Paying the rent in the lease agreement is the main debt of the tenant. The general provisions apply in terms of the place and time of performance. The parties can freely determine these issues.
If the rental price is not paid, four possibilities arise from the point of view of the lessor.
The lessor can pay the unpaid rent with interest
The lessor may terminate the contract . (Turkish Code of Obligations 315)
He can file for eviction due to two justified warnings
Enforcement and Bankruptcy Code m. may carry out enforcement proceedings in accordance with Article 269.
PAYING THE UNPAID RENT WITH INTEREST
The fact that the rental price is not executed at the time agreed by the parties is sufficient for the tenant to default. In addition, there is no need for caveats. If the time of performance has not been decided, the rental price will be due at the end of the month. However, it is accepted that the exemption is not enough for default, the lessor should be warned.
AT WHAT RATE WILL DEFAULT INTEREST BE CHARGED?
The default interest rate can be decided by contract.Ø In non-commercial business (where neither party is a trader), the interest rate cannot be determined freely. According to the Turkish Code of Obligations 120, the default interest rate cannot exceed one hundred percent of the legal interest. Otherwise, the exceeding part is partially invalid. Since the legal interest rate on ordinary works is 9%, the default interest rate cannot exceed 18%. If the debtor is a trader, the default interest rate is determined freely. The Turkish Court of Cassation and the Turkish Code of Obligations. in the application of the limitation in 120, it looks at whether the debtor is a trader. If the interest rate is not set, default interest may be requested at the legal interest rate (9%). If the debt is traded, commercial interest (advance interest) may be requested.
TERMINATION OF THE LEASE AGREEMENT TBK m. 315-
“If the lessee does not pay the rent or ancillary expenses due after the delivery of the leasehold, the lessor may give the lessee a period of time in writing and inform that if he does not perform it during this period, he will terminate the contract. The period to be granted to the tenant is at least ten days, and for residential and roofed business premises, it is at least thirty days. This period begins to function from the day following the date of written notification to the tenant.” The periods are of a relative imperative nature. It is possible to extend the periods. But it is impossible to shorten it. TBK m. provision 315 also applies to the termination of residential and roofed workplace rents. If the tenant pays the rent after the expiration of the 30-day period, this does not prevent the tenant’s right to terminate and the tenant’s lack of fault in not paying the rent debt does not prevent the right to terminate. If the tenant has the right to exchange, he must again submit it within a 30-day period, which prevents the birth of the right of termination.
Considering the decisions made by the Supreme Court, it was concluded that the lease agreement cannot be terminated due to non-payment of expenses (insurance, taxes) that are not paid out of the lease price. (Executive Bankruptcy Code m. pay orders that will be made in accordance with 269 and include a request for release also fulfill the requirement to be written. In the notice: It is necessary to clearly indicate that the contract will be terminated within the specified period. The lease agreement cannot be terminated on the basis of a warning that does not contain a will to terminate. Court of Cassation 6. HD, E. 2016/5242, K. 2016/5299, 20.9.2016)
EXECUTIVE BANKRUPTCY CODE M. EVICTION IN ACCORDANCE WITH ARTICLE 269
Enforcement Bankruptcy Code m. pay orders that will be made in accordance with 269 and include a request for release also fulfill the requirement to be written. In the notice: It is necessary to clearly indicate that the contract will be terminated within the specified period. The lease agreement cannot be terminated on the basis of a warning that does not contain a will to terminate. It is not enough to indicate in the warning that only legal means will be used. The rental price not paid in the notice must be specific and shown correctly. If the rental price is shown incomplete and the tenant pays the price written in the notice, the lessor cannot terminate the contract. However, if the rent is shown to be too much, this will not cause the warning to be invalid.
In a decision issued by the Supreme Court, “After the payment order was notified to the respondent payer on 18.09.2014, the legal thirty-day pay period was not expected on 20/10/2014 with the lawsuit filed on 20/10/2014, the lessor requested the eviction. In this case, the execution of the case is subject to Article 269/1 of the Bankruptcy Code.article 315/2 of the Turkish Code of Obligations, which must be applied upon submission.while it should be opened after the 30-day period written in its articles is expected to expire, it should be decided to dismiss the eviction case filed before the legal pay period expires.he has decreed that “. (Supreme Court 6. HD, E. 2015/9039, K. 2016/681, T. 08.02.2016)
HOW SHOULD THE TERMINATION NOTIFICATION BE MADE?
Failure to pay the rental fee within the specified period does not terminate the contract on its own. There is no obligation for the lessor to terminate the lease agreement at the end of the period. In order for the lease agreement to expire, the lessor must declare termination at the end of the period The lessor can notify that the contract will be terminated if the rental price is not paid in the notice. A statement of termination is also possible along with a warning. The statement of termination, as a rule, does not depend on the form. However, for residential and roofed workplace rents, the termination statement must be made in writing (Turkish Code of Obligations. 348). The lessor must make the termination statement. If there are more than one lessor, the decision on the joint ownership is unanimous (Turkish Civil Code. 640); in case of shared ownership, it must be taken with the majority of shareholders and stakeholders (Turkish Civil Code 691). The termination statement is directed against the tenant. If there are more than one tenant, the declaration must be addressed to all tenants.
In the case of family housing, in accordance with Turkish Code of Obligations 348, if the non-tenant spouse becomes a party to the lease agreement by giving notice, the statement of termination must be directed to both spouses. The lessor may waive the right of termination. The fact that the tenant does not exercise the right to terminate the data for a long time, and continues to receive rental fees, may constitute a waiver. For example, the Supreme Court of Cassation considered the termination of the contract after 1.5 years in a dispute contrary to the rule of honesty, while it did not consider its termination after 8 months in a dispute contrary to the rule of honesty.
CONSEQUENCES OF TERMINATION
The lease agreement with the termination statement expires in a forward-acting manner from the moment the termination statement reaches the lessee. If it is notified that the lease agreement will be terminated within the period specified in the notice, the lease agreement will expire at the expiration of the period. There is no function of interpreting the lease agreement in this case. The commentary does not protect the tenant against non-compliance with the debt. Upon termination of the contract, the lessee is obliged to return the leased one. If the tenant does not return or evict the lessor, the lessor will be able to sue for the return or eviction of the lessor. If, despite the termination of the lease agreement, the tenant continues to use the lessor, the lessor may ask for compensation.In determining the compensation, the Turkish Code of Obligations 325 should be applied and the reasonable period during which the lessee can be rented should be taken into account.
TIMEOUT
The lease is subject to a 5-year statute of limitations in accordance with the Turkish Code of Obligations 147. If it is agreed to pay the rental price at once, the statute of limitations period is 10 years in accordance with the Turkish Code of Obligations 146. The period starts from the date the lease receivable is due.
