03 Jun CONSEQUENCES OF NON-PAYMENT OF RENT
Payment of rent in the lease agreement is the principal debt of the lessee. The general provisions apply in terms of the place and time of performance. The parties can freely determine these issues.
If the rental price is not paid, four possibilities arise from the point of view of the lessor.
The lessor can request the unpaid rent with interest
The lessor may terminate the contract . (TBK article 315)
He can file for eviction due to two justified warnings
Enforcement and Bankruptcy Code m. may carry out enforcement proceedings in accordance with article 269.
CLAIMING UNPAID RENT WITH INTEREST
The fact that the rental price is not executed at the time agreed by the parties is sufficient for the tenant to default. In addition, there is no need for caveats. If the time of performance has not been decided, the rental price will be due at the end of the month. However, it is accepted that the exemption is not enough for default, the lessor should be warned.
AT WHAT RATE WILL DEFAULT INTEREST BE CHARGED?
The default interest rate can be agreed by the contract. In non-commercial business (where neither party is a trader), the interest rate cannot be determined freely. TBK m. according to 120, the default interest rate cannot exceed one hundred percent of the statutory interest. Otherwise, the excess part is partially invalid. Since the legal interest rate on ordinary works is 9%, the default interest rate cannot exceed 18%. If the debtor is a trader, the default interest rate is determined freely. . in the TBK article 120 application of the limitation , it looks at whether the debtor is a trader. If the interest rate is not set, default interest may be requested at the legal interest rate (9%). If the debt is traded, commercial interest (advance interest) may be requested.
TERMINATION OF THE LEASE AGREEMENT TBK m. 315-
“If the lessee does not fulfill the lease or ancillary expense payment debt due after the delivery of the lessor, the lessee may give the lessee a period of time in writing and inform him that if he does not fulfill it during this period, he will terminate the contract. The period to be granted to the tenant is at least ten days, and for residential and roofed business premises, it is at least thirty days. This period begins to function from the day following the date of written notification to the tenant.” The periods are of a relative imperative nature. It is possible to extend the periods. But it is impossible to shorten it. TBK art 315 also applies to the termination of residential and roofed workplace rents. If the tenant pays the rent after the expiration of the 30-day period, this does not prevent the tenant’s right to terminate, and the tenant’s lack of fault in not paying the rent debt does not prevent the right to terminate. If the tenant has the right to exchange, he must again submit it within a 30-day period, and this prevents the birth of the right of termination.
Considering the decisions of the Supreme Court of Cassation, it was concluded that the lease agreement cannot be terminated due to non-payment of expenses (insurance, taxes) that are not included in the rental price. (Executive Bankruptcy Code m. the payment orders to be made in accordance with 269 and including the request for release also fulfill the requirement to be in writing. In the notice: It is necessary to clearly indicate that the contract will be terminated within the specified period. The lease agreement cannot be terminated based on a warning that does not contain a termination will. Court of Cassation 6. HD, E. 2016/5242, K. 2016/5299, 20.9.2016)
EXECUTIVE BANKRUPTCY CODE M. EVICTION IN ACCORDANCE WITH ARTICLE 269
Enforcement Bankruptcy Code m. the payment orders to be made in accordance with 269 and including the request for release also fulfill the requirement to be in writing. In the notice: It is necessary to clearly indicate that the contract will be terminated within the specified period. The lease agreement cannot be terminated based on a warning that does not contain a termination will. It is not enough to indicate in the warning that only legal means will be used. The rental price not paid in the notice must be specific and shown correctly. If the rental price is shown to be incomplete and the tenant pays the price written in the notice, the lessor cannot terminate the contract. However, if the rent is shown to be too much, this will not cause the warning to be invalid.
In a decision issued by the Supreme Court, “After the payment order was notified to the defendant borrower on 18.09.2014, the legal thirty-day payment period was not expected to be filed on 20/10/2014 with the lawsuit filed by the tenant requested the eviction. In this case, the first of the case.nun 269/1.article 315/2 of the Turkish Commercial Code, which must be applied by submission.while it should be opened after the 30-day period written in its articles is expected to expire, it should be decided to dismiss the eviction case filed before the legal payment period expires.he has decreed that “. (Supreme Court 6. HD, E. 2015/9039, K. 2016/681, T. 08.02.2016)
HOW SHOULD THE TERMINATION NOTIFICATION BE MADE?
Non-payment of the rental fee within the specified period does not terminate the contract on its own. There is no obligation for the lessor to terminate the lease agreement at the end of the period. In order for the lease agreement to expire, the lessor must declare termination at the end of the period The lessor can notify that the contract will be terminated if the lease price is not paid in the notice. A statement of termination is also possible along with a warning. The statement of termination, as a rule, does not depend on the form. However, for residential and roofed workplace rents, the termination statement must be made in writing (TBK art. 348). The lessor must make the termination statement. If there are more than one lessor, the decision on the joint ownership is unanimous (TMK art. 640); and in the case of shared ownership, with a majority of shares and stakeholders (TMK art. 691) must be taken. The termination statement is directed against the tenant. If there are more than one tenant, the declaration must be directed to all tenants.
In the case of family housing, TBK art. 348 according to the requirement, if the non-tenant spouse becomes a party to the lease agreement by giving notice, the statement of termination must be sent to both spouses. The lessor may waive the right of termination. Failure to exercise the right to terminate the lease for a long time, continuing to receive rental fees, may constitute a waiver. For example, the Supreme Court of Cassation considered the termination of the contract after 1.5 years in a dispute contrary to the rule of honesty, while it did not consider its termination after 8 months in a dispute contrary to the rule of honesty.
CONSEQUENCES OF TERMINATION
The lease agreement with the termination statement ends as a forward effect from the moment the termination statement reaches the tenant. If it is notified that the lease agreement will be terminated within the period specified in the notice, the lease agreement will expire at the expiration of the period. There is no function of interpreting the lease agreement in this case. The commentary does not protect the tenant against non-compliance with the debt. Upon termination of the contract, the lessee is obliged to return the leased one. If the tenant does not return or evict the lessor, the lessor will be able to sue for the return or eviction of the lessor. If, despite the termination of the lease agreement, the lessee continues to use the lessor, the lessor may ask for compensation.In determining the compensation, TBK m. 325 should be applied, taking into account the reasonable period during which the tenant can be rented.
TIMEOUT
The rent will be paid by TBK art. 147 is subject to a 5-year statute of limitations as required. If it is agreed to pay the rental price at once, the statute of limitations is TBK art. 146 is 10 years by requirement. The period starts from the date the lease receivable is due.
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