Turkey: Amendment Of The Shopping Centers Regulation

Last Updated: 23 May 2017
Article by Mustafa Gunes

Contrary to the expectations, the new provisions with regard to common expenses at Shopping Centers will rise to a great deal of confusion and legal uncertainty in the future.

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. The amendments are mainly concerning to how the common expenses (service charges) would to be distributed and also the obligations imposed in respect to security measures that the shopping centers shall install a license plate recognition system and an undercarriage imaging system.

In the first publication of the Regulation, it had foreseen that in the first paragraph of Article 11, the common expenses shall be distributed according to the coefficients stated in the table of distribution of the Regulation, with this amendment, the table of distribution and the coefficient system are abandoned and it has now foreseen to set an expense sharing procedure with consensus between all lessees unanimously and the Shopping Centers Management, and in the event that consensus not achieved between the parties then expenses shall be distributed according to the ratio found by dividing each lessee's sales area to the total sales area at Shopping Centers. In Amendment, it has been stated that the expense sharing procedure to be agreed on jointly and unanimously will be applied for a maximum of five years. Furthermore "Marketing and administration expenses", has been made subject to a separate arrangement that they shall be claimed from the lessee if it is included in the lease agreement. In case of there are no provisions in the lease agreement, it has been stated that each lessee's sales area will be divided according to the ratio of the total sales area.

In the nineteenth article titled "Security Services" of the Regulation, there were an obligation that the public areas shall be recorded by cameras and these records of cameras shall be preserved at least for thirty days. With new amendment two additional obligations have been introduced and the Shopping Center owners have been obliged to establish a license plate recognition system and an underground imaging system for the entrance and exit of controlled areas such as open and closed car parks and share the data obtained through the plate recognition system with the police units instantly.

With the nineteenth article of the Regulation, an unanticipated additional cost was also charged from the Shopping Center Owners and this cost will be a onetime cost and since it has been stated that the technical specifications for the additional security systems envisaged and the guidelines for data sharing are regulated by the Ministry of Interior, exact state of this cost will emerge in the coming days.  However, there is a constant influence as the regulation on common expenses is continuous and according to this regulation it will come to the agenda repeatedly in periods of five years. In this respect, there is a necessary to analyzing the regulation made about the common expenses more closely. The following matters are became important:

Can the Shopping Center Management provide a unanimity with Retail Businesses?

There is an impossibility to, provide consensus between "the big ones" which has a renting  area between 5,000 and 20,000 m2 and expressed as "box" or "anchor" according to circumstance and which claims that the influx of visitors to the shopping center is due to them in position of world brand and "the small ones" which has a renting area between 5 m˛ and 100 m˛ and usually established by local brands in each Shopping Center. Although the "expense sharing procedure" was mentioned in paragraph 1 of Article 11 of the Regulation, abovementioned parties will question that which expenses consist the "common expenses" and, this situation will have made a more incomprehensible level than the new sharing rule.

In the same manner, there would be a dispute for one by one at expenditure items; between the Shopping Center Managements which prepares the budget for the Shopping Center Owner and different lessee groups at one side the Shopping Center owner which considers the general performance and service quality of the Shopping Center and at other side the lessees which are unsure about contribution this overall performance to them, would have an intense discussion.

The main discussion topic regarding to sharing of common expenses would be the fact which has become a necessity of the sector that participation of big ones in the expenses with lesser amount in m2 basis.

Especially in terms of the marketing budget, it is highly possible that there would be a conflict between the big ones and the small ones.  Due to fact that the big shops would utter, they have done their own advertising, and most of the visitors of the Shopping Center came to shopping center due to their own campaigns so would not want to participate in the marketing budget created by the Shopping Center Management. Whereas the small shops who cannot afford such big budgets alone probably may not accept to withdraw the participation of the big shops on this budget. Due to this conflict the parties will be able to discuss different distribution ratios for different items of the common expense budget, as well. Due to the fact that "common expense calculations for each type of expenditure" has been set forth in the new paragraph 7 of Article 11. Accordingly to this Article, although a single distribution rule can be determined for all expenses, different principles can also be determined on the basis of each expenditure type.

What happens when unanimity is not provided?

According to the first paragraph of the new Article 1 of the Regulation, it has been stated that in the event unanimity  is not provided, the common expenses "will be allocated to the  selling space of the retail business in proportion to the selling space of the shopping center". With a simpler explanation, the total selling space of the Shopping Center will be calculated and written to the denominator; the share of this ratio will be the " selling space " used by each lessee.

Such regulation may cause a dispute especially in terms of units operating especially in the food court area. Because the manufacturing (kitchen) part of these units is much bigger than the active selling space, which is usually a counter and the areas where these units serve customers are not just this counter. It will also be a separate discussion about whether seating areas, which are common areas, will be taken into consideration, or not.

What will be the status of common expense agreements in the existing lease agreements?

The new form of Article 11 of the Regulation enacts a compulsory regulation which nullifies almost any agreement made regarding the common expenses in the lease agreements. The lessees which are subject to limitation based on common expenses (cap implementation) will no longer benefit from this limitation cause of this regulation and furthermore they will also participate discussions as a controversial party, which all lessees will almost constitute a "general assembly". In the event that parties do not unanimously agree at discussions these "big lessees" will have to participate in common expenses on the basis of m2.

By which basis will the final account of the common expenses for the year 2016 be made?

With the subjunction made to the first provisional clause, "(5) The deduction of the charges which has been taken by the shopping center management as advance for common expenses for year 2016 shall be done according to the principles and procedures stated in Article 11". Meaning of this subjunctions is: All the amounts collected from the lessees in year 2016 would be considered as an "advance payment" and the final account would be distributed to the lessees based on the unanimous sharing rule in the event unanimity received. However in the event unanimity is not achieved the charges would be distributed to the lessees , on the basis of (m2) (sales area / total sales area). The final calculation shall be finalized at the latest date of 31 March 2017 and the lessees must be notified until this date. There are no restraint for making and reporting the final account before this date.

Which method would be followed if there is no agreement between the parties in year  2017 and later?

With the new Article numbered 1 of Regulation it has stated that, in the event unanimity is not provided between the parties, common expenses shall be distributed on the basis without any distinction (brand, activity area, etc.) on the basis of (m2). On condition of unanimity provided between parties, each Shopping Center will have its own distribution chart and this distribution chart shall be treated as an addendum of lease agreements for five year term.

How will the Sales Area concept and the ratio to Total Sales Area be calculated?

The definition of "Sales Area" was made at the third article (ğ) of the Regulation: "the total work place areas except  work places used as only as business offices, but also residences, storing areas, production facilities/areas and common use areas".

Accordingly this article, for instance, the sales area between the safe and the kitchen shall be formed as a "sales area" at fast food units in Food Court. However in practice there would be a constant debate for the kitchen and the common areas where the guests consume their food may be evaluated within the "sales area".

Nevertheless at the units operated as clothing store, the outside area which is the front of the showcase and the outer border of the front storage areas separated by the back of the store may be described as "sales area".

The Sales Area defined by the Regulation is not equal to the GLA (Gross Leasable Area). In practice, warehouse areas would not be taken into consideration in the account of the sales area unless these areas are used as sales areas.

With the rearrangement stipulated in First subclause of Article 11 of the Regulation;  the participation fee to common expenses for each lessee shall be determined by rate which shall be calculated with writing the sales area under the responsibility of lessee to "dividend" and total sales area to "denominator".

Has any transition period been envisaged?

No. The Ministry did not envisage any transitional process and arranged a distribution basis on a square meter basis, as a mandatory rule without providing an insufficient time for unanimity by removing the whole year-to-year rule on the distribution basis, one day from the end of the year.

What will happen in coming years?

According to the new execution of the Regulation as long as an agreement with unanimity does not occurred between the parties the Distribution rule based on square meters shall be acted and even if there is an agreement with unanimity, this agreement shall be reviewed every 5 years.

What will happen now?

Shopping Center Owners would have to implement Regulations in item 11 since these new regulations are mandatory rule. However, when applying this new situation, they would not make a distinction between the lessees and the lessees they have previously 'capped' any more and would invite the unanimous agreement, and when the parties does not agreed unanimously, the common expenses shall be renegotiated as mentioned above.

Action For Annulment

Since the relevant provisions of the Regulation are regulatory transactions and regulatory procedures become definite and binding with the publication of the Official Gazette, it may be possible to file an annulment suit at the administrative judiciary within 60 days starting from 30.12.2016. Due to the fact that the regulatory process of the case is a regulation, the Ministry of Customs and Trade may be brought before the Council of State by 28.02.2017 at the latest by showing the adversary. Any legal or real person who is affected can file this case to the benefit of such regulatory action.

At current time there are cases in which has been requested for the cancellation of the provision of Regulation (11.8), which requires that revenue from common areas be offset in common expenses. The results of these cases would also need to be followed carefully.

Including Common Expenses to the Rent

Since the case that what made the common expenses and in which principles this common expenses be shared is like a "necrosis" between the Shopping Center Owners, Shopping Center Managements and Retail Shops, Shopping Center Owners may negotiate with tenants and with this negotiation they may include common expenses to lease and not resort to  collect common expenses except the lease payment.

Benefits of this method for the investor are keeping good relationships with the lessees which are their customers and recording the common area income as an income. However the uncertain situation caused by the variability of common area costs at over time would be a disadvantage for this method.

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