Lease Agreements and Adaptation Litigation

2022-02-23T22:12:30+00:00 6 June 2021|

TO CONTACT NOW 0 541 485 92 48

Fesih Devir -Özkök Hukuk Bürosu - Av. Özlem Zennup ÖzkökThe principle of Ahde Vefa is one of the basic principles in rental contracts. That is, there is a commitment to the contract.

Lease Determination Litigation

ARTICLE 344 -The agreements of 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 increase in the producer price index in the previous rental year. This rule also applies to lease agreements for more than one year.

If an agreement has not been made by the parties on this matter, the rental price is determined by the judge on an equitable basis, taking into account the situation of the leased property, provided that it does not exceed the increase rate in the producer price index of the previous rental year.

Regardless of whether an agreement has been made by the parties on this matter, the rental amount to be applied in the new rental year, the rate of increase in the producer price index by the judge, the condition of the leased property and the precedent rental values ​​are taken into account in the lease agreements for more than five years or renewed after five years and at the end of every five years thereafter. determined in an equitable manner. The rental price determined in this way in the next five years may be changed according to the principles in the previous paragraphs.

In order to be able to file a determination case in less than 5 years, it is necessary to have a legal benefit.

In the 3rd year of a 5-year lease agreement dated 01.01.2020, in which the rate of increase every year has been agreed, the lessor’s rental price was very low than the market value, there is no legal benefit in filing a determination lawsuit with the demand for an increase in the rental price. If the lessee does not increase the maximum CPI rate in accordance with the law, the lessor can file a determination lawsuit.

If no increase has been made regarding the rate of increase in leases of less than 5 years, the judge decides on the determination of the rental price, taking into account the situation of the leased property and based on equity.

The criteria to be taken as basis by the judge in determination cases in lease agreements with a duration of more than 5 years are clearly stated. The situation of an immovable property is on the 3rd floor, facing the street, close to the metro, etc. It is evaluated by the expert in determination cases according to the precedent fair values.

Rent determination lawsuits can only be filed for residences and roofed workplaces.

A rent determination lawsuit can be filed at any time, there is no time limit. Both the lessor and the lessee can file a rent determination lawsuit.

Conditions for the rent determination lawsuit to be filed by the tenant;

In cases where the rented immovable earns less profit than anticipated, a lawsuit for determination of rent can be filed by the tenant.

Conditions of filing the rent determination lawsuit by the lessor;

The lessor may request an increase in the rent of the rented immovable with a case of rent determination if a subway passes there, very large plazas are built, high-quality buildings are built, and it has become an attraction center 5 years after the leased property is rented. However, it is up to the local court to decide whether there are the necessary elements to increase the rental price in the case of rent determination.

The most important issue in the case of rent determination is the 5-year period. After 5 years, it should be determined in accordance with the right and distance with on-site inspections without being dependent on the CPI index.

In lease agreements made in foreign currency, a lawsuit for determination of rent cannot be filed before the end of the 5-year period.

Adaptation Case

It is based on the impossibility of excessive performance in the performance of the lease agreement, the collapse of the basis of the transaction, and the occurrence of an extraordinary situation. There must be a reason not caused by the lessor or the lessee. The biggest example today is Covid-19.

The adaptation action must be brought immediately and without delay. A retrospective adaptation lawsuit cannot be filed. Claims can be made for unpaid rent.

If an interim injunction decision has not been given by the court when the adaptation lawsuit is filed and that decision has not been finalized, the rental fee will continue to be paid by the tenant. If the tenant does not pay the rents in question, he may be subject to an eviction lawsuit due to default.

The court in charge of all kinds of cases related to rent; Magistrates Courts. Even if a promissory note is taken for the rental price or if a precautionary lien will be taken for the rental price, the Magistrates’ Courts are always in charge. The only exception to this is the matters that fall under the jurisdiction of the enforcement courts.

Authorized court; The court of the place where the immovable is located or the court of the place where the lessor is located, since the rent debt is a debt to be taken, is also authorized.

RENTAL AGREEMENTS

If there is more than one lessor, legal proceedings should be made by two lessors. If the lessor is the only person in the lease agreement, he/she can initiate the enforcement proceedings alone and open the case alone. If the lessor in the lease agreement is two persons; they should follow up together and open the case together.

Rental receivables and eviction are different from each other. Since the evacuation is indivisible, the lessors must request it together. In terms of receivables, each lessor can make its receivables the subject of lawsuit and proceeding. The lessors must file the case together. Even if someone has followed up, since this defect cannot be corrected later, the issue of eviction is rejected.

As long as the lessee resides in the leased property, he cannot be compelled by the lessor to conclude a new contract unless he is evicted. The lessor cannot arbitrarily evict the tenant. If there is one of the reasons for eviction specified in a limited number of laws, he may request an eviction and not renew the contract.

The reasons for the eviction of the lessor;

due to need

Evacuation due to default

Evacuation due to breach of contract

Reconstruction, evacuation due to construction

iş yeri devri - Özkök Hukuk Bürosu - Av. Özlem Zennup Özkök

The right of the lessor to evacuate without cause is regulated in Article 347 of the TCO. It is only possible after the extended 10-year period. E.g; There is an 11-year lease agreement made on 01.01.2000. The lease contract expired on 01.01.2011. The 10-year extension period mentioned in TCO article 347; It will start on 01.01.2011 and will end on 01.01.2021. The lessor must give notice of eviction to the tenant from 01.01.2021 to 01.09.2021. The lessor can file an eviction lawsuit after giving notice to the tenant. In summary; In a 5-year lease, the lessor cannot file an unjustified eviction lawsuit before 16 years.

Stj. Av. Dilan Ecem Ceylan

TO CONTACT NOW 0 541 485 92 48

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