Some regulations that shall lead to significant amendments in application and fill current legal gaps have been brought with Obligation Code law numbered 6098 which shall be effected into on 01.07.2012.
Significant amendments have been made related to the rent agreement which is among private liability relations.In accordance with new regulation,rent agreements have been determined into basic 3 parts.
1- General provisions(article 301-338)
2- Rental of residence and covered workplaces (article 339-356)
3- Usufructuary lease (article 357-378)
With second part entitled as provisions regarding rental of residence and covered workplaces, the criteria that is limited application areas such as places at municipality borders,port,pier and stations at article 1 of Code Related To Rental Of Residence and Covered Workplaces Law Numbered 6570 has been discarded and Code law numbered 6570 has been abolished and its provisions have been included into New Obligation Code.
The provisions related to determination of rental, increasing of rental and filing lawsuit for rental determination are among outstanding amendments at new obligation code. The stated amendments can be sorted as below.
a-Determination and increasing of rent
In accordance with article 344 of new obligation code
“The agreements between parties related to the rent shall be applied at renewed rental periods are valid provided that the rate of rent increase shall not exceed the increasing rate of producer price index at the previous rent period. This rule shall be applied for the rent agreements which are valid more than one year too.
In case parties did not conclude an agreement about this subject, rent shall be determined by considering the situation of lessor and regarding equity by judge provided that the rate of rent increase shall not exceed the increasing rate of producer price index at the previous rental period.…” Thus according to this new provision,in case parties do not make agreement, rent increases shall not exceed the increasing rate of producer price index at the previous rental period.
On the other hand, at 3th paragraph of the same article,the following statement has been written
“Without searching that there is an agreement about this subject between parties or not, rent shall be applied at new rental period that shall be determined by considering increasing rate at producer price index, the situation of lessor and precedent rent and by complying with equity at rent agreements which are longed more than five years or rent agreements renewed after five years and at the end of each five years after that. Rent which is determined at the rent period that is after each five years might be changed in accordance with principles at previous paragraphs.” With this provision, it is emphasized that the increasing limitation at PPR shall be valid for five years.
With regard to government’s reason prepared for paragraph 3 of article 344; ” …….rental shall be applied to the rent agreement which shall be renewed after five years and new rental period after at the end of each 5 years shall be determined by considering precedent rents (PPR and the situation of lessor) with above mentioned rules by judge.However the increase at PPR shall not be accepted as upper limit
Rent has been determined at rental period which is after each five years might be changed in accordance with rules stated at previous paragraphs. Thereby after determination of rent which is for 6th rental period, provisions of 1st and 2nd paragraphs shall be applied for rental year by year at five years term rent agreement; In other words the agreement of parties might be taken into consideration; the validity of agreement shall be limited with increasing rate of PPR, if there is no agreement,second paragraph provision shall be applied.”
The other amendment related to this subject is made for the situations that rental is determined at foreign currency. According to last paragraph of article 344;
“In case the rent has been determined as foreign currency at agreement,the rent should not be amended until the end of five years.However provisions of article 138 entitled as “Hardship”are reserved.The provisions of 3th paragraph shall be applied by considering of changes at foreign currency at the rent determination after five years.”
According to last paragraph of this article, in case parties concluded a rent agreement on foreign currency , there will be no changes on rent during five years.After this duation, the matters such as foreign currency value, precedent rental shall be evaluated.
Furthermore making amendments at rent might be in question by considering economic conditions,the situation of leased, new conditions occured at crisis periods.
b- Filing lawsuit for determination of rent
A legal regulation has been brought related to filing lawsuit for determination of rent with article 345 of new Obligation Code.
With this article that is not written at Old Obligation Code law numbered 818 and Code law numbered 6570, it is stated that rent determination case,in other words rent declatory action can be filed at anytime.
According to 2nd paragraph of article 345 of new code, rent shall be determined thereby filing lawsuit by court, the lawsuit should be filed at latest 30 days before new rental period or a written notification related to increasing of rent should be sent to the lessee within this time period by lessor for being valid as per beginning of new rental period
On the other hand, in respect of last paragraph of article 345, if there is a provision about rent increase at the new rental period and lessor has brought rent declaratory action until the end of new rental period, the rent determined by court shall be valid as per beginning of new rental period
In conclusion, as can be seen, when the provisions related to the rent determination and increase are evaluated, the Supreme Court practices and rules regarding application on rental increase and determination have been adopted at new code and so obscurity has been finished by filling legal gaps at old obligation code.
