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A. INTRODUCTION
The actual delivery of immovable properties sold through enforcement proceedings to the purchaser is of critical importance for the effectiveness of the compulsory execution system. The purchase of the immovable property through auction alone is not sufficient; actual possession must also be transferred to the purchaser. At this point, Article 135/2 of the Execution and Bankruptcy Law provides a special and accelerated mechanism regarding the eviction of the immovable property.
However, this mechanism is not absolute. The legislator aimed to protect third parties occupying the immovable property under certain conditions and, in particular, treated differently occupations based on agreements concluded before the attachment and proven by an official document.
Following the amendment introduced by Law No. 7343, not only the auction purchaser but also the new owner who acquires the immovable property from the auction purchaser has been expressly granted the right to request eviction. This amendment has led to significant consequences in practice.
B. PURPOSE AND SCOPE OF APPLICATION OF ARTICLE 135/2 OF THE EXECUTION AND BANKRUPTCY LAW
Article 135/2 of the Execution and Bankruptcy Law establishes a special eviction regime aimed at accelerating the actual delivery of the immovable property following a compulsory sale.
According to the provision, if the immovable property is occupied by third parties without being based on an agreement made by the debtor or on an agreement concluded before the attachment and documented by an official document, an eviction order shall be served on the occupier within 15 days. If the evacuation is not completed within this period, the immovable property shall be forcibly vacated and delivered to the purchaser.
The purpose of this regulation is to ensure that the ownership right of the auction purchaser becomes effectively exercisable in practice.
C. THE REQUIREMENT OF AN AGREEMENT DOCUMENTED BY AN OFFICIAL DOCUMENT
The most critical element of the provision is whether the occupation of the third party is based on “an agreement concluded before the attachment and documented by an official document.”
What is important here is not only the claim of tenancy itself, but also by which document and based on which date this claim is proven.
In the practice of the Court of Cassation;
- notarized lease agreements,
- lease relationships annotated in the land registry,
- warning notices dated before the attachment,
- enforcement proceeding files and court decisions
may be considered within the scope of an official document.
On the other hand, ordinary written lease agreements are not considered sufficient in most cases.
Therefore, in practice, not only whether a person is a tenant, but also by which document this can be proven becomes the determining factor.
D. THE ELEMENT OF DATE PRIOR TO THE ATTACHMENT AND THE ISSUE OF PROOF
The existence of an official document alone is not sufficient; in addition, the relevant agreement must have been concluded before the date of attachment.
Here, the legislator aims to prevent the debtor from rendering compulsory execution ineffective by subsequently establishing collusive lease relationships.
For this reason, proving the date element is of great importance.
The Court of Cassation also does not consider documents dated after the attachment or documents giving the impression that they were created afterwards to be within the scope of protection.
This approach is consistent with the purpose of preserving the effectiveness of compulsory execution.
E. THE ISSUE OF WHETHER THE PERSON IS A TENANT OR MERELY AN OCCUPIER
One of the most controversial areas in the application of Article 135/2 of the Execution and Bankruptcy Law is the determination of whether the person is genuinely a tenant or merely an occupier.
While the protection of the tenant is the main principle in lease law, the priority in enforcement law is for the auction purchaser to obtain actual possession of the immovable property.
For this reason, the provision provides for a narrower evidentiary regime than the classical protection granted under lease law.
This situation gives rise to serious disputes, particularly in lease relationships that are in writing but not notarized.
F. AFTER LAW NO. 7343: THE EVICTION RIGHT OF THE PERSON WHO PURCHASES FROM THE AUCTION PURCHASER
One of the most important innovations introduced by Law No. 7343 is that the person who purchases the immovable property from the auction purchaser may also use the same eviction mechanism.
Thus, the new owner may directly request eviction under Article 135/2 of the Execution and Bankruptcy Law, without having to rely solely on the general right of ownership.
This regulation gives rise to significant practical consequences, particularly in:
- transfers for investment purposes,
- rapid sales following the auction,
- portfolio acquisitions.
Here, the legislator aimed to ensure procedural economy and to accelerate the delivery process.
G. CONCLUSION AND EVALUATION
Article 135/2 of the Execution and Bankruptcy Law is a powerful enforcement law instrument that ensures the actual delivery of the immovable property following a compulsory sale.
However, this mechanism establishes a delicate balance between the protection of tenants and the ownership right of the auction purchaser.
In our opinion, especially with the amendment introduced after Law No. 7343, the provision has now evolved into a broader delivery mechanism that protects not only the auction purchaser but also subsequent transferees.
Therefore, in practice:
- the requirement of an official document must be examined meticulously,
- the analysis of the date of attachment must be carried out accurately,
- the distinction between tenant and occupier must be assessed carefully.
Otherwise, it will be inevitable that delivery problems for the purchaser and loss of rights for third parties will arise.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
