Turkey: The Status Of Tenants Given CAP In 2016 For Shopping Centers Partner Expenses

Last Updated: 18 May 2017
Article by Mustafa Gunes

Some changes have just been made to the Shopping Centers Regulation ("Regulation") which had entered force upon publication of Official Gazette on February 26, 2016, with a text of amendment published on the Official Gazette dated December 30, 2016. It seems that the 11th article of this Regulation, which related to the common expenses, has been made the Shopping Center's common expenses problem more complicated.

These recent changes in the regulation seems problematic in many aspects. At first Article 11 of the Law Numbered 6585, which gives authority to the Ministry to issue regulations regarding to matter gave authority "expenditures on common areas"  matter. However at this time the Ministry has made a regulation on "common expenses"  which includes a much broader category. Accordingly to this broad, this regulation has exceeds the it's authority on first day. The amendment text published on December 30 has a completely opposite content to the law making technique. Since the case that regulation, which brought a definition and a distribution rule on February 26 of the same year, revoked the last distribution rule of the same year and gave the practitioners a  "new year gift" which had commanded to ignore last distribution rule. Just as in which economic and legal grounds made such an arrangement is unknown, with this amendment it would penalize those who rely on public authority and practice in that way.

It seems that this amendment cause many more problems in addition to above brief mentioned handicaps. One of the most prominent of these is the CAP implementation, which is the result of some tenants' commercial agreements limiting the participation to common expenses on a square meter basis in total. As it is known, the Regulation in it's first form, regulated what were the common expenses in the first paragraphs (1) and (2) and predicts that the common expenses entering this definition should be distributed according to the 'coefficient table' published as Annex 1. While, regulating that the Regulation also indicated with sub-article (9) that who were given the CAP by themselves, the amounts to be which would not paid out  by the tenants would be covered by the shopping center owner. In a way, the situation of tenants whose joint expense contributions have been capped were reserved and wished that the newly introduced distribution chart would be counted as base.

With the Regulation entered into force on December 30, 2016 brought that  common expense distribution will be made in terms of the ratio of the sales area of each retailer to the total sales area, in the event there is an unaccepted common expense sharing procedure that all tenants agree unanimously with CAP or without CAP.

Although this new state of the matter is not openly stated, it seems like that a new condition arises that whatever the distribution procedure specified in the lease contracts, this distribution procedure would be ignored and the parties must agree on a consensus basis. Since it's a known case that determining a distribution procedure made by Shopping Mall Owners and tenants by unanimously consensus would be not possible neither in Turkey nor in any country in the world. The unanimous decision of the tenants may only be a result of a new meeting, negotiation and decision. Although the regulation remains silent on this issue, it would be needed to organize a meeting with the tenants and form a new distribution procedure in the context of the new regulation. This distribution procedure must also have been adopted unanimously because the provision of the article clearly is a "unanimity". And this unanimity shall involve "all tenants". Because  it has not specified that, an unanimity with exemption of the tenants who are subject to the CAP application referred to in Article (11.9) or such a meeting was referred to in the "unanimity of the participants". When we read the article in this way - it does not seem possible to read otherwise – here what it is like:

1. All previously determined Provisions relating to the common expense allocation procedure  by the parties in the shopping center lease contracts are invalid.

2. Whatever the parties have previously agreed on, the parties shall enter into a new agreement and this agreement must be unanimously adopted by the tenants.

3. In cases of unable to reach unanimity, there will be a requirement to make a distribution on a square meter basis.

The first version of the regulation had intervened in the contracts between the parties. However, this second intervention, made on December 30, 2016, is showing some differences from the first version. If a rule was applied to make the merger feasible and the condition of tenants with CAP (11.9) was hold reserved. At the first form of regulation, it had been ruled that all agreements between the parties shall be voided and replaced by another agreement in accordance with Annex 1 Distribution Table. With this second intervention, a new agreement between is foreseen, rather than an agreement between the parties and in the event there is no such agreement, a distribution on a square meter basis is foreseen. Although the provision of Article (11.9) is repeated, the nature of the business must be deemed to be practicable only if it is expressly forbidden and the owner has a new CAP agreement. Since the case that, there is no exception for any group of tenants and contrary, it has been envisaged for an agreement with unanimity of all tenants.

Under these circumstances, there is a necessity for inviting all tenants by Shopping Center Owners for making to a new agreement with them for the new agreement foreseen by the regulation. Since any tenant group has not been exempted from the necessity of making new agreement, it shall be negotiated that giving CAP again to tenants which has the CAP cause of their agreements. CAP implementation has also been removed as of 2016, since it is stated that the amounts collected in 2016 according to the paragraph (5) of 'Provisional Article, 1st ' will be regarded as advance and the distribution will be done according to the it's principles and principles stated in Article 11. For these retroactive decisions, the lawyers will discuss this change for sure, both in terms of the interests of the Shopping center Owners and, in the interests of the retail businesses given the CAP, the law-making technique and the legal security principle, and perhaps the case will be opened for the cancellation of the relevant provisions of the regulations. However since this situation not require the ignoring of a legislation which has already been enacted, Shopping Center Owners will look back to the data's from 2016 and thereafter without CAPs issued in the past, and in the event they have intend for giving a new CAP then they may  make negotiations again with those tenants.

 Unfortunately, there is a very limited time to do above mentioned process. Even though the Regulation does not contain any provision in this respect, according to the financial legislation, there is a necessary for the Shopping Mall Owners to declare the VAT of December and to close the year 2016 on the declaration by the time of 24th of January in this regard.

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.

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
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
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 you may opt out by clicking here

    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.


    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.


    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.

    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.


    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.


    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.


    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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.

    By clicking Register you state you have read and agree to our Terms and Conditions