Court of Cassation 3rd Civil Chamber, File No: 2024/4081, Decision No: 2025/1441, Date: 10.03.2025 With its Decision Regarding the Resolution of Conflicts Between Regional Courts of Appeal, the Court Ruled That There is no Legal Obstacle to Granting a Preliminary İnjunction in Lawsuits Filed for the Permission to Show the Leased Property.

It was stated that disputes had arisen among the Ankara Regional Court of Appeal 15th and 37th Civil Chambers, Antalya Regional Court of Appeal 6th Civil Chamber, Konya Regional Court of Appeal 4th Civil Chamber, İstanbul Regional Court of Appeal 36th, 49th, 54th and 55th Civil Chambers, İzmir Regional Court of Appeal 6th and 23rd Civil Chambers, and Sakarya Regional Court of Appeal 6th Civil Chamber regarding whether a preliminary injunction can be granted in lawsuits concerning permission to show the leased property under Article 319/2 of the Turkish Code of Obligations (TCO) No. 6098. Therefore, resolution of this conflict was requested.

The Court of Cassation 3rd Civil Chamber ruled as follows:
“In lawsuits filed for permission to show the leased property under Article 319/2 TCO, the court may grant a preliminary injunction if, after assessing the specific circumstances of each case and the evidence submitted, it concludes that the conditions are met. Accordingly, the conflict of opinion and practice among the final decisions of the Ankara Regional Court of Appeal 15th and 37th Civil Chambers, Antalya Regional Court of Appeal 6th Civil Chamber, Konya Regional Court of Appeal 4th Civil Chamber, İstanbul Regional Court of Appeal 36th, 49th, 54th, and 55th Civil Chambers, İzmir Regional Court of Appeal 6th and 23rd Civil Chambers, and Sakarya Regional Court of Appeal 6th Civil Chamber shall be resolved in this manner. The relevant part of the decision reads:

Court of Cassation 3rd Civil Chamber, File No: 2024/4081, Decision No: 2025/1441, Date: 10.03.2025:
“(...) Although legal scholars and certain pre-Code of Civil Procedure (CCP) rulings of the Court of Cassation have accepted that no preliminary injunction can be issued on matters resolving the merits of the dispute itself, the phrase ‘provided that it does not resolve the main dispute’ in the first paragraph of Draft Article 395 of the Code of Civil Procedure No. 6100 was removed during deliberations in the Parliamentary Justice Commission. It may be concluded that the legislator’s purpose in removing this phrase was to prevent possible injustices arising from a strict interpretation of this principle, which often left plaintiffs unable to achieve the practical outcome they sought, despite winning the case, due to the lengthy duration of proceedings.

If the lessor wishes to sell or otherwise dispose of the leased property (e.g., exchange, establish a mortgage, etc.) as an exercise of ownership rights while it is still under the tenant’s use, potential third-party buyers may need to inspect the property. If the lease agreement stipulates the conditions and duration for showing the property, an injunction in line with these terms should in any case be granted. A preliminary injunction may be granted in urgent circumstances where delay could cause harm. In practice, due to mandatory mediation and lengthy litigation processes, the requested period for showing the leased property may expire during trial, thereby depriving the lessor of the right to sell, dispose of, and economically benefit from the leased property as part of ownership rights.

Article 319/2 TCO grants this right to the lessor. However, considering the long duration of proceedings in Türkiye and sudden changes in economic conditions, if the tenant refuses to allow third-party inspections, the lessor must file a lawsuit to resolve the dispute. The prolongation of such a case may restrict the lessor’s ability to exercise ownership rights, such as converting the property into cash by sale, and may also cause loss of customers or other disadvantages due to delays in sale, re-letting, or other transactions. The legislator, considering these circumstances, imposed an obligation on the tenant to permit third-party inspections under Article 319/2 TCO. The limits of this obligation must be determined in line with both parties’ interests and the principle of equity. The court must resolve the dispute fairly and lawfully, protecting the rights and interests of both contracting parties.

In this respect, factors such as the tenant’s right to privacy, the nature and location of the property, socio-economic conditions affecting the saleability of immovable property, and other specific and general factors must be considered to strike a fair balance. Accordingly, the court should determine a reasonable and suitable time period during which the sale may realistically occur, as well as the specific days and hours when property inspections may take place, and issue a decision consistent with this outcome. Given the lengthy judicial process in Türkiye, the scope of property rights, the risk of the lessor losing potential buyers due to delays, and the possibility of significant harm, the court should grant preliminary injunction requests when the conditions are met in order to facilitate access to the right to a fair trial under Article 6 ECHR.

In light of these explanations, upon examining the application, it was concluded that until the final judgment is rendered, a preliminary injunction may be granted when the conditions exist, in order to eliminate the disadvantages of prolonged litigation and provide temporary legal protection. Accordingly, considering the provisions of the lease agreement, each dispute must be evaluated individually, taking into account the circumstances of the case and the evidence submitted. If the court concludes that the conditions for a preliminary injunction are satisfied, it may grant such an order for showing the leased property, while also taking into account the tenant’s interests, thereby resolving the conflict among the aforementioned Regional Courts of Appeal Civil Chambers in this way. (...)”

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