Rent Adjustment Lawsuit

The principles of contractual commitment (pacta sunt servanda) and freedom of contract have been accepted in our legal system. According to these principles, the contract must be applied and its provisions must be adhered to exactly as they were agreed upon at the time of the contract. In other words, even if the conditions of the contract have become more burdensome for the debtor or the balance of obligations has changed due to unforeseeable events, the debtor must fulfill their obligations exactly as stated in the contract. According to the principle of pacta sunt servanda, changes in circumstances or the occurrence of sudden and risky events do not constitute an obstacle to fulfilling the agreement. The parties enter into the contract taking into account future conditions and are obligated to keep their word. It should also be noted that the principle of freedom of contract requires that the parties be equal rights holders with each other.

If changing circumstances disrupt the natural balance of the contract, and the parties have not taken any measures for such situations, a gap in the contract will be filled by interpretation in accordance with the meaning of the contract and the will of the parties, and in compliance with the principle of good faith. (Article 1 of the Turkish Civil Code) This method of interpretation or adjustment of the contract to changing circumstances is called "adaptation of the contract." [1] [2]

Demanding the adjustment of the rent amount to changing conditions throughout the duration of the lease contract is also known as a "rent adjustment lawsuit." This article focuses on the details of a rent adjustment lawsuit.

1. CONDITIONS FOR RENT ADJUSTMENT LAWSUIT

The main purpose of a rent adjustment lawsuit is to request an adjustment based on the excessive difficulty of performance, as stipulated in Article 138 of the Turkish Code of Obligations. It should be noted that a rent adjustment lawsuit can be filed for any type of lease agreement. The necessary conditions for filing a lawsuit are as follows [3]:

• An unforeseen extraordinary change in circumstances that results in the collapse of the transaction basis of the lease agreement is required.
• There must be no contract term for determining the rent during the continuation of a long and definite term lease agreement. The fundamental logic of the adjustment lawsuit is based on the fact that the parties did not include contractual mechanisms that would allow them to intervene in the rent agreed upon for a long period of lease.
• Filing an adjustment lawsuit is only possible for long-term lease agreements and not for short-term lease agreements. [4] This is because the shortness of the lease term weakens the possibility of the "unforeseeability" requirement being met. However, contrary to the consistent application of the 13th Civil Chamber of the Court of Cassation, a decision by the General Assembly of the Court of Cassation allows for adjustment in short-term lease agreements. [5] In indefinite lease agreements, the option of termination notice that the parties have (Article 328 of the Turkish Code of Obligations) does not leave room for an adjustment lawsuit. An adjustment lawsuit cannot be filed for lease agreements renewed for one year under Article 347/1 of the Turkish Code of Obligations or indefinitely under Article 327/2 of the Turkish Code of Obligations.

In summary, an extraordinary situation that is unforeseen or unexpected is required for an adjustment lawsuit to be filed. Even if a situation can be foreseen, if the scope and magnitude of the consequences cannot be predicted in advance, the "unforeseeability" requirement is deemed to have been met. [6]

2. CONFLICT AND FILING A LAWSUIT

The rent adjustment lawsuit can be filed at any time without the need for a warning if the conditions in Article 138 of the Turkish Civil Code are met. This lawsuit can be filed by either the lessor or the lessee who has a legal interest in filing it.

In cases of excessive inflation, there may be a disproportionate obligation in favor of the lessor, while in cases where the rent is determined in foreign currency, there may be a disproportionate obligation and excessive performance difficulties in favor of the lessee due to high levels of devaluation between obligations in the application of the rent adjustment lawsuit. [7]

3. COMPETENT AND AUTHORISED COURT

According to Article 4/1 of the HMK No. 6100, regardless of the value or amount of the subject matter of the lawsuit, the Civil Court of Peace is responsible for hearing all disputes, including claims arising from rental relationships, concerning leased immovables and the lawsuits filed against such claims.

As a rule, the rent adjustment lawsuit is filed at the defendant's place of residence or where the real estate is located, i.e., where the contract is to be fulfilled.

4. DIFFERENCES BETWEEN RENT DETERMINATION AND RENT ADJUSTMENT LAWSUITS

• Rent determination lawsuit is only applicable for residential and covered workplace rents. Rent adjustment lawsuit can be filed for all kinds of lease agreements.
• To initiate a rent determination lawsuit, there must be some uncertainty about the rental rate increase in the contract, or even if the increase rate is determined, the contract must have lasted for more than five years. On the other hand, there is no need for any uncertainty or for the contract to have lasted for more than five years to file a rent adjustment lawsuit.
• In rent determination lawsuits filed before five years have passed since the contract was signed, the court must determine a new rent based on the annual CPI rate as specified in the law. If the lawsuit is filed after five years, a comparative rent study is conducted. In rent adjustment lawsuits, the court makes a decision based on new terms without any limitation. The judge makes the adjustment within the framework of fairness and honesty.
• There is no need for extraordinary conditions for rent determination. Uncertainty about the rental rate increase or the passage of a five-year period is sufficient. In rent adjustment lawsuits, there must be extraordinary circumstances that create excessive performance difficulties, beyond the fault of the defendant.

In conclusion, if the conditions that influenced the parties to enter into a contract have significantly changed, the parties are no longer bound by the agreement. In such cases, it is possible to renegotiate the contract based on the changed circumstances. However, since adherence to the contract is fundamental, adjustment should always be considered as an auxiliary solution. [8]

Leyla Sarı

BIBLIOGRAPHY

1 Kılıçoğlu, Mustafa. Eviction Determination Adjustment Compensation and Debt Lawsuits. Ankara: Bilge Yayınevi, 2015.

2 Yargıtay 13th Civil Chamber – 6791/9014 24.10.1994 T.

3 Gümüş, Mustafa Alper. Lease Agreement. Istanbul: Vedat Kitapçılık, 2012.

4 Yargıtay 13th Civil Chamber – 13557/2495 10.03.2003 T.

5 YHGK 13-852/864 30.10.2002

6 Baysal, s,171

7 Gümüş, Mustafa Alper. Lease Agreement. Istanbul: Vedat Kitapçılık, 2012.

8 Kılıçoğlu, Mustafa. Eviction Determination Adjustment Compensation and Debt Lawsuits. Ankara: Bilge Yayınevi, 2015.