What happens to a tenant’s expenses on the property after eviction? Turkish Code of Obligations No. 6098 does not contain an explicit provision on whether a tenant can claim, from the landlord, the expenses made on the leased property after vacating it. This gap is filled by the Turkish Court of Cassation (Yargıtay) and legal doctrine through the rules on agency without authority (negotiorum gestio) and unjust enrichment. In this article, we examine under which conditions a tenant can claim expenses incurred on the property after eviction.
Tenant Alterations and Article 321 of the Code of Obligations
Under Article 321 of the Turkish Code of Obligations, a tenant may make renovations and alterations to the leased property with the written consent of the landlord. If the landlord consented to such renovations and alterations, the landlord cannot demand that the property be returned in its original condition unless otherwise agreed in writing. Conversely, unless the parties have agreed otherwise in writing, the tenant cannot claim compensation for any increase in the property’s value resulting from renovations and alterations made with the landlord’s consent.
However, Article 321 does not address what happens when the landlord has given no written consent regarding the tenant’s expenses. For example, suppose there is no written agreement between the parties, a water pipe in the leased property bursts, the tenant has it repaired, and moves out a month later. Can the tenant recover the cost of that repair? This is precisely where the legal nature of the tenant’s expenses on the property becomes relevant.
Why the Distinction Between Necessary, Useful and Luxury Expenses Matters
Expenses made by a tenant are legally divided into three categories: necessary, useful and luxury expenses. This distinction is crucial because it directly determines which expenses the tenant may claim from the landlord after eviction — not every expense incurred by the tenant gives rise to a claim.
Necessary expenses are assessed not by their amount but by whether they were required to preserve the property or maintain its usability; their nature is determined according to the specific facts of the case, if necessary through expert examination. Replacing corroded electrical wiring is an example.
Useful expenses increase the value or usability of the property but are not required for it to remain usable in its existing condition. Replacing worn-out flooring or outdated kitchen cabinets with better-quality alternatives falls into this category. Whether an expense is necessary or merely useful can vary depending on the circumstances of each case.
Luxury expenses are those that are not required for the use of the property and are made purely according to the tenant’s personal preference.
If the Lease Agreement Contains a Provision
If the lease agreement expressly provides that the tenant cannot claim expenses made on the property, it must first be determined which types of expenses this provision covers. As a general rule under Turkish contract law, the principle of freedom of contract applies, provided the agreement does not violate mandatory statutory provisions, public order or public morals. Accordingly, such a provision remains valid, except where the tenant terminates the lease for just cause.
If the Lease Agreement Is Silent: Agency Without Authority and Unjust Enrichment
If the lease agreement is silent on this matter, and the work performed qualifies as a “renovation or alteration,” Article 321 of the Code of Obligations applies. For necessary and useful expenses that fall outside this scope, the Court of Cassation applies the rules on agency without authority (Articles 526-531 of the Code of Obligations) and unjust enrichment (Articles 77-82 of the Code of Obligations).
Agency without authority arises where the tenant, without express authorization from the landlord, carries out a task that essentially concerns the landlord — namely, preserving the property or maintaining its usability. For instance, where a tenant repairs a defect that seriously impedes the use of the property and could cause damage if left unaddressed, it must be assessed whether the work benefited the landlord and whether the conditions for applying the rules on agency without authority are met. Expenses such as water and electrical installations, kitchen appliances, heating and cooling systems, painting, and flooring replacement are examples of expenses that may be subject to this assessment.
Where the increase in the property’s value or usability resulting from the expense remains part of the landlord’s estate, the rules on unjust enrichment come into play. Indeed, the General Assembly of Civil Chambers of the Court of Cassation has held in one of its decisions that alterations made by a tenant to adapt the property to its intended use, together with necessary and useful expenses, must be assessed under the rules on unjust enrichment, and that the landlord must be deemed unjustly enriched to the extent that these expenses are reflected in the property’s value.
Accordingly, since the landlord would be unjustly enriched with respect to the necessary and useful expenses made by the tenant, the tenant may claim these expenses. The relevant criterion here is not the amount the tenant spent, but the extent to which the landlord was enriched; therefore, in determining the amount, what matters is not the value at the time the expense was made, but the value at the time of eviction.
Eviction and Delivery as a Precondition for the Claim
In order for the tenant to claim the expenses discussed above, the tenant must have actually vacated the property and delivered it to the landlord. Eviction of the property is a precondition for the tenant to claim, under Article 77 of the Code of Obligations, value-enhancing expenses made during the term of the lease; until this precondition is met and the property is returned to the landlord, such expenses cannot be claimed.
Can Luxury Expenses Be Recovered?
Although what constitutes a luxury expense may vary depending on the circumstances, as a general rule the tenant cannot make any claim against the landlord for expenses made purely at the tenant’s own discretion. However, upon eviction, items relating to such luxury expenses — for example, a chandelier — may be taken by the tenant if they can be removed without damaging the property. Luxury installations that cannot be removed, that would damage the property upon removal, or that have become an integral part of the property remain with the property, and the tenant may not make any claim regarding them. If the lease agreement contains a provision entitling the tenant to claim luxury expenses as well, that provision will apply and the tenant may claim such expenses.
Conclusion
Whether a tenant can claim the expenses made on the property upon eviction depends on specific legal conditions and the nature of the expense. Whether this matter is expressly regulated in the lease agreement between the parties is the first and most important criterion. Where the agreement is silent, renovations and alterations falling under Article 321 of the Code of Obligations, as well as luxury expenses, generally remain the tenant’s responsibility, while necessary and useful expenses become recoverable under the rules on agency without authority and unjust enrichment.
However, for this claim to be enforceable, the property must first be vacated and actually delivered to the landlord. In determining the amount, what is taken into account is not the cost at the time the expense was incurred, but the increase it created in the property’s value at the time of eviction. For this reason, to prevent future loss of rights and legal disputes, the soundest legal approach is to record any substantial alterations to the property in a written agreement, either at the start of the lease or during its term.
