I. Legal Regulations Regarding Tenant’s “Common Expenses” Payment
1. Common Expenses According to the Condominium Law
In condominiums and collective structures, there are certain expenses related to the use, maintenance, and ownership of common immovables and shared spaces. For example, expenses such as electricity used in the building, elevator maintenance, security, fuel, real estate insurance premiums, reinforcement, etc., may arise. These expenses are referred to as “common expenses” in the Condominium Law.
As a general rule, the responsibility for the payment of “common expenses” arising from the Condominium Law lies with the condominium owners. However, tenants have also been held responsible for the payment of common expenses along with condominium owners. (Condominium Law Article 22) Accordingly, if a tenant fails to pay the “common expenses,” the site management, apartment management, or condominium owners’ association may initiate enforcement proceedings against the tenant, jointly with the condominium owner.
2. Incidental Expenses According to the Turkish Code of Obligations
According to the Turkish Code of Obligations, “incidental expenses” can be defined as the expenditures made for the use of the leased property by the lessor or a third party. (BİLGİN, Özge; Liability for Incidental Expenses in Rental Law, Master’s Thesis, 2020 Istanbul)
The “common expenses” specified in the Condominium Law and the “incidental expenses” regulated in the Turkish Code of Obligations are different from each other. The “incidental expenses” regulated in the Turkish Code of Obligations should be directly related to the use of the leased property. Therefore, expenditures such as “doorman’s fee, security fee, cleaning expenses, common fuel expenses, etc.,” considered as “common expenses” according to the Condominium Law, can also be considered as “incidental expenses” under the Turkish Code of Obligations. However, expenses such as “insurance payments related to the main immovable, tax payments, reinforcement expenses, etc.,” made according to the Condominium Law as “common expenses” will not be considered as “incidental expenses” under the Turkish Code of Obligations.
3. In General Usage, Dues
“Dues” is defined as “money paid regularly and systematically for a service.” (Turkish Language Association Dictionary) In Turkish, the term “dues payment” is commonly used for regular and monthly payments.
The terms “dues” or “association fees” are not explicitly mentioned in the Turkish Code of Obligations or the Condominium Law. However, depending on the legal context, “dues” can be understood as either “common expenses” or “incidental expenses.” In this text, the term “dues” is used interchangeably with “incidental expenses.”
In residential and roofed commercial lease agreements, if the contract does not state otherwise or if there is no local custom to the contrary, the tenant is responsible for utility expenses such as heating, lighting, and water. (Turkish Code of Obligations Article 341) Therefore, even if there is no written residential or commercial lease agreement between the parties, or if the lease agreement does not contain a provision stating that the tenant is responsible for incidental expenses, the tenant will be responsible for incidental expenses, i.e., dues.
II. What Can Be Done About a Tenant Who Doesn’t Pay Dues?
Regarding a tenant who doesn’t pay dues, legal processes can be initiated for the collection of outstanding dues and eviction of the tenant. However, before starting both processes, the landlord should first pay and document the due dues that are due.
1. Legal Execution Process Against a Tenant Not Paying Dues
After the landlord pays and documents the due dues that the tenant is obligated to pay, they can initiate a legal execution process against the tenant by filing for enforcement, seeking reimbursement for the unpaid dues. If the landlord’s request is solely for the recovery of the unpaid dues, initiating the execution process through general seizure will be appropriate. While initiating this execution process, it is not mandatory to present the payment receipt as evidence that the dues have been paid by the landlord. However, it is crucial for any potential legal challenge raised by the tenant-debtor in the subsequent lawsuit.
2. Eviction Lawsuit Against a Tenant Not Paying Dues
If the tenant fails to pay the incidental expenses, which include dues, the landlord can serve written notice to the tenant, giving them at least thirty days to pay the dues. If the tenant does not settle the dues within this period, the landlord can terminate the lease. According to Article 315 of the Turkish Code of Obligations, it is possible to evict a tenant who does not pay the dues.
Before filing an eviction lawsuit against a tenant who has not paid the dues, the landlord should consider the following points:
- The residential or commercial lease agreement should explicitly state that the tenant is responsible for incidental expenses, including dues.
- If there is a provision in the lease agreement specifying that the dues should be directly paid to the management’s bank account, the landlord must first pay the unpaid and due dues and document this payment.
- The landlord has two options before initiating the eviction process against a tenant not paying dues: The first option is to send a written notice to the tenant, providing at least thirty days for the payment of the dues to the specified account. If the dues remain unpaid despite this notice, an eviction lawsuit can be filed in the Sulh Hukuk Mahkemesi (Peace Civil Court). The second option is to pursue ordinary execution proceedings (Sample No: 13 Execution Procedure) for ordinary rent and revenue rents. If the tenant-debtor does not object to the execution proceedings, after thirty days from the service of the payment order, an eviction can be obtained by filing a lawsuit in the Enforcement Court.
Comparison of Processes in Terms of Advantages and Disadvantages:
For both options mentioned above, if the tenant fully pays the due dues within the thirty-day period, an eviction lawsuit cannot be filed. Additionally, non-payment of dues will not be considered a justifiable reason for an eviction lawsuit based on two valid notices.
If a demand for payment of due dues is made through a warning letter to the tenant who has not paid the dues, and the tenant still does not pay the dues, the eviction lawsuit to be filed must be in the Sulh Hukuk Mahkemesi (Peace Civil Court).
In terms of duration:
Eviction lawsuits filed in the Sulh Hukuk Mahkemesi generally take longer compared to eviction lawsuits filed in the icra hukuk mahkemesi (Enforcement Court). Furthermore, even if a favorable eviction decision is issued in the eviction lawsuit filed in the Sulh Hukuk Mahkemesi, the tenant may deposit the three months’ rent during the appeal process, leading to the suspension of enforcement.
In terms of costs:
Eviction lawsuits heard in the Sulh Hukuk Mahkemesi are subject to a proportional fee based on the annual rent. On the other hand, an eviction lawsuit to be heard in the icra hukuk mahkemesi is subject to a fixed fee. From this perspective, filing an eviction lawsuit in the icra hukuk mahkemesi would be more advantageous for the landlord.
If the tenant, who has been put into default by sending a warning letter, does not pay the due dues within thirty days, an eviction lawsuit can be filed in the Civil Court of Peace, and the unpaid receivables can also be claimed. However, in this case, the legal process will take a considerable amount of time. If an eviction lawsuit is filed in the Sulh Hukuk Mahkemesi and a separate enforcement without a judgment is initiated through general seizure, in the event of the debtor’s objection, another lawsuit will need to be filed. This will further extend the process of recovering the paid dues.
In the case of ordinary rent and revenue leases, if enforcement proceedings are initiated, the written warning requirement for the eviction process against the tenant will be met, and the collection process will also be initiated. Initiating enforcement proceedings with example no:13 and filing an eviction lawsuit in the icra hukuk mahkemesi if the tenant does not pay the due dues within the thirty-day payment period is more advantageous in terms of all the mentioned aspects. However, this process also involves legal risks.
The 6th and 8th Civil Divisions of the Court of Cassation, which provide legal oversight for objections to removals and eviction lawsuits, have issued approval decisions in many cases involving tenants who do not pay “dues” in enforcement proceedings for ordinary rent and revenue leases, followed by eviction lawsuits in the execution court.
Precedents that can Establish a Precedent for the Eviction of a Tenant who does not Pay Dues;
In the decision dated 05/05/2016, numbered 2015/11213 and 2016/3718, of the 6th Civil Chamber of the Court of Cassation; “The decision given by the execution court with the date and number written above has been appealed within the legal period by the plaintiff. … The lessor may request the termination of the contract due to the tenant’s default not only in rent but also in incidental expenses. In this case, the court should bring the written lease agreement as a basis for execution and collect evidence from both parties (payment documents related to the payment claim), and a decision should be made according to the result, but it is incorrect to dismiss the case with a written justification…”
In the decision dated 05/09/2016, numbered 2015/11891 and 2016/5132, of the 6th Civil Chamber of the Court of Cassation; “In the payment order given by the execution court… The defendant debtor paid 4,700.-TL to the plaintiff’s bank account within the legal thirty-day period granted in the payment order, but due to not paying the dues amounting to 50.-TL, the default has occurred. Although the court should decide on the eviction of the leased property and the removal of the objection for the unpaid receivables, it is incorrect to decide in writing…”
In the decision dated 04/10/2017, numbered 2017/3731 and 2017/12158, of the 8th Civil Chamber of the Court of Cassation; “On the application of the plaintiff creditor, initiated against the defendant debtor as a kira debt and eviction, after the objection of the defendant debtor in the execution proceedings, the plaintiff applied to the court for the removal of the objection and eviction. The court decided to dismiss the case with the justification that the fuel cost is not specific, the tenant objected to the debt due to the indeterminacy of the fuel cost, therefore, the determination of the fuel expense requires litigation and cannot be considered as rent receivable. Thus, the default did not occur. This is incorrect. Although the fuel expenses of the leased property, which are to be borne by the tenant, are clearly determined as an advance payment of 250.00 TL by the apartment management to which the leased property belongs. The dispute does not require litigation. In this case, the court should examine the essence of the matter and decide according to the result, but it is incorrect to dismiss the case with a written justification…”
However, in terms of “Cancellation of Enforcement” lawsuits, the 12th Civil Chamber of the Court of Cassation, which conducts legal review, has some decisions that can be summarized as; regarding enforcement proceedings for ordinary lease and revenue leases, it can only be done for rent payments, and the “dues” debt cannot be the subject of this enforcement proceeding. Due to this difference in jurisprudence among the courts, it may be possible to cancel the Sample No:13 enforcement proceedings initiated against a tenant who does not pay dues through a “cancellation of enforcement” lawsuit to be filed by the tenant or their lawyer.
Some news websites or law firms’ web pages may provide incorrect information by referring to the decisions of the 12th Civil Chamber of the Court of Cassation, stating that a tenant who does not pay “dues” cannot be evicted, which is due to the difference in jurisprudence.
If eviction proceedings are to be initiated against a tenant who does not pay dues, it would be appropriate to seek legal assistance from an expert attorney or law firm in the field of rental law.
Memduh Remzi BAL
Lawyer / Attorney in Turkey
Landlord Tenants Attorneys in Turkey
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Sen Mail : info@ballawyer.com
