What Should Be Done For The Tenant Who Does Not Pay Rent?

tahliye taahhutnamesi

In article 313 of the Code of Obligations; “The tenant is obliged to pay the rent” is included. Although it is the right of the lessor to demand payment of the rent, paying the rent is the tenant’s main debt.

Some legal actions may be taken against the tenant who does not pay rent due to the rental relationship. The lessor may initiate enforcement proceedings for the payment of the rent debt, and may also file an eviction lawsuit against the tenant who does not pay the rent debt. It is also possible to do both at the same time.

Rental debt is the price determined by the rental agreement. However, if the rental agreement continues with a 1-year renewal period, the rental price may change over the rental increase rate for each year. The lessor does not have the right to demand the evacuation of the tenant upon the expiration of the 1-year contract period. For this reason, after the 1-year lease is over, the lessee must continue to pay the rent in the amount of the rent increase rate determined in the lease contract.

A new lease agreement is not required to apply the rent increase rate. For this reason, the rent debt must be increased and paid in the new period without reaching a new agreement with the lessor. Otherwise, the lessor may initiate enforcement proceedings against the tenant due to non-payment of the rent debt. If the remaining rentdebt is not paid within 30 days, he can file an eviction lawsuit.

If the rental price is calculated as fractional with the increase, the tenant has to pay this fraction as well. In addition, the bank deduction should not be reflected to the lessor in the payment of the rental fee. The Supreme Court of Appeals General Assembly decided to evict the tenant who did not pay rent due to a debt of 0.35 kuruş.

For detailed information about rental agreements and rent increase rates, You can read our articles; “Residential Lease Agreement Under Turkish Law” and “How Much Can A Landlord Increase Rent in Turkey?

When Should the Rental Fee Be Paid?

According to Article 314 of the Turkish Code of Obligations, “The lessee is obliged to pay the rent and, if necessary, the ancillary expenses, at the end of each month and at the latest at the end of the rental period, unless there is a contrary contract and local custom.” As a rule, the rent is paid monthly and at the end of the month. However, the parties may agree on different payment terms.

The rental fee must be paid within the period specified in the rental agreement. For example, if there is a statement in the rental agreement as “between the 1st and the 5th” of each month, the rental fee must be paid until 00:00 on the 5th day of the month at the latest.

If there is no written rental agreement between the parties or there is no provision in the rental agreement regarding the payment of the rental price, the rental price must be paid by 00:00 on the last day of that month at the latest.

If the rent is not paid on time, the lessee may be put into default without the need for a separate notice or notice or time to be given to the lessee. For example, if it is stated in the lease agreement to pay the rent by the 15th day of each month at the latest and the tenant has not paid the rent despite the 16th of the month, the lessor; may initiate enforcement proceedings against the tenant. In such a case, the tenant may have to pay not only the rent debt, but also the costs of enforcement proceedings and attorney fees, if any.

How Long Is the Rent Debt Statute of Limitation (Timeout) Under Turkish Law?

The statute of limitations for receivables arising from the lease agreement is 5 years. For this reason, the lessor must make a legal claim within 5 years due to the rent receivable.

If the statute of limitations expires, the lessor’s right to demand more than 5 years’ rent does not automatically cease. The statute of limitations should not be confused with the period of disqualification. Since there is a 5-year statute of limitations, the tenant must object to the statute of limitations.

The Landlord may initiate an Execution Proceeding with an Eviction Request for Retroactive Rental Fees.

The lessor has the right to request the payment of the rent balance retrospectively regarding the rent increase rate differences. Unless there is a written agreement between the lessee and the lessor. This written agreement can be written on paper as well as electronic methods such as e-mail, whatsapp conversation, message conversation.

Let’s explain this situation with an example: In the lease agreement that started on 01.09.2019 between Lessor A and Tenant B, the rent increase rate was determined as the legal rate, that is, the twelve-month increase in the consumer price index. On 01.09.2020, while the tenant should increase the rent at the legal rate, the tenant and the lessor talked on the phone and the lessor verbally said that Covid 19 affected everyone’s life and B did not need to increase the rent. B continued to pay the rental fees as he had paid in the previous year due to the verbal agreement.

After 2 years, the lessor A asked Tenant B to increase the rental price 3 times because the precedent rents were too high, and B said that he could not fulfill such a request. Lessor A, due to the increase that was not made in 2020, put the rent balance difference into execution proceedings without a verdict with an eviction request. Tenant B has two options. It will either pay the remaining rent to the lessor within 30 days or object to the execution proceeding. If he objects to the enforcement proceeding, if he does not pay the rent within 30 days, the tenant will not only have to pay the remaining rent, as he will not be able to submit a written document about not increasing the rent, but will also lose the eviction lawsuit.

The tenant’s objection to the statute of limitations or the objections of the lessor who collects the rental fees, that there is a tacit implicit acceptance of not increasing the rent, are not heard in the court. Because, in a precedent decision of the Supreme Court of Appeals General Assembly, the collection of the underpaid rent in case the remaining rents are requested due to the absence of an increase in rent is not considered an implied implicit acceptance.

First Method; Execution Proceedings and Eviction Process Without Judgment About the Tenant Who Doesn’t Pay Rent

An execution proceeding without a judgment may be initiated against the tenant who does not pay the rent. With this execution proceeding, “eviction” may also be requested.

If an execution proceeding without a verdict (Sample No: 13) with an eviction request is initiated, the lessee will pay the debt within 7 days from the notification of the payment order; may object to the existence of the lease relationship, the statute of limitations, and signature. If the lessee objects to the existence of the rental relationship, the lessor should wait for the payment of the rent debt for 30 days, and then an action for annulment and eviction should be filed in the Civil Court of Peace. If there is no objection to the existence of the rental relationship, the objection can be lifted and the eviction lawsuit can be filed at the Enforcement Law Court.

Eviction Due to Two Valid Notices;

The lessor, while initiating the enforcement proceedings, must simultaneously subject all the overdue rent debts to the enforcement proceedings. Initiating enforcement proceedings may result in the cancellation of the follow-up, as the rent will be charged separately for each month. In addition, due attention should be paid to the condition of dueness in terms of the eviction lawsuit due to two justified warnings. Otherwise, two rightful warning conditions will not be fulfilled.

If the tenant pays the rent within 30 days, an “eviction” lawsuit can no longer be filed against the tenant. In such a case, in case the tenant does not pay or delay the rent debt in this way within the same rental period, initiation of enforcement proceedings may lead to an eviction lawsuit due to two rightful warnings, if the conditions exist.

For the eviction of the tenant who does not pay the rent on time and delays it, you can also review our article “Eviction Due To Two Valid Notices Under Turkish Law

Second Method; Detection of Termination and Case for Lease Eviction About the Tenant Who Doesn’t Pay Rent

Conditions for Termination of the Rental Agreement

In Article 315 of the Turkish Code of Obligations: “If the lessee does not perform his obligation to pay the due rent or ancillary expenses after the delivery of the leased property, the lessor may give the lessee a period in writing and notify that he will terminate the contract if he does not perform within this period. The period to be given to the tenant is at least ten days, and at least thirty days for residential and roofed workplace rentals. This period begins to run from the day following the date of the written notification to the lessee.” According to the provision, the conditions required for the termination of the lease agreement due to the tenant’s failure to pay the rent; In order for the leased property to be delivered to the lessee, for the lessee to not fully or partially pay the due rent or ancillary expenses after delivery, for the lessor to pay the rental fee or ancillary expenses that the lessor has not fulfilled, at least 30 in the rents of residences and roofed workplaces, and at least in other rents. If the payment is not made again by giving 10 days, it should be warned that the contract will be terminated, and the tenant should not have made the payment within the given time.

In order for the debtor to go into default, first of all, the performance of the debt must not be impossible and the debt must not be performed on time. According to Article 117 of the Turkish Code of Obligations, the debtor of a due debt is in default with the warning of the creditor. The debtor’s fault in performance is not a necessary condition for default.

Lessor’s Notice of Termination

The rent demanded to be paid in the notice of termination must be the rent that has become due after the delivery of the leased property to the lessee, but has been in default by the lessee. The notice of termination must be directed to the tenant and the period to be given to the tenant is at least ten days, and at least thirty days for residential and roofed workplace rentals.

In order for the contract to be terminated, the lessor must warn the lessee that it will terminate the contract if it does not perform its debt within the notified period. The lessor does not necessarily need to use the word termination in the notice. There is a requirement of ordinary written form in the notice of termination.

When the lease agreement expires after the termination of the lessor, the lessor can provide the lease receivables and eviction with the execution proceeding without judgment, based on Article 272 of the Enforcement and Bankruptcy Law. If the tenant does not object to this within 7 days, it becomes final. However, he must clearly state that he also wants to be released in the follow-up request. Otherwise, according to the Court of Cassation, the bail cannot be decided by the enforcement office. (Court of Appeals General Assembly, 2017/6-1842 Principle, 2021/648 Decision, 01.06.2021.)

In addition, 30 days after the payment order is notified to the debtor, the payment should be expected and the termination and eviction lawsuit should be filed. Otherwise, it constitutes grounds for dismissal of the case. (Court of Appeals 3rd Chamber of Law, 2017/ 9050 Basis, 2018 / 1866 Decision, 01.03.2018.)

Determination of Termination and Eviction Lawsuit

Refund lawsuit is the lawsuit filed by the lessor for the return of the leased property, in case the tenant does not return the leased property despite the termination of the lease agreement and the debt to return the leased property. At the end of the contract, as per article 334 of the Turkish Code of Obligations, the tenant’s debt to return the leased property after the termination became due. In the parties of the case, the plaintiff is the lessor and the defendant is the lessee.

According to the Court of Cassation, what is requested in this case should not be confused with the lawsuit filed against 352/2. When this lawsuit is filed, it should be checked whether the default has occurred. When the default occurs, it is necessary to decide on the eviction of the leased property due to the default in line with the claimant’s request. (Court of Appeals 6th Civil Chamber, 2014/12335 Basis, 2014/14230 Decision, 18.12.2014.)

Competent Court

The competent court for the determination of the termination and eviction lawsuit is the Civil Court of Peace. Because, according to the unitary paragraph of Article 4 of the Code of Civil Procedure, “…regardless of the value or amount of the subject of the lawsuit; a) Settlement of all disputes and lawsuits filed against these lawsuits, apart from the provisions regarding the evacuation of the leased immovables by enforcement without judgment pursuant to the Execution and Bankruptcy Law dated 9/6/1932 and numbered 2004. It is tried by a court of law.”

Authorized Court

The authorized court, on the other hand, is determined in accordance with Articles 6 and 10 of the Code of Civil Procedure, since the request for extradition is a personal right arising from the lease agreement. Article 6 of the Code of Civil Procedure states: “The court of general jurisdiction is the court of the domicile of the defendant real or legal person on the date of the lawsuit.” In Article 10 of the Code of Civil Procedure; “The lawsuits arising from the contract can also be filed in the court of the place where the contract will be executed.” has a provision. Since the place where the lease contract will be executed is the place where the leased person is located, the peace courts of the place where the immovable is located are authorized to deal with the eviction lawsuit arising from the lease contract.

Proof

In the 6th article of the Turkish Civil Code; “Unless there is a contrary provision in the law, each party is obliged to prove the existence of the facts on which it bases its rights.” Based on this article, it is necessary to prove the existence of a rental relationship and the rent amount by the lessor, and the tenant should prove that the rent has been paid.

If the rental agreement in the eviction lawsuit is verbal, if the tenant does not object to the starting date and duration of the tenant’s rental agreement, then the court accepts the beginning, date and duration of the agreement notified by the lessor by the court. If the tenant objects, the lessor must prove the starting date and duration of the lease agreement. If the annual rental amount is below the amount written in Article 200 of the Code of Civil Procedure, the lessor can prove the rental relationship with a witness. (KELEŞ, Merve Kübra, 6098 Sayılı Türk Borçlar Kanunu’na Göre Adi Kira Sözleşmesinin Kira Bedelinin Ödenmemesi Sebebiyle Sona Erdirilmesi, 2020, Ankara, s.125.)

Plaintiff’s Claims

The plaintiff may first claim the rent debt that is the subject of the lawsuit. The renter is liable to pay default interest regardless of whether there is a fault in paying the rent debt, money owed rent or not. However, the debtor must be at fault in order to be able to claim delay compensation due to default or to claim compensation for negative damage or excess damage due to termination of the lease agreement. If the lessee is at fault in default, then the lessor can also claim delay compensation and negative damage.

In Terms of Advantages

Initiating enforcement proceedings without a verdict with an eviction request, which we have mentioned as the first method, about the tenant who does not pay rent, is more advantageous than filing an eviction lawsuit in the magistrate’s court after the termination notice, which is stated as the second method. First of all, if the second method is preferred about the tenant who does not pay rent, the enforcement proceedings may have to be started again for the collection of the rental fees. In terms of time, the process of eviction in the execution court will result faster than the eviction process in the civil court of peace. Therefore, the first method is still more advantageous. In terms of costs, the first method is more advantageous, since the eviction lawsuit in the execution court is subject to a fixed fee, while a fee will be paid over the twelve-month amount of the last paid rent in the civil court of peace.

If the conditions are met at the same time as the eviction process is started due to the non-payment of the rent against the tenant who does not pay rent; Due to two rigthful warnings, an eviction lawsuit can be initiated together with an eviction process based on an eviction notice.

Eviction cases are concluded within 1 – 1.5 years on average. There may also be an appeal process. For this reason, it is advantageous for the lessor to file an eviction lawsuit against the tenant who does not pay the rent, if the conditions are met, for the determination of the rental price.

Do you need legal assistance regarding tenant rights, tenancy disputes or litigation? Clear your doubts.

Rental agreements are seen as a procedure in our country due to lack of knowledge or carelessness in legal matters. In fact, we often come across a rental relationship without a written lease agreement. However, lease agreements are contracts that bind both parties and impose mutual obligations.

The fact that people act without knowing the rights and obligations arising from the rental agreements that are frequently made in order to meet the basic needs of shelter or workplace causes very serious problems. Especially in countries where inflation is high, there is a confrontation between the lessors and the tenants based on the precedent rental prices, and the parties end up in the corridors of the courthouse.

Lawyers of BAL Law Firm provide legal services in all disputes arising from residential and roofed workplace lease agreements. In particular, disputes related to rent increase rates, tenant eviction, eviction lawsuits based on eviction notice, tenant’s rights, eviction lawsuit due to non-payment of rental fees, collection and enforcement proceedings, eviction lawsuit due to new owner’s need, receivables arising from past rental fees, rental adaptation lawsuits, rental We have very competent knowledge and experience on disputes such as settlement cases.

Contact BAL Law Firm

Call Us : +90 212 909 86 34

Send Mail : info@ballawoffice.com

whatsApp