The theme of 4th webınar held by UFRAD was “how will be the legal process after the pandemic” . Lawyer Süleyman Soysal, Hilmi Özalp, Bayla Akpınar shared their views and experiences below with intense participation of UFRAD members in the webinar.
In order to be considered as force majeure, a) extraordinary, unpredictable, unforeseen, irresistible situation, b) not arising from the debtor, which the debtor cannot eliminate, c) a situation that prevents the fulfillment of the commitment must occur. There is no force majeure in the Code of Obligations, the removal of the obligations is at the discretion of the judge. The pandemic can be considered force majeure in general, but not for those whose business is not affected by the pandemic or those who have contracted after the epidemic started. For example, it may be a force majeure for the state to close restaurants, but not for take-out package services.Each event will be evaluated separately, and case law will emerge as the cases are opened and concluded.
Closing of Shopping Mall
The lessor is obliged to “keep it in a suitable condition for use” (Code of Obligations in Turkey, 301). If it closed by the management of shopping mall, the rent can not be requested because it is not suitable for use. Even if it closes for a long time, the tenant might ask for compensation. However, after shopping mall opened, if tenant does not opened, rent debt arises (Code of Obligations in Turkey, 324).
Excessive Fulfillment Difficulties
If the number of customers and sales drop too low due to the epidemic, the tenant can file an adaptation case for the reduction of the rent. However, he/she must prove its justification with a comprehensive study. In order to benefit from the article of excessive fullfillment difficulty (Code of Obligations in Turkey,138). A) an extraordinary situation that was not foreseen and unexpected by the parties at the contract time. B) arising from not reason caused by the debtor. C) changing the current conditions at the time of the contract to the extent that the performance of the debtor is against the rules of honesty D) The debt has not been executed yet or must have been executed with reserved rights. Adaptation, withdrawal and termination may be requested for rent and other contracts.
If the adaptation case is opened because the jobs have fallen after the epidemic, the number of pedestrians or vehicles in the location of the business decreases, turnover and profits in the sector generally fall, etc. the matters must be documented and the judge persuaded. When an adaptation lawsuit is filed, a reasonable justification is shown, reasonable rent is paid. If the injunction is taken, the lessor can not execution for debt until the case is concluded. The reasons for evacuation are clear, the tenant cannot be evacuated as an adaptation case has been filed.
Execution and foreclosure procedures were frozen until June 15 with the Presidental Decree. Even if the invoice has not been out, the rent has not been paid, if the lessor has not given a written notice that he/she has given up the rent, she may be obliged to pay if the retrospective rent is requested after 15 June.
Abolutionary of the lease contract without compensation due to force majeure or excessive performance difficulties is possible as it will be justified during the period of pandemic bans. In any case compensation to be paid does not exceed the reasonable time rented property, according to supreme court decisions, this time should be waited about 3 months.
Notifications after Pandemic
The tenant whose want to decrease rent or pay no rent, need to make a legal notice because of the force majeure and excessive fulfillment. If he/she full or partial deposit rent, must indicate that it reserves the right to appeal. Even if the lessor who does not want take money, he/she must notify with written notice how long and why. Written notification can be made by a) notary public b) registered letter c) with signature d) with bank receipt. If the lessor has not made a written notification, the tenant can verbally confirm the agreement in writing. The payment of the rent does not remove the right to appeal the following rent (Supreme Court 3rd Legal Office decision 24/01/2019). If there is no written notification, the tenant is deemed to have accepted the terms of the contract without objection.
New Articles about Code of Obligations
There are articles in the Code of Obligations that will expire on July 1, 2020, with an 8-year transition period.
Code of Obligations in Turkey,323: The company give contract transfer opportunity to their tenants. The lessor must justify the refusal, the transferor is held responsible for 2 years.
Code of Obligations in Turkey,325: In the event of the tenant's premature termination, the rent payment for the reasonable time required for the rental, instead, the failure to pay if the tenant finds it.
Code of Obligations in Turkey,331: It allows the tenant or lessor to terminate the lease in accordance with the notice period, in the presence of "important reasons that make the continuation of the lease unbearable for her/ him"
Code of Obligations in Turkey,340: It prohibits the execution of lease-related debt contracts. unless there is benefit for the tenant.
Code of Obligations in Turkey,342: It envisages that a deposit of up to 3 months' rent is taken and kept in the time savings account at the bank, the return by joint request or the order of the judge, and the deposit of the negotiable documents in the bank.
Code of Obligations in Turkey,343: While the lease is renewed, it prohibits making changes against the tenant, except for the rental fee.
Code of Obligations in Turkey,344: It limits the annual increase in rent to the consumer inflation rate of the last 12 months for TL and allows adjustment in five-year periods. If determined in foreign currency, the rent does not change for 5 years. This item was put into use early in 2019 due to the rapid increase in foreign currency.
Code of Obligations in Turkey 346: It prohibits tenant obligation to pay other than rent and ancillary expenses. The penalty clause prohibits claiming all the remaining rent.