1. Introduction
When we consider that renting is the most common
method used in our country in order to meet the need for housing, which is one
of the basic needs of people, it automatically emerges that rental contracts have
a social importance different from other types of contracts. While the rental
contracts set out the relationship between the landlord and the tenant, the
rental fee constitutes an essential element of the contract.
Especially under today's economic conditions, rental
prices have increased significantly and rapidly as a result of the high course
of inflation and the exponential increase in commodity prices. As a result of
this, the rental fees have become quite low in a few years against their peers.
In order for this situation to become bearable for the landlord, it is
permitted to bring the rental fees closer to the level of their peers through
rent determination lawsuits to be filed subsequently.
2. Determination of the Rent and Rent Determination
Lawsuit
Article 344 of the Turkish Code of Obligations Nr.
6098 (the "Code") sets out the principles regarding determination of
the rental fee to be applied in the renewed rental period in residential and
roofed workplace rents. Pursuant to the provision, the legislator has limited
the rate of increase to be determined by the parties for the rent for residences
and roofed workplaces to the twelve-month average rate of change in the
consumer price index published by the Turkish Statistical Institute. This
limitation on the rate of increase is valid for each renewal period. The rent
increase rates that exceed the limit of the consumer price index, as stipulated
under the Code, are invalid, and although the increase provision is not
completely invalid, it will be deemed invalid to the extent that it exceeds the
limit in accordance with the "principle of reduction to the maximum
limit".
Article 344/3 of the TCO, which is the subject of this
article, is regulated to establish the contractual balance in favor of the landlord
for rental contracts with a term longer than 5 years or renewed after 5 years.
Pursuant to this provision, under rental contracts with a term longer than 5
years or renewed after 5 years, the rental price to be applied in the new rental
period will be determined by the judge in accordance with equity, taking into
consideration the rate of change in the price index according to the
twelve-month averages, the condition of the rented property and the comparable
rental prices.
2.1. Request in Rent Determination Lawsuits
The subject of the rent determination lawsuits is
mainly determination of the new rental price to be applied between the parties.
In addition, collection of the rent receivable, eviction and similar claims may
not be included in this lawsuit. Therefore, the plaintiff has a limited claim under
the rent determination lawsuits. Pursuant to the article 344/3 of the TCO, the
subject of the rent determination lawsuit is determination of the rental price
by the judge after expiration of the 5-year period, taking into account the
precedent rental prices.
The decision, dated 16.03.2021, and bearing the Basis
number 2017/2792 and the Decision number 2021/267, of the General Assembly of Civil
Chambers of the Court of Cassation reads as follows;
"In these cases, only determination of the rental
price that will be valid during the relevant rental period is requested and the
lawsuit for determination of the rental price has a limited scope of subject."
[1]
In addition, upon determination of the rent for the
new period, it is possible to apply the rent determination decision
retroactively from the beginning of the rental year in which the lawsuit was
filed. In order to make a ruling on this matter, the plaintiff must have made a
request.
2.2. Period for Filing a Lawsuit and the Effect of the
Decision
In terms of the date from which the determination
decision to be made as a result of the rent determination lawsuit will be
applied, the date of filing and whether there is an increase clause under the
contract are important. The principles regarding this issue are set out under
the Article 345 of the Code. As can be understood from the provision, the date
of filing and the presence or absence of an increase clause under the contract
are important in terms of the date after which the determination decision given
in the rent determination lawsuit will be applied.
If there is a provision under the contract that the
rent will be increased in the new rental period, the rent determination lawsuit
must be filed within the new rental period pursuant to the Article 345/3 of the
TCO. The rent to be determined by the court under the lawsuit will be valid
from the beginning of this new rental period.
In the absence of a mutual agreement on increase of
the rent under the rental contract executed by and between the parties,
pursuant to the article 345/2 of the TCO, a rent determination lawsuit must be
filed at least 30 days before the start of the new rental period or a notice
must be given within the same period that the rent will be increased in the new
rental period. However, if these conditions are met, the rent determined in the
lawsuit will be effective retroactively from the beginning of the new rental period.
2.2.1. With respect to the Contracts with Mutual
Agreement on Rent Increase
If the parties have included a provision under the
contract that the rent will be increased in the new rental period, the decision
of the court under the rent determination lawsuit to be filed at any date
within the renewed rental year may be valid as of the beginning of the renewed rental
year. This is because the tenant now knows that the rent will be increased in
the new period due to the provision under the contract [2]. As mentioned above, in order for the
determined rent to operate retroactively, the plaintiff must have made a
request in this regard.
The rent determination lawsuit may not be filed in the
new rental year starting after expiration of the 5-year period but may also be
filed in the following years. In this case, the plaintiff may request that the
rent determination decision be applied retrospectively from the beginning of
the renewed rental year at the earliest. Otherwise, it cannot be requested that
the rent determined by the court be applied retroactively to the previous rental
years.
The decision, dated 28.05.2019, and bearing the Basis
number 2017/8071 and the Decision number 2019/5079, of the 3rd Civil
Chamber of the Court of Cassation reads as follows:
"Although it cannot be decided to determine the
rental price for the period starting from 01.09.2014 with the lawsuit filed on
09.12.2015, the Court should decide to determine the rental price for the next
period (01.09.2015) by asking the plaintiff whether s/he wants to determine the
rental price for the next period (01.09.2015), taking into account the
statements of the parties." [3]
On the other hand, the rent increase rate already
agreed upon under the contract is not affected by the decision rendered as a
result of the rent determination lawsuit. Even if the rental amount is
intervened with the rent determination lawsuit, the rate of increase stipulated
by the parties continues to be applied in the same way in the next renewal
periods.
The decision, bearing the Basis number 2014/12999, and
the Decision number 2015/10017, of the 6th Civil Chamber of the
Court of Cassation reads as follows:
"Under the decision of the Court of First
Instance numbered ... E.K., it was decided to adapt the annual rent as
1.850.000.000 as of 16.01.1992, and according to the established case law of
the Court of Cassation, since the decision to adapt or determine in adaptation
or determination lawsuits will not eliminate the rate of increase under the
contract, it is necessary to increase the determined price in the following
periods at the rate of increase agreed by the parties under the rental contract
..." [4]
2.2.2. With respect to the Contracts without Mutual
Agreement on Rent Increase
Under the contracts where there is not any mutual
agreement on rent increase, in order for the judgment rendered as a result of
the rent determination lawsuit to have retroactive effect, the plaintiff must
take action within the periods, as stipulated under the article 345/2 of the
TCO.
The decision, dated 06.03.2017, and bearing the Basis
number 2017/1736 and the Decision number 2017/2469, of the 3rd Civil
Chamber of the Court of Cassation reads as follows:
"... In other words, if there is a rent increase
clause under the contract, the lawsuit may be filed until the end of the period
requested to be determined without the need for notice, if there is no increase
clause, the lawsuit filed 30 days before the start of the period must be served
with the notification of the lawsuit petition or the notice that the rent will
be increased with the notice and the lawsuit must be filed until the end of the
period by serving this notice 30 days before the start of the period." [5]
It is stipulated by the decision of the Court of Cassation
that the plaintiff must file a lawsuit 30 days before the start of the new rental
period and serve the lawsuit petition to the tenant or the notice that the rent
will be increased must be served to the tenant within the same period. Thus, if
the tenant does not find the requested increase appropriate, it is allowed to exercise
its right to terminate the rental contract and evict the immovable property by
notifying 15 days before the end of the contract.
If the landlord has requested the rent determination
to be valid as of the new rental period under the determination lawsuit filed
by the landlord despite the failure to comply with the stipulated periods, in
accordance with the decision, dated 02.12.2019, and bearing the Basis number 2019/3381
and the Decision number 2019/9536, of the 3rd Civil Chamber of the Court
of Cassation reading as follows
"... in order for the plaintiff to request the
determination of the rental price as of 01.01.2014, since there is no notice
sent in due time or a lawsuit filed, it is not possible to determine the
retroactive rental price, in this case, the court, by having the plaintiff
explain his request and making a separate evaluation in terms of both requests,
if the plaintiff requests the determination of the rental price for the period
starting from 01.01.2015, to decide for this period..." [6]
the judge should ask the plaintiff whether s/he wishes
to continue with the rent determination lawsuit for the next rental year.
2.2.3. In case the Rental Contract Has Expired
Pursuant to the article 344/3 of the TCO, the rental
contract subject to the rent determination lawsuit might have been terminated
before or during the lawsuit. In this case, the court may determine the rent
for the new period until the date of termination of the contract, which is the
subject of the dispute between the parties. As a result of the determination to
be made, it will be possible to demand and collect the difference between the
amounts paid by the tenant and the amounts that the tenant should pay in
accordance with the judgment given.
3. Judgment to be Rendered as a Result of the Rent
Determination Lawsuit
As a rule, the judgment to be rendered in a rent
determination lawsuit is formative and does not contain a judgment of
performance. The rent determination decisions rendered in rent determination lawsuits
do not determine the legal relationship as in other determination lawsuits. Its
purpose is to make the rent element, which is indefinite in the renewed rental period,
definite. [7]
Based on the foregoing, rent determination decisions
do not create a new legal situation regarding the existing legal relationship
or change an existing legal situation. In addition, since the decision in the
determination lawsuits does not have the nature of performance, it may be
subject to debt enforcement proceedings through enforcement proceedings without
judgment, rather than enforcement proceedings with judgment.
The decision, bearing the Basis number 2017/2792 and
the Decision number 2021/267, of the General Assembly of Civil Chambers of the
Court of Cassation reads as follows:
"...The rent determination decisions rendered in
rent determination lawsuits do not determine the legal relationship as in other
determination lawsuits. . Its purpose is to make the rent element, which is
indefinite in the renewed rental period, definite.
... Thus, rent determination decisions are close to
the decisions rendered at the end of constructive actions, not to the
conviction decisions rendered at the end of actions for performance. Therefore,
under the lawsuit filed for determination of the rental price, a new legal
situation arises regarding the existing legal relationship, rather than a
decision on a legal relationship as in the determination lawsuit..." [8]
4. Enforcement Proceedings for the Determined Rent
Difference Receivables
As stated under the previous headings, the current
rent determined by the court is valid as of the date of the judgment, unless
the plaintiff makes a separate request for retroactive enforcement. For the
enforcement of the rent difference receivables to be retroactively effective,
the rent determination decision must be finalized.
The decision, dated 12.11.1979, of the General Assembly
on Unification of Judgments of the Court of Cassation reads as follows:
"In the second meeting of the General Assembly on
Unification of Judgments of the Court of Cassation held on 12.11.1979, it was
decided by absolute majority that in order for the rent difference receivable
determined by the court decisions regarding the determination of the rent to be
deemed to have reached the time of performance, it is not only sufficient that
the time has come when the creditor can request the debtor to perform, but also
that the decision must become final." [9]
With the foregoing decision, this issue, on which
different case laws have emerged, has been finalized. Therefore, until the
decision is finalized, the default of the tenant who pays the old rent cannot
be mentioned and the contract cannot be terminated due to underpayment. Because
the new rent becomes due at the earliest upon the finalization of the decision
rendered in the lawsuit. [10]
The determination decision of the court as a result of
this lawsuit is effective retroactively as of the beginning of the new rental period.
Default interest starts to be charged as of the date the decision becomes
final. The landlord may file a lawsuit for this difference after finalization
of the rent amount, initiate enforcement proceedings, or even terminate the
contract by citing the difference that is not paid within the given period
based on the article 315 of the TCO.
The decision, dated 24.11.1995 and bearing the Basis
number 1994/2 and the Decision number 1995/2, of the General Assembly on Unification
of Judgments of the Court of Cassation reads as follows:
"It was decided by majority of votes on the day
of 24.11.1195 and in the third meeting that the rent difference receivable,
which became evident with the court decision regarding the rent determination,
should be charged interest from the date of finalization of the rent
determination decision, without the need for further notice." [11]
and the matter of whether a separate notice is
required for the default of the due debt has been finalized. As mentioned under
the decision, the date of finalization of the determination decision is the
starting date of the interest to be accrued. In other words, the tenant, whose
rent is increased retrospectively, will not owe interest for the underpaid
rents in the past.
3.3. Interest to be Imposed on Rent Difference
Pursuant to the case law within the scope of the
decision, dated 24.11.1995 and bearing the Basis number 1994/2 and the Decision
number 1995/2, of the General Assembly on Unification of Judgments of the Court
of Cassation, the tenant will be in default upon the court's determination of
the past rent difference receivables upon request in the rent determination lawsuit
and as of the finalization of the determination decision. Default interest
starts to accrue from the date of finalization of the judgment.
The determination of the default interest rate varies
depending on whether there is a mutual agreement on default interest under the rental
contract and whether the rental contract is in the nature of commercial
business.
If the rental contract is not in the nature of
commercial business and the rental contract does not include an article on
default interest, the rate regulated under the Article 1 of Law Nr. 3095 and
known as "legal interest" in practice should be applied.
In cases where the rental contract is in the nature of
commercial business, if there is a mutual agreement on the default interest under
the rental contract, the interest rate under the contract will be applied. If
no rate is set out under the contract, the interest rate applied in short-term
advance transactions, as published by the Central Bank of the Republic of
Türkiye, with reference to the Law Nr. 3095 should be applied.
Berfin Dicle Onar, Legal Intern
References:
1. The
decision, dated 16.03.2021, and bearing the Basis number 2017/2792 and the
Decision number 2021/267, of the General Assembly of Civil Chambers of the
Court of Cassation
2. Özyakışır, 2019, Konut ve Çatılı
İşyeri Kira Sözleşmelerinde Kira Bedeli
3. The
decision, dated 28.05.2019 and bearing the Basis number 2017/8071 and the
Decision number 2019/5079, of the 3rd Civil Chamber of the Court of
Cassation
4. The
decision, bearing the Basis number 2014/12999 and the Decision number 2015/10017,
of the 6th Civil Chamber of the Court of Cassation
5. The decision,
dated 06.03.2017 and bearing the Basis number 2017/1736 and the Decision number
2017/2469, of the 3rd Civil Chamber of the Court of Cassation
6. The decision,
dated 02.12.2019 and bearing the Basis number 2019/3381 and the Decision number
2019/9536, of the 3rd Civil Chamber of the Court of Cassation
7. Doğan, 2023, Kira Hukuku Davaları
8. The decision,
bearing the Basis number 2017/2792 and the Decision number 2021/267, of the General
Assembly of Civil Chambers of the Court of Cassation
9. The decision,
dated 12.11.1979, of the General Assembly on Unification of Judgments of the
Court of Cassation
10. Yeniocak, 2023, Kira Bedelinin
Belirlenmesi Kira Tespit ve Uyarlama Davaları
11. The decision, dated 24.11.1995 and bearing the Basis number 1994/2 and the Decision number 1995/2, of the General Assembly on Unification of Judgments of the Court of Cassation
