THE DEATH OF THE TENANT AND ITS EFFECTS ON TENANCY AGREEMENTS 18 February 2022

THE DEATH OF THE TENANT AND ITS EFFECTS ON TENANCY AGREEMENTS

I. INTRODUCTION

The death of the real person tenant or the lessor is one of the important reasons that cause the lease agreement which was initially consisted of one person on both sides at the beginning to later turn into a joint lease without the will of the parties. With the death of the tenant or the lessor, by the principle of universal succession, the heirs of the deceased become parties to the lease agreement by replacing the legator.

If the deceased tenant or lessor has more than one heir, these heirs form the lessee or lessor of the lease agreement which initially consists of one person on both sides, turns into a joint lease. As a result, heirs become the creditor and debtor of the contract.

II. THE DEATH OF THE TENANT

The outcome of the rental relationship in case of the death of the tenant is stated in Article 333 of the Turkish Code of Obligations (“TCO”) No. 6098; under the heading "Death of the Tenant"; “In case the tenant dies, his heirs can terminate the contract at the end of the nearest termination period by complying with the legal termination notice period.” As can be seen, the lease agreement does not end with the death of the lessee because, with the death of the tenant, the heirs take over the lease agreement together with the inheritance and become a party to the agreement.

According to the above-mentioned article, the heirs of the lessee are allowed to terminate the lease if they do not want to continue the rental relationship. However, the lease agreement cannot be terminated immediately after the death of the tenant. The heirs of the tenant will be able to terminate the lease at the end of the nearest termination period by complying with the legal termination notice periods. If the termination declaration is not used for the nearest termination period by the heirs, the right of termination due to the death of the tenant will be eliminated.

In Article 265 of the repealed Code of Obligations No.818 where the death of the lessee is regulated, the lessors, as well as the heirs have been granted the right to terminate the contract. However according to TCO No. 6098, this termination right was granted only to the heirs of the lessee, and no separate regulation was made for the lessor. This situation arises from the idea that the lessee should be protected more than the lessor in tenancy relations.

In Article 356 of the TCO, it is specifically regulated regarding the lease of residential and roofed workplaces “The partners of the deceased tenant or the heirs of these partners carrying out the same profession and art, and those living in the same residence with the deceased tenant can continue the rental agreement as a party, as long as they comply with the contract and the provisions of the law.”

Persons who are not a party to the lease agreement at the beginning, but live in the same house as the tenant and do not qualify as the tenant's heirs, may also become parties to the rental agreement upon the death of the tenant. For the persons listed in the article to gain the title of a party to the contract, they must notify the lessor of this situation or show their willingness and will to become a party to the lease agreement by implicit behavior. Otherwise, persons who do not want to be a party to the lease contract will become a party to the contract by the law, although they do not have any request in this regard. However, when the grammatical interpretation of article 356 of the TCO is to be examined; it is mentioned that the partners of the deceased tenant or those who live in the same residence with the deceased tenant can “continue” the lease agreement as a party after the death of the tenant.

One of the important differences between Article 333 of the TCO and Article 356, in which a special transfer principle applies to lease agreements, arises from the areas of regulation. While a general regulation on lease agreements has been regulated with the provision of Article 333 of the TCO, article 356 of the TCO regulates the situation about the rents of residential and roofed workplaces. Another difference is that the heirs of the tenant are not included in article 356. According to the rationale of the article, the heir becomes a party to the mentioned residential or roofed workplace lease agreement as a consequence of universal succession within the framework of the provisions of the inheritance law. Therefore, the statement of the tenant’s heirs is not stated in the article particularly.

Sometimes it is seen in the practice that after the death of the tenant, a prevention lawsuit is filed against the heirs as unlawful occupants. However, if the heirs reside in the leased property with the previously deceased tenant, they have the right to continue the lease agreement. Persons with this status cannot be considered unlawful occupants. According to the decision of the 6th Civil Chamber of the Supreme Court, numbered E.2000/2110, K.2000/2330 and dated 20.03.2000; “If, after the death of the tenant, his son resides in the rented property as in the past, this situation is not considered unlawful occupation.” It is seen that this issue is evaluated in the same way by the Supreme Court.

It must be stated that, if the eviction lawsuit will be operated upon the death of the tenant, the lawsuit must be directed to all heirs. As mentioned above, with the death of the tenant, the rights and debts of the deceased are transferred to the heirs by the principle of succession. The debts arising from the rental agreement, which creates personal rights, are also included in the estate of the deceased and they are passed on to the heirs by joint ownership. In such a case, it is obligatory to file a lawsuit against all the heirs or, if a lawsuit has been filed against some of the heirs, the others should participate in the lawsuit. The reason for this is that the debt to evacuate the leased property is one of the indivisible debts. Therefore, it is necessary to carry out the case against all heirs. This is a natural consequence of the compulsory joinder of parties.

According to the decision of the 6th Civil Chamber of the Supreme Court, numbered E.2000/6663, K.2000/8445 and dated 09.10.2000; “Even if a lawsuit due to unlawful occupation cannot be filed against those who live with the tenant after the death of the tenant, if the tenant died before the eviction lawsuit was filed due to necessity, then the eviction lawsuit must be filed against all the heirs in the inheritance certificate, regardless of whether there is an heir or not in the leased property” it is ruled that eviction lawsuit must be directed to all heirs in the certificate of heirship.

III. CONCLUSION

As a result, when the provisions of the aforementioned law are examined, it is seen that the heirs of the deceased tenant have the opportunity to terminate the rental relationship in the nearest termination period. Additionally, according to Article 356 of the TCO, it is also regulated that even if the deceased tenant does not have heirs, those who lived in the same house with the tenant before his death can continue their rental relationship, provided that they act by the contract and the provisions of the law. Therefore, if these persons continue their rental relationship, this matter cannot be considered an unlawful occupation.