Tenant’s Rights in Turkish Law
WHAT ARE THE TENANT’S RIGHT IN A LEASE AGREEMENT?
The tenant’s rights refer to the rights held by the tenant, one of the parties to the lease agreement, in accordance with the terms of the contract. The lease agreement, defined in Article 299 of the Turkish Code of Obligations, is a contract that imposes mutual obligations on the parties. Therefore, the rights and obligations of both parties to the contract will be discussed. However, these rights and obligations of the parties may vary depending on the type of lease agreement they are party to. The tenant’s rights generally include the following;
– According to Article 301 of the Turkish Code of Obligations, the tenant has the right to demand the leased property for the purpose envisaged in the lease agreement on the date agreed upon with the lessor.”
– Regarding mandatory insurance, taxes, and similar obligations related to the leased property, unless otherwise agreed or prescribed by law, the lessor shall bear them (Article 302 of the Turkish Code of Obligations). Therefore, the tenant has the right to request the lessor to bear taxes and similar obligations.”
– The lessor is obliged to bear the incidental expenses made by themselves or a third party concerning the use of the leased property (Article 303 of the Turkish Code of Obligations). Accordingly, the tenant has the right to request the lessor to bear incidental expenses.”
– If the leased property has significant defects at the time of delivery, the tenant can refer to the provisions regarding the debtor’s default or the lessor’s liability arising from the subsequent defects in the leased property. In the case of insignificant defects in the delivery of the leased property, the tenant can refer to the provisions regarding the lessor’s liability for defects that arise in the leased property later (Article 304 of the Turkish Code of Obligations).”
– If the leased property later becomes defective, the tenant may request the lessor to remedy the defects, or to make a proportionate reduction from the rent, or to remedy the damage. The tenant’s request for the remedy of the damage does not preclude the exercise of other optional rights. If the defect is significant, the tenant also has the right to terminate the contract. However, it should be noted that the defect that arises later must be an defect that cannot be attributed to the tenant. If the tenant is at fault, they will not be able to benefit from the mentioned rights (Article 305 of the Turkish Code of Obligations).”
– The tenant may request the lessor to remedy the defect within a reasonable time. If the defect is not remedied within this period, the tenant may, at their option, remedy the defect at the expense of the lessor and deduct the resulting claim from the rent or request the replacement of the leased property with a defect-free equivalent by the lessor (Article 306/1 of the Turkish Code of Obligations). The tenant must report the defect to the lessor as early as possible. In addition, defects arising as a result of ordinary use (wear and tear, etc.) are not covered by this article, and it is the responsibility of the tenant to remedy such defects.”
– If a significant defect occurs in the leased property after it has been delivered to the tenant, the tenant has the right to terminate the contract. This situation is regulated in Article 306/2 of the Turkish Code of Obligations as follows: ‘If the defect eliminates or significantly hinders the intended use of the leased property and is not remedied within the given period, the tenant may terminate the contract.’ The tenant does not necessarily have to go to court to exercise this termination right. The termination statement takes effect as soon as it reaches the lessor’s domain.”
– If there are defects that affect the use of the leased property, the tenant may request a proportionate reduction from the rent. However, this reduction can only be requested for the period from the time the defects are discovered by the lessor until the remedy of the defect (Article 307 of the Turkish Code of Obligations).”
– If a third party asserts a right inconsistent with the tenant’s right in the leased property (e.g., ownership right, easement, or rights arising from neighbor law), the tenant may, by notifying the lessor, request them to take over the lawsuit and request the remedy of any damage suffered. The damage to be compensated here is positive damage based on the loss of performance benefit (Article 309 of the Turkish Code of Obligations).”
In addition to the rights generally mentioned above, tenants have some other rights as well. The legislator, recognizing that tenants may be relatively disadvantaged among the parties to a lease agreement, has made significant regulations to protect tenants
RIGHTS OF TENANTS WITHOUT A CONTRACT
”Tenant without a Contract” refers to a person in a lease relationship who carries the status of a tenant without having a written lease agreement. Lease agreements are not subject to any specific form requirements and are established through the mutual and mutually agreeable declarations of intent by the parties. However, having the lease agreement in written form is important as it serves as evidence in case of future disputes.
As a result of the absence of a form requirement in lease agreements, they can be made in written or oral form. In both cases, the lease agreement established is protected under the Turkish Code of Obligations No. 6098. Therefore, regardless of the form of the contract, the rights of tenants are the same.
THE RIGHTS OF 5-YEAR TENANT
When lease agreements are prepared, a specific duration may have been foreseen. In residential or commercial lease agreements, even when the agreed-upon period expires, the landlord cannot evict the tenant automatically. In such lease agreements, the right to terminate the contract when the period ends is granted only to the tenant. The lease agreement does not automatically end when the duration set by the parties is completed. To terminate the lease agreement, the tenant must provide written notice at least 15 days before the expiration of the agreed period that they will vacate the property. If the tenant does not provide written notice of their intention to vacate at least 15 days before the expiration of the agreed period, the lease agreement is extended for an additional year under the same terms. This is regulated in Article 347, paragraph 1 of the Turkish Code of Obligations. For example, in a 5-year lease agreement, if the tenant, at least 15 days before the end of the agreed period, does not submit a written notice regarding vacating the property, the lease agreement is automatically extended for one year with the same terms. In such a case, the landlord cannot demand the tenant to vacate the house or business premises by claiming the end of the agreed period. However, the landlord can only terminate the lease agreement in accordance with the statutory termination grounds.
When we look at the regulation in Article 347 of the Turkish Code of Obligations, we see: ‘…The lessor cannot terminate the contract based on the expiration of the contract term. However, at the end of the ten-year extension period, the lessor, provided that they notify at least three months before the end of each extension year without specifying any reason, can terminate the contract.’ As understood from the provision, if the lease agreement has not ended despite the expiration of the contract and a ten-year extension period has passed, the lessor can terminate the contract without specifying any reason, as long as they notify at least three months before the end of each extension year. According to these regulations, the landlord does not have the right to terminate the contract for a 5-year tenant using this provision. The landlord’s other statutory termination rights remain intact.
THE RIGHTS OF 10-YEAR TENANT
In addition to the rights granted to tenants, the legislator has also granted certain rights to landlords to balance the interests of both parties. According to this, if the duration of the lease agreements has been completed plus 10 years, the landlord can request the tenant to vacate the leased property without providing any reason, provided they comply with specific notice periods. In this case, it is not possible for a tenant with a 10-year lease to reject the landlord’s request for vacating. However, if the landlord fails to comply with the notice periods prescribed by law, the tenant can resist the eviction request. If the landlord has complied with the notice periods prescribed by law, it is now the tenant’s obligation to accept the eviction request and vacate the leased property. If the tenant does not comply with this obligation and does not vacate the property, the landlord can initiate an eviction lawsuit.
For the landlord to be able to make an eviction request in a 10-year lease agreement, they must provide notice at least 3 months before the end of each extension year following the completion of the contract term plus 10 years.
UNDER WHICH CIRCUMSTANCES CAN THE LANDLORD EVICT THE TENANT?
As a general rule, the landlord does not have the right to request the eviction of the tenant without cause before the completion of 10 years. However, in exceptional cases, the legislator has granted the landlord the right to request the eviction of the leased property through an eviction lawsuit. These cases include:
Eviction Due to the Landlord’s Necessity
If the landlord has a necessity to use the leased property for housing or business purposes for themselves, their spouse, descendants, ascendants, or other persons they are legally obliged to support, they can file an eviction lawsuit. However, the lease term must have expired, and the landlord must prove their necessity for the leased property (TBK Article 350). The necessity claimed by the landlord in their lawsuit must be sincere and genuine.
Eviction Due to Reconstruction and Zoning
If substantial repairs, expansions, changes, or modifications are necessary for the reconstruction or zoning of the leased property, and during such works, the use of the leased property becomes impossible, then in fixed-term contracts after the expiration of the term or in indefinite-term contracts following the termination period according to the general provisions of the lease, the landlord can initiate a lawsuit to end the lease within one month after the date to be determined by complying with the notice period and notification periods specified for the eviction notice (TBK Article 350). It is important to note that not all repairs and renovations fall under this provision; substantial renovations are required.
Eviction Due to the Necessity of the New Owner
If the acquired leased property is required for housing or business purposes by the person who acquired it, within one month of the acquisition date and provided that the situation is communicated in writing to the tenant, the lease can be terminated by filing a lawsuit six months later in accordance with the provisions of the lease contract, starting from the acquisition date. The person who acquires the leased property can also use the right to terminate the contract due to the necessity, through a lawsuit to be filed within one month after the end of the lease term (TBK Article 351).
Eviction Based on a Vacating Commitment
If the tenant, after the delivery of the leased property, fails to vacate it on a specific date, as they have committed in writing, the landlord can terminate the lease within one month by initiating execution proceedings or filing a lawsuit (TBK Article 352/1). However, the validity of the vacating commitment and the eviction request based on it are subject to certain conditions. Firstly, the vacating commitment must be made by the tenant after the lease contract is established and must be made by the tenant personally. Additionally, within one month, the eviction must also be requested after the date committed.
Eviction Due to Tenant’s Rent Delay
In leases of less than one year, if the tenant causes two justifiable written notices to be sent to them in the lease period; in leases of one year or longer, if the tenant fails to pay the rent within the lease period; within one month of the end of the lease period in which the notice was given, the landlord can terminate the lease through a lawsuit by complying with the notice period and notification periods (TBK Article 352/2). It is essential to note that the notices must be for different months, and two notices for the same month are not sufficient. Also, the legislator has used the term “justifiable written notice” instead of merely “notice.” To speak of a justifiable notice, the lease debt must first become due. The legislator has specified the usage of two justifiable notices in the lease. The landlord can send payment orders through a notary, telegraph, mail, or by applying to the execution office. All of these mean written notification. Yet, the legislator has not merely used the term “notice” but “written and justifiable notice.” To speak of a justifiable notice, first the lease debt must be due.
RENT FEE IN THE LEASE AGREEMENT
– During the period of Turkish Civil Code No. 6098, we see that the freedom of contract regarding rent increases in residential and non-residential rental contracts is significantly limited. These limitations can be observed in the provisions of Article 344 and 345 of the Turkish Civil Code regarding the determination of rent and rental price changes. The purpose of these limitations is primarily to protect the tenant. These provisions prevent arbitrary rent increases by the landlord.
– According to Turkish Civil Code Article 344/1: “Agreements between the parties regarding the rental price to be applied in the renewed rental periods are valid, provided that they do not exceed the rate of change according to the twelve-month averages in the consumer price index for the previous rental year (CPI). This rule also applies to rental contracts lasting more than one year.”
– In residential leases, it is not possible to increase the rent by the rate of CPI, which increases every year. This is because, due to the temporary clause added to the Turkish Civil Code, contracts relating to residential leases that will be renewed between 11.06.2022 and 01.07.2023 cannot agree on a rent increase exceeding 25% of the rent paid in the previous rental year.
– When we look at Turkish Civil Code Article 344/2: “In the absence of an agreement between the parties on this issue, the rental price is determined by the judge, taking into account the condition of the leased property, within the limits of the rate of change according to the twelve-month averages in the consumer price index for the previous rental year.” Here, the intervention of the judge in the contract is involved. When determining the rent increase rate, the twelve-month CPI average will still be considered. However, the judge, while taking this into account, will determine the rental price in a way that balances the interests of the parties, considering the tenant’s situation.
COMPETENT AND AUTHORIZED COURT DISPUTES ARISING FROM LEASE AGREEMENTS
In disputes arising from lease agreements between the tenant and the landlord, the competent court is the Peace Civil Court. The authorized court is the court located at the tenant’s residence or the court located at the place where the lease agreement will be performed.
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