Turkey: Special Lien In Favour Of The Lessor

Introduction

The fact that a Lessor must make immovable properties available to the lessee if the rent is upaid required a special protective right in favour of the lessor, and the ability to secure the rent, and to securely obtain such receivable, is recognized.

A pledge means the real right established over a movable or immovable property in order to secure the obligation of the debtor. A Special Lien also sets an example for movable pledges. Within the scope of a special lien as set out under Article 950, and the following articles of the Turkish Civil Code, the creditor has the right to retain the movable properties and securities that have come into his or her possession with the debtor's consent, until his or her claim has been satisfied, providing such claim is due and is intrinsically connected with the retained objects. If the obligation is unfulfilled, or sufficient security is not provided, the creditor may request the liquidation of the properties retained by him or her by serving a prior written notice to the debtor.

Within the scope of the above-stated general special lien, a specific lien in favour of the lessor is set out under the lease agreement section of the Turkish Code of Obligations ("TCO") with respect to rents. Thus, a legal special lien that may be enforced against the seizable movable properties of the lessee in favour of the lessor is recognized as a security for the rent that is owed.

Notwithstanding the fact that disputes arise on a daily basis from immovable property leases, the practise of special liens is not encountered at the same frequency. How special liens are set out under the TCO, as special and different types of special liens under the Turkish Civil Code, is dealt with in Article 270, as well as in the following articles of the Enforcement and Bankruptcy Law ("EBL").

The Legal Regulations and the Implementation

Article 336 of the TCO sets out Special Liens in Favour of the Lessor as follows:

"In terms of immovable property leases, as security for rent for the past year and the current six-month period, lessor has a special lien on movable properties upon the leased immovable property and is either used as fixtures, or required for the use of the leased immovable property."

As well, Article 338 of the same code is as follows:

"Where the lessee wishes to vacate the immovable property, or intends to remove the objects located therein, the lessor may, upon the decision of the judge of the court of peace or the bailiff, retain such objects as are required to secure his claim.

If the items that are the subject of the retention decision are removed secretly or by force, such items may, with police assistance, be brought back onto the leased immovable property within ten days of their removal."

Article 270 of EBL on the "Preparation of Ledger for Special Lien" in relation to the provision under TCO is as follows:

"Lessor may request the assistance of the bailiff's office prior to the commencement of the enforcement proceeding for the temporary protection of the special lien.

If the delay constitutes danger, the assistance of the municipal police or sub-district governor may also be requested.

Bailiff's Office prepares the inventory of the items subject to special lien and grants an appropriate period to the lessor for the commencement of enforcement proceeding by way of foreclosure of collateral provided that such period does not exceed fifteen days."

Such legal regulations recognise a special lien (a pledge right in other words) to the lessor over the "seizable" properties owned by the lessee and located on the leased immovable property, in addition to the right to collect the rent, and to vacate the leased immovable property.

There are two phases of the special lien.

The first phase is the creation of the special liens, i.e. the collateralisation. The lessor may request a special lien to be placed on the movable properties that are on the leased immovable property as security for rent for the past year and the current six-month period.

For the creation of such right, the creditor shall first apply to the bailiff's office (or the civil court of peace) as per Art. 270/1 of the EBL. If the adequacy of such request is approved, the bailiff's office shall review the immovable property with the commissioned officer or the relevant expert, to determine the movable properties owned by the lessee, to ascertain the quantity and value of such properties, and an inventory with respect to the aforementioned shall be prepared and the special lien shall be prepared as per Art. 270/3 of the EBL.

The second phase of a special lien is the enforcement proceeding in relation to the receivable. At such point, the creditor lessor shall be obliged to commence the enforcement proceeding by way of foreclosure of collateral within the period granted to him (and which cannot be longer than 15 days) as per Art. 270/2 of the EBL. If such enforcement proceeding is not commenced, the special lien shall be deemed forfeited. In the course of the enforcement proceeding, Article 145 titled "Foreclosure of Pledge on Movable" of the EBL, and the following articles, shall apply.

Nevertheless, the fact that the former Code of Obligations also sets out that a special lien may be placed on the items that are useful for the design of the leased immovable property, the TCO in force does not include the aforementioned within its scope. The item to be subject to such special lien must be located on, and either used as fixtures, or be required for the use of the leased immovable property. As a matter of course, such items must be seizable. The special lien is applied over both the usufructary lease, and the receivables of the operators of accommodation facilities, parking spaces, or other comparable facilities. The special lien may also be applied to items that are owned by the sublessee. On the other hand, if any third party claims that he or she owns the movable properties that are subject to the special lien, such third party shall have to evidence that the relevant items are owned by him or her; however, such evidence shall not be wholly satisfactory. In order for the action for replevin to be accepted, the third party must claim (evidence) that the creditor lessor knows, or should have known, that the movable property that is subject to the special lien, is not owned by the lessee.

Protective provisions in relation to the items that are subject to the special lien also exist. As per the TCO, Art. 338/2, if the items subject to the retention decision are removed secretly or by force, such items may, with police assistance, be brought back onto the leased immovable property within ten days of their removal. As per Art. 271/1 of the EBL, any item subject to the special lien that is removed secretly, or by force, must be returned to the leased immovable property within ten days of its removal, as per the order of the bailiff's office and by the municipal police.

Conclusion

The special lien granted to the lessor aims to secure the rent owing from the lease agreement, and to ensure that the lessor obtains such receivable in a relatively secure manner. The special lien is a specific regulation in terms of the movable pledge, as set out under the Turkish Code of Obligations, and exercised within the scope of the provisions of the Enforcement and Bankruptcy Law. The lessor may request the creation of a special lien over the movable properties on the leased immovable property as security for rent for the past year and the current six-month period and, accordingly, the collection of such receivable by commencing an enforcement proceeding by way of foreclosure of collateral.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.