DECISION THAT THE BANK TRANSFER FEE FOR RENT PAYMENTS IS TO BE PAID BY THE TENANT
RULING THAT THE BANK TRANSFER FEE FOR RENT PAYMENTS IS THE TENANT'S RESPONSIBILITY
In this week's column, I will attempt to explain to my dear readers, with examples, a precedent-setting decision by the Court of Cassation (Yargıtay) that has become one of the most curious topics in rental law.
A very important precedent-setting decision has emerged from the Court of Cassation that concerns millions of tenants and landlords. While high rent increases have pitted landlords against tenants, courts have become overwhelmed with ‘eviction’ and ‘rent determination’ cases. Amidst the ongoing debates over sharp increases in rent prices, a precedent-setting decision has been issued by the General Assembly of Civil Chambers of the Court of Cassation. Ruling that the transfer fee for rent payments made via bank transfer belongs to the tenant, the High Court decided that if the transfer fee is deducted from the landlord's payment, the tenant will be deemed to have made an incomplete payment.
In the precedent-setting case, the tenant, L.M., deposited their rent into the bank regularly every month. Four months later, the landlord claimed the rent was underpaid and initiated enforcement proceedings against the tenant. The tenant, shaken by the enforcement proceedings despite having paid the rent, filed an objection. Thereupon, the landlord knocked on the door of the Civil Court of Peace and objected to the suspension of the proceedings.
The plaintiff landlord alleged that the defendant tenant L.M. had paid the rent incompletely for 4 months. Arguing that the defendant was under an obligation to pay the rent in full, the landlord requested the removal of the objection, the continuation of the enforcement proceedings from where they left off, the termination of the contract, and the eviction of the defendant from the leased property.
The defendant tenant, however, stated that the incomplete payment issue alleged by the plaintiff was entirely due to the landlord's own fault; they had paid 450 lira every month to the bank account number provided by the plaintiff, and 31.50 lira was deducted by the bank as a transfer fee; and that the landlord, not themselves, was responsible for this deduction. The tenant argued for the dismissal of the case, stating that since the rent was supposed to be paid in person in cash according to the rental agreement, forcing them to bear the cost of the deduction arising from payment via bank transfer at the plaintiff's request was incompatible with the law and the rental contract.
“THE TENANT HAS MADE AN INCOMPLETE PAYMENT”
Concluding that the incomplete payment stemmed from the charges taken by the bank, the court pointed out that the defendant should not have to bear the costs incurred due to the request to deposit rent, which was agreed to be paid in person, into a bank account. Since there was no unpaid rent, the court decided to dismiss the case on the grounds that the plaintiff was unjustified in the eviction lawsuit filed due to default. When the plaintiff landlord objected to the decision, the Court of Cassation intervened and overturned the ruling. In the retrial, the court resisted its initial judgment. When the plaintiff appealed this decision as well, the Court of Cassation's General Assembly of Civil Chambers stepped in and signed a precedent-setting decision. The Assembly stated in its decision: "The obligation to pay the rent is one of the debts that must be taken by the debtor to the creditor landlord, and the delivery of the money to the landlord is a burden belonging to the tenant. In rent payments made via bank transfer, the transfer fee belongs to the tenant, and if the payment is made by deducting the transfer fee from the landlord, the tenant is deemed to have made an incomplete payment."
“PAYMENTS NOT MADE IN THE EXPLAINED MANNER CANNOT BE ACCEPTED AS LEGAL”
The decision reminded that if the transfer fee is deducted from the rent amount that forms the transfer total via set-off, the rent amount will have been paid incompletely; therefore, if a payment is made after a notice of default, this will result in an incomplete payment, which will lead to eviction due to default. It was emphasized that by law, rent is a debt that must be taken and paid, and it should be paid in person to the landlord, or deposited into a bank account provided that the costs are borne by the tenant, or sent via PTT with payment upon delivery at the residence. It was stated that in cases where the rent is deposited into the landlord's bank account, the tenant is responsible for the transfer fee deducted by the bank. The decision stated the following:
"Payments not made in the manner described cannot be accepted as legal payment. For this reason, the court should have decided to cancel the objection regarding the underpaid rent subject to the proceedings and ordered the eviction of the leased property. It was decided by majority vote to overturn the court's decision."