SUMMARY: The lessor has the burden of proving the existence of the lease relationship and the amount of rent.

If these matters are proved; the lessee is obliged to prove that the rent has been paid or the leased place has been evacuated.

3rd Civil Chamber of the Court of Cassation

E.2020/10164 K.2021/97 T.18.01.2021

According to Article 190 of the Code of Civil Procedure No. 6100 regulating the burden of proof, the burden of proof belongs to the party who derives a right in his favor from the legal result connected to the alleged fact, unless there is a special regulation in the law. Pursuant to Article 6 of the Turkish Civil Code No. 4721, as a rule, everyone is obliged to prove his claim.

As a rule, the burden of proof of the existence of the lease relationship and the amount of the monthly rent falls on the lessor, and if the lessor proves these matters, the burden of proof that the rent has been paid or the lease has been evicted falls on the lessee.

In the case at hand; it is not a matter of dispute that the place subject to the lawsuit was leased to the plaintiff under the name of allocation and the plaintiff used the lease based on the allocation. The concrete dispute is the amount of the rental fee, whether the leased premises were evacuated, the determination of whether the plaintiff owes rent for the period subject to the execution file, and the refund if there is an overpayment. In this case, the court, considering that the burden of proof of the rental price is on the defendant lessor, determining the rental price by evaluating the documents related to the leased immovable and the allocation process and other evidence, otherwise, determining the last rent paid by the plaintiff by subpoenaing the plaintiff if necessary; according to the determined annual rent amount, again within the framework of the rules of proof, determining whether the plaintiff has evacuated the leased property and the date of evacuation, taking into account the claim that the leased property was demolished by the decision of the municipal council; in this direction, taking into account that the plaintiff tenant will be responsible for the rental fee until the date of evacuation, it is necessary to make a calculation in terms of the receivable period subject to the enforcement file and to decide according to the result, but it was not deemed correct to decide to dismiss the lawsuit on written grounds and required a reversal.

CONCLUSION:

For the reasons explained above, it was unanimously decided on 18/01/2021 that the judgment shall be DISMISSED in favor of the plaintiff in accordance with Article 428 of the HUMK, the prepaid appeal fee shall be returned to the appellant upon request, and the way of correction of the decision shall be open within 15 days from the notification of the decision in accordance with Article 440 of the HUMK No. 1086 with reference to the Provisional Article 3 of the CCP No. 6100.