The details of the rent assessment case, such as when and how the lawsuits will be filed, have recently led to discussions among both tenants and property owners. In this blog article, we will discuss the legal processes and answer certain questions.<\/p>\n\n\n\n
A lease agreement gives the lessee the right to use the leased property in exchange for a certain price. The rental price is a constituent element of the lease agreement and must be certain in order to establish the agreement. Since the lease agreement is a continuous contract due to its nature, the rental price determined in the contract may change in the process. The lessee and the lessor may determine the rate at which the rent will be increased in the lease agreement.<\/p>\n\n\n\n
The upper limit of this increase rate is the average of the twelve-month consumer price index. If the parties have not determined the rate of increase of the rent or if there is a lease agreement for more than 5 years and renewed after 5 years, the new rent may be determined by the judge. For this, a rent determination lawsuit will need to be filed. The rent determination case does not determine a legal relationship as in other determination cases; a non-specific element of the contract is determined.<\/p>\n\n\n\n
Articles 343, 344, 345 of the Turkish Code of Obligations introduce regulations regarding the determination of the rent and the rent determination lawsuit. These articles will be applicable to residential and roofed workplace leases and it will not be possible to file a rent determination lawsuit in other lease agreements.<\/p>\n\n\n\n
If the lessee and the lessor have determined the rent increase rate in the lease agreement, there is no legal interest in filing a rent assessment lawsuit. Pursuant to Article 114 of the Code of Civil Procedure, the plaintiff's legal interest in filing a lawsuit is a litigation condition. Therefore, it will not be possible to file a rent determination lawsuit in the presence of a contract with a certain rent increase rate.<\/p>\n\n\n\n
If the rent increase rate is not determined in the lease agreement, the court may be applied to determine the rent. According to Article 344\/2 of the TCO, the judge shall determine the new rental price not exceeding the twelve-month average of the consumer price index. The law states that the rent shall be determined according to equity. While determining the rent in accordance with equity, if the leased residence or workplace is rented out as empty, a discount may be made from the rent to be determined, taking into account that the tenant is a former tenant. (Court of Cassation 3rd Civil Chamber, 2017\/3642 E., 2017\/18385 K. numbered, dated 28.12.2017)<\/p>\n\n\n\n
In order to file a rent assessment lawsuit based on residential and roofed workplace lease agreements with a term of less than 5 years, the rent increase rate should not be determined. However, it is not important whether the rent increase rate is determined in the contract in order to file a rent determination lawsuit based on a lease agreement with a term longer than 5 years or renewed after 5 years. In other words, if there is a lease agreement that has been in effect for more than 5 years, the legal benefit examination will not be made when a rent assessment lawsuit is filed.<\/p>\n\n\n\n
Reasons such as economic developments, supply and demand relations, and inflation may cause the rent and rent increase rate determined in the lease agreement to be low. In this case, the balance between the contracting parties will be disrupted. In order to prevent this, the legislator has introduced the following provision in Article 344\/3 of the TCO For lease agreements longer than 5 years or renewed after 5 years, the twelve-month average of the consumer price index as well as the condition of the leased property and comparable rental prices shall be taken into consideration when determining the new rental price. In practice, the rent is usually determined by an expert witness and the judge decides according to the determinations made by the expert witness, taking into account equity.<\/p>\n\n\n\n
As a rule, the rent determined in foreign currency cannot be changed until 5 years have passed. However, the legislator has reserved the article of the TCO regarding the excessive difficulty of performance regarding the rent determined in foreign currency. In other words, if one of the situations stipulated in Article 138 of the TCO arises, the parties will be able to request the adaptation of the contract before the expiration of 5 years.<\/p>\n\n\n\n
After 5 years, Article 344\/3 of the TCO shall be taken as basis when determining the new rent. According to this article, the changes in the value of the foreign currency shall also be taken into consideration when determining the new rent.<\/p>\n\n\n\n
The parties may always file a lawsuit for the determination of the rent. However, in order for the rent to be determined in the lawsuit to be applied in the new lease period, there are some time conditions in accordance with Article 345 of the TCO. Accordingly, in order for the determined rental price to be applied in the new lease period:<\/p>\n\n\n\n
If these periods are not complied with while filing a rent determination lawsuit, the new rent determined in the lawsuit will be valid as of the next lease year.<\/p>\n\n\n\n
The rent determination lawsuit can be filed by the lessor as well as by the lessee. For example, if the lessor demands a rental price other than the increase rate, the lessee may file a rent determination lawsuit and request the new rental price to be determined by the judge. If the leased property subject to the lawsuit is subject to joint ownership, all owners should come together and file a lawsuit. In the case of shared ownership, each shareholder may request the determination of the rent in proportion to his\/her share.<\/p>\n\n\n\n
The defendant of the rent assessment lawsuit will be the tenant or the lessor. If the lawsuit is filed against the tenant and there is more than one tenant, the lawsuit must be directed to all tenants.<\/p>\n\n\n\n
If the leased residence or workplace changes hands during the litigation process, the new owner will be bound by the lease agreement and will have the same rights as the former owner in terms of rent determination.<\/p>\n\n\n\n
The competent court in cases regarding the determination of the rental price is the Civil Court of Peace<\/a>. The competent court is the court of the place of residence of the defendant or the place where the contract is executed, that is, the place where the leased immovable is located.<\/p>\n\n\n\n