I. Shopping Mall Lease Agreement
A shopping mall is a structure or a complex of structures with a minimum of five thousand square meters of retail space, comprising a group of buildings within a structural integrity. It must include at least one major store and a minimum of ten businesses, even if one of them is considered a major store, catering to some or all of the needs for nutrition, clothing, entertainment, relaxation, cultural, and similar requirements. In the absence of a major store, it should have at least thirty businesses providing for some or all of the needs for nutrition, clothing, entertainment, relaxation, cultural, and similar requirements, along with common areas and a centrally managed structure.
Shopping malls fall under the category of covered workplaces as regulated by the lease provisions of the Turkish Code of Obligations. Additionally, if the shopping mall subject to the lease agreement is a real property subject to condominium ownership, the relationships among the owners of independent sections are governed by the Condominium Ownership Law.
II. Common Expenses to be Paid in the Shopping Mall
According to Article 3 of the Regulation on Shopping Malls, common expenses in shopping malls include non-specific common area expenses such as electricity, water, natural gas, non-renewal maintenance and repair, security, cleaning, health expenses related to common usage areas, and management expenses that do not belong to the shopping mall itself.
The common expenses specified within the framework of the Regulation on Shopping Malls are mandatory and cannot be agreed upon otherwise by the parties. Therefore, any matter not explicitly mentioned as a common expense within the scope of the Regulation on Shopping Malls cannot be agreed upon as a common expense through the shopping mall lease agreement between the parties.
Common expenses are allocated among retail businesses in the shopping mall in proportion to the sales area of the retail businesses to the total sales area of the shopping mall. Moreover, the shares of common expenses are calculated and paid in Turkish Lira. Additionally, expenses for advertising, marketing, and consultancy from retail businesses in the shopping mall are not considered common expenses.
Tenants are responsible for paying common expenses. However, the common expense participation shares for unleased premises are covered by the owners of these premises. If the tenant fails to pay these common expenses, the owner can cover the expenses and demand reimbursement from the tenant. Additionally, in shopping mall leases, the landlord can demand the amount from the tenant, and if the tenant does not pay the common expenses within 30 days, the landlord has the right to evict the tenant.
III. Lawsuit for Adjustment of Rent in Shopping Malls
Article 138 of the Turkish Code of Obligations states: “If an extraordinary situation, not foreseen by the parties at the time of the contract and not expected to be foreseen, arises due to a reason not originating from the debtor, and if, with rights reserved for the excessive difficulty of performance or the facts available at the time of the contract change to the disadvantage of the debtor to an extent contrary to the rules of good faith, and the debtor has not yet performed the debt or has performed it while preserving the rights arising from the excessive difficulty of performance, the debtor has the right to request the adaptation of the contract to the new conditions from the judge, and if this is not possible, the right to rescind the contract. In continuous performance contracts, the debtor generally exercises the right of rescission instead of the right of return.”
If an extraordinary situation arises in shopping mall lease agreements that was not foreseen by the tenant and could not be expected to be foreseen, and if paying the rent becomes excessively difficult, the tenant may request an adjustment of the rent. According to decisions of the Court of Cassation:
- The incomplete completion of construction activities in the shopping mall and the partial state of the mall as a construction site,
- The closure of other stores in the shopping mall and a significant decrease in customer capacity,
- Extensive renovation activities initiated in the shopping mall a long time ago, covering some areas with curtains, preventing customer entry through the entrance due to renovations, and a significant decrease in the turnover of the business due to renovations,
- Guaranteeing the occupancy rate of the shopping mall in the lease agreement, but not achieving this occupancy rate, are situations where a decision for the adjustment of rent may be made.
If the tenant in the shopping mall is a merchant, they are obliged to act as a prudent businessman. Therefore, if an event could have been foreseen in advance, a decision for the adjustment of rent cannot be made. Additionally, traders under the scope of the Turkish Commercial Code have an obligation to act prudently. In this context, when leasing a place in the shopping mall, the tenant should examine the physical and legal status of the leased property and act accordingly. As stated in the Turkish Code of Obligations, an unforeseeable situation must arise for the lawsuit for the adjustment of rent to be accepted.
IV. Is Payment of Rent Required If the Shopping Mall Does Not Open?
It may be agreed in the shopping mall lease agreement that the rent will be paid from the date the shopping mall is scheduled to open. Additionally, there may be a specific provision in the lease agreement regarding the date of the shopping mall’s opening.
If the lease agreement stipulates that the rent and common expenses will start from the opening date of the shopping mall, the delivery of the business premises is required for the lease agreement’s rent to commence. If the shopping mall does not open, and the business premises cannot be delivered to the tenant, there is no obligation for the tenant to pay rent and common expenses.
If the lease agreement was made before the scheduled opening date of the shopping mall, the payment of rent should commence with the opening of the shopping mall and the delivery of the business premises to the tenant.
V. Can Expenses Incurred for the Leased Property Be Reclaimed?
Tenants may have incurred various expenses for the leased premises in shopping malls. In this context, when the leased property is vacated, the tenant can demand from the landlord the mandatory and beneficial construction costs incurred for the leased property. Additionally, removable items can be taken away.
VI. Termination of the Shopping Mall Lease Agreement
Since shopping malls are considered covered commercial premises, a eviction lawsuit can be filed according to the provisions of the Turkish Code of Obligations related to residential and covered commercial premises.
The landlord must make the leased property available to the tenant in the manner intended by the contract. If the characteristics of the shopping mall change, for example, if a private school is opened inside, the tenant may terminate the lease agreement. The tenant must first send a notice to the landlord, giving a period and requesting the rectification of deficiencies or defects. If the need for sending a notice is unnecessary, the contract can be terminated directly.
If the tenant is a merchant, there is an obligation to act prudently. When leasing a business premises from a shopping mall, the tenant should examine the physical and legal status of the leased property and act accordingly. If the tenant did not act prudently, they cannot terminate the lease agreement for this reason.
If the tenant unilaterally terminates the lease agreement and vacates the leased property before the expiration of the lease term, they are generally responsible for the rent until the end of the lease term. In this context, the tenant is required to make efforts to re-lease the property, fulfill their duty to prevent the increase of damages, and pay the rent until the date when the property could be re-leased under the same conditions. The tenant is also required to pay the common expenses of the shopping mall to the landlord for the period the property is vacant.
Ece Deniz Vardar
Lawyer / Attorney in Turkey
Landlord Tenants Attorneys in Turkey
Call Us : +90 212 909 86 34
Sen Mail : info@ballawyer.com
