LEASE DETERMINATION CASE


What are the Conditions of Lease Determination Litigation?

There must be a valid lease: The construction of the lease is not subject to any formal, formal or other form requirement. In other words, the lease agreement can even be made verbally. However, it is essential to make a written lease contract for ease of proof in daily life. However, those who want to be more secure in their work can also make the contract in the presence of a notary public.

There must be a legal benefit in filing the case: As we have mentioned before, if there is no legal benefit in the plaintiff's filing the case before the court, the case will be rejected by the judge. For example; If an agreement has been made between the parties within the legal limits regarding the increase in the rental price and if 5 years have not passed since the conclusion of the contract, there is no legal benefit in substituting this lawsuit.

When is the Lease Determination Case Filed?

As a rule, a rent determination lawsuit can be filed at any time. But with special regulations, many limits have been brought to this. For example, there will be no legal benefit in filing a lawsuit since there is a rental fee already agreed within the first year of the contract. Apart from this, a rule has been introduced regarding a 30-day period in which the warning clause is also mentioned in the law. However, this period is more important in terms of the effect of the outcome of the case. A detailed explanation on this will be given under another heading below. There is also the issue of the 5-year lease term. In certain cases, if the lease term does not exceed 5 years, it will not be possible to substitute this case. Again, a detailed explanation of this situation will be made under another heading below.

What is the Notice of Lease Determination Case?

The issue of warning has consequences in terms of the duration and impact of the lawsuit. In the relevant legal regulation, there is no indication regarding the time of filing a lawsuit. According to this; however, if the lessor gives a written notice or files a lawsuit at least 30 days before the expiry of the one-year lease period, the determination decision made by the court will become valid as of the start date of the renewed lease period.




In other words, we can say that the duration of the settlement of the case can be determined in two ways. First of all, let's say that the lawsuit can be filed within the 30-day period until the contract renewal period at the latest. In addition, if a written notice has been given to the lessee that the rent will be increased within this 30-day period; in this case, the case can be substituted until the end of the new lease term.




A problem arises here: The aforementioned regulation has been made only in terms of fixed-term lease agreements. Because the end of the lease time, the new period bets can not be understood otherwise. But what if the contract is for an indefinite term? Here, in our opinion, it is necessary to act as if the contract is for a fixed period. In other words, the renewal time should be determined as annual periods passing over this date, based on the date of conclusion of the contract. In this way, the amount to be determined by the court will be effective in terms of the renewed contract year.


What is the 5-Year Rule for Lease Determination Case?

Here, different situations will come to the fore depending on the existence of different conditions. We can present and explain these situations as follows:


If an agreement has been made between the parties regarding the rental price and the rental period is less than 5 years; Rental price increase rate can be freely determined by the parties, provided that it is not higher than the PPI increase rate of the previous rental year. In this way, if an agreement has been made within the legal limits and the lease term has not exceeded 5 years, it will not be possible to substitute a rent determination lawsuit.

If no agreement has been made between the parties and the rental period is less than 5 years; In this case, it will be possible to substitute the determination case. In this case, the parties are obliged to pay the rent, the rate of increase, etc. may request a determination from the court. The court will make a determination regarding these issues, taking into account the concrete situation and precedent values. However, the rent increase rate to be determined here cannot be higher than the previous year's PPI increase rate.

In lease agreements for more than five years or renewed after five years; In this case, regardless of whether there is an agreement between the parties, the rent determination case can be substituted. At this point; The condition of the real estate, comparable real estate, PPI increase rate, equity and other issues will be taken into account and a rental price will be determined accordingly. Here, the judge is not limited to the PPI increase rate of the previous year.

If no agreement has been made between the parties and the rental period is less than 5 years; In this case, it will be possible to substitute the determination case. In this case, the parties are obliged to pay the rent, the rate of increase, etc. may request a determination from the court. The court will make a determination regarding these issues, taking into account the concrete situation and precedent values. However, the rent increase rate to be determined here cannot be higher than the previous year's PPI increase rate.

In lease agreements for more than five years or renewed after five years; In this case, regardless of whether there is an agreement between the parties, the rent determination case can be substituted. At this point; The condition of the real estate, comparable real estate, PPI increase rate, equity and other issues will be taken into account and a rental price will be determined accordingly. Here, the judge is not limited to the PPI increase rate of the previous year.

In the case of a rental agreement, the rental price of which is determined in foreign currency; In the lease agreement concluded between the parties, it may be agreed that the rental price will be paid in foreign currency. In such contracts, the rental price cannot be changed unless 5 years have passed from the date of the contract. The main rule is this. But there is an exception to this situation. It is also based on the cases of extreme hardship regulated in Article 138 of the Turkish Code of Obligations. If one of these situations exists, the parties will be able to substitute the rent determination case without waiting for the expiry of 5 years. Apart from this, after the expiry of 5 years, it is possible to apply to the court in any case. The judge is not limited to the PPI increase rate of the previous year, either.

Can a retroactive rent determination case be filed?

It is not possible to file a lawsuit in this way. However, the rent determination lawsuit can be substituted for the current period or the period that will be transitioned within 30 days. Although it seems possible by some Supreme Court chambers to make a determination regarding previous periods, we think that this is not possible. It is possible for the lawsuit filed to have only limited retroactive effect. For example, a written warning may have been made 30 days before the transition to the new period. The case, on the other hand, may have been filed months after the transition to that period. The provision to be established here will take effect from the beginning of the relevant period. In this way, it is possible to establish a retroactive provision. Thanks to this feature, we can say that the rent determination lawsuit is a type of lawsuit that creates innovation. Apart from this, according to the concrete case, the request for ecrimisil arising from the tortious act may come to the fore and a retroactive request may be made.


Can the New Owner File a Lease Determination Case?

The change of ownership of the leased property does not make any difference in terms of the lessee's commitment to the lease. Because the new owner is also bound by the lease relationship just like the old lessor. Even if there is no innovative situation that will bring the tenant eviction to the agenda. In this context, even if a new contract is made with the new owner, the date of the first lease agreement remains valid. In other words, a new lease is not considered to have been established. Therefore, the new owner will continue from that point where the old owner is at the point of filing a rent determination lawsuit.

In short, if the owner is new or old, it will not make any sense in terms of the rent determination case. For example; It's been 6 years since the former owner had a lease agreement with the tenant. In addition, the former owner must have given a written notice to the lessee to increase the rent 30 days before the transition to the new lease period. In this case, the new owner will be able to substitute the rent determination case within the new lease period.

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