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The growing prevalence of pet ownership has given rise to a variety of legal conflicts in tenancy relationships. Disputes that may arise in particular where the landlord prohibits the keeping of pets in the leased property under the lease agreement have in recent years also been reflected in judicial decisions. This study assesses, within the framework of the provisions of the Turkish Code of Obligations and the case law of the Court of Cassation (Yargıtay), the limits between the tenant's right to keep a pet and the landlord's freedom of disposition.
Today, pet ownership has become widespread, particularly among individuals living in large cities, and this has brought with it new legal debates in tenancy relationships. Whether the landlord may prohibit the keeping of pets in a leased residence or roofed business premises, whether such a prohibition is legally valid and to what extent it may be restricted are questions addressed in legal scholarship and in judicial decisions.
On the one hand, the tenant's right to keep a pet is regarded as a sphere of freedom that may be linked to personality rights, family life and, at times, even psychological well-being; on the other hand, it is argued that this freedom may be restricted on grounds such as the landlord's property rights, the expectation that the lease agreement will be honoured, and the peace and quiet of the other residents of the building.
Legal Basis
The reciprocal rights and obligations between the landlord and the tenant who are parties to a tenancy relationship are generally governed by Articles 299 et seq. of the Turkish Code of Obligations (TCO). In this context, Article 316 of the TCO in particular regulates the tenant's duty to use the leased property with care and to show consideration for neighbours. This duty is also of direct importance as regards the tenant's keeping of a pet. This is because the housing of a pet in the leased property must be carefully assessed both in terms of the physical condition of the immovable property and in terms of the peace and comfort of the users of the other independent units.
In addition, Article 334 of the TCO regulates the tenant's obligation, at the end of the lease term, to return the leased property in the condition in which it was received and in accordance with the contract. The tenant may be held liable for any extraordinary damage and wear and tear occurring in the leased property as a result of keeping a pet. For this reason, the keeping of pets is also a factor that influences the determination of the limits of the tenant's liability.
Pursuant to Articles 26 and 27 of the TCO, the parties enjoy freedom of contract. Within this framework, it is possible for them to expressly prohibit the keeping of pets in the lease agreement. However, the validity of such a prohibition is subject to the condition that it is not contrary to law, mandatory provisions, morality or personality rights, and that it is compatible with the principles of proportionality and reasonableness. In this context, the assessment must be made having regard to concrete circumstances such as whether the purpose of the prohibition in question is legitimate and the type, size, behavioural characteristics and impact on the surroundings of the pet.
Contractual Prohibitions and Their Consequences
One of the important documents that pet owners should pay attention to before moving into a new apartment building or housing complex is the Management Plan. This document may be found in the files of the relevant immovable property at the Land Registry Directorate or at the municipality to which it is attached. If the Management Plan contains a specific provision on the keeping of pets, that provision may be binding on the residents of the complex or building. For this reason, examining the relevant plan before moving in is important in order to avoid possible disputes.
Provisions prohibiting the keeping of pets are frequently included in lease agreements. If a tenant brings a pet after signing the lease agreement even though the agreement contains a restriction on keeping pets, this may conflict with the provisions of the agreement. Since this situation may give rise to a dispute between the property owner and the tenant, it may produce legal consequences in accordance with the rights and obligations of the parties. Even if a pet prohibition is included in the lease agreement concluded between the landlord and the tenant, this prohibition should not be regarded as absolute. This is because regulations concerning pet prohibitions must be assessed within the framework of the particular circumstances of each concrete case. Even where the lease agreement contains an express provision that the keeping of pets is prohibited, for that prohibition to be enforced there must be a concrete situation, such as the animal actually disturbing its surroundings, making noise, soiling common areas or seriously and adversely affecting the lives of the other flat owners. Otherwise, demanding, solely on the basis of the prohibitive provision, that a quiet pet that does no harm to its surroundings or disturbs no one be removed from the building, or demanding the tenant's eviction on that ground, may amount to an abuse of right.
Pursuant to Article 316 of the Turkish Code of Obligations, the tenant is obliged to use the leased property with care and to show the necessary consideration to neighbours. In the event of a breach of this obligation, the landlord, in the case of leased residences and roofed business premises, must serve a written notice granting a period of at least thirty days and must state that the contract will be terminated if the breach is not remedied. Within the framework of this provision, a landlord who alleges a breach of contract on account of the keeping of a pet in the leased property cannot demand eviction directly.
Eviction on account of a pet is assessed according to the circumstances of the concrete case within the framework of the principles of “proportionality”, “reasonableness” and “neighbourly relations”. When situations concerning the keeping of pets are assessed, matters such as whether the animal causes no disturbance to neighbours, does not damage common areas, creates no problems in terms of noise or hygiene and, in particular, whether the tenant is an elderly person living alone or someone in need of psychological support must be taken into account. In this context, each concrete case must be assessed in its own circumstances, and a fair balance must be sought between the rights and interests of the parties.
The Court of Cassation has emphasised in its decisions that a tenant's eviction cannot be ordered solely on the ground that an animal is kept; what matters is whether the animal actually causes damage to its surroundings and to the leased property. In this respect, case law is developing to the effect that a pet prohibition that appears neither in the contract nor in the management plan should be considered a ground for eviction only together with instances of concrete damage and breach.
In its decision of the 8th Civil Chamber of the Court of Cassation dated 23.6.2003, File No. (E.) 3563, Decision No. (K.) 4665, the Court stated: “…whether the noise made by the dogs the defendant keeps in his garden and the unrest they create adversely affect the plaintiff, and whether there are excesses exceeding the ordinary limit of tolerance and forbearance that neighbours are obliged to show one another, having regard to the fact that the parties are neighbours, to the location and characteristics of the houses in which they live and to local custom and tradition, will need to be clarified by an on-site inspection carried out through an expert panel of at least three persons, one a mental health specialist, one a veterinarian and the other selected from among the public or a professional group…”. Accordingly, whether an animal causes harm to neighbours or to the surroundings is determined by the court's assessment and the examination of the evidence.
In assessing the keeping of pets, not only the provisions of the lease agreement but also the principles of neighbourhood law must be taken into account. The obligation of immovable property owners not to disturb one another applies by analogy to tenants as well. The keeping of a pet in an apartment may in some cases give rise, for other owners or tenants, to nuisances such as noise, odour and allergenic effects. However, unless these effects are at an objective, continuous and serious level, the mere keeping of an animal cannot be characterised as an unlawful use or a use contrary to the contract.
Conclusion and Assessment
The keeping of a pet in a leased residence or roofed business premises is a legal issue of growing importance, linked to the realities of modern life. In this regard, a balance must be struck between the tenant's personal freedoms and the landlord's freedom of disposition and contract. Building management plans are the fundamental documents that set the rules of common life for flat owners and play an important role in ensuring order within the building. However, when these plans are drawn up, it is important that provisions concerning the presence of pets be made in accordance with the principle of proportionality, having regard to the welfare of animals and the rights of their owners.
The right to life is a fundamental value for all living beings, and the right of individuals to live with their pets should also be taken into account in any regulations made in this direction. It will be beneficial for the prevention of possible disputes if management plans and lease agreements contain balanced and inclusive provisions that protect both the welfare of animals and the peace and quiet of the other residents of the building.
