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May 27, 2022

Reference Of Possession In The Leasing Relationship And Legal Status Of The Tenants

Real Estate Law
Reading Time: 4 minutes

I. INTRODUCTION

Possession is defined as the possession of the real or legal person holding the actual dominance over movable or immovable property. Ownership is the right to the property, and possession is the right to use the property. While the owner is the real owner, the possessor is the person who has the right to use the property.

If it is necessary to evaluate it in terms of the tenancy relationship, the lessor is the owner, while the lessee who actually uses the immovable is the possessor. When evaluated in terms of the types of possession, it is in the position of primary possession since the lessor will be the owner based on the property right, and the lessee is in the position of secondary possession because it will be the possession due to the primary possession. Likewise, the lessee is in the position of direct possession because he can maintain his actual dominance over the goods directly, and the lessor is in the position of indirect possession because he can maintain his actual dominance over the goods only through the lessee.  

Although there are many types of acquisition of a possession, since the legal status of the tenants will be examined in the content of this article, it is necessary to specifically mention the transfer of possession. The transfer of possession is the transfer of the original possession of the item in the hands of a person with the title of secondary possession to another person by the primary possession and the notification of the delivery of that item in the new possession to the secondary possession. In other words, it is the transfer of the indirect possession of the goods by the person in the indirect possession by making a contract with the person who will acquire the possession. 

If it is necessary to exemplify through the tenancy relationship, the transfer of the secondary possession and indirect possession of the movable or immovable property of the lessor, who is the owner of the property, to another person, will be considered a transfer of possession within the scope of Article 979 of the Turkish Civil Code No. 8049 (“TCC”).

II. EVALUATION WITHIN THE SCOPE OF THE LEASING RELATIONSHIP

In the case of a transfer of possession, the consent of the secondary possessor or the direct possessor is not required. However, in order for this transfer to be effective in terms of direct possession, which directly ensures the actual dominance of the property, a notification must be made in the direct possession pursuant to the 2nd paragraph of Article 979 of the TCC. As a matter of fact, within the scope of the leasing relationship, the lessor owner can sell and transfer the rented item to another person, but this sale must be notified to the lessee in accordance with Article 979. In terms of the tenant, the transfer of possession will be valid from the moment of this notification to be made to him. 

As another matter, in accordance with the 3rd paragraph of Article 979 of the TCC, the third party may refrain from giving the item to the acquirer for reasons that he may argue against the transferor of possession. The important point is which of the reasons that the third party can claim against the transferee is related to the real or personal rights. Due to the fact that, pursuant to the aforementioned provision, it is accepted that the third party can only claim reasons based on real rights (such as usufruct right) against the transferee. However, since it can only assert its personal rights against the other party of the legal relationship, in other words, against the transferor, on the grounds that it is a relative right, it will not be able to assert it against the transferee. Claiming personal rights against the transferee in immovable leases will only be possible if they are annotated in the land registry. In this case, since there will be a personal right whose effect is strengthened, it can also be claimed against the transferee.

However, pursuant to article 310 of the Turkish Code of Obligations numbered 6098 (“TCO”), titled “Change of the Leased Owner”, if the leased property changes hands for any reason after the conclusion of the contract, the new owner will become a party to the lease agreement. In this case, contrary to the above-mentioned view that the personal rights regulated in the 3rd paragraph of Article 379 of the TCC cannot be asserted, with Article 310 of the TCO, it has become possible for the third-party tenant to claim a personal right arising from the lease agreement with the transferee lessor, against the transferee, that is, the new lessor.

310th article of the TCO, was created in order to ensure that the lessee can assert his right arising from the lease agreement with the previous owner against the new owner and, in this way, to protect the lessee against the new owner. Therefore, in real estate leases, even if the lease agreement is not annotated in the land registry, the new owner will be bound by the lease agreement in accordance with Article 310 of the TCO.

Considering that the new owner is bound by a lease agreement, although the tenant cannot be evicted just because the immovable has changed hands, this situation is not absolutely binding and the opportunity for the new owner lessor to terminate the lease agreement is regulated under Article 351 of the TCO. 

 

In accordance with Article 351 of the TCO; If there is an obligation to use it for the immovable’s new owner, his spouse, descendants, descendants or other dependents due to the need for housing or a workplace, he may terminate the lease agreement with a lawsuit to be filed after six months, provided that the situation is notified in writing to the lessee within one month from the date of acquisition. The person who subsequently acquires the leased property can also use its right to terminate the contract due to necessity through a lawsuit to be filed within one month, starting from the end of the contract period.

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