Provisions Regarding The Price In Residential And Roofed Workplace Leases
Prohibition of arrangement against the lessee – Article 346 of the TCO: “The lessee may not be obliged to pay anything other than the rent and ancillary expenses. In particular, agreements stipulating that a penalty clause will be paid in case the rent is not paid on time, or that the subsequent rents will be due and payable, are invalid.”.
Within the scope of this provision, two issues should be mentioned:
In residential and roofed workplace leases, a penalty clause cannot be stipulated for non-payment of the rent.
In residential and roofed workplace leases, the condition of due date cannot be stipulated for non-payment of the rent.
The provision does not prevent determining a high default interest rate by contract for default. However, Article 120/III of the TCO should be taken into consideration in terms of default interest in contracts where the lessee is not a merchant.
The provision is mandatory. Provisions to the contrary are absolutely null and void. Partial nullity is in question.
EVICTION DUE TO TWO RIGHTFUL NOTICES
TCO Art. 352/II “If the lessee has caused two justified notices to be given to him in writing for non-payment of the rent within the lease term in lease agreements with a term of less than one year, or within one lease year or a period exceeding one lease year in lease agreements with a term of one year or more, the lessor may terminate the lease agreement through a lawsuit within one month starting from the end of the lease term and the lease year in which the notices were made in leases with a term of more than one year.
FORM OF NOTICE
According to Article 348 of the TCO, in order for the termination declaration to be valid, it must be made in writing. In practice, the notice is drawn from a notary public. The payment order sent through the execution office also replaces the notice. In the notice, it must be clearly stated which months’ rents have not been paid. The lessor’s request for the payment of the debt in general shall not be considered as a rightful notice. Otherwise, it is accepted in the doctrine and practice that the notice will not be a justified notice. In order for the notice to be justified, it does not have to include a statement regarding the termination of the contract.
The lessor must draw the notice. If there is a co-ownership relationship, it must be withdrawn unanimously in the case of joint ownership, and with the majority of shares and shareholders in the case of shared ownership. The notice must be served to all tenants. The Court of Cassation also states that the notice to a single tenant is not a justified notice.
EVICTION LAWSUIT
Termination of the lease agreement due to two justified notices depends on the filing of an eviction lawsuit. The right to sue belongs to the lessor. In case of a co-ownership relationship, the lawsuit must be filed unanimously in the case of joint ownership, and with the majority of shares and shareholders in the case of shared ownership. In case of transfer of the lease agreement, the new lessor may file an eviction lawsuit based on the notices issued by the previous lessor. The defendant is the tenant. If there is more than one tenant, a lawsuit must be filed against all of them.
TIME FOR FILING A LAWSUIT
The eviction lawsuit can only be filed at the end of the lease period. Eviction lawsuit must be filed within one month starting from the end of the lease period and the end of the lease year in which the notices are made for leases longer than one year. The time period is of a forfeiting nature. The expiration of the one-month period ends the right to file an eviction lawsuit. If there are conditions, an eviction lawsuit can be filed for the next lease period. According to Article 353 of the TCO, if the lessor has notified the lessee in writing that he will file a lawsuit within the period stipulated for the filing of the lawsuit at the latest, the period for filing a lawsuit is deemed extended for one lease year.
In one of its decisions, the Court of Cassation stated that “Two different notices for due rent receivables do not meet the requirement of two justified notices. In this case, since the condition of two justified notices has not been met, it is not correct to make a written eviction decision while the lawsuit should be dismissed. The judgement should be reversed for this reason.” (Court of Cassation 3rd HD, E. 2017/11179, K)
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