Housing and Business Rental

 

Prohibition of regulation against the tenant – Turkish Code of Obligations art.346: “No other payment obligation can be imposed on the lessee other than the rental fee and ancillary expenses. In particular, agreements regarding the payment of a penalty clause or the subsequent rental fees will be due in case the rental fee is not paid on time.

Two points should be mentioned within the scope of this provision:

In case of non-payment of rent in residential and roofed workplace rentals, no penalty clause can be envisaged.
In the case of non-payment of the rental price for residential and roofed workplace rents, the condition of maturity cannot be foreseen.
The provision does not prevent the contractual default interest rate from being set high for the case of default. However, in terms of default interest in contracts where the lessee is not a merchant, Turkish Code of Obligations art. 120/III should be taken into account.
The judgment is imperative. On the contrary, the provisions are absolutely void. There is partial invalidity.
EVACUATION WITH TWO LEGAL REASONS

Turkish Code of Obligations art. 352/II “The lessee, within the lease term in lease agreements with a duration of less than one year; In lease agreements with a term of one year or longer, if the lessor has caused him to be given two justified warnings in writing for not paying the rent for a rental year or for a period exceeding one rental year, the lessor will be entitled to a letter starting from the end of the lease term and the lease year in which the warnings are made for leases longer than one year. Within a month, the lease can be terminated by litigation.

FORM OF NOTICE

Turkish Code of Obligations art. According to article 348, it is necessary to make a written notice of termination in order to be valid. In practice, the warning is withdrawn from the notary public. The payment order sent through the enforcement office also acts as a warning. The notice must clearly indicate for which months the rental fees have not been paid. The lessor’s request to pay the debt in general does not constitute a justified notice. Otherwise, it is accepted that the warning will not be a just warning in the teaching and practice. A notice need not contain a statement of termination of the contract to be justified.

The lessor must withdraw the notice. If there is a co-ownership relationship, it should be withdrawn unanimously in co-ownership, and by majority of the share and stakeholder in joint ownership. The notice must be given to all tenants. The Supreme Court also states that the warning made to a single tenant is not a justified warning.

ACTION FOR EVACUATION

Termination of the lease agreement due to two justified notices depends on filing an eviction lawsuit. The right of action belongs to the lessor. If there is a co-ownership relationship, the lawsuit should be filed unanimously in joint ownership, and with the majority of the share and stakeholder in joint ownership. In case of transfer of the lease agreement, the new lessor may file an eviction lawsuit based on the previous notices. The defendant is the tenant. If there is more than one tenant, a lawsuit should be filed against all of them.

CLAIMED TIME

An eviction lawsuit can only be filed at the end of the lease term. The eviction lawsuit must be filed within one month, starting from the end of the rental period and the end of the rental year in which the warnings are made for rents longer than one year. The time limit is derogatory. The expiration of one month terminates the right to file an eviction lawsuit. If there are conditions, an eviction lawsuit can be filed for the next rental period. Turkish Code of Obligations art. According to Article 353, if the lessor has notified the lessee in writing that he will file a lawsuit within the period stipulated for the filing of the lawsuit at the latest, the period of filing a lawsuit is deemed to be extended for one rental year.

In a decision of the Supreme Court of Appeals, “Two different warnings for overdue rent receivables do not meet the conditions of two justified warnings. In this case, since there are no two justified warning conditions, it is not correct to give a written release decision while it should be decided to reject the case. The judgment must therefore be overturned.” By saying this , he clarified his decision that the demand for a warning addressed to the creditor will be considered as a single warning . (Supreme Court 3rd HD, M. 2017/11179, F)

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