, but when the property was actually delivered.
- It must be in writing. An oral undertaking has no effect. The law does not require it to be drawn up before a notary; ordinary written form is sufficient for validity. For the practical importance of the notary, see the enforcement route below.
- It must contain a specified date. A calendar day need not be stated; a determinable date such as “twelve months later” also suffices. By contrast, vague expressions such as “as soon as possible” or “if needed” do not take the place of a date.
- It must have been given by the tenant. An undertaking given by a family member living with the tenant has no effect.
Two details in the final provision cause considerable difficulty in practice. If there is more than one tenant, all of them must give the undertaking together; the signature of only one is not sufficient for eviction. If the tenant is a legal person, the undertaking is given by the body authorised to represent it; the authority of the signatory should be verified against the commercial register and, where possible, a certificate of authority should be attached to the undertaking.
The provisions on termination of the lease agreement through court proceedings cannot be varied to the detriment of the tenant (TBK art.354). Accordingly, eviction cannot be sought on the basis of clauses in the agreement such as “the tenant shall give an undertaking to vacate whenever requested”: such a clause is not an undertaking containing a specified date of vacation as required by the Code.
When should the undertaking be signed?
After delivery. This concerns less the date written on the document than when the property was actually delivered.
The arrangement that gives rise to the most disputes in practice is this: the lessor has the undertaking to vacate signed at the same table when the agreement is signed. This arrangement reverses the sequence required by the Code — the tenant has not yet taken delivery of the leased property. Even if the agreement has been concluded, an undertaking signed before the keys are handed over does not satisfy this condition.
In a renewed agreement, however, the position is different. Where the tenant continues to occupy the property, an undertaking given on the same date as a renewed lease agreement does not conflict with this condition, because delivery has long since taken place.
What happens if the tenant does not leave despite the undertaking?
The lessor has two options, and a one-month period applies to both. The period runs not from the date on which the undertaking was signed but from the date of vacation undertaken (TBK art.352/1).
Enforcement route. Eviction is sought from the enforcement office on the basis of the undertaking; the proceedings are conducted under the provisions of the Enforcement and Bankruptcy Code headed “Eviction of leased immovable properties under a contract”. The enforcement director serves an eviction order requiring the property to be vacated and handed over within fifteen days (Enforcement and Bankruptcy Code art.272). The tenant may notify the enforcement office, within seven days of service of the eviction order, of an objection that the tenancy has been renewed or extended, and such objection stays the proceedings (Enforcement and Bankruptcy Code art.274).
Upon objection, the landlord may apply to the enforcement court for setting aside of the objection. Here, however, the nature of the document becomes decisive: for the objection to be set aside, the eviction request must be based on a document drawn up ex officio by a notary or bearing an approved date and signature, or acknowledged; otherwise the request is refused (Enforcement and Bankruptcy Code art.275). A notary is not a condition of validity; but if the tenant denies their signature on an ordinary written undertaking, the enforcement court route is closed and an application must be made to the general court.
Court proceedings route. In an eviction action, the civil court of peace has jurisdiction regardless of the value or amount in dispute (Civil Procedure Code art.4).
Mediation — mandatory if the court proceedings route is chosen. In disputes arising from a tenancy relationship, prior application to a mediator is a condition of the action; an action brought without such application is dismissed on procedural grounds, and the final record stating that no agreement was reached must be attached to the statement of claim. By contrast, eviction through enforcement proceedings without a judgment is excluded from this requirement — no mediation condition is sought for the enforcement route.
If the one-month period is missed, the request may be refused on grounds of time. If the landlord has notified the tenant in writing within that period that an action will be brought, the period for bringing the action is extended by one rental year (Turkish Code of Obligations art.353). In its text, the article refers only to the period for bringing an action.
What should the undertaking contain?
- The tenant’s and the lessor’s name, surname and Turkish ID number
- The full address of the leased property
- The date of the lease agreement
- The date on which the leased property was taken over
- The date on which it is to be vacated
- Date of issue
- The tenant’s signature — the signatures of all tenants if there is more than one
A document in which the date of handover is not stated, or which was signed on the same day as the agreement, fails to satisfy at least one of the above conditions.
Frequently asked questions
Must an undertaking to vacate be executed before a notary?
This is not a condition of validity; the statute requires only that it be in writing (TBK Art. 352/1). It does, however, make a difference in eviction through enforcement: if the tenant denies their signature, setting aside the objection cannot be sought from the enforcement court on the basis of a document that was not executed by a notary as an official deed or whose signature was not certified (İİK Art. 275).
Is an undertaking signed on the same day as the agreement valid?
In the case of the initial agreement, no — the statute requires the undertaking to be given after the leased property has been delivered. The position differs where the tenant already occupies the property and the agreement is being renewed; in that case delivery has already taken place.
Can an undertaking to vacate be given in respect of business premises?
Yes. TBK Art. 352/1 covers both residential leases and leases of business premises with a roof. Premises that are not covered (such as land, open car parks and open storage areas) do not count as “business premises with a roof”. Immovable property that by its nature is devoted to temporary use and is leased for six months or less also falls outside these provisions (TBK Art. 339).
When does the one-month period begin?
Not from the date on which the undertaking was signed, but from the date of vacation undertaken (TBK Art. 352/1).
I have given an undertaking to vacate — can I withdraw from it?
You cannot unilaterally withdraw from a validly given undertaking simply because you have changed your mind. That said, the undertaking does not in every case result in eviction: if the lessor does not apply for enforcement or bring court proceedings within one month starting from the date of vacation stated in the undertaking, they can no longer rely on that undertaking (TBK Art. 352/1); if they have notified you in writing that they will bring proceedings within that period, the period is extended by one lease year (TBK Art. 353). If the undertaking was signed under pressure, threat or deception, you may rely on defect of consent; this must be asserted within one year (TBK Art. 39).
Can the parties set a new date?
Yes. However, if eviction is to be sought on the basis of the newly set date, that agreement too must be in writing and must include a specified date — the statute requires writing as a condition of validity.
Legislation relied on
Turkish Code of Obligations No. 6098 — Art. 39 (time limit in cases of defect of consent), Art. 339 (scope of application), Art. 352/1 (undertaking to vacate), Art. 353 (extension of the period for bringing proceedings), Art. 354 (prohibition on terms to the tenant’s detriment) — mevzuat.gov.tr
Enforcement and Bankruptcy Code No. 2004 — Art. 272 (order to vacate), Art. 274 (objection), Art. 275 (setting aside the objection) — mevzuat.gov.tr
Code of Civil Procedure No. 6100 — Art. 4 (jurisdiction) — mevzuat.gov.tr
Law on Mediation in Civil Disputes No. 6325 — Art. 18/B (mediation as a condition of bringing proceedings) — mevzuat.gov.tr
Related pages
- Tenancy and Real Estate Law — parent page: requirement, two justified warnings, default and other grounds for eviction
This article is intended as general legal information. Because the circumstances of each case, the content of the agreement and the applicable time limits vary, you are advised to obtain legal support from your attorney at law for your particular situation.