For which leased properties can a rent determination lawsuit be filed?

Which types of leased properties can a rent determination lawsuit be filed for?

In order to file a rent determination lawsuit, there must first be a written or oral lease agreement between the parties. A rent determination lawsuit cannot be filed against natural or legal persons without a written or oral lease agreement established between the parties. When filing a rent determination lawsuit, the plaintiff must first have a legal interest in filing the lawsuit. If there is a dispute due to the uncertainty of the rate despite a provision regarding rent increases in the lease agreement, both parties have a legal interest in filing a rent determination lawsuit. Both the lessor and the lessee have the right to file a rent determination lawsuit. The lessee's legal interest in a rent determination lawsuit is to reduce an excessive rent amount, while the lessor's interest is to increase a low rent amount. In a shared property, each shareholder has the right to file a rent determination lawsuit for their own share. If the property is subject to joint ownership (co-ownership), all partners must file the rent determination lawsuit together. If a single partner files a rent determination lawsuit, the other partners have the right to join the lawsuit later by giving their consent. If there is an agreement between the lessee and the lessor regarding the determination of the rent, the rent is increased according to the agreement, and in this case, a rent determination lawsuit cannot be filed. Article 344/1 of the Turkish Code of Obligations states: "Agreements of the parties regarding the rent amount to be applied in renewed lease periods are valid, provided that they do not exceed the rate of change according to the twelve-month averages in the consumer price index of the previous lease year."

Does the obligation to pay withholding tax and VAT belong to the lessee or the lessor?

The person liable for paying withholding tax and VAT is the lessor. However, the lessor always has the right to demand these taxes from the lessee by mutual agreement. The solution to the question of who will pay the taxes is not found in tax law, but in the lease agreement arising from the rental relationship established between the parties. If the lease agreement clearly states that VAT will be paid separately by the lessee, or if the rent amount is specified as "VAT excluded" in the agreement, the lessee is obliged to pay an additional amount equal to the VAT on top of the rent. Here, this payment is not considered a tax to be paid by the lessee, but a part of the rent debt. If the lease agreement contains an agreement that the rent is determined as a VAT-inclusive amount, or if there is no agreement on this matter, it must be accepted that the rent amount already includes the VAT. Therefore, in such cases, the lessor cannot demand an additional payment from the lessee beyond the rent, and the settled case law of the Court of Cassation is in this direction.

Can a lessor file an eviction lawsuit due to necessity for their mother or father?

In order for the lessor to be able to evict the lessee due to residential necessity, the need must be sincere, real, and mandatory. In eviction lawsuits due to necessity, whether the claimed need on the part of the lessor exists must be examined in detail. The lessor may prove the claim of necessity with any type of evidence. The biggest presumption in this regard is whether the lessor is also a tenant. In order for the lessor to file an eviction lawsuit, the need must have arisen. An eviction lawsuit cannot be filed for a housing need that has not yet arisen or is not likely to arise in the near future. The fact that the lessor claiming to need the leased property does not offer their own current residence to the lessee does not lead to the conclusion that the need is not real and sincere. In the decisions of the Court of Cassation, if a lessor claiming a housing need has more than one property suitable for habitation that is currently rented out, the lessor must sincerely make a choice among these properties to file an eviction lawsuit. Lessors sometimes create artificial needs to remove the tenant from the property. At this point, the court must investigate in detail whether the plaintiff's need is real and sincere in the eviction lawsuits filed. As supported by the Court of Cassation, the lessor's claim of necessity must have arisen; otherwise, the lessor cannot file an eviction lawsuit based on a need that has not yet arisen. A need that depends on a long period of time to materialize cannot be accepted as a reason for eviction. If the lessor has an empty property they can live in, or if they have sold or put up for sale the house they are currently living in before filing the eviction lawsuit, it is accepted that the lessor's need is not real and sincere. It has been emphasized in the decisions of the Court of Cassation that it is not sufficient for the cause of necessity to exist at the time the lawsuit is filed; it must also persist during the course of the proceedings.

The right to file an eviction lawsuit based on residential necessity belongs to the lessor of the residence. The lessor of the residence can be the owner themselves, or it can be a third party who is not the owner. Third parties who lease the residence but are not the owners can also file an eviction lawsuit due to residential necessity. Similarly, a person who has the need for housing but is not the lessor, even if they are the owner, can file an eviction lawsuit. It is not a requirement for the lessor to be the owner. A non-owner lessor can also file this lawsuit. In a decision rendered by the Court of Cassation, it was decided that a non-owner lessor can also file a lawsuit, stating that it was not correct to reject the case with written justification when the merit of the case should have been examined and a decision rendered based on the result, by accepting that the owner could file a lawsuit based on the notice containing the will of termination sent by the non-owner lessor due to necessity.

If there are two separate lease agreements for the same property, which agreement is taken as the basis?

Thank you very much for asking such a question, as it is a subject frequently encountered in practice. The fact that the lease agreement, concluded by the lessee and the lessor in accordance with their free will, carries the conditions of validity is important for the lease agreement to remain in force. There are different opinions of the Court of Cassation regarding the existence of different lease agreements drawn up on different dates.

It is observed that more than one lease agreement is signed between the lessor and the lessee for various reasons. Usually, the lease agreement signed for a low amount is submitted to the tax office to pay less tax, while the lease agreements with high amounts are actually applied between the parties. On the side of the Court of Cassation, the lease agreement prepared to be submitted to the tax office is considered collusive (muvazaalı), and the lease agreement with the high amount is considered valid. The Court of Cassation has determined that there is no practical or legal framework for the lessee to sign a lease agreement with a higher amount, therefore the agreement signed for the high amount is not collusive but valid.

Precedent decisions of the Court of Cassation regarding the problems encountered in cases where more than one lease agreement is made are included below.

Can the start and end of a lease agreement be determined by the bank account statement showing rent payments?

The lease agreement must clearly state the date on which the rent will be paid. When the rent is not deposited between the date/dates specified in the lease agreement, the lessee is considered to be in default. At this point, the lessor has the right to request that a payment order be sent by the Enforcement Office to collect the rent from the lessee. The beginning and end of lease agreements cannot be determined by the payment of rent. Considering that the lease agreement is also valid in the months when rent payments are not made, a situation arises where lessors will suffer a loss of rights. Lease agreements are such contracts that they cannot be terminated automatically without written notice from the parties. For this reason, the non-payment of the rent specified in the lease agreement cannot be considered as the end of the lease agreement.

Can the landlord request an additional flat increase of one thousand TL to the rent in addition to the CPI rate, saying 'The value of the residence has increased due to the pandemic. Rents have risen in our region'?

The issue we encounter most frequently recently is increasing rent amounts. However, as it is known, the Official Gazette states: "ARTICLE 4- The following temporary article has been added to the Turkish Code of Obligations No. 6098 dated 11/1/2011. TEMPORARY ARTICLE 1- Agreements regarding the rent amount to be applied in lease periods renewed between the effective date of this article and 1/7/2023 (including this date) are valid provided that they do not exceed twenty-five percent of the rent amount of the previous lease year. If the rate of change according to the twelve-month averages in the consumer price index of the previous lease year remains below twenty-five percent, the rate of change is valid. This rule also applies to lease agreements with a duration of longer than one year. Agreements made to exceed these rates are invalid regarding the excess amount. This provision of this paragraph also applies to decisions to be given by the judge in accordance with the second paragraph of Article 344."

In accordance with this article, it is not legally possible to make an increase other than the 25% increase. There is no legal basis for lessors to request an additional rent increase.

Can the rent be increased if there is no increase rate in the lease agreement?

It can be agreed upon in the lease agreement at what rate the rent will increase, both in renewed periods and before the contract period is completed. Such contractual relationships do not leave room or need for filing a rent determination lawsuit. In cases where the rent increase occurs due to the lease agreement, the lawsuit to be filed against the lessee who does not make the increase in accordance with the agreement is an ordinary performance lawsuit. The fact that the increase to be made in every new lease period can be determined by the contract is the result of the application of the provisions of the Turkish Code of Obligations No. 6098. The limitation of the parties' wills regarding the increase to be made during the contract period is likewise the result of the application of the provisions of the Turkish Code of Obligations No. 6098. The Turkish Code of Obligations has adopted an application that prefers the rent increase to be based on the contract instead of being ensured through a lawsuit, encouraging the parties to enter into such contracts; on the other hand, it has found a way to make the supervision provided through rent determination lawsuits effective for contract-based increases as well. In indefinite-term lease agreements, the importance of the increase conditions included in the contract becomes even more prominent. When five-year periods are completed, the opportunity to file a rent determination lawsuit, which allows the rent to be determined according to the market rate, is granted to the parties regardless of whether there is an increase provision in the contract. If there is no such provision in the lease agreement, the parties can come together and make a determination regarding the missing provision. If a decision has been made that the rent will not be increased in the renewed period, they must also clearly write this in the contract.

9 ) My tenant's contract ended last September. I asked him verbally in August to vacate the house because I would move in myself in January. He said he would look for a house. Then I learned that he did not look for a house and was constantly stalling me, and the contract was automatically renewed. I will live in my house myself. That's why I want my tenant to leave, but my good intentions were abused. I wonder what my legal grounds are? How can I evict my tenant?

The issue most frequently encountered recently is the tenant not moving out of the house. Landlords must definitely state their intention to evict their tenants from the leased property because they will live in their own homes due to necessity by sending a notice through a notary. They must clearly write that their contracts will not be renewed in the new lease year and that the landlord will live in the property due to necessity, and send the notice to the tenant. Otherwise, the procedure for evicting tenants from the property cannot begin legally, and lessors suffer grievances at this point.

What are the rights of a tenant who says "My landlord wants me to leave even though the contract is ongoing"?

While the contract made between the tenant and the lessor is ongoing, the request for the tenant's eviction is not accepted as legally valid.

A tenant has a number of rights if the lease agreement meets the necessary conditions. These rights generally arise from the obligations of the lessor. Within the scope of these rights and obligations, the tenant can make certain demands from the lessor.

The right to take delivery of the leased property from the lessor in a way that is suitable for the purpose for which it was rented.

The right to demand the removal of issues that prevent the lessor's use during the lease agreement period.

The right to terminate the contract and return from the contract for a just cause in the face of the lessor's failure to fulfill the obligations imposed on them by the Turkish Code of Obligations.

The right to demand damages arising from the late delivery of the leased property to the tenant.

The right to demand from the lessor the side expenses incurred in the leased property, related to the use of the leased property.

The right to request the repair of defects.

In the absence of an agreement to the contrary, the right to demand that the lessor fulfill mandatory insurance, tax, and similar obligations. For example, they can demand side expenses such as elevator renovation costs, insulation fees, etc. from the lessor.

The right to demand that the lessor take over the case and remedy any damage suffered if a third party makes a claim on the leased property.

The right not to be evicted from the leased property as long as the contract continues, without a just cause, before the contract period expires.

The right to transfer or sublease the leased property to someone else on the condition of obtaining written permission from the lessor.

No other payment obligation can be imposed on the tenant other than rent and side expenses (heating, lighting, water, dues, etc.).

Agreements regarding the payment of a penalty clause or the acceleration of subsequent rent payments in case the rent is not paid on time are invalid.

11 ) Thank you for the information you provided. Finally, what would you like to say?

First of all, I thank you very much for asking such beautiful questions. Due to the rent lawsuits arising from the increasing rent disputes recently, we also frequently try to provide legal support in these processes. The most important point that tenants and lessors should pay attention to is the stage of arranging the lease agreement. It is important for tenants to examine the contract they sign while the lease agreement is being prepared in terms of knowing their rights. The requests of lessors to evict from the property before the lease agreement ends have no validity because they lack a legal basis. If the rents are paid on time, tenants have the right to live in the property for 10 years. In the 5th year of the lease agreement, they have the right to file a rent determination lawsuit.