03 Jun PROBLEMS WITH THE COST OF RENT
Despite the expiration of the lease agreement concluded for a certain period in residential and roofed workplace rentals, the contract is considered extended under the same conditions unless the tenant is notified at least 15 days before the expiration of the period in accordance with TBK 347/1. The exception is the rental price. It is especially important in practice in which direction the increase in the rental price will be during the periods when the lease agreement is extended.
Article 56 of the Law No. 7161 of 17.1.2019. in accordance with the article, the phrases “INCREASE IN THE PRODUCER PRICE INDEX (PPI)” contained in the first and second paragraphs of this article have been changed to “CHANGE IN THE CONSUMER PRICE INDEX (CPI) COMPARED TO THE TWELVE-MONTH AVERAGES”, and the phrase “INCREASE IN THE PRODUCER PRICE INDEX” contained in the third paragraph has been changed to “CHANGE IN THE TWELVE-MONTH AVERAGES IN the CONSUMER PRICE INDEX”. The reason for this change is mainly the purpose of tenant protection due to the fact that the PPI rate is higher than the CPI rate.
THE PROVISION ON AN INCREASE IN THE CONTRACT FOR LEASE AGREEMENTS CONCLUDED OVER TURKISH MONEY – TBK 344 / I
The parties’ agreements on the rental price to be applied during the renewed lease periods are valid provided that they do not exceed the rate of change in comparison with the twelve-month averages in the consumer price index in the previous lease year. This rule also applies to lease agreements for a period of more than one year.”
The parties are not completely at liberty to determine the rental price here. The legislator has imposed an upper limit on the agreements of the parties on the increase, and this upper limit is also the CPI. Otherwise, the modified partial invalidity sanction comes into effect and the rate of increase as a result of this sanction is reduced to the CPI rate and becomes valid at this rate. Agreements on the increase can be made at the beginning of the contract, as well as after it. The tenant who pays a price higher than the increase rate agreed by the parties will be able to request the overpayment back based on the unjustified enrichment provisions.
In practice, a big problem arises if the tenant pays a lower rent than the agreed amount of increase and the lessor agrees to it without any objections. This issue is controversial in the teaching . Judging by the decisions of the Supreme Court, it can be seen that the lessor here cannot sue later and ask for the remaining part back upon acceptance of the objection without putting forward a record. In another decision of the Supreme Court, if there is an adjustment record in the contract, the lessor does not find the acceptance of payment sufficient for the existence of an implied agreement without putting forward an objectionable record, and seeks proof of this implied agreement.
ABSENCE OF PROVISIONS FOR AN INCREASE IN THE CONTRACT IN LEASE AGREEMENTS – TBK 344/II
The parties made an agreement on this issue, if the rental fee,Ø previous year based on a twelve month lease that does not exceed the average in the Consumer Price Index provided by the judge considering the status of the loans – equity is determined by
In case of a decrease in the CPI rate, the tenant will be able to request a reduction in the rental price.
DETERMINATION OF THE RENTAL PRICE IN ACCORDANCE WITH TBK 344/III
Regardless of whether an agreement has been reached by the parties on this issue,
for a period of more than five years or
in lease agreements that are renewed after five years, and
at the end of every five years after that,
the rental price to be applied in the new lease year is determined by the judge in accordance with equity, taking into account the rate of change in accordance with the twelve-month averages in the consumer price index, the status of the lessor and the precedent rental prices. The rental price determined in this form in the rental year after every five years may be changed in accordance with the principles set out in the previous paragraphs.
CRITERIA TO BE BASED ON
The rate of change in the CPI for twelve months
The status of the leaseholder : These are the qualities that the leaseholder has. The age, size of the tenant, the quality of the material used and other facilities offered depending on the relocation can be shown as an example of the condition of the lessee
The equivalent rental price is expressed as: ”The value reached by the rental money in the lease agreements made in a certain environment for a uniform and continuous period of time”. “In determining the precedent rental price, a comparison should be made based on the characteristics of the lessor and lease agreements that may be considered of the same nature in the vicinity of the leased location and that were concluded close to the desired period for determination.”
Fairness: This issue, referred to as the “old tenant discount” in the Supreme Court decisions, occurs in the form of a discount of 5-20% according to Decency on the rental price determined in an amount equal to or very close to the rental price that the tenant can rent as empty.
According to Rayice, both parties will be able to request the determination of the price regardless of whether the rate of increase has been determined in the lease agreement.
FOR LEASE AGREEMENTS CONCLUDED IN FOREIGN CURRENCY – TBK 344 /IV
Provided that the provisions of the Law No. 1567 of 20/2/1930 on the Protection of the Value of Turkish Money are reserved, if the rental price is agreed in foreign currency in the contract, the rental price cannot be changed unless five years have elapsed. However, the provision of Article 138 of this Law entitled “Excessive performance difficulties” is reserved. In determining the rental price after five years have elapsed, the provision of the third paragraph shall be applied taking into account the changes in the value of foreign currency.
DURATION OF FILING A LAWSUIT-TBK 345
A lawsuit may be filed at any time regarding the determination of the rental price. However, if this case is filed no later than thirty days before the start of the new period, or if the tenant has been given written notice by the lessor that the rent will be increased during this period, the lease price to be determined by the court is binding on the tenant from the beginning of this new lease period if it is filed by the end of the subsequent new lease period. If there is a provision in the contract that the rental price will be increased during the new lease period, the rental price to be determined by the court in the case that will be filed before the end of the new lease period will also be valid from the beginning of this new period.
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