Long Awaited Articles Of Turkish Code Of Obligations On Renting Business Premises With Roof Finally Entered Into Force On July 1, 2020
On 1 July 2012, when the Turkish Code of Obligations No. 6098 (“TBK“) came into power, the entry into force of some articles were postponed for 8 years. Some changes shall occur along with the provisions on workplace rents, which were delayed until July 1, 2020. In this article, these changes shall be addressed.
Normally, the consent of the landlord is sought for the transfer of the rented by the tenant to the third parties/persons. But Article 323 which shall enter into force, from now on, landlord must rely on a justifiable reason to avoid giving this consent. The landlord, who has no justifiable reason, will not be able to refuse this request of the tenant. But, of course, the person who will take over the rented have to use the workplace in a similar way, give the same guarantee and agree on other terms in the current agreement.
According to the Article 325, if the tenant returns the rented without complying with the terms of the contract or the terms of termination, the debts arising from the rental agreement shall continue for a reasonable period, during which the rented may be leased under similar conditions. If the tenant finds a new tenant that the landlord may accept before the expiration of this period, who has the power to pay and is ready to take over the lease relationship, tenants debts arising from the lease agreement shall be expired. In accordance with the same article, the landlord is obliged to make discounts for the expenses that he / she has saved from doing and for the benefits that he / she has acquired by using the rented in another form or he / she had intentionally avoided from obtaining, from the rental price.
According to Article 331, if there are reasons that may make the lease relationship unbearable from the point of view of the landlord or the tenant, these reasons shall be considered as extraordinary reasons for termination, and even if the term of the contract does not expire, parties shall be able to terminate the contract in accordance with the term of notice of termination.
Article 340 introduced a ban on the contracts in connection. According to this provision, in workplace rental agreements, if the establishment or maintenance of the contract is related to the fact that the tenant is under a debt that is not directly related to the rented, other than in the interest of the tenant, this linked contract shall be considered as invalid.
With the article 342, the guarantee provided by the tenant, about the regulation on the cost of the deposit, has been introduced. Accordingly, if a deposit is agreed in the contract, this price will not exceed the three-month of rental price. If money or negotiable instruments are to be provided as a guarantee, the tenant deposits the money into a term savings account so as not to be withdrawn without the consent of the landlord and stores the negotiable instruments in a bank. The bank may return the guarantees only with the consent of both parties or based on a finalized execution proceeding or a finalized court decision. In addition, if the landlord informs the bank ,in writing, that he has filed a claim against the tenant due to the rental agreement within three months of the expiration of the rental agreement, or that he has engaged in enforcement or bankruptcy proceedings, the bank is obliged to return the guarantee at the request of the tenant.
With the Article 343, a ban on amendments against the tenant has been introduced. In accordance with this provision, it is prohibited to make amendments on rental agreements which are against the tenant, except for the rental price.
Article 344 outlines how to make an amendment in the rental price. Accordingly, increase in the rental prices, which shall be applied during the renewed lease periods, will not exceed the change rate of the Consumer Price Index (TUFE) in the previous lease year compared to the twelve-month averages. If the parties have not reached an agreement on this issue, increase in the rental prices will be determined according to equity, taking into account the condition of the rented, so that, it does not exceed the rate of change of the CPI in accordance with the twelve-month averages.
Without seeking any agreements between the parties, rental agreements which renew in more than five years or after five years, and at the end of every five years after this; increase of the rental price in the new lease year, increase to be applied on the rental price shall be determined by the judge with equity according to the change rate of TUFE within twelve-month averages according to the status of the rented and common rental prices.
If the rental price is agreed on a foreign currency in the contract, the provisions for hardship are reserved, but the rental price cannot be changed unless five years have passed. In determining the rental price after five years, amendments in accordance with the provision applied to lease contracts for more than five years, considering the changes in the value of foreign currency.
With article 346, ban on regulating the contract against the tenant has introduced. Accordingly, it is prohibited to impose a payment obligation on the tenant other than the rental price and side expenses. Particularly, agreements upon the punishment clause or payment of the following rents in case of late payment shall be counted as invalid.
Finally, article 354 stipulates that the provisions relating to the termination of the rental agreement through litigation cannot be changed against the tenant.