Damage to or deficiencies in leased real property, whether identified at
the time of delivery to the lessee or arising during the tenancy, may give rise
to various legal disputes. In practice, some of the most common issues include
the failure to take into account defects existing in the property at the time
the lease agreement is concluded, the determination of liability for ordinary
or extraordinary damage occurring during the lease term, and the allocation of
responsibility for damage identified during the vacating and handover process. This
article examines the principal obligations of lessors and lessees under the
Turkish Code of Obligations and assesses their respective liabilities in the
disputes most frequently encountered in practice.
I. LESSOR’S OBLIGATION TO DELIVER THE LEASED PROPERTY IN ACCORDANCE WITH
THE LEASE AGREEMENT
A. Delivery of the Leased Property in Accordance with the Lease
Agreement
The leased property must be delivered to the lessee in compliance with
all terms and conditions agreed under the lease agreement. This requirement is set
out under Article 301 of the Turkish Code of Obligations. Accordingly;
“The lessor is obliged to deliver the leased property on the agreed
date, in a condition suitable for the intended use under the lease agreement,
and to maintain it in such condition throughout the term of the contract. This
provision cannot be amended to the detriment of the lessee in residential and
roofed workplace leases. In other lease agreements, any contractual arrangement
contrary to this provision may not be imposed against the lessee through
general terms and conditions.”
At the stage of establishing the lease relationship, the terms
stipulated under the lease agreement gain particular importance at the time of
delivery. In some cases, lease agreements may include statements and
undertakings that do not reflect the actual condition of the leased property.
For instance, contractual clauses may require the property to be returned in a
painted condition, even though it was not delivered in such condition at the
commencement of the lease. As a general rule, the leased property must be
vacated and returned in the same condition as it was received. At the stage of
termination and handover, various disputes may arise between the parties, both
in relation to contractual obligations and to damages and wear & tear
occurring in the property during the lease term.
B. Determination of Liability for Defects Arising at and after the
Delivery of the Leased Property
Article 304 of the Turkish Code of Obligations reads as follows: “In
the event that the leased property is delivered with material defects, the
lessee may rely on the provisions concerning the default of the obligor or the
lessor’s liability arising from subsequent defects in the leased property.
Where the leased property is delivered with non-material defects, the lessee
may, instead, rely on the provisions governing the lessor’s liability for
defects arising after delivery of the leased property.”
Defects that render the leased property impossible to use or operate in
accordance with the purpose intended under the lease agreement, or that
significantly reduce such use or operation, are considered material defects.
For example, wastewater from an upper-floor apartment leaking into the shop
below (decision, dated 08.06.1959 and numbered 3848/3237, of the 3rd
Civil Chamber of the Court of Cassation), the infestation of woodworms or rats
that cannot be eliminated by ordinary means (BGE 31 II 603), the failure of the
leased property to generate the yield or income promised by the lessor or
expected from the purpose of the contract, and the refusal to grant a license
due to a gubernatorial prohibition for premises leased for solid fuel trading
activities (decision, dated 06.12.1994 and numbered 10123/10964, of the 3rd
Civil Chamber of the Court of Cassation) are all considered material defects.
[1]
In the case of material defects existing in the leased property or
material defects arising thereafter, the lessee may, pursuant to Article 304 of
the Turkish Code of Obligations, rely on the provisions governing the default
of the obligor or the lessor’s liability arising from subsequent defects in the
leased property. Accordingly, under Articles 306–308 of the Turkish Code of
Obligations, the lessee is entitled to request the elimination of the defect,
terminate the lease agreement, demand a reduction in the rent, or claim
compensation for damages.
“Article 301 of the Turkish Code of Obligations Nr. 6098 provides
that the lessor is obliged to deliver the leased property in a condition
suitable for the use intended under the lease agreement and to maintain it in
such condition throughout the term of the contract. This obligation is not
discharged merely by a physical handover of the property. The lessor is
required to deliver the property in a condition appropriate for the purpose for
which the lessee has leased it. Pursuant to Article 304 of the Turkish Code of
Obligations, in the event that the leased property is delivered with material
defects, the lessee may rely on the provisions concerning the default of the
obligor or the lessor’s liability arising from subsequent defects in the leased
property. Where the property is delivered with non-material defects, the lessee
may instead rely on the provisions governing the lessor’s liability for defects
arising after delivery. Under Article 305 of the Turkish Code of Obligations,
where the leased property is defective, the lessee may request the elimination
of the defects, a proportional reduction in the rent, or compensation for
damages. In cases where the defects in the leased property result in
impossibility of use or a significant reduction in usability, the lessee is
expected to act in accordance with Articles 123 and 125 of the Turkish Code of
Obligations and notify the lessor of the defect within a reasonable period.” [2]
II. THE LESSEE’S OBLIGATION TO USE THE LEASED PROPERTY WITH DUE CARE
A. The Lessee’s Duty of Care under Article 316 of the Turkish Code of
Obligations
The obligations of the lessee are set out under Articles 313 et seq. of
the Turkish Code of Obligations. One of the lessee’s most fundamental
obligations is the duty to use the leased property with due care and in
accordance with the lease agreement. The resolution of disputes arising from
the lessee’s failure to use the leased property in compliance with the
agreement is governed by Article 316. Accordingly;
“The lessee is obliged to use the leased property with due care and in
accordance with the lease agreement, and to show due respect to the persons
residing in the immovable property in which the leased property is situated, as
well as to the neighbors.
If the lessee breaches this obligation, the lessor, in the case of
residential and roofed workplace leases, shall serve a written notice granting
the lessee a period of at least thirty days to remedy the breach and stating
that the lease agreement will be terminated if the breach is not eliminated within
such period. In other lease relationships, however, the lessor may terminate
the lease agreement immediately by written notice without first serving any
prior warning or notice on the lessee.
In residential and roofed workplace leases, where the lessee
intentionally causes substantial damage to the leased property, where it is
evident that granting a period for elimination would be futile, or where the
lessee’s breach of this obligation becomes intolerable for the lessor, the
persons residing in the same immovable property, or the neighbors, the lessor
may terminate the lease agreement immediately by written notice.”
Where the lessee uses the leased property in violation of the provisions
of this Article, the lessor is entitled to terminate the lease agreement by
serving the notices, as required.
B. Wear & Tear Resulting from the Lessee’s Ordinary Use of the
Leased Property
“There is no dispute between the parties regarding the existence of a
lease agreement with a term of one year, commencing on 01/05/2009. Pursuant to
Article 316 of the Turkish Code of Obligations Nr. 6098 (Article 256 of the
former Code of Obligations), the lessee is obliged to use the leased property
with utmost care, and under Article 334 of the same Code (Article 266 of the
former Code of Obligations), to return it to the lessor in the condition in
which it was received, upon termination of the agreement. However, the lessee
shall not be liable for ordinary wear & tear resulting from proper use in
accordance with the contract but shall be solely liable for any damage and loss
arising from improper use. Given the duration and purpose of the defendant’s
use of the leased property, it is beyond doubt that some wear and deterioration
resulting from ordinary use would occur. Indeed, in the present case, since it
is understood that the deterioration in the leased property stems from ordinary
use, it has been found inappropriate to include in the compensable damages the
rental amount corresponding to the 15-day period required for the repair of
such defects, and to order its recovery from the defendant.” [3]
As per the case law of the Court of Cassation, the lessee may not be
held liable for wear & tear resulting from ordinary use. For instance, the
lessee shall not be held responsible for deterioration arising from normal use,
such as fading of wall paint, usage marks on parquet flooring, or wear of
faucets. Liability may arise only in cases where the damage exceeds ordinary
use.
“Pursuant to Article 316 of the Turkish Code of Obligations Nr. 6098,
the lessee is obliged to use the leased property with due care, and under
Article 334 of the same Code, to return it to the lessor in the condition in
which it was received, upon termination of the agreement. However, the lessee
shall not be liable for wear & tear or deterioration resulting from use in accordance
with the contract but shall be solely liable for any damage and loss arising
from improper use. It is observed that Article 10 of the lease agreement
provides that the lessee is authorized, at all times, to carry out any
functional or aesthetic decoration, renovation, and alteration works necessary
for the conduct of its business activities at the leased premises, and that the
lessor is deemed to have given prior consent thereto, such that no further
permission or approval is required. The parties have also agreed that, upon
termination of the lease or prior thereto when vacating the premises, the
lessee shall be free to remove the additions and decorations, either partially
or wholly, it has made to the leased premises. It is further stipulated that
the lessee shall not be entitled to claim compensation for any decorations not
removed, and that the lessor shall not insist on the removal of such items or
the restoration of the premises to their original condition. This clause grants
the lessee the authority to carry out renovations and decorative works on the
leased premises in accordance with the intended use of the property, and
further permits the removal and taking away of such renovations and decorations
upon vacating the premises. However, the court incorrectly interpreted this
provision and rendered its decision on the basis that certain damages
identified under the expert’s report constituted alterations made in line with
the intended use of the property, which is not correct. The court should have,
based on the findings set out under the inspection report, commissioned a
detailed examination by a court-appointed expert in the relevant field to
determine, for each item of damage identified under the inspection
report, whether it resulted from misuse or from ordinary use. In the event that
the damage is found to have arisen from misuse, taking into account the
contractual provisions, a reassessment of the costs should have been conducted
based on the prevailing market unit prices as of the date of evacuation, and
also from the items determined to require replacement, a deduction for
depreciation (wear & tear) should have been made, and a reviewable expert
report should have been obtained. A decision should have been rendered in
accordance with the outcome of such examination. Instead, the judgment was
rendered on the basis of an incomplete examination, which is not correct.” [4]
III. OBLIGATION TO VACATE AND RETURN THE LEASED PROPERTY
The Obligation to Return under Article 334 of the Turkish Code of
Obligations
Pursuant to Article 334 of the Turkish Code of Obligations, the lessee
is obliged to return the leased property in the condition in which it was
received, upon expiry of the lease agreement. In practice, the most common
disputes arise from allegations that the leased property has not been returned
in the same condition as it was delivered at the time of handover. For
instance, disputes frequently occur where the property was delivered with newly
painted walls, yet is not returned in a similarly painted condition upon
vacation of the premises.
“Under its statement of claim, the claimant alleged that the leased
property had been delivered with satin paint and that the defendant repainted
it using plastic paint. Under the inspection report referred to hereinabove,
painting costs were also included among the items of damage. In this respect,
the claimant is deemed to have accepted that the defendant carried out
repainting during the tenancy. Moreover, requiring the leased property, which
was already painted, to be repainted is contrary to the ordinary course of
life. On the other hand, it is not stipulated under the contract that the
leased property was delivered to the defendant with satin paint. The claimant
has also failed to prove this allegation. Pursuant to Article 266/1 of the
Turkish Code of Obligations, the lessee is obliged to return the leased
property in the same condition as it was received. The lessee shall not be held
liable for deterioration or changes resulting from ordinary use. In view of the
parties’ acknowledgment that the leased property was repainted by the
defendant, it cannot be concluded that the defendant had an obligation to
deliver the premises in a painted condition upon vacating and handover. In this
respect, the court should have dismissed the claim with regard to the item
concerning painting costs. However, instead of rejecting the claim, the court
rendered a judgment upholding it, which is not considered correct. Accordingly,
the decision must be reversed.” [5]
Accordingly, save for cases where the contract expressly stipulates that
the dwelling was delivered in a painted condition and must likewise be returned
in a painted condition upon vacation, it shall not be possible to require that
the dwelling be repainted under the obligation of restitution in kind due to
wear & tear arising from ordinary use at the time of vacation.
IV. BURDEN OF PROOF AND THE IMPORTANCE OF INSPECTION REPORTS IN DISPUTES
One of the most important issues in disputes arising from defects and
damage in lease relationships is the proof of the existence and nature of the
alleged damage. In practice, lessors frequently seek compensation for damages
allegedly occurring in the immovable property after vacating, whereas lessees
argue that such damages constitute ordinary wear & tear resulting from
normal use. At this point, delivery reports drawn up at the time of handover,
photographic records, expert reports, and inspection reports prepared upon
vacation constitute significant evidence. In particular, the determination of
the condition in which the leased property was delivered through written and
visual evidence plays a decisive role in resolving subsequent disputes.
Otherwise, the burden of proof becomes more difficult to discharge for the
parties, and the litigation process may be prolonged.
V. CONCLUSION
Defects, damage, and deterioration arising in the processes of delivery,
use, and vacation of the leased property constitute some of the most frequently
disputed issues in practice under the scope of lease relationships. In this
context, as a rule, the lessor is liable for material defects existing at the
time of delivery or those arising thereafter. Accordingly, the lessee is
entitled to request the elimination of the defect, to demand a reduction in the
rent, to claim compensation for damages, or, where the relevant conditions are
met, to terminate the contract. Conversely, the lessee is obliged to use the
leased property in accordance with the contract and with due care, and may be
held liable for any damage arising from misuse and from use exceeding ordinary
wear & tear.
On the other hand, as per the case law of the Court of Cassation, the
lessee is liable only for damage and loss resulting from misuse, and may not be
held responsible for depreciation and wear & tear occurring over time due
to the ordinary use of the immovable property. Therefore, in disputes arising
at the stage of vacation, it is necessary to assess, in light of the specific
circumstances of the case, whether the changes that have occurred remain within
the limits of ordinary use.
However, in practice, a significant majority of disputes arise from the
determination of whether the changes occurring in the leased property
constitute ordinary wear & tear resulting from normal use or damage arising
from the lessee’s negligent use. For this reason, each case must be assessed in
light of the respective specific circumstances, expert examinations must be
conducted in a technical and reviewable manner, and the parties should act by
documenting the delivery and vacation processes. These measures are of crucial
importance for ensuring legal certainty.
In conclusion, in order to prevent disputes arising from lease
relationships, it is of significant importance that the condition of the leased
property at the time of delivery be recorded in detail under an inspection
report, and that the parties’ rights and obligations be clearly set out under the
lease agreement.
Att. Şeymanur Elmas
References:
1. Yavuz, Nihat, Kira Hukuku (Rental Law), 4th
Ed., Ankara 2015, p.85.
2. Decision, bearing the Basis number 2015/15993,
the Decision number 2016/1412 and dated 09.02.2016, of the 4th Civil
Chamber of the Court of Cassation of the Republic of Türkiye
3. Decision, bearing the Basis number 2019/2596, the
Decision number 2019/4308 and dated 08.05.2019, of the 3rd Civil
Chamber of the Court of Cassation
4. Decision, bearing the Basis number 2015/558, the
Decision number 2015/10230 and dated 23.11.2015, of the 6th Civil
Chamber of the Court of Cassation
5. Decision,
bearing the Basis number 2009/1610, the Decision number 2009/5922 and dated 22.06.2009,
of the 6th Civil Chamber of the Court of Cassation
