Turkey: Can A Lawsuit Of Rent Lawsuit Be Filed At Any Time During The Current Rent Period Without The Need For A Prior Notice? In Such A Case, From Which Period And Month Will The Determined Rent Be Valid?

According to the settled case law of the Court of Cassation and Article 345/3 of the Turkish Code of Obligations (shortly as "TCO"), if there is a clause for a rent increase in the tenancy agreement, a rent determination lawsuit can be initiated at any time during the current rent period without the need for any prior notice. In this case, the determined rent amount will be valid from the beginning of the current rent period.

Article 345/3 of the Turkish Code of Obligations states:

"If there is a provision in the contract for an increase in rent for the new rent period, the determined rent amount to be decided by the court in a lawsuit filed until the end of the new rent period shall be valid from the beginning of this new period."

Pursuant to the aforementioned provision, when the parties agree in their contracts that the rent will be increased over a certain rate or without specifying the rate in the extension periods after the first year since it will be known to the tenant that the rent for the new period will be increased, it is not required to file a separate lawsuit 30 days before the new period or to make a written notification containing the increase request.¹ Even the fact that the contract states that the rent will be increased without specifying the rate is sufficient for the determination case to be filed within the period rather than before the period.² To explain with an example, if there is an increase provision in the contract, for a rent contract that will expire on 03.08.2023, the rent determination lawsuit can be filed until 03.08.2023 to take effect from 03.08.2022. In this case, the judgment to be given by the court, i.e. the newly determined rent, will be valid as of 03.08.2022.

Court of Cassation 6th Civil Chamber, Case No. 2014/8948, Decision No. 2015/5710:

"According to the settled case law of the Court of Cassation: The increase clause in the rent agreement gives the right to request the determination of the rental price for the current period (including the last day of the period) on the date of the lawsuit, without the need for a notice to be sent before the end of the period.''

Court of Cassation 3rd Civil Chamber, Case No. 2007/8730, Decision No. 2007/8720:

"According to the settled case law of the Court of Cassation: The increase clause in the rent agreement gives the right to request the determination of the rental price for the current period (including the last day of the period) on the date of the lawsuit, without the need for a notice to be sent before the end of the period.''

Court of Cassation 6th Civil Chamber, Case No. 2014/2531, Decision No. 2014/3406:

According to this provision of the Turkish Code of Obligations and the established practice of the Court of Cassation, if there is a provision for a rent increase in the contract, it is understood that a lawsuit for the determination of the rent amount for the ongoing period can be filed until the end of the period without prior notice. In the present case, even though there is no notice issued before the end of the rent period, it is seen that there is an increase provision regarding the previous periods in Article 17 of the contract, as well as the parties' will to increase for the two and a half year period with the determination in Article 18 of the contract. In these circumstances, it is not correct to dismiss the lawsuit with the written justification, while it should be accepted that the lawsuit filed after the start of the period without the need to seek a notice was filed in due time and a decision should be made on the merits of the case.

Bursa Regional Court of Justice, 4th Civil Chamber, Case No. 2018/1419, Decision No. 2019/26, dated January 7, 2019:

"The lawsuit was filed on July 31, 2017, after the start of the new rent period. Since there is a provision for an increase in the rent agreement in the specific terms section, in this lawsuit filed during the period, the request for rent determination can be made from the beginning of the period starting on July 1, 2017. While it was necessary to reach a decision on rent determination valid from July 1, 2017, the decision to determine the rent from July 2018 onwards was incorrect.

According to page 534 of the book "Kira Hukuku" (Rent Law) by Nihat Yavuz,Honorary President of the Court of Cassation 3rd Civil Chamber:

"If there is an increase clause in the contract, during the rent year (i.e. to be effective from the beginning of the rent year, until the end of the rent year) lawsuit can be filed."

According to page 912 of the book "Yargıtay Uygulamasında Kira Hukuku Davaları" (Rent Law Cases in the Practice of the Court of Cassation) by Hikmet Kanık, the member of the Court of Cassation 3rd Civil Chamber:

"When the parties agree in their contracts that the rent will be increased in the extension periods after the first year, without specifying a specific price or rate, it will be known to the tenant that the rent for the new period will be increased, so there is no requirement to file a lawsuit or to write a notification containing the increase request 30 days before the new period. The fact that it is stated in the contract that the rent increase will be made without specifying the rate is sufficient for the determination lawsuit to be filed within the period rather than before the period."

Footnotes

1. Hikmek Kanık, Member of the 3rd Civil Chamber of the Court of Cassation, Rent Law Cases in the Court of Cassation Practice, p.912

2. Kanık, p.912

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