Rent Receivable, Failure To Specify Rent Increase Rate, Enforcement Proceedings With Increase
Republic of Turkey
Supreme Court of Appeals
3rd Civil Chamber
Case No.: 2018/1628
Decision No.: 2018/2674
Decision Date: 19.3.2018
>RENT CLAIM – FAILURE TO SPECIFY THE RENT INCREASE RATE IN THE RENTAL AGREEMENT – ENFORCEMENT PROCEEDINGS BASED ON THE INCREASED RENT
6098/m.346
SUMMARY: Upon examination of the lease agreement concluded between the parties, it is understood that Article 6 of the agreement states that “the tenant hereby accepts and undertakes to increase the rent by % … of the market value at the end of the contract.” Since the rate of increase is not specified in the said provision, this increase condition is invalid as it is not specific and definite. Upon examination of the enforcement file included in the case file, it is seen that enforcement proceedings were initiated based on a monthly rent of TL 440. Since it is not possible to demand an increase from the monthly rent specified in the lease agreement as “TL 400” to “TL 440,” the court’s ruling, which did not take this into account, is contrary to procedure and law and requires reversal.
CASE: Following the trial of the claim for payment between the parties, the judgment in favor of the claim was appealed by the defendant’s representative within the time limit. After the appeal petition was accepted, all documents in the file were read and considered:
DECISION
The plaintiff claims that the real estate located at the relevant address was leased by the defendant under a lease agreement dated 07/30/2008 signed between them, that the defendant did not pay the rent for the period from 07/30/2009 to 05/30/2010, and that legal proceedings were initiated for the collection of unpaid rent in the Ankara 18th Enforcement Directorate’s file no. 2011/1648, that the defendant objected to the proceedings, and requested a decision ordering the defendant to pay the unpaid rent of TL 4,400.00 and the monthly interest accruing on it.
The defendant argued that it was clear that the lease agreement was drawn up between B.K.’s former spouse, R.Y., and the defendant, that the party to the contract was Ramazan Yele, and that his signature was obtained even though he was not the tenant or guarantor. He requested that the case be dismissed, primarily on the grounds of lack of jurisdiction, or otherwise on its merits.
The court accepted the lawsuit and ruled that 4,400.00 TL plus legal interest from the date of the lawsuit be collected from the defendant. The defendant’s attorney appealed the ruling.
1-) Based on the documents in the file, the evidence on which the decision is based, the legal grounds, and in particular the absence of any inaccuracy in the assessment of the evidence, the defendant’s attorney’s other appeals must be rejected.
2-) In the present case, upon examination of the lease agreement dated July 30, 2008, entered into between the parties, it is understood that Article 6 of the agreement states that “the tenant hereby accepts and undertakes to increase the rent by …% upon the expiration of the contract.” Since the increase rate is not specified in the aforementioned provision, this increase condition is invalid as it is not specific and definite. Upon examination of the enforcement file numbered 2011/1648 of the Ankara 18th Enforcement Directorate included in the case file, it is seen that enforcement proceedings were conducted based on a monthly rent of TL 440. it is not possible to demand an increase from the monthly rent of “400 TL” specified in the lease agreement to “440 TL.” Therefore, the court’s ruling, which did not take this into account, is contrary to procedure and law and must be overturned.
CONCLUSION: For the reasons explained in the first paragraph above, the defendant’s attorney’s other appeals are rejected. For the reasons explained in the second paragraph, the ruling is REVERSED in favor of the defendant pursuant to Article 428 of the Code of Civil Procedure. The advance appeal fee shall be refunded to the appellant upon request. Pursuant to Transitional Article 3 of HMK No. 6100 and Article 440 of HUMK No. 1086, the decision is final and cannot be appealed. The decision was made unanimously on March 19, 2018.