Due to the importance of lease provisions in the Turkish Code of Obligations, rental prices and their increase are also discussed. You can find general information about lease agreements in our previous articles.
First of all, in order to determinate the rental price through a lawsuit, there must be a rental agreement. Since there is no mandatory form requirement in rental agreements, it can be written or verbal. But in terms of proof, it would be more beneficial to sign a written lease agreement. Both the tenant and the lessor can file a lease determination lawsuit. The point to be noted here is that the person filing the lawsuit must have a legal interest in case of determination of the rent.
Rent determination cases are heard in the Civil Court of Peace of the place where the real estate is located. As a rule, a lease determination lawsuit can be filed at any time. However, when the lawsuit is filed is important in terms of the period in which it will be implemented. In case it is filed within the new rental period, subject to the condition that it is filed 30 days before the start of the new rental period and/or the lessor makes a written notification to the lessee that the rental price will be increased within this period, the rental price to be determined by the court will be valid from the beginning of the new rental period.
In line with the regulations in the law, the principles of rent increase rates are as follows;
- The rate of increase in the rental price in the following periods between the parties can be determined freely, provided that it is not higher than the PPI(ÜFE) increase rate of the previous rental year. It is clear that there is no legal benefit in filing a lease determination lawsuit between these limits. However, if an increase rate is determined above the legal limits, it can be requested that the rental price be determined within the legal limits by applying to the court.
- According to the Turkish Code of Obligations Art.344/2; if the parties have not made an agreement regarding the rent increase rate, the rental price is determined by the judge on an equitable basis taking into account the situation of the leasing, provided that it does not exceed the PPI(ÜFE) increase rate of the previous rental year.
- Regardless of whether the term of the lease agreement is longer than 5 years or renewed after 5 years and at the end of every five years thereafter, the rental price to be applied in the new rental year is determined by the judge, taking into account the PPI(ÜFE) increase rate, the condition of the lessee and the comparable rental values. determined fairly.
If the rental amount is determined in a foreign currency in the contract, no change can be made in the rental price after 5 years. However, in accordance with Article 344/4 of the TCO, the “hardness of performance” is reserved.
A lawsuit may be filed for the lease adaptation, with the request of adapting the lease agreement signed between the parties to the changed circumstances and conditions. This case is heard in the competent court to be determined according to the annual rent of the property.
Whether or not lease adaptation lawsuits can be filed for short-term lease agreements is one of the controversial issues.In the decision of the 13th Civil Chamber of the Court of Cassation, dated 08/02/2001. Main. 2001/336, Dcs. 2001/1246, it has decided that the case should be rejected, since the adaptation conditions of the contract cannot be mentioned in the lawsuit filed less than one year before the expiry of the lease agreement. According to that decision: “…The lease agreement between the parties is dated 1.1.1996 and is for 5 years. The lawsuit was filed on 31.1.2000, when there was less than one year left for the lease term to expire. Since the plaintiff has tolerated this contract since the beginning of the lease and will have the right to file a lawsuit for determination of rent on 1.1.2001, which is the expiry date of the rental period, it is not possible to talk about the conditions of adaptation of the contract in this case.”
In order for an adaptation lawsuit to be filed, it must be an unforeseen and unexpected event by evaluating the contract duration, the content of the contract and the nature of the event that occurred afterwards. After the sign of the lease agreement, the balance between the acts must be unbearably deteriorated to the detriment of one party. At the same time, the occurrence of this situation should not be the fault of the plaintiff. It has also been accepted that, despite the changing circumstances and conditions, the parties to the contract will lose their right to demand adaptation if they perform their acts without reservation!
A decision is made on the adaptation of the rental price, effective from the date of the lawsuit. Adjustments cannot be requested for leases prior to the date of the lawsuit. In this regard, the 13th LC of the Court of Cassation decided on M. 2001/1979, Dcs. 2001/2831, Dated 22.03.2001. According to that decision: “…The adaptation is related to the rental price and does not abolish the other terms of the contract. Adaptation is not applied retrospectively from the date of the lawsuit…”
Article 344 of the Turkish Code of Obligations No. 6098, effective 01/07/2012, will not be applied for 8 years in workplace leases where the lessee is persons who are considered as merchants in the Turkish Commercial Code, as well as legal entities of private law and public law, with Law No. 6353. In accordance with the freedom of contract, the provisions of the lease agreement will be applied regarding the issues. In cases where there is no provision in the lease agreements, the provisions of the abrogated Code of Obligations will be applied. In such cases, where the Law No. 6098 has not been implemented yet, the 1+3-year term principle has been determined by the Supreme Court’s jurisprudence.
Whether you are a tenant or a lessor, you can contact us to get information and assistance regarding the cases of determination or adaptation of the rental price that you can apply for rental fees.
