Lease Determination Case in Turkey – Attorney Ozan Soylu

LEASE DETERMINATION CASE AND THE CONDITIONS IN TURKEY

Lease determination case is a type of lawsuit that aims to increase or decrease the rental price. As we mentioned above, in accordance with the principle of freedom of will, the parties can agree on the rental price among themselves. As a rule, this is valid when concluding the contract for the first time. Because the renewal of the rental agreement, in other words, the new rental price, which will be valid in case of extension of the agreement, is not completely dependent on the will of the parties. The legislator wanted to both protect the tenant and prevent the deterioration of the market balance by making some special regulations and taking this matter under provision. Thus, with the case of determination of the rental price, as it is known in practice, extended rental relations have found an area of ​​regulation.

TERMS OF OPENING A LEASE DETERMINATION CASE

In practice, a lawsuit for determination of the rental price cannot be filed under all circumstances. There are criteria to open this case.

The rented thing must be a residence or a roofed workplace. If the subject of the lease is movable property, this matter will not be the subject of the lawsuit. The rent determination case is subject to certain limitations in terms of subject matter. It should be noted that, regardless of movable or immovable property, you can subject anything to the lease agreement, but filing a rent determination case will not be accepted under all circumstances.

There must be a lease agreement to be paid in cash. There must be a valid lease agreement in the concrete case. If there is no lease agreement, it is not possible to file a rent determination lawsuit. As a rule, your contract does not need to be in writing, but it would be more advantageous to make a written lease contract in terms of convenience in terms of proof law. However, the performance you have agreed upon with the rental agreement must be in “money”. If you have agreed on another act, it will not be legally allowed to open this case.

The parties must not have made an agreement regarding the increase in the rental price in the renewed lease agreement, or there must be a lease agreement for more than 5 years or renewed after 5 years. As a rule, the parties can determine among themselves the rental price that will be valid in the new rental year. The new rent increase determined between the parties is valid provided that it does not exceed the rate of increase in the producer price index in the previous rental year. If this limitation is complied with, there is no problem and there is no need to file a lawsuit for determination of the rental price. However, in cases where there is a lease agreement for more than 5 years or renewed after 5 years, as a rule, the new price will be determined by the judge, so a lawsuit for determination of rent should be filed.

The plaintiff must have a legal interest in filing this lawsuit. The judge will judge whether the plaintiff has legal interest in filing this lawsuit. This condition is not sought in cases where the lease agreement is more than 5 years.

HOW IS THE RENTAL AMOUNT DETERMINED IN THE LEASE DETERMINATION CASE?

The rental price for extended periods is determined according to the nature of the situation. There are different possibilities in this regard.
If there is an agreement between the parties;
The legislator has stipulated that the agreements of the parties regarding the rental price to be applied in the renewed rental periods are valid provided that it does not exceed the increase rate in the producer price index in the previous rental year. The parties are not completely unlimited in determining the rent increase rate in terms of the years for which the lease agreement is extended. This limit is the rate of increase in the producer price index. If the determined rate exceeds the producer price index, it will be drawn to this rate. The producer price index is announced by the Turkish Statistical Institute.

If there is no agreement between the parties;
If the parties have not made an agreement on the new rental price in the event of an extension of the rental year, the rental price is determined by the judge on a fair basis, taking into account the situation of the leased one, provided that it does not exceed the increase rate in the producer price index of the previous rental year. The upper limit of the new rental price to be determined by the judge will again be the producer price index. If it requires fairness, it can also order an increase below the dominant producer price index. In this context, in case of a decrease in the producer price index, the judge may reduce the rental price.

If there is a lease agreement for more than five years or renewed after five years;
Regardless of whether there is an agreement regarding the renewed lease agreement, the judge determines the price that will be valid in the new rental year, for lease contracts that last longer than five years or renewed after five years, and at the end of each five-year lease relationship thereafter. The new rental price is determined in an equitable manner, taking into account the condition of the leased item and the rate of increase in the producer price index.

If the lease is made in foreign currency;
If the rental price is determined in foreign currency, as a rule, no change can be made on this price unless five years have passed. The parties cannot decide otherwise among themselves. This provision is also applicable to rental prices that are indexed to foreign currency or indexed to precious metals. However, in case of excessive difficulty in performance over time in the concrete case, the party claiming this may request the adaptation of the contract to the new conditions from the judge.

WHEN IS THE LEASE DETERMINATION CASE OPEN?

As a rule, lawsuits regarding the determination of the rental price can always be brought. Although there is no prescribed period of infringement or statute of limitations for this type of case, the element of time has an effect on the date on which the decision will be valid. If the rent determination lawsuit is filed at least 30 days before the start of the new rental period or if the request to increase the rent is notified in writing (warning) to the other party within this period, the result of the lawsuit for the determination of the rental price will have a retrospective effect. Thus, the new rental price determined by the court will be applied from the beginning of this new rental period. In other words, the determined rental price will be valid without waiting. Otherwise, the rental price determined as a result of the determination case will be applied in the next rental year. In other words, the effect of the lawsuit or the notice not filed within the above period will be to wait for the next rental year in terms of time.

NOTICE IN THE CASE OF DETERMINATION OF THE RENTAL VALUE

As a rule, making a warning is not one of the conditions of the lawsuit for determination of the rental price. However, if the lessor gives a written notice at least 30 days before the end of the lease period, the new rental price to be determined by the court will be valid from the beginning of the renewed rental period. that is, the effect of the notice is for the date on which the new rental price will be valid.

WHO CAN OPEN A LEASE DETERMINATION CASE?
The lawsuit for determination of the rental price can be filed by the lessor or by the lessee. In the event that the leased thing changes hands or is transferred, the new owner and tenant can file this lawsuit.

WHERE IS THE LEASE DETERMINATION CASE OPENED?
The competent court in the case of determination of the rental price is the Civil Court of Peace in the place where the immovable is located.

DIFFERENCES BETWEEN THE CASE OF THE DETERMINATION OF THE RENTAL VALUE AND THE CASE OF ADAPTATION OF THE RENTAL VALUE

Some extraordinary events that could not be foreseen by the parties at the time of the tenancy agreement and that may occur later may come to the fore. In this case, it may not be fair for a party to continue to perform this contract. In such cases where there is excessive difficulty in performance, the party who has such difficulties may request the court to adapt the lease agreement to the new conditions. The most important factor that distinguishes this case from the case of determination of the rental price is that the judge will not be bound by factors such as CPI while determining the new rental price. In practice, it is observed that in cases where the value of the real estate increases or decreases excessively, the parties apply to the court for the adjustment of the rental price. The Civil Court of Peace in the place where the immovable property is located or in the place of residence of the defendant is in charge and authorized for this case. As a rule, this lawsuit can be filed without any time limit and does not require a warning. Another issue that distinguishes it from the lawsuit for determining the rental price is that the lawsuit for the adaptation of the rental price is valid for all movables and immovables.

In this context, the conditions for filing a lawsuit for the adaptation of the rental price;
There must be an extraordinary situation that did not exist at the time of the lease agreement, was unforeseen and cannot be foreseen.
This state of emergency should not be caused by the debtor.
Due to the state of emergency, the circumstances must have changed against the debtor in such a way that the expectation of performance from the parties would be contrary to the rule of good faith.
The debtor must either have never performed his debt or he must have performed it by reserving his rights.

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