What Are Lis Pendens and Waiver in Eviction Lawsuits? Requirements and Legal Consequences
Eviction proceedings involve not only substantive grounds for eviction but also important procedural rules. Lis pendens arises where the same action has already been filed and remains pending, while waiver of action refers to the claimant's decision to abandon all or part of the claim brought against the defendant. The uploaded source discusses both concepts specifically in the context of eviction litigation.
What Is a Lease Lawyer?
A lease lawyer provides legal advice and representation in matters including:
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Eviction proceedings,
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Rent determination,
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Unpaid rent,
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Enforcement-related eviction,
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Eviction undertakings,
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Lis pendens objections,
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Waiver of eviction actions.
What Is Lis Pendens?
According to the uploaded source, a second action cannot be filed where another lawsuit involving the same parties, subject matter and cause is already pending.
The main requirements are:
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The same case has been filed twice,
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The first action is still pending,
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The first and second actions are legally the same.
How Is a Lis Pendens Objection Raised?
The uploaded source states that lis pendens must be raised as a preliminary objection.
If the court determines that the two lawsuits are identical, the second action will be deemed not to have been filed.
Are All Eviction Lawsuits Between the Same Parties Identical?
No.
The uploaded source specifically states that an eviction action based on two justified notices and an eviction action based on default do not create a lis pendens relationship.
The legal grounds for the two actions are different.
Effect of Accepting the Objection
Where the objection is accepted, the second lawsuit is deemed not to have been filed.
According to the source, a decision accepting lis pendens is a final decision and may be challenged through the available appellate process.
Effect of Rejecting the Objection
The source states that rejection of the objection constitutes an interim decision.
It cannot independently be appealed at that stage but may be challenged together with the final judgment.
What Is Waiver of an Eviction Action?
Waiver means that the claimant abandons all or part of the relief requested from the defendant.
According to the uploaded source, the claimant may waive the action until the judgment becomes final.
Does Waiver Have the Effect of a Final Judgment?
Yes.
The source states that waiver produces legal consequences similar to a final judgment and may be made at any time before the judgment becomes final.
Can the Same Lawsuit Be Filed Again?
According to the uploaded source, once the claimant waives the claim, another lawsuit concerning the same matter against the same person cannot generally be brought.
The claimant is also treated as the unsuccessful party for purposes of litigation costs and attorney's fees.
Can Waiver Be Withdrawn?
As a general rule, the source states that waiver cannot be withdrawn.
Rights arising from defects of consent such as mistake, fraud or duress are preserved.
How Is Waiver Made?
The waiver may be submitted to the court:
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In writing,
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Orally.
The defendant's or court's consent is not required. Once a valid waiver is made, the court must terminate the proceedings without examining the merits.
Can a Party Waive the Action During Appeal?
Yes.
The uploaded source includes a Court of Cassation decision confirming that waiver may also occur during the appeal stage, provided that the judgment has not yet become final.
Does Every Statement of Waiver Have the Same Effect?
No.
The source cites another decision in which the claimant's statement was interpreted as relating only to the premature filing of the lawsuit rather than constituting a waiver of the substantive right for the future.
The exact wording and scope of the statement must therefore be carefully assessed.
Conclusion
Lis pendens and waiver are important procedural concepts in Turkish eviction litigation. Lis pendens may arise where the same case between the same parties, based on the same cause and subject matter, has already been filed and remains pending. Where the objection is accepted, the second action is deemed not to have been filed.
Waiver, by contrast, allows the claimant to abandon all or part of the claim until the judgment becomes final. According to the uploaded source, waiver produces consequences similar to a final judgment, generally cannot be withdrawn and may prevent a new action concerning the same matter against the same defendant.