Can Your Right to Call Witnesses Be Ignored in an Eviction Action Based on the Landlord's Need?

In eviction actions filed on the ground of a need for housing or business premises, one of the most critical stages is proving that the need is "genuine, sincere and compelling". One of the strongest tools for this proof is witness testimony. In some cases, however, courts are seen to decide without hearing the witnesses named by the parties. Is this lawful? In this article, we examine the legal basis of the right to call witnesses in eviction actions based on need, what must be proven and through which questions, and the court's obligations in this regard.

Summary of the Situation

The landlord seeks the tenant's eviction under Article 350/1 of the Turkish Code of Obligations (TBK) on the ground of their own need for housing. To prove the sincerity of the need, witness testimony is relied on to show that the landlord is currently living elsewhere as a tenant, that the children's school enrollment has been made at a school near the property in dispute, and that moving into their own property has become an economic necessity. The defendant, for their part, claims that the landlord gave them an assurance of "long-term security of tenure" and that the real aim is a rent increase. At this point, the proper hearing of witnesses called by both the plaintiff and the defendant becomes the single most important factor shaping the course of the case.

The Legal Issue

In eviction actions based on need, the burden of proof lies with the landlord (the plaintiff). The plaintiff must prove that the need is:

• Genuine (that it exists in fact, not merely on paper),
• Sincere (that it is not a pretext for removing the tenant),
• Compelling, and
• Continuing throughout the proceedings,

by every kind of evidence, and in particular by witness testimony. The core legal question here is this: if the court decides without hearing the witnesses named by the parties, or without allowing cross-examination, does this violate the parties' right to be heard?

What Do the Yargıtay and the Constitutional Court Say?

Failing to Hear Witnesses Violates the Right to Be Heard

The Yargıtay 2nd Civil Chamber (E. 2016/23862, K. 2017/7, T. 2017) expressly emphasized that a court's deciding without hearing the witnesses named by the parties constitutes a "violation of the right to be heard". This principle applies not only in family law cases but also in eviction actions grounded in tenancy law, since the court needs the testimony of the parties' witnesses in order to review the sincerity of the need.

Cross-Examination Is a Requirement of a Fair Trial

As emphasized in an individual application decision of the Constitutional Court (B. 2014/6222, T. 2019), for adverse witness testimony to be used as the basis of a judgment, it is a fundamental requirement of the right to a fair trial that those witnesses can be questioned at the hearing. This principle also guarantees that, in an eviction action based on need, the defendant can put questions to the plaintiff's witnesses.

A Social Inquiry Report Alone Is Not Sufficient

The Yargıtay 2nd Civil Chamber (E. 2014/22962, K. 2015/7589, T. 2015) stated that social and economic status (SED) reports cannot form the basis of a judgment on their own, and that these reports must be supported by witness testimony and other concrete evidence. This shows that the witness stage is not a mere procedural formality but an element affecting the merits of the case.

The Tenancy Presumption and Practical Preparations

As stated in the decision of the Yargıtay 3rd Civil Chamber (E. 2024/2446, K. 2025/1440, T. 2025), the fact that the person in need is currently living elsewhere as a tenant is a strong presumption of the existence of the need. Moreover, under the Yargıtay 3rd Civil Chamber (E. 2017/6010, K. 2017/14178, T. 2017), it is considered sufficient for the need to exist at the date the action is filed and to continue throughout the proceedings; practical preparations such as the children's school enrollment are regarded as concrete proof that the need is not merely on paper.

Points to Watch

Points that both plaintiff's and defendant's counsel should pay attention to in the witness process:

• The witness list must be submitted within the time limit. Witnesses notified contrary to procedure may not be heard, which leads to a loss of rights.
• Questions should focus on concrete facts. Instead of abstract questions such as "Is there a need?", concrete and verifiable questions should be preferred, such as "Where does the client currently live, how much is their rent, where are their children enrolled at school?"
• There must be no contradiction with the written evidence. Witness testimony should be consistent with written evidence such as the lease agreement and the school enrollment certificate; otherwise its probative force weakens.
• Questions must be put to the other side's witnesses. Otherwise, adverse statements may be deemed to have become established without challenge.
• The primacy of the right of property should not be forgotten. The defendant's claims not backed by written evidence, such as "an assurance of tenure was given", do not by themselves constitute a sufficient defense against the landlord's constitutional right of property.

Conclusion: What Should You Do?

If your request to call witnesses in an eviction action based on need is refused, or the court conducts an incomplete examination on this point, that alone can be a ground for appeal (istinaf/temyiz). Before entering the litigation process, identify the concrete facts that will support your need (your lease agreement, school enrollment, documents on your financial situation) and determine the persons who can testify directly to those facts. If you are the opposing party, remember that you need to substantiate your claims of an "assurance" or a "rent-increase motive" through the questions you will put to the plaintiff's witnesses. In either case, conducting the process with a real estate/tenancy law attorney is of great importance for the proper gathering and presentation of witness testimony.