What Are the Legal Sanctions Against a Noisy Neighbor?
What Are the Legal Sanctions Against a Neighbor Who Makes Excessive Noise?
There are several legal applications that can be made if your neighbor, with whom you live in the same apartment building, constantly makes noise and this noise becomes unbearable. Examples of such noise include; air conditioning noise, noise from constant guests and children, and noise created by the sound of a vacuum cleaner. The first step should be to warn the noisy neighbor verbally with a polite tone. However, if the neighbor persistently continues their noisy behaviors and actions despite your warnings, it is necessary to notify the apartment manager, who was selected through a joint decision made in the building, so that they may intervene. The apartment manager must verbally warn the neighbor who is causing disturbance to the other neighbors in the building and request that they put an end to this situation. However, if, despite all these objections, the neighbor continues to make noise by failing to comply with the rules arising from the Property Ownership Law, it is necessary to send a formal notice through a notary. If the noisy neighbor is a tenant, the landlord must be contacted to ensure that this situation is prevented. As clearly stipulated in the Property Ownership Law, neighbors living in the same apartment or residential complex must not disturb one another.
Article 18 of the Property Ownership Law states: Proprietors are mutually obliged to comply with the rules of good faith while using both their independent units and their attachments and common areas, and specifically not to disturb each other, not to infringe upon each other's rights, and to abide by the provisions of the management plan.
One may apply to the Civil Court of Peace against a noisy neighbor and request an interim injunction if the elements causing the disturbance can be proven. It is highly important that these applications be made with the assistance of a lawyer. Certain court fees and litigation expenses must be paid for a lawsuit filed in the Civil Court of Peace.
Another legal procedure is to file a criminal complaint against the neighbor who constantly makes noise by applying to the Chief Public Prosecutor's Office in your region. Following the application to the Chief Public Prosecutor's Office, if the prosecutor's office decides to file a lawsuit after gathering the evidence, it will prepare an indictment.
In accordance with the obligation to transfer property ownership as regulated in Article 25 of the Property Ownership Law;
If one of the property owners violates the rights of other property owners to such an extent that it becomes unbearable for them by failing to fulfill the debts and obligations incumbent upon them according to this law, the others may request from a judge that the ownership right of that property owner over their independent unit be transferred to them.
(Amended second paragraph: 14/11/2007-5711/12 art.) Filing a lawsuit for such a property owner, with the value of the independent unit at the date closest to the judgment being paid to that property owner and the ownership being transferred to the other property owners in proportion to their land shares, depends on the decision of the majority of the other property owners in terms of number and land shares, unless otherwise decided. If some of the property owners do not wish to file this lawsuit despite this decision, the remaining property owners shall file the lawsuit, and the judge shall grant the plaintiffs a reasonable period of time to deposit the transfer price into a three-month term account at a bank, to be paid to the right holder in the future, and to present the receipt before rendering a judgment. Upon presentation of the document proving that the transfer price has been deposited within the specified time and upon acceptance of the lawsuit, the judge shall order the transfer of the defendant's independent unit ownership to the property owners who filed the lawsuit in proportion to their land shares and the payment of the transfer price along with the accrued interest to the defendant.
In the following situations, the unbearable condition mentioned in the first paragraph is deemed to exist in any case:
a) Causing three instances of enforcement or litigation proceedings to be initiated against them within two calendar years due to non-payment of their share of common expenses and advances;
b) Persistently failing for one year to fulfill the debts and obligations written in this law, despite the order given by the magistrate (peace judge) where the main real estate is located pursuant to Article 33, thereby continuously violating the rights of other property owners;
c) Acting in violation of morals and decency by using their own independent unit as a brothel, gambling house, or similar place.
(Amended fourth paragraph: 14/11/2007-5711/12 art.) The right to file a lawsuit under this article expires if it is not exercised within six months from the date the property owners learn of the decision to file a lawsuit regarding the transfer, and in any case within five years from the birth of the right to file a lawsuit, or if the cause for the lawsuit has ceased to exist.
Do not forget that you have the right to seek legal remedies when you encounter such a problem. I wish you healthy days.
Legal Consequences of a Landlord Not Installing Insulation in a Rented House
If there is no insulation in the apartment you are renting, you may request this from the landlord. If this request is not accepted by the landlord, you have the right to reduce the rent by the amount of the repair costs in proportion to the depreciation and offset this amount. The high cost of natural gas bills due to the lack of thermal insulation causes grievance for the tenant. As clearly regulated in Article 4 of the Property Ownership Law; “roofs, chimneys, general roof terraces, rain gutters, fire escape stairs” are among the common areas of use for property owners. The Property Ownership Law has regulated that the expenses related to common areas of use must be paid by all property owners. Operations that will cause deterioration of the main structure of the real estate are considered within the scope of emergency repairs.
As regulated in Article 19 of the Property Ownership Law, titled "Maintenance, protection, and liability for damage to the main real estate":
“In the event that it has been determined by a court that a defect in common areas and facilities is damaging the main structure or an independent unit or units and that it needs to be repaired urgently, or that reinforcement of the main structure is mandatory, the consent of the property owners is not required for the execution of this repair and reinforcement in accordance with its project and technique.”
You have the right to have the repairs made in light of the "urgent repair" determination by the court decision and to demand the collection of the expenses and the damages incurred from other property owners via a court order. There is no situation where other property owners can refuse to participate in a decision made by the court or the property owners. The Property Ownership Law has clearly made it mandatory for all property owners to cover the costs requiring urgent repair. However, the Property Ownership Law has regulated that property owners are not required to pay for repairs that are outside of architectural projects and considered as luxury.
Tenants have an obligation to participate in maintenance and repair processes carried out for common areas in the apartment such as roofs and terraces. The tenant has the right to offset the common use fee they have paid from the rent they will pay by sending it to the apartment manager via bank transfer with an explanation. If the tenant has incurred expenses exceeding the rent amount, the tenant is only obligated to offset the amount equal to the rent. The landlord must cover the remaining balance.
In addition, the tenant has the right to make beneficial and necessary repairs that exist in the rented property and are contrary to the nature of the rental. Beneficial and necessary repairs are explained as follows; if the water and electricity installations in the rented property are insufficient for normal use or are faulty, the tenant has the right to demand that the cost be offset from the rent by covering these faults.
Who Pays the Expenses in Case of a Leaking Roof?
All property owners are obligated to pay the repair costs that will arise due to broken tiles and the roof leaking, even if the tenant resides on the top floor. In clause (c) of Article 4 of the Property Ownership Law, the roof is accepted as a common area.
Property Ownership Law
IV - Common areas:
Article 4 – The subject of common areas can be specified by contract. The places and things written below are considered common areas in any case according to this Law.
a) Foundations and main walls, beams, columns, and shear walls forming the load-bearing system and other elements that are part of the load-bearing system, common walls separating independent units, ceilings and floors, courtyards, general entrance doors, entryways, stairs, elevators, landings, corridors and general toilets and sinks therein, janitor apartments or rooms, general laundry and laundry drying areas, general coal cellars and common garages, housings and enclosed parts dedicated to protecting electricity, water, and gas meters located outside independent units, boiler rooms, wells and cisterns, general water tanks of the building, shelters, (1)
b) Sewerage systems and garbage chutes outside each property owner's own unit, as well as heating, water, gas, and electricity installations, common networks and antennas for telephone, radio, and television, hot and cold air installations,
c) Roofs, chimneys, general roof terraces, rain gutters, fire escape stairs.
Other places and things not listed above but which are necessary for common use, protection, or benefit also fall under the subject of (Common areas).
As regulated in the Property Ownership Law, all property owners are responsible for the expenses related to common areas.
According to the established case law of the Court of Cassation, all property owners must bear the necessary repair costs for the roof and terrace that affect the main structure. Requests by property owners not to want to cover mandatory repair costs are considered invalid.
Tenants, like all other common areas of the apartment, have an obligation to participate in maintenance, repair, and arrangement work done for the roof or terrace. However, after the tenant pays the amount they are responsible for regarding the roof to the site management via bank transfer, they have the right to deliver this receipt to the landlord to offset it from the rent they will pay. Since the repair cost of the roof is covered by the landlord's rental income, the responsibility for payment belongs to the tenant, and the obligation for payment belongs to the landlord. According to the Property Ownership Law and the established case law of the Court of Cassation, the financial responsibility in this regard is limited to the tenant's rent.
In accordance with the Property Ownership Law; it is stipulated that important management tasks such as renting the exterior walls, roof, or terrace of the main structure for advertising purposes can only be carried out upon a decision taken by the unanimous vote of all property owners.
Furthermore, another important point is that for a beauty salon to be opened in the apartment, a decision must be taken by the unanimous vote of the board of property owners. The General Assembly of Civil Chambers of the Court of Cassation has made the use of an apartment as a workplace conditional upon the board of property owners taking a unanimous decision.
Do not forget that you have the right to seek legal remedies when you encounter such a problem. I wish you healthy days.
Is Sound and Noise Made by Pets in an Apartment a Ground for Eviction?
It is not legally prohibited for neighbors living together in the same apartment to keep pets. However, the keeping of pets can be prohibited by a decision to be taken by the apartment management.
As regulated in clause (z) of Article 4, titled "Domestic activities and noise caused by neighbors," of the Regulation on the Assessment and Management of Environmental Noise issued by the Ministry of Environment and Forestry (Official Gazette Date: 04.06.2010 - Number: 27601);
It is regulated that it covers activities such as closing doors and windows, walking, talking, cleaning, pulling furniture, watching television, listening to the radio, any musical instrument not used for entertainment purposes, using tools such as washing machines, refrigerators, vacuum cleaners, and keeping pets, as well as renovations to be made inside the building, originating from the personal behaviors and habits of people within the residence.
With the Regulation on the Assessment and Management of Environmental Noise issued by the Ministry of Environment and Forestry, the definition of noise made in the apartment, the criteria, and what the decibel amounts should be have been regulated.
In the Regulation on the Assessment and Management of Environmental Noise issued by the Ministry of Environment and Forestry, the decibel limits of the noise that pets and neighbors can make are regulated as night-day, open-closed window, and indoor-outdoor environment. Decibel measurements are made by the Provincial Directorate of Environment and submitted to the complaint file. If a noise level higher than the decibel limits regulated in the regulation is detected; if the dog is barking very loudly above a certain decibel and creating noise pollution, then eviction proceedings are initiated.
As clearly regulated in Article 737, titled "Neighbor Rights," of the Turkish Civil Code;
TCC Article 737: Everyone is obligated to refrain from excesses that will negatively affect their neighbors while exercising the powers arising from real estate ownership and especially while continuing their business activities. In particular, it is prohibited to cause discomfort by producing smoke, vapor, soot, dust, or odor, or by creating noise or vibration that exceeds the degree that can be tolerated among neighbors according to the situation, nature, and local custom of the real estate. Rights related to compensation arising from unavoidable excesses in accordance with local custom are reserved.
The owner or the person using the real estate is in a position to refrain from events and behaviors that will harm their neighbor. Housing owners living together due to the use of common areas have a duty to fulfill their duty of care towards each other. Furthermore, neighbors who keep animals in their homes must follow this situation carefully so that other neighbors are not disturbed by the sounds made by the animals owned by other neighbors. In some real estates, property owners make joint decisions to prohibit keeping animals in the apartment. In regions where common living areas are predominant, rules are determined by the majority decision number in decisions taken with the votes of the property owners. Each real estate owner or person using the real estate should behave within the framework of tolerance and good faith towards their neighbors and is expected to show tolerance for the sounds that may occur due to neighbors keeping animals.
Can Rent Increases Be Objected to Due to the Covid-19 Pandemic?
The Covid-19 pandemic continues to deeply affect many people financially and morally. Workers are not receiving their salaries and are being placed on unpaid leave indefinitely, while employers have had to close their workplaces due to restrictions. This situation has also affected the rent payments of tenants living in rental properties. Tenants have had difficulty making rent payments to landlords and have started to think about what legal remedies to resort to against landlords who want to increase rent. There are many debates regarding whether the pandemic process that emerged with the COVID-19 outbreak should be considered a force majeure. In the decisions of the General Assembly of Civil Chambers of the Court of Cassation, the "force majeure" concept is explained as: "Force majeure is an extraordinary event that occurs outside the activity and business of the responsible party or the debtor, leading in an absolute and inevitable way to the violation of a general norm of behavior or a debt, and which is impossible to foresee and resist. Natural disasters such as earthquakes, floods, fires, and epidemics are considered force majeure."
As regulated in the general provisions of the Turkish Code of Obligations, tenants have the right to file a rent adaptation lawsuit due to the COVID-19 pandemic being a force majeure. If tenants find themselves unable to pay the rent, they can resort to terminating the rental agreement without compensation. Rent debts are not erased due to the COVID-19 pandemic, and tenants are obligated to pay their rent. However, there is no provision in our legislation stating that rent cannot be paid or that rent cannot be increased at the end of the year or period during the COVID-19 pandemic process. It is clear in the decisions given by the General Assembly of Civil Chambers of the Court of Cassation that the COVID-19 pandemic process is accepted as a force majeure. Excessive hardship in performance is regulated in Article 138 of the Turkish Code of Obligations. Namely; If an extraordinary situation that was not foreseen by the parties at the time the contract was made and was not expected to be foreseen arises for a reason not originating from the debtor and changes the circumstances existing at the time the contract was made against the debtor to such an extent that requesting performance would be contrary to the rules of good faith, and the debtor has not yet performed their debt or has performed it while reserving their rights arising from the extreme difficulty of performance, the debtor has the right to request the judge to adapt the contract to the new conditions, and if this is not possible, the right to withdraw from the contract. In contracts with continuous performance, the debtor, as a rule, uses the right of termination instead of the right of withdrawal.
As clearly regulated in the law article, the tenant has elective rights arising from the law in the presence of force majeure due to excessive hardship in performance. Accordingly; The tenant has the right to request a reduction in rent and termination of the rental agreement without compensation. If the tenant is in a position where they cannot pay the rent at all, they must vacate the house and terminate the rental agreement.
You have the right to file a rent adaptation lawsuit in accordance with the relevant articles of the Turkish Code of Obligations by not accepting the landlord's request for a rent increase during the pandemic period. It is necessary to continue paying the rent at the old rate during the lawsuit period. You can request the adaptation of the rent by notifying the court of reasons such as being laid off or being placed on unpaid leave due to the COVID-19 pandemic. The rent adaptation lawsuit is filed in the Civil Court of Peace where your residence is located. However, before filing the lawsuit, it would be legally beneficial to send a warning letter to the landlord via notary notifying them of the situation.
What Is a Rental Agreement and How Many Types of Rental Agreements Are There?
A rental agreement is a contract in which the lessor undertakes to leave the use of a thing or the use together with the benefit derived from it to the tenant, and the tenant undertakes to pay the agreed rent in return.
Rental agreements are divided into two: fixed-term rental agreements and indefinite-term rental agreements. Fixed-term rental agreements are rental agreements that end without any notice upon the expiration of the agreed period.
An indefinite-term lease agreement is one that does not end upon the expiration of a set period without notice, but rather terminates upon notice, such as the sending of a formal warning. The existence of lease agreements can only be proven by written evidence. Lease agreements are not subject to any formal requirements and can be concluded both in writing and orally. The sale of the rented property does not terminate the lease agreement. The tenant continues the rental relationship with the new owner for the duration of the lease agreement. However, the new owner must file an eviction lawsuit to remove the tenant from the property. If the parties entered into a verbal lease agreement, the party claiming the existence of the agreement has the right to offer an oath to the relevant party. The Civil Peace Court (Sulh Hukuk Mahkemesi) has jurisdiction over all types of eviction lawsuits based on lease agreements, lawsuits for the termination of lease agreements, lawsuits for the determination of rent, and any accompanying claims for rent arrears and compensation. The subjects of a lease can include movable and immovable property, as well as animals, and any kind of goods, whether income-generating or not. Examples of movable property leases include cars, books, and household goods. Income-generating leases include product leases or hunting leases. When drafting a lease agreement, the parties may determine the authorized court between themselves. The parties have the right to add provisions regarding a specific rent increase rate each year to the lease agreement. Lease agreements are binding as they contain the declarations of both parties. In the event of a claim that a lease agreement is void ab initio or legally invalid, the issue is not the termination of the lease but its cancellation. The Civil Peace Court also has jurisdiction over compensation lawsuits filed against eviction cases. In the event that the rented property burns down due to a fire, the lease agreement is terminated. Regarding the registration of the lease agreement in the land registry, registration in favor of the tenant binds subsequent owners of the property, including new owners. For the lease of jointly owned property, the majority of shares and stakeholders is required for the lease agreement to be valid. The rent for the leased property is determined in foreign currency, and payments are made accordingly by the tenant. The phrase "no eviction lawsuit will be filed" is invalid during the stage of concluding a lease agreement. A provision in a lease agreement whereby the lessor waives in advance the right to eviction arising from the law in the future does not prevent the lessor's right to file a lawsuit. The person who must prove the existence of the lease agreement is the plaintiff who relies on the lease agreement in their lawsuit. In oral lease agreements, the method of proof by witness is applied. However, witnesses are not heard against a written lease agreement. If the tenant wishes to register the lease agreement in the land registry unilaterally, the result is that the lessor's approval must be obtained. If the tenant has not definitively rejected the lease agreement, they are considered to have accepted its existence. The clauses that should be included in a lease agreement are as follows: address information of the leased premises; name, surname, address, and ID number of the lessor; name, surname, address, and ID number of the tenant; the monthly and annual rent amount must be written separately in both figures and words; the duration of the lease and the start date; the condition of the property at the time it is rented; the purpose for which the property will be used; the fixtures delivered with the property; the bank account number for rent payments; and, if deemed necessary, the name, surname, address, and ID information of a guarantor.
What Are the Lessor's Obligations?
The lessor has certain obligations toward the tenant. These are regulated individually by law as follows.
The lessor's obligation to deliver: The lessor is under the obligation to deliver the leased property to the tenant on the date agreed upon in the lease agreement. The nature of the lessor's delivery obligation is to deliver the property in accordance with the mode of use specified in the agreement. During the term of the agreement, the tenant is obliged to keep the leased property in the condition in which it was received. The obligation to deliver in accordance with the purpose of use cannot be altered. In leases of residential and roofed business premises, the obligation to deliver in accordance with the purpose of use cannot be changed to the detriment of the tenant. Furthermore, unlawful arrangements cannot be made against the tenant through general transaction terms. In lease agreements other than those for residential and roofed business premises, unlawful arrangements cannot be made against tenants either.
Another obligation of the lessor is the obligation to bear taxes and similar charges. The lessor is obliged to bear mandatory insurance, taxes, and similar charges related to the leased premises. If the payments specified in the lease contract for the property are not made on time, the lessor has the right to initiate enforcement proceedings and also file a lawsuit to collect the unpaid rent. If the leased property is sold to another person, the tenant has the right to demand the fulfillment of the lease agreement or claim financial compensation. If the tenant is unable to use the leased property due to a third party, the tenant has the right to demand compensation for the financial loss suffered from the lessor. If the leased property is delivered late by the lessor, the lessor is liable to pay compensation to the tenant. However, if the property was accepted under protest, it is assumed that the claim for compensation has been waived. The lessor is obliged to pay for mandatory insurance, taxes, and similar charges related to the leased premises. However, if a provision to the contrary is added to the lease agreement or unless otherwise specified by law, the lessor is not required to fulfill tax obligations.
The lessor has an obligation to bear ancillary expenses. The Turkish Code of Obligations regulates in detail what the lessor's obligation to bear ancillary expenses entails. This obligation concerns ancillary expenses related to the use of the leased premises, whether incurred by the lessor themselves or by a third party. Ancillary expenses include mandatory insurance related to the property, property tax, and common fixture expenses. Furthermore, the lessor is liable for defects in the leased property. If the property was delivered with defects, the lessor is obliged to remedy these defects. In cases where the leased property poses a serious health risk, the tenant may terminate the lease agreement. The repair of radiators in the leased property is the responsibility of the lessor. If the lessor refuses to cover the costs of repairing the radiators, the tenant can have the repairs made and deduct the cost from the rent. The registration of the lease agreement in the land registry does not create a real right but gives rise to a personal right.
One of the most important obligations of the lessor is the liability arising from defects in the leased property. The lessor is liable for defects present at the time of delivery of the rented property. Specifically, if the property is delivered with significant defects, the lessor is liable for defects that subsequently occur in the property. Due to the property becoming defective later, the tenant has the right to request from the lessor the remedy of the defects, a reduction in the rent proportional to the defect, or compensation for the loss. If the rented property has a significant defect, the tenant has the right to terminate the lease agreement. The tenant's request for compensation for the loss will not prevent them from exercising their other optional rights. Along with the request for compensation, one may also request the remedy of the defects or a specific reduction in the rent. The tenant may request the remedy of the defect found in the property from the lessor by granting a reasonable period. The tenant may request the remedy of the defect by sending a formal warning through a notary public. If the defect is not remedied within the period granted by the tenant to the lessor, the tenant has the right to demand that the defect be remedied by offsetting the cost against the rent. The tenant also has the right to request that the property be replaced with a defect-free equivalent.
What Are the Tenant's Obligations?
Following the conclusion of the lease agreement, the tenant has a number of obligations under the Turkish Code of Obligations. These are: the tenant's obligation to pay the rent, the obligation to use the property with care and show due respect to neighbors, the obligation to pay for cleaning and maintenance expenses, the obligation to notify the lessor of defects in the property, and the obligation to endure the remedy of defects and the showing of the property.
Within the scope of the obligation to pay rent, the tenant is obliged to pay the rent and, if necessary, ancillary expenses at the end of each month and at the latest by the end of the lease period. However, if the payment day for the rent is clearly specified in the lease agreement, the tenant is obliged to pay the rent on the date specified in the agreement. Due to non-payment of rent, the lessor has the right to initiate enforcement proceedings against the tenant in accordance with the provisions of the Enforcement and Bankruptcy Law. Objections against enforcement proceedings filed by the lessor with a request for eviction are made to the Enforcement Office. The tenant's purpose of use for the leased property must be clearly written in the agreement. If the leased property was rented as a hospital by the tenant, its subsequent use as an office would constitute a breach of the lease agreement. The tenant is obliged to take care of the rented place. If the leased place is damaged due to misuse, the lessor may demand compensation from the tenant. Additionally, extremely bad behavior by the tenant toward neighbors living in the rented building is grounds for termination of the lease agreement. Due to the non-payment of rent, the lessor must specify in the payment order sent to the debtor by the enforcement office, through the initiation of enforcement proceedings, within what period the rent debt must be paid. The payment order must be prepared by the enforcement office in accordance with the procedure. If the payment order is not prepared and sent in accordance with the procedure, it may be necessary to send a new payment order from the enforcement office. Enforcement proceedings cannot be initiated for rent paid as a deposit. If the tenant causes damage to the rented property by chopping wood or places gas canisters in front of the shop in a way that endangers people's health, this constitutes a violation of the obligations in the lease agreement, and the lessor is not under an obligation to send a warning. Heavy insults and swearing by the tenant against the lessor are considered grounds for eviction by the Court of Cassation. If no objection is made to the enforcement proceedings initiated against a tenant who does not pay the rent, the defense of payment that the tenant will put forward in the eviction lawsuit filed in the enforcement court can only be made with the rent payment receipts submitted. Changes that can be restored to the former state in the leased property are not considered misuse by the Court of Cassation. However, if what the leased place will be used for is clearly written in the agreement, use by the tenant contrary to the agreement is a reason for breach. If a formal warning sent by the lessor regarding the non-renewal of the agreement two months before the end of the lease agreement is sent after the deadline, it is accepted that the lease agreement has been renewed. If the tenant does not pay the monthly rent, rent debts for other months will also become due. If the tenant does not pay the rent as specified in the lease agreement, the lessor has the right to demand the collection of rent by initiating enforcement proceedings with a request for the unpaid rent. Furthermore, if the enforcement proceedings initiated with a request for eviction are not paid, eviction procedures are started within 30 days. If the tenant does not object to the payment order with a request for collection of unpaid rent within 7 days from the date of notification, the enforcement proceedings become finalized. If a fire occurs as a result of the tenant keeping tools and equipment in the rented property that could cause a fire and does not intervene to extinguish it, this is referred to as misuse. If the tenant does not use the rented property with the care appropriate to the lease agreement, the lessor has a number of rights. The lessor can demand the remedy of the breach of the lease agreement by sending a formal warning through a notary public, stating that the lease agreement will be terminated if it is not remedied. In residential and roofed business premises leases, the lessor is under an obligation to give a period of at least thirty days. Furthermore, in residential and roofed business premises leases, if the tenant intentionally and willfully damages the leased property, the lessor is not obliged to give time. If the tenant acts contrary to the obligations in the lease agreement to such an extent that the situation becomes unbearable for the neighbors living in the same building, the lessor has the right to terminate the agreement by giving written notice. The tenant is obliged to pay for the cleaning and maintenance expenses of the leased property. The tenant also has an obligation to notify the lessor of defects in the leased property. If the tenant does not notify the lessor of defects that they are not obliged to remedy themselves, they will be liable for the resulting damages. If the tenant does not pay the doorman's fee, the termination of the lease agreement is not possible. This matter is not one of the essential elements of the lease agreement. The tenant is obliged to allow the lessor or a third party designated by them to view the property to the extent necessary for maintenance, sale, or future leasing. The lessor is obliged to notify the tenant of the date the property will be viewed and to take into account the tenant's overriding interests. If the rent is above average, the tenant may request a reduction through a lawsuit. The right to send a warning and subsequently file a lawsuit in case of a breach of the lease agreement belongs only and exclusively to the lessor who signed the agreement. Persons who are not parties to the agreement do not have the right to file a lawsuit. If the tenant is running gambling in the rented property, this is considered misuse of the property, and there is a right to file an eviction lawsuit without the need for a warning.
Making Renovations and Changes to the Leased Property
The lessor has the right to make renovations and changes to the property that do not require the termination of the lease agreement and that the tenant can be expected to endure. If renovations and changes are made to the leased property, the lessor must take the tenant's interests into account. The lessor is liable for any damages that may arise in the leased property. Furthermore, the tenant has the right to request a reduction in the rent from the state specified in the lease agreement and compensation for damages due to the renovations and changes.
The tenant does not have the right to make changes to the rented property without obtaining the written permission of the lessor, as doing so would be a breach of the lease agreement. However, the tenant may make changes or renovations to the property by obtaining the lessor's written permission. This permission must be obtained in writing for the purpose of proof. A lessor who permits renovations and changes can no longer ask the tenant to restore the property to its original state. However, if the renovations and changes in the leased property have not been agreed upon in writing, the lessor's request to restore it to the original state is justified. The unauthorized removal of a wall between two sections of the rented property constitutes a breach of the lease agreement. When a tenant makes a useful expense in the rented property without the lessor's written permission, they cannot deduct the cost of this expense from the rent.
The tenant only has the right to demand from the lessor necessary and useful expenses incurred in the rented property. In residential and roofed business premises leases, the tenant cannot sublease or transfer the property to another person without the lessor's written permission. If the matter of a subtenant is accepted by the tenant and lessor in the lease agreement, the tenant is responsible to the lessor. In the case of such a subtenant, the lessor may exercise the rights they have against their tenant against the subtenant or the person who has taken over the right of use. Transfer of the rental relationship is not possible without the lessor's written permission.
In business premises leases, the lessor cannot avoid granting permission to transfer the agreement without a justifiable reason. A person to whom the rental relationship is transferred with the written consent of the lessor replaces the tenant in the lease agreement. In such a case, the original tenant who transfers the lease is released from the obligations arising from the lease agreement toward the lessor. In business premises leases, the transferring tenant remains jointly and severally liable with the transferee until the end date of the lease agreement and for a period of at most 2 years.
However, it has been stipulated that this provision will not be applied to merchants, private and public law legal entities for a period of 8 years from 01.07.2012.
Legal Avenues to Follow in Case the Leased Property Is Not Used
The tenant is obliged to keep the rented property in a condition suitable for use and to pay the monthly rent specified in the lease agreement. In case of limited use of the leased property, the tenant has the right to request a reduction in the rent. Expenses that the lessor refrains from making are deducted from the rent. If the property rented as a business place is kept closed by the tenant, it will reduce the value of the property, thus constituting a breach of the lease agreement. It is required that the breach of the lease agreement clearly relates to the use of the leased property. Furthermore, the property may be returned to the lessor before the end of the lease agreement.
If the tenant delivers the property without adhering to the agreement term or termination period, they are obliged to pay the debts arising from the lease agreement for a reasonable period, such as 3 months, during which the lessor can rent the property under similar conditions. If the tenant finds a new tenant with sufficient financial strength to be expected to be accepted by the lessor and who is ready to take over the rental relationship before the expiration of this period, the tenant's obligations arising from the lease agreement terminate. There are amounts that the lessor is obliged to deduct from the rent. The lessor must deduct from the rent the expenses they refrain from making and the benefits they obtained or intentionally avoided obtaining by using the property in another way.
However, this provision will not be applied to merchants, private and public law legal entities for a period of 8 years from 01.07.2002. Waiver of set-off is not possible. The tenant and the lessor cannot waive their right to set off their receivables arising from the lease agreement before they arise. A lawsuit regarding the termination of the lease agreement due to the property becoming unusable can be filed in the Civil Peace Court. In this lawsuit, the tenant is the plaintiff and the lessor is the defendant. The defendant tenant requests the termination of the lease agreement on the grounds that they cannot use the property because the lessor has not fulfilled their obligations, and thus, tenancy has become impossible. The most important evidence in this lawsuit is the lease agreement, formal warning, evidence assessment file, discovery, and expert examination.
Additionally, the tenant has the right to demand the termination of the lease agreement via a notary and request the refund of the amount already paid. For example, if the leased property becomes unusable, the tenant has the right to demand the dissolution of the lease agreement and the refund of the payments made within a reasonable period, or otherwise to apply to the court to request the termination of the lease agreement and the refund of the paid amounts. Furthermore, the tenant has the right to issue a formal warning to the lessor via a notary if the leased property is not delivered to the tenant in a usable condition.
The tenant must state that the leased property has not been delivered to them in a usable condition by the lessor, that the property is unusable, and also that it is not suitable for use from a health perspective. The lessor is obliged to rectify the issues mentioned in the warning letter within a reasonable time; otherwise, the lease agreement is terminated due to the lessor’s faulty behavior. Additionally, if the tenant does not wish to terminate the lease agreement but only wishes to claim compensation, this should be clearly stated in the warning letter.
What Are the Legal Consequences of the Termination of a Lease Agreement?
If a time limit has been stipulated in written or oral lease agreements, the agreement terminates automatically at the end of that period. If the parties continue the lease agreement without an explicit agreement at the end of the period, the lease agreement continues as an indefinite-term contract. If the lease agreement completes a 10-year term, the lessor has the right to terminate the lease agreement by providing a notice of termination in accordance with the general provisions of the Code of Obligations.
In general, for indefinite-term lease agreements, parties may terminate the lease agreement by complying with legal termination periods and notice periods. The calculation of termination periods is based on the start date of the lease agreement. If termination occurs without complying with the termination periods or notice periods specified in the lease agreement or the law, the notification becomes valid for the next termination period. Each of the tenant or the lessor has the right to terminate the lease agreement at the end of the rental period in accordance with general rules, or in the absence of such a rule, at the end of a 6-month rental period by observing a 3-month notice period.
In movable property leases, the tenant and the lessor have the right to terminate the agreement by providing a 3-day prior notice. If the lessor has leased a movable property for their professional activities and the item is intended for the tenant's private use, the lease agreement may be terminated at the end of a 3-month rental period with at least one month's prior notice. In cases where the right of termination can be exercised, the lessor or the tenant may terminate the lease agreement according to general provisions. However, for residential and roofed workplace leases, the termination of the lease agreement must be made only in writing.
There is no requirement for the termination notice to be made in an official form; it is only required that it be made in writing. If the lessor fails to deliver the leased property to the tenant in accordance with the lease agreement, the tenant has the right to demand the termination of the lease agreement by filing a lawsuit in the Civil Court of Peace. In this lawsuit, the tenant may present the lease agreement, photographs and documents showing that the leased property was not delivered in a proper condition, witnesses, discovery and expert reports, and the warning letter as evidence.
Additionally, if the tenant has suffered financial loss since the establishment of the lease agreement, they also have the right to claim their financial losses in the lawsuit.
What Is Extraordinary Termination of Lease Agreements?
The termination of a lease agreement depends on the fulfillment of certain conditions. However, it is possible to terminate a lease agreement in the presence of important reasons. Each of the lessor and the tenant has the right to terminate the lease agreement at any time within the legal termination notice period if there are important reasons that make the continuation of the lease relationship unbearable for them. However, as of 01.07.2021, this provision shall not apply to private and public legal entities and merchants for a period of 8 years.
Upon the death of the tenant, their heirs have the right to terminate the agreement by complying with the legal termination notice periods. Furthermore, if the leased property is not used in accordance with its purpose, there is an opportunity to terminate the lease agreement considering the purpose of the lease. For example, if a leased property that does not allow for the establishment of a fuel and gas station is leased by the lessor, the lease agreement may be terminated from the date this situation is discovered. If the tenant goes bankrupt after the lease agreement, the lessor has the right to request security for future rent payments. In the event of the tenant's bankruptcy, all creditors must register with the bankruptcy estate and join the queue. If the tenant does not provide security to the lessor, the lessor has the right to terminate the lease agreement immediately. In this case, compliance with the termination notice periods is not required for the termination of the lease agreement.
The lessor may first warn the tenant via a notary to restore the leased property to its original state and deliver it to them. If the tenant goes bankrupt and does not provide any security, the lessor has the option to file an eviction lawsuit due to the tenant's bankruptcy in the Civil Court of Peace. Another type of lawsuit, which arises when the leased property is used by the tenant in a manner inconsistent with the agreement, allows the lessor to file an eviction lawsuit in the Civil Court of Peace due to behavior contrary to the agreement.
What Is the Lessor's Right of Lien?
The scope of the lessor's right of lien in real estate leases is of great importance. The lessor's right of lien in real estate leases applies to the movables located in the leased property that serve to furnish or use the property, acting as security for one year of accrued rent and the current six months of rent.
The lessor's right of lien also affects subtenants. In other words, the movables of the same nature brought to the leased property by the subtenant also fall within the scope of the lessor's right of lien, provided they do not exceed the subtenant's rent debt to the principal tenant. The lessor's right of lien cannot be exercised over the tenant's assets that are not subject to seizure. The rights of third parties over items that the lessor knows or should have known do not belong to the tenant, as well as over stolen, lost, or otherwise items that have left the owner's possession without their consent, take precedence over the lessor's right of lien. The lessor does not have a right of lien over items brought to the leased property by the tenant. If the tenant wishes to move the property or movables found in the leased property to another location, the lessor has the right to apply to the Civil Court of Peace and obtain a decision to detain enough movables to secure their claim.
Additionally, the lessor has the right to request the execution officer to seize the movables in the leased property by initiating enforcement proceedings, provided there is no objection within the legal period. If, despite the detention decision, the items are taken away secretly or by force, it is necessary to apply for forced execution within ten days from the day the items were taken. Furthermore, the items can be recovered by applying to law enforcement.
Pursuant to the decision of the 13th Civil Chamber of the Court of Cassation dated 23.06.2008, Case No. 8105, Decision No. 8757, "The defendant argued in the response petition and the statements during the trial that the movable goods subject to the case remained with the defendant as security due to the plaintiff's rent debt and that the defendant had a right of lien. It should be stated immediately that, pursuant to Article 267 of the Turkish Code of Obligations, the lessor has a right of lien over movable goods due to the rent debt. Given that it is established by the aforementioned court decision that the defendant has a rent claim from the plaintiff, it must be accepted that the defendant can exercise their right of lien arising from the law," the limits of the right of lien are determined.
Residential and Roofed Workplace Leases
Provisions regarding residential and roofed workplace leases also apply to items left for the tenant's use along with them. However, these provisions do not apply to properties dedicated to temporary use that are leased for six months or less. The rules pertaining to residential and roofed workplace leases are applied exactly to all lease agreements made by public institutions and organizations regardless of their procedures and principles. In residential and roofed workplace leases, if the establishment or continuation of the lease agreement is made conditional on the tenant assuming an obligation that is not directly related to the use of the leased property and provides no benefit to the tenant, the agreement related to the lease becomes invalid.
However, this provision shall not apply to merchants and private and public legal entities for a period of 8 years from 01.07.2012. In residential and roofed workplace leases, if not stipulated otherwise in the lease agreement or in the absence of local custom to the contrary, there is an obligation to bear usage expenses such as heating, lighting, and water. The party bearing the expenses is obliged to provide copies of documents proving these expenses to the other party upon request. If the lease agreement imposes an obligation on the tenant to provide security, this security shall not exceed 3 months of rent. However, this provision shall not apply to merchants, and private and public legal entities for a period of 8 years from 01.07.2012. It is decided that money or valuable documents are to be provided as security.
If it is decided in the lease agreement to provide money or valuable documents as security, the tenant shall deposit the money into a time savings account to be opened at a bank, which cannot be withdrawn without the lessor's approval. When a valuable document is accepted as security, the tenant must deposit the document at a bank. However, this provision shall not apply to merchants and private and public legal entities for a period of 8 years from 01.07.2012. The bank can only return the security deposited in the bank with the consent of both parties, i.e., the tenant and the lessor. However, this provision shall not apply to merchants and private and public legal entities for a period of 8 years from 01.07.2012. If enforcement proceedings have been initiated and finalized, or upon presentation of a finalized court decision, the bank may return the deposited security. If the lease agreement terminates and the lessor does not want the security to be given to the tenant, there are certain procedures to be followed.
The lessor is obliged to notify the bank where the security is deposited in writing within 3 months from the termination of the lease agreement that they have filed a lawsuit regarding the lease agreement against the tenant or have initiated proceedings through enforcement or bankruptcy. If the lessor does not notify the bank, the bank is then obliged to return the security to the tenant. The lessor must provide written notice to the bank within 3 months from the date of the lease agreement's termination. Following the lessor's notification to the bank, the bank's responsibilities will arise. Namely, once this notification is made by the lessor to the bank where the security is deposited starting from the date of the lease agreement's termination, the security cannot be returned to the tenant until the enforcement proceedings or the lawsuit are concluded.
Rent Payment and Annotation of the Lease Agreement to the Land Registry
The annotation of lease agreements made between the tenant and the lessor to the land registry is of great importance. In lease agreements annotated to the land registry, subsequent owners are compelled to allow the tenant to enjoy the leased property within the framework of the lease contract. It should be stipulated that the agreement will be annotated to the land registry by explicitly including a provision in the lease agreement. Pursuant to the decision of the 14th Civil Chamber of the Court of Cassation dated 10.07.2021; "Parties may agree in the contract to annotate contracts related to immovable property to the land registry. The purpose of this procedure is to make the legal situation it relates to assertable against third parties and to provide transparency to the legal situation. The annotation of a real estate lease agreement to the land registry grants the tenant the authority to assert the right subject to the agreement against subsequent owners," clearly stating the importance of the annotation to the land registry.
The rent is the payment the tenant is obliged to pay to the lessor in exchange for leasing the property. The rent must be clearly stated in the lease agreement. Except for the determination of the rent in the lease agreement, no changes can be made regarding the tenant. Additionally, it is possible to agree that the rent be paid on a 6-month or 1-year basis in the lease agreement. The issue of paying the rent in foreign currency should be clearly written in the lease agreements. If it is written in the lease agreement that monthly rent payments will be paid in advance, a three-day grace period must be granted to the tenant. If rent payments are not paid within the period specified in the lease agreements, a late fee becomes valid. The provision that a 10% late fee will be applied for each month the rent payments are delayed will be binding on the tenant.
The tenant cannot terminate the lease agreement for a property used as a family residence without the explicit consent of their spouse. If the tenant's spouse does not explicitly permit the termination of the lease agreement, the tenant has the right to apply to the court and request a decision. A spouse who is unaware of the lease agreement has the right to become a party to the lease agreement by applying to the lessor and providing written notice. The lessor is obliged to notify the tenant and the spouse of the termination by serving separate notifications.
The lessor has the right to terminate the lease agreement in case of substantial repair, expansion, or modification required for the reconstruction or zoning of the leased property. For this, the tenant must vacate the leased property. The use of the property must not be possible during the substantial repair, expansion, or modification. In a fixed-term lease agreement, to file an eviction lawsuit due to necessity or substantial repair, the lawsuit must be filed within 1 month starting from the end of the lease period. Eviction lawsuits to be filed due to reconstruction and zoning are subject to a time limit. Eviction lawsuits not filed within 1 month from the end of the rental period are not accepted.
Whether the new owner who purchases the leased property can terminate the lease agreement due to their needs is of great importance. The person who terminates the lease may do so if there is a necessity to use the property for themselves, their descendants, ascendants, or other persons they are obliged to support by law, provided that they notify the tenant in writing of the situation within 1 month from the date of acquisition of the property, with the right to terminate the lease agreement through a lawsuit to be filed 6 months later.
Termination of the Lease Agreement Due to Eviction Commitment
If the tenant has made an eviction commitment after the lease agreement, they must definitely comply with this commitment. If the tenant has undertaken in writing in an eviction agreement to vacate the leased property on a certain date after the delivery of the leased property to the lessor but has not vacated it, the lessor may terminate the lease agreement by initiating enforcement proceedings or filing a lawsuit within 1 month starting from the date of the eviction commitment. The eviction commitment to be made with the tenant must be made in writing. An eviction commitment made orally is not accepted as valid. Eviction of the leased property becomes possible with an eviction commitment. An eviction commitment obtained from the tenant through intimidation is not accepted as valid.
When the tenant objects, stating that the eviction commitment was obtained under intimidation and pressure and does not reflect their true will, the eviction commitment is considered invalid. There are certain rules for an eviction lawsuit to be filed due to an eviction commitment. The priority rule for an eviction lawsuit to be filed with an eviction commitment is that the eviction commitment must have been given by the tenant of their own free will while residing in the leased property. The eviction lawsuit due to an eviction commitment can only be filed by the lessor. An owner who is not in the position of lessor does not have the right to file a lawsuit. While it is impossible to object to an eviction commitment made officially via a notary, it is possible to object to an ordinary eviction commitment if it does not meet the necessary conditions. The eviction commitment given by the deceased as a tenant also covers the heirs. According to the decisions of the Court of Cassation, the arrangement of an eviction commitment within the lease agreement is not accepted as valid. The tenant must give the eviction commitment in writing while they have started residing in the leased property.
If the eviction commitment is not complied with, a lawsuit must be filed by the lessor in the Civil Court of Peace. In this lawsuit, it can be requested from the Civil Court of Peace to decide on the termination of the lease agreement and the eviction of the leased property, stating that the tenant made an eviction commitment and did not vacate the property on the promised date, that a warning was sent to the tenant via a notary to comply with the eviction commitment, but that there was no progress on this matter either.
Termination of the Lease Agreement Due to Two Justifiable Warnings
In lease agreements of less than one year, the lessor has the right to send two justifiable warnings to the tenant for the payment of rent because the tenant does not pay the rent within the lease period. If the procedures to be carried out regarding a tenant who causes two justifiable warnings in lease agreements of one year or longer differ. In lease agreements of one year or longer, the lessor has the right to request the termination of the lease agreement by resorting to a lawsuit within one month from the end of the one-year lease period for a tenant who causes two justifiable warnings in writing for not paying the rent within one lease year or a period exceeding one lease year.
If there is an acceleration clause in the lease agreement, the requirement to demand the rent that has become due with a single warning, rather than demanding the same unpaid rent with multiple warnings, does not require the acceptance that two justifiable warnings have been made. If a warning letter is sent via a notary by the lessor due to non-payment of rent, rent payments made do not prevent the occurrence of two justifiable warnings. Two justifiable warnings do not occur in agreements of less than one year. Furthermore, two justifiable warnings do not occur in indefinite-term lease agreements, in cases where rent is paid annually, and in agreements of less than one year. If the tenant does not pay the rent within the specified time, the lessor has the right to file a lawsuit in the Civil Court of Peace.
The lessor may request from the judge of the Civil Court of Peace that an eviction decision be made due to the non-payment of rent despite two justifiable warnings. The lessor may attach the warning letters, lease agreements, and land registry records to the petition for the lawsuit. The lessor and the tenant also have the right to add a provision to the lease agreement stating that rent payments for the remaining months will become due in case of non-payment of rent.
Termination of Lease Agreement Due to the Tenant or Their Spouse Owning a Residence
If the tenant or the spouse with whom they live has a residence suitable for living within the boundaries of the same district or town, the landlord has the right to file a lawsuit requesting the termination of the lease agreement. The landlord must file this lawsuit in the Civil Court of Peace within one month from the expiration of the lease agreement.
The landlord must not have been aware at the time of the establishment of the lease agreement that the tenant or their cohabiting spouse owned a residence suitable for living within the boundaries of the same district or town. Lack of knowledge of this fact is considered an essential element for the filing of the lawsuit. If the landlord notifies the tenant in advance that they will file a lawsuit, the period for filing the lawsuit will be extended. Specifically, if the landlord notifies the tenant in writing that they will file a lawsuit within the one-month period stipulated for filing, the filing period is considered extended by one lease year.
Furthermore, the landlord has the right to file a lawsuit until the end of the lease year. The provisions regarding the termination of the lease agreement through a lawsuit cannot be amended to the detriment of the tenant. The landlord must first send a notarized warning letter to the tenant requesting them to vacate the leased property due to the fact that they or their spouse owns registered real estate in the same region.
If the tenant does not vacate the property despite this notice, the landlord has the right to file an eviction lawsuit. In the eviction lawsuit filed after learning that the tenant owns real estate in the same region, the landlord may present the title deed record, the lease agreement, the warning letter, witness testimony, and expert reports as evidence.
Case of Re-letting the Leased Property
If the landlord requests the tenant to vacate the property for the purpose of personal use, they cannot rent the property to anyone other than the former tenant for three years without a justified reason.
If the property is vacated for the purpose of reconstruction or zoning, it is regulated that the landlord cannot rent the property to anyone other than the former tenant for three years without a justified reason. The former tenant has the right of priority to rent the property under the new conditions and the new rent price following the reconstruction or zoning. There are certain conditions for the tenant to exercise their right of priority. The tenant has the right to exercise their priority right within one month following the written notification made by the landlord to the tenant.
Unless the tenant's priority right expires, the property cannot be rented to another tenant for three years. If the landlord prevents the tenant from exercising their priority right, the issue of compensation to the tenant arises. If the landlord acts contrary to the provisions regarding the tenant's priority right, they are liable to pay compensation to the former tenant of not less than one year's rent paid in the last lease year.
If the tenant does not exercise their priority right within one month from the date of notification of the written notice sent by the landlord for the purpose of allowing the tenant to use it, the landlord may rent the property to another tenant.
What Does Tenant Default Mean?
Another issue frequently encountered in lease law is the case of tenant default. If the rent specified in the lease agreement is not paid, the failure to make payment despite the landlord's thirty-day notice, or payment after the thirty days have passed, is called the tenant being in default. There are certain rules that must necessarily be written in the default notice by the landlord. It is mandatory to specify the thirty-day payment period in the default notice. If the default notice is sent without stating this matter, opinions accepted by the Court of Cassation are that the notice is not valid. Lease agreements constitute the basis for the resolution of disputes regarding rent. In order to file a lawsuit due to default, the conditions of the default notice must first be met, and no results must have been obtained as a result of this notice. The landlord must wait for the thirty-day payment period in order to apply to the enforcement court due to default. The rules for the court to evict the property against the tenant due to default are as follows;
For an eviction decision to be rendered due to default, the requested rent must have become due and not have been paid within the thirty-day period, and it must be clearly stated in the notice that the lease agreement will be terminated if the rent is not paid within the legal period granted in the notice. The fulfillment of all these conditions will ensure that the lawsuit filed due to default produces results. The tenant is responsible for unpaid rent until the moment the keys to the property are delivered to the landlord. Following the filing of the lawsuit, entering into an installment protocol between the tenant and the landlord regarding the payment of the rent does not save the tenant from default. In this case, the court decides to accept the eviction lawsuit. The landlord must specifically state in the notice to be sent to the tenant that the rent should be paid to them personally or to the bank account whose details are written within thirty days, and that if the rent is not paid within the given period, an eviction lawsuit will be filed with the termination of the lease agreement. If the thirty-day payment period is not written in the notice, the validity of the notice cannot be mentioned. The day the notice is served to the tenant is not included in the calculation of the period. In the event of the tenant's death, the default notice must be served to all of the tenant's heirs. If the rent is not paid, the tenant falls into default. Furthermore, the default notice must clearly state that the lease agreement will be terminated if the rent is not paid within the specified period. Unless it is explicitly written in the lease agreement that the rent will be paid via bank transfer, it is not considered a legal form of rent payment. Failure to pay the janitor's fee in the leased property does not constitute a basis for default. The janitor's fee is in the nature of an ordinary receivable, and default does not occur if it is not paid.
Termination of Lease Agreements Through Litigation
Articles 350 to 356 of the Turkish Code of Obligations regulate the conditions for terminating the lease agreement through litigation. As can be clearly seen when examining the articles of the law, the grounds for terminating the lease agreement through litigation are limited. Therefore, pursuant to Article 354 of the Turkish Code of Obligations, the provisions regarding the termination of the lease agreement through litigation cannot be amended to the detriment of the tenant, and new grounds for litigation cannot be developed. However, in the event that extraordinary termination grounds contained in the general provisions section occur, lease agreements for dwellings and roofed workplaces may also be terminated. In addition, the provisions regarding lawsuits related to the termination of dwelling and roofed workplace leases are provisions regarding public order, and the parties cannot resort to arbitration in this regard. In these lawsuits, only the official state judiciary is authorized and competent. The courts authorized in eviction lawsuits are, as is known, the Civil Courts of Peace. Eviction, as clearly stated in the law, is only possible by filing a lawsuit.
Pursuant to Article 347 of the Turkish Code of Obligations;
Termination of the agreement in dwelling and roofed workplace leases
I. By notification
1. In general
Article 347- In dwelling and roofed workplace leases, unless the tenant provides notification at least fifteen days before the expiration of fixed-term contracts, the contract is considered extended for one year under the same conditions. The landlord cannot terminate the contract based on the expiration of the contract term. However, at the end of a ten-year extension period, the landlord may terminate the contract without showing any reason, provided that they provide notification at least three months before the end of each extension year following this period.
In indefinite-term lease agreements, the tenant can always terminate the agreement, and the landlord can terminate it with a termination notice according to general provisions after ten years have passed since the beginning of the lease.
In cases where the right of termination according to general provisions can be exercised, the landlord or the tenant may terminate the agreement.
It has been decreed that dwelling and roofed workplace leases can only be terminated by notification and by litigation. In cases where the notification obligation is not fulfilled by the tenant and the landlord, the termination of the lease agreement cannot be mentioned. In Articles 350 and following of the Turkish Code of Obligations No. 6098, the termination of lease agreements for reasons arising from the landlord and the tenant is regulated. Reasons arising from the tenant are regulated in three paragraphs. As clearly regulated in the law, the legal consequences of the termination of the lease agreement through litigation due to reasons arising from the tenant in dwelling and roofed workplace leases are explained.
Pursuant to Article 352 of the Turkish Code of Obligations;
In the face of the tenant giving a written eviction commitment and not vacating the property despite the commitment given, and failing to pay the rent on time, the landlord may terminate the lease agreement by making two justified notices within the same lease period, and if the landlord does not know at the time of the lease agreement that the tenant or their cohabiting spouse has a residence suitable for living within the boundaries of the same district or town, they may terminate the lease agreement within one month starting from the end of the agreement.
Article 352- If the tenant, after the delivery of the leased property, has undertaken in writing to the landlord to vacate the property on a certain date but has not vacated it, the landlord may terminate the lease agreement by applying for enforcement or filing a lawsuit within one month starting from this date.
If the tenant has caused two justified notices to be sent to them in writing for not paying the rent within the lease term in lease agreements of less than one year; and within one lease year or a period exceeding one lease year in lease agreements of one year or longer, the landlord may terminate the lease agreement through litigation within one month starting from the end of the lease term and, in leases of longer than one year, from the end of the lease year in which the notices were made.
If the tenant or their cohabiting spouse has a residence suitable for living within the boundaries of the same district or town municipality, if the landlord does not know this at the time of the establishment of the lease agreement, they may terminate the agreement through litigation within one month starting from the end of the agreement.
Conditions for the Termination of the Lease Agreement with an Eviction Commitment
Tenant Making a Written Eviction Commitment
In TBK (Turkish Code of Obligations) Art. 352; it is regulated in three paragraphs as a reason for terminating the lease agreement under the title "Reasons arising from the tenant". According to this provision; in TBK Art. 352/I; "if the tenant, after the delivery of the leased property, has undertaken in writing to the landlord to vacate the property on a certain date but has not vacated it, the landlord may terminate the lease agreement by applying for enforcement or filing a lawsuit within one month starting from this date." As in the general law, practices that have become continuous are included in the text of the article in this regulation as well.
In TBK Art. 352/1, the "eviction commitment", which we frequently encounter in practice, also known as "written eviction commitment" and expressed as "undertaking to vacate in writing" in the article, is the termination reason. For the lease agreement to be terminated with this provision, four conditions must be met.
Condition of the Eviction Commitment Being Made in Writing
In the regulation made pursuant to TBK Art. 351/1 in cases where the lease agreement is terminated through litigation due to reasons arising from the tenant in dwelling and roofed workplace leases; for the validity of the tenant's commitment to vacate the leased property, this commitment must be made in writing. Making it in writing is a condition of validity. However, the parties can decide on the official form instead of the written form based on their preferences because it is more effective and subject to harsher conditions. When it is decided to use the official form, it must be done through a notary. Making the commitment official through a notary prevents objections based on signature denial or reasons that vitiate the will that may be made later. However, the tenant must make the eviction commitment themselves. Eviction commitments made in writing by the tenant's spouse, relatives, and children are not valid. However, the tenant's agent may act as an agent in the eviction commitment, provided that it is explicitly written in the power of attorney. In the case of multiple tenants, the eviction commitment must be given by all of them. The tenant's notification regarding not wanting the lease agreement to extend pursuant to TBK Art. 347/1 is also in the nature of an undertaking to vacate and produces the same results as the TBK Art. 352/1 provision. Such a commitment can also be included in the new lease agreement that the parties will make following the expiration of the first lease agreement.
Condition of a Date Being Set in the Eviction Commitment
The eviction commitment must contain the eviction date. Specifically, this date must have been given after the delivery of the leased property. For this reason, an eviction commitment given at the time the agreement was made or before is not valid. The reason for this is that a tenant in need of housing and a workplace has given an eviction commitment not arising from their free will under the pressure of the landlord. The essential element here is the state of fear.
Condition of the Eviction Commitment Being Given by the Tenant
The commitment to vacate the leased property must have been given by the tenant. Since there is no right exclusively attached to the person, an eviction commitment can be given in the capacity of an agent with a special power of attorney. If the lease agreement regarding the residence used as a family home was made with both spouses or if the non-tenant spouse has made a notification to the landlord pursuant to the last provision of TMK (Turkish Civil Code) Art. 194; since both are tenants, they must give the eviction commitment together. In the case of more than one tenant, since there is a mandatory joinder of parties among the tenants, the commitment must be given by all tenants.
Even in the case where one of the spouses has leased the family home and the other spouse has not notified the landlord, the eviction commitment to be given by the tenant spouse is invalid pursuant to the provision of TBK Art. 194/I. For the eviction commitment to be given by the tenant spouse to be valid, the other spouse's consent must be obtained. If the other spouse refuses to give this consent without a justified reason, the tenant spouse must obtain a decision from the judge in this regard.
The eviction commitment given by the subtenant to the landlord does not require the eviction of the original tenant. Based on the eviction commitment given by the original tenant, only the termination of the original tenant's lease agreement can be requested. Neither can a follow-up be made against the subtenant in this regard, nor can a lawsuit be filed. However, since the expiration of the original lease agreement will automatically terminate the agreement between the tenant and the subtenant, the eviction commitment given by the original tenant directly affects the subtenant as well.
A valid commitment to vacate also binds the tenant's heirs. In the case of the transfer of the lease relationship, it is accepted that the eviction commitment given in connection with the contract also binds the transferee. If this situation is concealed from the new tenant who takes over during the transfer of the lease agreement, the transferring tenant is responsible for paying compensation.
Condition of the Eviction Commitment Being Given After Taking Delivery of the Leased Property
The written commitment regarding the eviction of the leased property must be given by the tenant after taking delivery of the leased property. The tenant must vacate the leased property on the committed date. If they do not do so; the landlord must make an eviction request within one month from the committed eviction date.
Rent Determination Lawsuit
The tenant has the right to file a rent determination lawsuit if they have a legal interest. The parties determine the annual increase amounts in their lease agreements according to the PPI-CPI (TEFE-TÜFE) rates. However, in cases where the rent prices formed in the surrounding area do not increase as much as the general price increases or a lowness in rent prices is detected, courts may decide not to make an increase according to the PPI-CPI rates. There are a number of criteria to be considered in the determination of rent. It is determined by preparing a report as a result of the examination to be carried out by experts to be appointed by the court. With the submission of these expert reports to the court, it is aimed to rule on a reasonable rent that is in accordance with the purposes expected by the parties from the lease agreement by taking into account the rent prices. In accordance with the principle of equity and fairness, while the examination is being carried out, primarily all evidence presented by the parties to the court and precedent lease agreements should be considered, the leased property and party precedents should be seen and examined one by one through an expert, all qualities affecting the rent should be compared, the rent it would bring if re-leased should be determined, and the court should establish a judgment based on this rent. As a result of the contract to be made by the parties, the rent can be paid in foreign currency. In cases where there is no lease agreement, the authorized court is the Civil Court of First Instance. With the lease agreement, the parties have the right to determine the authorized court. The tenant has the right to file a determination lawsuit requesting the reduction of the rent. In a leased property with co-ownership, one of the shareholders has the right to request rent determination. If the tenant and the landlord do not reach an agreement regarding the rent among themselves, the rent is determined by the court. While determining the rent, the court makes a decision in line with equity, taking into account the status of the leased property, provided that it does not exceed the rate of increase in the producer price index of the previous lease year. If the rent is determined as foreign currency in the lease agreement, no changes can be made until five years have passed. After the expiration of the period, the rent can be determined according to the status of the leased property, taking into account the change in the value of the foreign currency. The right to withdraw from the contract arises in case of extreme hardship of performance, which is regulated in Article 138 of the Turkish Code of Obligations.
III. Extreme hardship of performance
ARTICLE 138- If an extraordinary situation that was not foreseen by the parties at the time the contract was made and that is not expected to be foreseen arises for a reason not originating from the debtor, and if it changes the facts existing at the time the contract was made against the debtor to such an extent that it would be contrary to the rules of honesty to request performance from them, and if the debtor has not yet performed their debt or has performed it by reserving their rights arising from the extreme difficulty of performance, the debtor has the right to request the judge to adapt the contract to the new conditions, and if this is not possible, the right to withdraw from the contract. In contracts with continuous performance, the debtor, as a rule, exercises the right of termination instead of the right of withdrawal.
There is no specific statute of limitations for filing a lawsuit to determine the rent amount. The lawsuit can be filed at any time. The lawsuit must be filed no later than thirty days before the start of the new rental period. Before filing the lawsuit, it is necessary to send a formal notice to the tenant, to be served at least thirty days before the beginning of the new rental period, stating that the rent will be increased. In a rent determination lawsuit, the rent amount determined by the court at the end of the trial takes effect from the beginning of the new rental period. A rent determination lawsuit must be filed in the Civil Court of Peace. The competent Civil Court of Peace is the one located in the place where the leased property is situated. No provisions contrary to the tenant may be included in the lease agreement, and no payment obligations other than rent and auxiliary expenses may be imposed.
Termination of Lease Agreements for Residential and Roofed Workplace Leases
Turkish Code of Obligations No. 6098
F. Termination of the contract in residential and roofed workplace leases
I. By notification
1. In general
Article 347- In residential and roofed workplace leases, if the tenant does not provide notification at least fifteen days before the expiration of a fixed-term contract, the contract is considered extended for one year under the same conditions. The lessor cannot terminate the contract based on the expiration of the contract term. However, after a ten-year extension period, the lessor may terminate the contract without showing any cause, provided that they give notice at least three months before the end of each extension year following this period. In indefinite-term lease agreements, the tenant may terminate the contract at any time, and the lessor may terminate it after ten years from the start of the lease, by providing a notice of termination in accordance with general provisions. In cases where the right of termination according to general provisions can be exercised, either the lessor or the tenant may terminate the contract.
In residential and roofed workplace leases, if the tenant does not provide notification at least fifteen days before the expiration of a fixed-term lease agreement, the contract is considered extended for a period of one year under the same conditions. The lessor cannot terminate the contract based on the expiration of the contract term. However, after a ten-year period, the lessor may terminate the lease agreement without showing any cause, provided that they give notice at least three months before the end of each extension year following this period. Due to the ten-year extension of the lease, the lessor may terminate the lease agreement without showing any cause, provided that they give notice at least three months before the end of each extension year following this period. In indefinite-term lease agreements, the tenant's termination of the lease agreement is not subject to a time limit. The tenant has the right to terminate the lease agreement at any time within the framework of general provisions. There are certain rules for the lessor to terminate an indefinite-term lease agreement. The lease agreement is terminated by filing a lawsuit at the end of the period, after providing a notice of termination three months in advance for a six-month period. Legal entities, just like natural persons, can be parties to a lease agreement and can file an eviction lawsuit if a need arises. A person who arranges and signs the lease agreement as an agent does not have the authority to file an eviction lawsuit. A rent receivable lawsuit filed with an eviction request is heard in the Civil Court of Peace.
Product Leases and Their Legal Consequences
In accordance with Article 357 of the Turkish Code of Obligations No. 6098;
Article 357- A product lease is a contract in which the lessor undertakes to leave the use of a product-yielding item or right and the harvesting of the products to the tenant in exchange for a price.
A share-crop lease is a product lease where the rent is determined as a certain percentage of the products to be harvested. If this rate is not agreed upon in the contract, it is determined according to local custom.
The definition of a product lease is clearly established. In a product lease, the tenant has certain obligations. Specifically, the tenant is under the obligation to pay the rent and auxiliary expenses. The usage fee agreed upon in the lease agreement for the leased property and the auxiliary expenses are considered the tenant's debts. Unless there is a provision to the contrary or local custom, the rent and auxiliary expenses must be paid by the tenant at the end of each lease year and at the latest at the end of the lease period. If the tenant does not pay the rent or auxiliary expenses that have become due since the delivery of the leased property, the lessor has the right to resort to certain legal procedures. In this case, the lessor may demand that the rent or auxiliary debt be paid within at least sixty days by sending a written notice to the tenant. The written notice must specify that the lease agreement will be terminated if payment is not made within the given period.
The lessor has the right to request the eviction of the tenant due to the expiration of the lease period. However, if the property was leased through a tender under the State Tender Law No. 2886, the tenant's eviction will take place as the tenant becomes an unauthorized occupier upon the expiration of the lease contract, pursuant to Article 75 of the aforementioned law. In an enforcement proceeding with an eviction request for rent receivables, an eviction lawsuit cannot be filed without requesting the removal of the objection. The court cannot accept the eviction request before the removal of the objection to the enforcement proceeding is requested.
The competent court for the termination notice of a product lease agreement is the Civil Court of Peace. The written notice sent to the tenant does not necessarily have to be sent through a notary. What is important is that this notification is made in writing. It is frequently seen in practice that written notifications sent via a notary gain importance in terms of proof. In extraordinary situations, a notification regarding the rent amount can be requested from the tenant. If the usual yield of an agricultural property decreases significantly due to extraordinary disasters or natural events, the tenant may request the lessor to reduce the rent by a proportionate amount. It is not possible to waive the right to request a rent reduction in advance. However, if the possibility of such situations occurring was taken into account during the determination of the rent or if the resulting damage was covered by insurance, the tenant's waiver of this right at the beginning is possible. The tenant has the right to use and operate the leased property in accordance with its purpose. The tenant is obligated to operate the leased property in a good manner suitable for its dedicated purpose and, in particular, to keep it in a condition suitable for yielding products.
The tenant does not have the right to change the procedure of operating the leased property. Without the lessor's permission, the tenant cannot change the operating method of the leased property in a way that would have an effect after the expiration of the lease term. The tenant also has a maintenance obligation. The scope of the maintenance obligation includes obligations such as minor repairs of the leased property and replacing low-value tools and equipment that are broken or destroyed through use. The tenant cannot sublease the leased property without the lessor's permission. The termination notice period for an indefinite-term product lease agreement can be exercised by both the tenant and the lessor, provided that a notice period of at least six months is observed. For product leases regarding agricultural properties, a termination notice can be given for the spring or autumn seasons as practiced by local custom. For product leases other than those regarding agricultural properties, a termination notice can be given for any time.
Extraordinary termination reasons in product leases are regulated as follows: existence of important reasons that make the tenancy unbearable, the bankruptcy of the tenant, and the death of the tenant. For the material consequences of an extraordinary termination notice, one may apply to the Civil Court of Peace and request the judge to make a decision regarding the legal and financial consequences of the termination notice, taking into account the situation and conditions.