What Is The Scope Of The Workplace Rental Provisions Of The Turkish Code Of Obligations That Are Expected To Come Into Effect On 1 July 2020? 7 May 2020
In accordance with the Temporary Article 2 of the Turkish Code of Obligations (Law), the entry into force of Article 9 of the Law was delayed for 8 years for workplace rents, where the lessee is a merchant and private and public law entities. In this context, the relevant provision of the Law will be implemented as of July 1, 2020.
At this point; it is important to explain the purpose of postponing the effective dates of the above-mentioned provisions, the application before 1 July 2020 and the changes to be made by the provisions to be effective.
Under the Law, based on the idea that the lessor has the bargaining power in determining the terms of the contract and therefore advantageous, some relative mandatory provisions are provided for protecting the lessee. Thus, it was aimed to prevent the lessee's situation from being aggravated by the power imbalance between the parties. However; it is difficult to say that the lessee will need such legal protection in cases where the lessee's merchant under a workplace rent relation. Therefore, the lawmaker chose to postpone the entry into force of some articles intended to protect the lessee in the workplace rents where the lessee is the merchant. In this context, the provisions expected to come into force as of July 1, 2020 are as follows;
Article 323 - Transfer of the lease agreement
According to the abolished Code of Obligations, the transfer of the lease relationship to a third party is also subject to the consent of the lessor. However, with the entry into force of Article 323, the lessor will not be able to avoid giving consent to the transfer of the contract without a justified reason. Besides; the transferor lessee can be held jointly responsible with the transferee, until the termination of the lease agreement and for a maximum of two years.
Article325 – Termination of the lease before the term of contract
In Article 325 of the Law, the results of the early termination of the lease contract by the lessee are regulated. Accordingly, if the lessee terminates the lease prior to the expiry date of the contract, in line with the decisions of the Supreme Court, he is responsible for the rental fee for the reasonable period of time until the lessor can be leased under similar conditions. The lessee can get rid of such debt if he finds a new lessee who is capable of fulfilling the payment obligations and is ready to take over the leasing relationship.
Article 342 – The deposit of the lessee
With article 342 of the Law, a restriction was imposed on the deposit to be given by the lessee. Until the related provision comes into effect, the amount of the deposit to be paid by the lessee in the workplace rents can be freely determined by the parties in accordance with the principle of contract freedom, whereas as of July 1, 2020, the deposit amount cannot exceed the three-month rental fee amount.
In addition, according to the new regulations of the Law; in the event that the deposit is paid by the lessee as money or valuable paper, the payment will be deposited into a savings account and will not be returned without the consent of either party or a final judgment.
Article 344 – Determination of the rental fee
Under the abolished Code of Obligations and the established decision of the Supreme Court, the rental fee should be determined by considering the equivalence values.
With the regulation brought by the Law, the maximum increase rate to be applied in the lease agreements has been regulated. Accordingly, the maximum limit in the increases in rental price has been changed in the previous rental year, based on the "change in the consumer price index based on twelve-month averages". This provision, which is not currently applied in the lease agreements where the lessee is a merchant, will be applied as of 01.07.2020.
Article 346 – Prohibition of regulation against the lessee
In the related provision, it was stated that no other payment obligation could be imposed on the lessee, apart from the rental fee and side expenses.
In addition, it was emphasized that the agreements stating that the penalty will be paid or the subsequent rental fees will be due to not paying the rent in time, is invalid. However, it is possible to make arrangements related to interest in the contract as a result of default in the payment of the rent. In this context, as of 01.07.2020, it will not be possible to regulate acceleration or penal clause against the lessee in terms of the lease agreements where the lessees are merchants.
As a result, it is envisaged that 9 items postponed in terms of commercial lease contracts will cause significant changes in many commercial lease agreements, especially in shopping mall lease contracts, as of 01.07.2020.
