Adjustment of Rental Payment Lawsuits
Rent adjustment cases: After the lease agreement signed between the parties the occurrence of an unforeseen or unforeseeable extraordinary situation is a type of lawsuit filed with the request to adapt the situation to the changed circumstances and conditions.
Who Can File a Lawsuit for the Adjustment of Rental Payments?
Lessors The lessor-owner may request adaptation on the grounds that the fair rental prices have increased excessively.
Lessor: The lessor has the right to file an adaptation lawsuit by stating that it has excessive performance difficulties.
Article 138 of the Turkish Code of Obligations is regulated. According to this
“If an extraordinary situation arises that was unforeseen and unforeseeable by the parties at the time the contract was concluded, due to a reason not caused by the debtor, and this situation changes the existing circumstances at the time of the contract to the detriment of the debtor to such an extent that demanding performance would be contrary to the principles of good faith, and if the debtor has either not yet performed their obligation or has reserved their rights arising from the excessive difficulty of performance while performing it, the debtor has the right to request the adaptation of the contract to the new conditions from the judge, or, if this is not possible, to terminate the contract. In contracts involving continuous obligations, the debtor generally exercises the right of termination instead of the right to withdraw.”
Rent adjustment lawsuits are not limited to residential and roofed workplace leases; they can be applied to all types of rental agreements.
The debtor may ask the judge to adapt the contract to the new conditions. If this is not possible, the debtor, may withdraw from the contract or right of termination can use it.
As a rule in contracts, the principle of fidelity to contract (covenant loyalty) and the parties are obliged to comply with the terms of the contract. However, Article 138 of the Turkish Code of Obligations provides an exception to this and stipulates that the debtor has the right to file an adaptation case in unforeseeable or unforeseeable circumstances.
Determination of the Rental Price Separately for Each Year in the Contract
During the preparation of the lease agreement, there may be a provision stipulating that the rental fee will be arranged separately each year. The Court of Cassation dated 21.11.1991 In one of its decisions, the court accepted the contractual provision on the determination of the rent separately for each year in a long-term lease agreement as an adaptation provision.
Legal Adaptation of the Rental Price
If there is no provision in the contract regarding the adaptation of the rental price, then legal adaptation may be applied. As mentioned above, Article 138 of the Turkish Code of Obligations regulates the adaptation of the contract to changing conditions.
Difference between Rent Adjustment Case and Rent Determination Case
The adaptation of the rental price should not be confused with the determination of the rental price. The case on the adjustment of the rental price;
– Long-term lease agreements
– Implementation from the date the case is filed
– It has the characteristic of having no prescribed period for filing a lawsuit.
Conditions of the Rent Adjustment Case:
1. At the time of the conclusion of the contract, an extraordinary circumstance must have arisen which was not foreseen and could not have been foreseen by the parties.
For example, it is unpredictable whether an earthquake will occur, how it will affect, when it will occur, or whether a disease will become epidemic and how it will affect legal relations. Since the existence of such situations may cause excessive difficulty of performance, an adjustment in the rental price may be requested.
However, it has ruled that devaluations are not unpredictable for our country and therefore the unstable economic situation in our country is a situation that can be foreseen by the parties.
Moreover, in its recent decisions, the Supreme Court has found the decisions rendered without the report of an expert committee consisting of 3 persons to be incomplete. Accordingly, this committee
It requests the preparation of a report on the nature of the leased property, its area of use, its location, zoning and commercial changes in the region above the norm that will affect the rental price, comparable rental rates, increases in tax and depreciation expenses, sudden and excessive fluctuations and fluctuations in exchange rates, and events that may require the reorganization of payment principles due to serious economic crisis shaking the country or natural disasters such as earthquakes, floods, fires, epidemics, which are considered force majeure.
2. This must not have been caused by the debtor.
In a decision of the Court of Cassation General Assembly of Civil Chambers dated 12.11.2014, the event causing the undue hardship is an external event i.e. that it should not originate from the person.
3. There should be no provision in the lease agreement that prevents adaptation.
However, if the state of emergency is greater than expected, the judge may, upon request, order the adaptation of the provisions on adaptation.
It is possible for the parties to prevent adaptation with the provisions to be included in the contract. In this case, even if the debtor falls into excessive difficulty of performance, the contract continues to exist with the conditions at the time of its conclusion.
Adaptation Lawsuit for Merchants
Merchants are obliged to act prudently in their commercial activities (TCC Art. 188), which makes the acceptance of the adjustment request of the merchant difficult. The merchant should act prudently during his commercial activities, think ahead and organize his business accordingly. For this reason, the measure of foreseeability is heavier for the merchant.
Consequences of the Application of Article 138 of the Turkish Code of Obligations to Lease Agreements
Article 138 of the TCO stipulates that in case of excessive difficulty of performance adaptation of the contract or termination is foreseen. The adaptation shall be made by the judge in accordance with the rule of honesty in Article 2/1 of the Turkish Civil Code. The method and conditions of the adaptation shall be freely discretionary by the judge. By using the judge’s discretion, the adaptation may be carried out by changing the place, time, form of performance, redetermination, changes in ancillary acts such as interest, and changing the period of performance. Adaptation may also be carried out by extending or shortening the lease term. Although adaptation is usually requested by the lessee, the lessor also has the right to apply. The lessor may request an increase in the rental price by justifying that the rental price is too low. In this case, the lessor may file an adaptation lawsuit requesting an increase in the rental price.
In particular, the stagnation in the construction sector due to economic crises, urban transformation practices and the increase in demand for rental housing in the region lead to an increase in rental prices. The owner who rents his immovable at a low price without realizing the relevant reasons, may request adaptation on the grounds that the fair rental prices have increased excessively.