RENT DETERMINATION LAWSUIT AND PROCEDURES FOLLOWING THE JUDGEMENT
RENT DETERMINATION LAWSUIT AND PROCEDURES FOLLOWING THE JUDGEMENT
- WHAT IS A RENT DETERMINATION LAWSUIT UNDER ARTICLE 344/3 OF THE TURKISH CODE OF OBLIGATIONS NO. 6098?
Regardless of whether the parties have reached an agreement on this matter, in lease agreements lasting more than five years, or renewed after five years, and at the end of each subsequent five-year period, the rent applicable for the new rental year shall be determined by the judge in accordance with the rate of change based on the twelve-month average of the consumer price index, the condition of the leased property, and comparable rental values, ensuring fairness and equity.
Both the tenant and the landlord may file a rent determination lawsuit for residential and roofed commercial premises.
- CAN A RENT DETERMINATION LAWSUIT BE FILED BEFORE THE FIVE-YEAR PERIOD EXPIRES?
Yes, it can. As a general rule, the rent amount, which has become lower than comparable rents after five years from the commencement of the lease, may be increased through a rent determination lawsuit.
However, the Court of Cassation (Yargıtay) has ruled that if the five-year period expires during the trial, the court may determine the rent for the next rental term.
Court of Cassation, 3rd Civil Chamber, Decision No. 2019/3016, File No. 2017/6958, Dated 04.04.2019:
“The case concerns the determination of rent. The written lease agreement between the parties commenced on 01.01.2011 for five years, with a monthly rent of TRY 300. Since the five-year term had not expired by the date of filing the lawsuit (18.06.2015), a rent determination effective from 30.04.2015 could not be made. However, as the period ending at the conclusion of the five-year term (01.01.2016) commenced during the trial, the court should inquire whether the claimant requests the determination of rent for the next period (2016–2017) and, if so, determine it on the basis of fairness and equity.”
- SHOULD THE RENT AMOUNT DETERMINED IN RENT DETERMINATION LAWSUITS BE “NET” OR “GROSS”?
- For residential properties, the rent is determined as net.
Example:
“We request that the monthly rent for the leased residence be determined as Net TRY 130,000 as of 01.03.2024.”
- For commercial properties, the rent is determined as gross.
Example:
“We request that the monthly rent for the leased commercial property be determined as Gross TRY 75,000 as of 01.10.2024.”
- ONCE THE COURT DECIDES TO INCREASE THE RENT, WHEN CAN THE RENT DIFFERENCE BE COLLECTED?
The rent difference determined by the court can only be subject to enforcement once the judgment becomes final.
Relevant precedents from the Court of Cassation are as follows:
Court of Cassation, 6th Civil Chamber, Decision No. 2016/2452, File No. 2016/2047, Dated 28.03.2016:
“According to the unifying judgment dated 12.11.1979 and numbered 1/3, the determined rent difference becomes enforceable only when its amount is final and certain, which occurs upon the finalisation of the rent determination judgment...”
Court of Cassation, General Assembly on Civil Chambers, Decision No. 2001/456, File No. 2001/12-423, Dated 30.05.2001:
“Rent determination judgments cannot be enforced before they become final. Therefore, no enforcement proceedings can be initiated before the judgment becomes final.”
- FROM WHEN CAN INTEREST BE CLAIMED ON THE RENT DIFFERENCE?
Interest on the rent difference can be charged from the date the rent determination judgment becomes final, without the need for a prior notice of default.
Court of Cassation, 12th Civil Chamber, Decision No. 2007/2344, File No. 2006/24584, Dated 15.02.2007:
“According to the Unifying Judgment dated 24.11.1995 and numbered 2/2, interest on the rent difference becomes payable from the date the rent determination judgment becomes final, without the need for an additional notice.”
- IMPORTANT POINTS TO CONSIDER WHEN INITIATING ENFORCEMENT PROCEEDINGS AFTER THE RENT DETERMINATION JUDGMENT BECOMES FINAL
The part of the rent determination judgment concerning the rent amount shall be subject to non-judicial enforcement, whereas the part concerning litigation costs shall be subject to judicial enforcement.
Relevant precedents include:
Court of Cassation, 8th Civil Chamber, Decision No. 2016/6720, File No. 2016/4721, Dated 13.04.2016:
“Rent determination judgments do not contain a performance (edâ) provision regarding rent receivables and therefore may only be subject to non-judicial enforcement, except for litigation costs and attorney fees.”
The payment order for the rent difference must be served on the debtor personally, not their attorney.
Court of Cassation, 12th Civil Chamber, Dated 12.01.1994, File No. 1993/16054:
“In enforcement proceedings for the collection of rent differences determined in rent determination lawsuits, the payment order must be served on the debtor, not the attorney.”
Enforcement proceedings seeking eviction due to unpaid rent difference (Form No. 13) may also be initiated.
Relevant precedents:
Court of Cassation, 8th Civil Chamber, Decision No. 2018/18936, File No. 2018/14748, Dated 20.11.2018
Court of Cassation, General Assembly on Civil Chambers, Decision No. 2012/829, File No. 2012/256, Dated 21.11.2011
If the enforcement initiated for the rent difference is objected to, a lawsuit for the annulment of the objection and eviction may be filed.
Court of Cassation, 6th Civil Chamber, Decision No. 2015/2194, File No. 2015/1211, Dated 04.03.2015:
“A rent determination judgment is among the documents listed in Article 68 of the Enforcement and Bankruptcy Law (İİK) and therefore may form the basis for an objection removal and eviction lawsuit.”
CONCLUSION
At Uzunpınar Tüfek Law Firm, we provide comprehensive legal services across all aspects of rental law based on our many years of experience.
Our services include drafting and reviewing lease agreements, conducting rent determination and eviction cases, representing clients in lawsuits concerning the right to show the leased property, handling enforcement proceedings arising from unpaid rent or eviction undertakings, and offering expert legal consultation in all related matters.
For further information or legal assistance regarding your rent law cases and enforcement procedures, please contact us using the details provided below.
Av. AYBÜKE UZUNPINAR TÜFEK
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