Eviction Of The Property Pursuant To The Franchise Agreement
ISTANBUL ANADOLU 21ST ENFORCEMENT AND CIVIL COURT
CASE NO.: ………E.
DEFENDANT: ……….
ATTORNEYS: Attorney …………
PLAINTIFF: 1- ………….
SUBJECT: This filing consists of our response to the complaint.
EXPLANATIONS:
In the complaint, the plaintiff summarily argues that, since the real property was not delivered to the lessor, the lease agreement has reverted to an indefinite term; that the tenant is obligated to return the property to the lessor at the end of the term; that the defendants are in possession of the real property; and that the lessor’s interests have been violated due to a cause not attributable to the lessor. Accordingly, the plaintiff has filed a claim seeking the dismissal of the objection filed in Case No. ……… E. to lift the objection filed in that case and to order the eviction and surrender of the property.
First, it should be noted that the property was vacated pursuant to the judgment No. ………. E……….. K. of the Istanbul Anatolia 3rd Enforcement Court, which was filed by the plaintiff, through Case No. ………E. of the Istanbul Anatolia 14th Enforcement Directorate. Therefore, the request for eviction is unfounded and must be dismissed.
The plaintiff’s claim that the lease agreement has converted to an indefinite term is also unfounded and baseless.
Article 2 of the Lease Agreement entered into between the plaintiff and the client company reads as follows:
“This agreement is entered into to take effect as of the date of registration in the land registry and shall remain valid for a period of 7 years.”
As clearly understood from this provision, the lease agreement is for a fixed term, and its commencement date is ………, which is the date of registration in the land registry. Under these circumstances, the lease agreement expired on ……… The plaintiff, however, has included the months of ………. in the enforcement proceedings; since no valid lease agreement existed between the parties during these periods, no rent debt has arisen. All rent payments for the lease period were made to the landlord. Therefore, my client has no rent debt to the plaintiff. For these reasons, we have filed an objection to the enforcement proceedings in question.
Although the plaintiff claims that the lease agreement has been converted to an indefinite-term agreement pursuant to Article 327/2 of the Turkish Civil Code, this claim cannot be accepted. Article 327 of the Turkish Civil Code reads as follows:
“If a term is specified, either explicitly or implicitly, the lease agreement automatically terminates at the end of that term.
If, in such a case, the parties continue the lease relationship without an explicit agreement, the lease agreement becomes an indefinite-term contract.”
As can be seen, if the parties continue the lease relationship upon the expiration of the term, the contract converts to an indefinite-term lease. In the present case, however, ……, who operates the gas station at issue, has not vacated the property despite the expiration of the lease and franchise agreements and has unlawfully occupied the gas station. This situation cannot be interpreted as a continuation of the lease relationship.
Although the plaintiff has stated that the property was not surrendered, Article 4 of the Lease Agreement entered into between the parties, titled “Purpose of Use and Conditions Regarding the Actual Surrender of the Premises,” provides that:
“The property shall be operated as a gasoline and autogas sales and service station under the Lukoil brand and logos, or under brands and logos to be solely designated and determined by Lukoil.
The Lessor acknowledges and undertakes that the operation of the gasoline and autogas sales and service station subject to this lease right shall be carried out either directly by Lukoil or through natural or legal persons exclusively designated by Lukoil… The Lessor hereby acknowledges in advance that it has no discretion in this matter.
“Upon the expiration of this agreement, if it is not renewed and the parties mutually agree to terminate it, the necessary coordination will be provided for the transfer to the Owner of the Second-Class Business Premises Operating License issued in the name of the Operator/Dealer regarding the operation of the fuel and autogas sales station established on the leased property.”
it is stated. Therefore, the Owner has agreed in advance that the gasoline station located on the property will be operated by another company (in this specific case, ……….) , and has declared and undertaken that, in such a situation, the client company’s sole responsibility is to ensure the necessary coordination for the transfer of the Second-Class Business Premises Opening and Operation License—issued in the name of the Operator/Dealer—to the Owner.
At this point, in the event of termination of the franchise agreement between the client company and ………, and ultimately at the end of the lease term, the obligation to vacate and surrender the property rests with ……… The client company’s sole obligation is to ensure the necessary coordination for the transfer of the GSM license.
Indeed, following the termination of the franchise agreement, an action to prevent interference was filed against ……… through Case No. ………. E. ……….. E. of the Istanbul Anatolia 2nd Civil Commercial Court; the case was pursued by the creditor as an intervenor, and as a result of the proceedings in this case:
“The claim is granted; the defendant’s interference with the real property numbered …………….—which the plaintiff company holds as lessor—and the gas station located thereon is to be prevented,”
was issued, and the defendant filed an appeal against the aforementioned decision. The decision has not yet become final.
At this stage, the client company has fulfilled all of its obligations, and the party that has failed to vacate and surrender the property is ………………. The party against whom the enforcement proceedings should be directed is ……….. No legal action may be brought against the client company.
The client company’s obligation to make payments ended on ………, the date the lease agreement expired.
Possession of the property also lies not with the client company, but with ………
It should be noted that ……… has not paid any amount to the client company following the termination of the franchise agreement. ………… has continued to use the property as an unlawful occupant without paying any rent. In this regard, the party using the property and obligated to pay rent is ………..
Furthermore, considering that there are ongoing lawsuits between the parties, it is clear that the dispute must be resolved in the general courts.
In its decision No. 2004/6847 E. 2004/7974 K., the Court of Cassation, 4th Civil Chamber, also stated: “…The dispute between the parties concerns whether the lease agreement entered into between the defendant who purchased the mortgaged property and the other defendant, who claims to have leased the same property by paying five years’ rent in advance, is valid. Such a dispute can be resolved based on the judgment reached following the evaluation of evidence gathered during a trial conducted in accordance with general provisions. It cannot be expected that a judge of the enforcement review authority, whose jurisdiction is limited and who will reach a judgment based on the documents in the file, will resolve such a dispute.”
Thus, it has been emphasized that the dispute must be resolved based on the judgment reached following the evaluation of evidence to be gathered in a trial conducted in accordance with general provisions. In this context, it is necessary to rule that the present case be dismissed due to lack of jurisdiction.
LEGAL GROUNDS: Code of Civil Procedure (HMK), Enforcement and Bankruptcy Code (İİK), Turkish Commercial Code (TTK), Turkish Civil Code (MK), and relevant legislation.
EVIDENCE: Subject to our reserved right to present evidence and statements of any kind in response to the evidence to be submitted by the plaintiff—which has not been served upon us—
CONCLUSION AND REQUEST: Based on the reasons explained above;
That the case be dismissed for lack of jurisdiction,
That the case be dismissed on both procedural and substantive grounds with respect to the CLIENT COMPANY,
That the litigation costs and attorney’s fees be borne by the other party,
we respectfully request that a decision be rendered accordingly.
Counsel for the Defendant