1. Eviction During Appellate/Cassation Review and Restoration of Enforcement (EEL Art. 40) 

According to Supreme Court decisions, the annulment of an eviction order by the Regional Court of Appeals or its reversal on appeal halts the enforcement proceedings at that point (EEL Art. 40/1). If the judgment has been executed and the property evicted, then with a subsequent reversal decision, execution is fully or partially restored to its former state without the need for an additional judgment (EEL Art. 40/2).

According to the established jurisprudence of the Supreme Court 6th Civil Chamber, an eviction that occurs as a result of the execution of a reversed eviction decision cannot be considered as “a voluntarily executed eviction.” In this case, the court, in compliance with the reversal decision, must consider that the property can be returned to the defendant under EEL Art. 40 and rule to reject the eviction request.

2. Case Becoming Moot After Eviction and Procedure to Follow 

If the defendant vacates the property while the appellate or cassation review is ongoing, the course of the case changes depending on the nature of the eviction:

Case Becoming Moot: If the property is evicted during the trial or appeal stage, it is accepted that the subject matter of the case no longer exists. According to decisions of the Supreme Court 3rd Civil Chamber and the General Assembly of Civil Chambers, in this situation, the court must rule that there is “no need for a decision.”

Determination of Rightfulness and Litigation Costs: According to Article 331/1 of the HMK (Code of Civil Procedure), in cases where there is no need to decide on the merits of the case due to the case becoming moot, the judge determines the litigation costs and attorney’s fees according to the rightfulness of the parties at the date the lawsuit was filed. The Supreme Court emphasizes that the court should not merely state that the case has “become moot”, but should examine whether the plaintiff was justified in their eviction request at the time the lawsuit was filed and rule on the costs.

Obligation to Investigate: The court must investigate whether the eviction has taken place in an appropriate manner. The statement of only one of the parties may not be considered sufficient; concrete data such as key handover records or enforcement reports should be focused on.

3. Course of Action if the Appellate Court Reverses the Decision

If the appellate court reverses (or overturns) the local court’s decision of acceptance, the file is usually sent back to the court of first instance for a retrial. At this stage:

Compliance with Reversal: If the court complies with the reversal decision, it must conduct an examination within the framework of the legal principles specified in the reversal judgment.

Decision on the Merits: If the immovable property was evicted through enforcement before the reversal, there are decisions indicating that the court should rule on “rejection of the eviction request.” However, if the eviction occurred voluntarily (by consent), it should be ruled that the case has become moot.

Request for Reversal of Execution: The defendant (tenant), after the annulment decision, can apply to the enforcement office requesting the return of the immovable property to them in accordance with Article 40 of the Enforcement and Bankruptcy Law.

4. Rights of Third Parties and Exceptional Circumstances

 In accordance with Article 40/3 of the Enforcement and Bankruptcy Law, when the execution is reversed, rights acquired in good faith by third parties cannot be harmed. According to a decision by the 12th Civil Chamber of the Court of Cassation, if the immovable property is leased to a third party in good faith by the owner after eviction, the enforcement officer cannot remove the third party from the property and hand it over to the former tenant. In this case, the dispute between the old and new tenants must be resolved in general courts.

5. Information Obtained from Secondary Sources 

Court decisions, acting as secondary sources, provide additional context regarding the process described above:

Appeal Threshold: It has been stated that in eviction lawsuits, the three-month rent amount is taken as the basis for determining the final appeal limit, and decisions below this limit may be rejected on grounds of monetary value.

Burden of Proof: It has been emphasized that for the property to be considered vacated, merely appearing empty is not sufficient; it must be proven that the key was delivered to the plaintiff in a proper manner (e.g., by depositing with a notary or with a formal record). Otherwise, continued occupation may be presumed.

Nature of the New Ruling: In cases where new facts emerge, such as the evacuation of the property after a reversal and the plaintiff’s non-use of the property, it has been stated that the court’s decisions, taking these new circumstances into account, can be considered as a “new ruling” and the appeal review will be conducted accordingly.

Frequently Asked Questions

İstinaf veya temyiz aşamasında tahliye gerçekleşirse kiracı geri dönebilir mi?

Eğer tahliye ilamı istinaf veya temyiz incelemesi sonucunda kaldırılır veya bozulursa, İcra ve İflas Kanunu m.40 uyarınca icra işlemleri eski haline iade edilir ve kiracı taşınmazın kendisine teslimini talep edebilir.

Tahliye gerçekleşince dava otomatik olarak biter mi?

Hayır. Tahliye rızaen yapılmışsa dava konusuz kalır ve mahkeme “karar verilmesine yer olmadığına” karar verir. Ancak icra yoluyla tahliye gerçekleşmişse farklı hukuki sonuçlar doğabilir.

Tahliye sonrası ev başkasına kiralanırsa eski kiracı geri dönebilir mi?

İyiniyetli üçüncü kişinin hakları korunur. Bu durumda icra müdürlüğü taşınmazı eski kiracıya teslim edemez; uyuşmazlık genel mahkemede çözülür.

Why is Expert Legal Support Necessary?

Eviction lawsuits and enforcement proceedings during the appeal/cassation process are subject to technical procedural rules. Particularly:

Proper execution of the request for restitution of enforcement

Determination of whether the eviction occurred voluntarily or through enforcement

Evaluation of third-party rights

Correct application of Supreme Court precedents

Matters such as managing litigation costs and compensation risks require expertise. Procedural errors can lead to serious loss of rights. Therefore, obtaining expert legal support from the outset of the process is of great importance.

Professional Legal Support with 2M Law Office

2M Law Office provides strategic consultancy and litigation services to its clients in rental law, eviction lawsuits, enforcement law, and appeal processes. The office provides solutions, especially in property eviction processes and the annulment of enforcement proceedings, in light of current Supreme Court precedents.