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Sale of Real Estate, Performance and Fault

Today, it is quite common to purchase housing through the project. In other words, the consumer sees and purchases the real estate only through the project and waits for the real estate to be delivered by the contractor. However, due to this purchasing process, the consumer occasionally encounters some problems. The most important of these problems are;

1-Delivery of the immovable in m2 less than the promised amount

2-Missing social reinforcement

A-Missing m2 and missing social reinforcement is missing performance or is it a shame?

There were different opinions about whether these problems, namely missing m2 and missing social equipment, were under performance or a shame. However, with the decision of the General Assembly of the Supreme Court of Appeals dated 2015, it was accepted that missing m2 and missing social facilities were a clear shame and it was stated that clear defect provisions should be applied. Obvious shame means, at first glance, a shame that can be understood by ordinary examination.

B-So what is the path to follow by the consumer when faced with a clear shame?

First of all, it should be noted that there are practical differences between the Old Consumer Law No. 4077 and the New Consumer Law No. 6502. If this difference should be mentioned briefly;

According to the Former Consumer Law No. 4077, if there is a clear defect, the consumer is burdened with a notice of fault. In other words, the consumer has to notify the contractor of the defect within 30 days after receiving the real estate. The consumer who does not use the burden of notice will not be able to use his rights arising from the fault and the case he has filed will have to be denied procedurally. However, the burden of notice is not a requirement for a lawsuit. In other words, the Court will not take into account whether the burden of spontaneous reporting is complied with, unless it is put forward by the opposing party.

In the New Consumer Law No.6502, no notice is imposed on the consumer for the use of the rights arising from defects. In other words, even if the consumer does not notify the seller within 30 days, he will be able to use his rights arising from the fault.

C-If the contract date was made while the old law was in force, but the performance took place while the new law was in effect, is there a notice of the consumer?

This difference in reporting burden between the old and the new law has caused a new debate in practice and different views have emerged. While one opinion is based on the date of the contract for the implementation of the articles of the Law, another opinion is based on the date of execution. The 19th Civil Chamber of the Istanbul Regional Court of Justice emphasized that the date of the contract should be taken as basis. In other words, if the contract date was made on the date when the old Consumer Law was in effect, the old Consumer Law; If the new Consumer Law was made after 28.05.2014, the new Consumer Law should be implemented.

D-According to the former Consumer Law, is there no other right of demand for the consumer who does not fulfill the notice of fault?

First of all, we would like to state that if the seller has a serious fault in the occurrence of the said fault, the burden of fault notice will not be sought. This serious flaw is the seller’s intent or gross negligence, which will need to be determined according to the characteristics of each event.

If the consumer does not fulfill the burden of notice of fault, he may also request compensation for the positive damage based on the general provisions, if the conditions exist. Although there were previously different opinions on this matter, the decision of the General Assembly of the Supreme Court of Appeals dated 2017 stated that the consumer who does not fulfill the burden of dishonest notice has the right to demand compensation based on Article 112 of the Code of Obligations.

Av. Öznur Yeşilnacar

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