I. Legal Regulations Regarding Tenant’s Payment of “Dues” in Turkey
1. “Common Expenses” in Terms of Condominium Law
There are some expenses related to the use, repair and maintenance of main real estate and common areas in floor easement, condominium ownership and mass buildings. For example, expenses such as electricity costs used in the apartment, maintenance of elevators, security, fuel, real estate insurance premium and reinforcement may arise. They are referred to as “common expenses” in the Condominium Law.
As a rule, the flat owner is responsible for the payment of “common expenses” arising from the Flat Ownership Law. However, tenants, along with flat owners, were held responsible for the payment of common expenses. (Condominium Law Article 22) Accordingly, enforcement proceedings for collection may be initiated by the site management or apartment management or the flat owners’ board against the flat owner or tenant who does not pay the “common expense” debt.
2. “Ancillary Expenses” in Terms of Turkish Code of Obligations
According to the Turkish Code of Obligations, “ancillary expenses” can be defined as expenses incurred by the lessor or a third party regarding the use of the leased property. (BİLGİN, Özge; Liability for Side Expenses in Rental Law, Master’s Thesis, 2020 Istanbul)
The “common expenses” specified in the Condominium Law and the “side expenses” regulated in the Turkish Code of Obligations are different from each other. “Ancillary expenses” regulated in the Turkish Code of Obligations must be expenses incurred directly related to the use of the leased property. For this reason, “janitor fee, security fee, cleaning expenses, common fuel expenses, etc.,” which are considered “common expenses” according to the Condominium Law. Expenses such as these can also be considered as “side expenses” according to the Turkish Code of Obligations. However, according to the Condominium Law, insurance payment, tax payment, reinforcement costs, etc. related to the main real estate.” “Common expenses” incurred in this way will not be considered “side expenses” in terms of the Turkish Code of Obligations.
3. “Dues” in General Usage
Dues; It is defined as “money paid continuously and regularly in return for a service”. (Turkish Language Association Dictionary) In general usage in Turkish, it is commonly used as “due payment” for continuous and monthly payments.
The phrase “dues” does not appear in the Turkish Code of Obligations and the Condominium Law. However, in terms of legal qualification, it is possible to understand “dues” as “common expense” or “side expense” depending on the location. In our article, the word “dues” is used to refer to “side expenses”.
In residential and roofed workplace lease agreements; The tenant is responsible for utility expenses such as heating, lighting and water, unless otherwise stipulated in the contract or if there is no local custom to the contrary. (Turkish Code of Obligations Article 341) Accordingly, if there is no written residential or roofed workplace lease agreement between the parties, the tenant will be responsible for the side expenses, that is, the dues, even if there is a written lease agreement but there is no provision in the lease agreement stating that the tenant will be responsible for the side expenses.
II. What can be done about a tenant who does not pay dues?
About the tenant who does not pay the dues; It is possible to initiate a legal process to collect the dues debt and evict the tenant. However, the lessor who wants to start both processes must first pay the overdue (due) dues debt and document this.
1. Enforcement Proceedings Process for Tenants Who Do Not Pay Dues Debt
The lessor may initiate enforcement proceedings against the tenant after paying and documenting the due and due dues debt of the tenant. If the lessor’s request is only to recover the unpaid dues debt, it would be appropriate to initiate enforcement proceedings through general seizure. When initiating such enforcement proceedings, it is not mandatory to present the payment receipt proving that the dues have been paid by the lessor as a basis for the pursuit. However, it is important for the lawsuit to be filed against the possible objection of the tenant-debtor.
2. Eviction Case Against the Tenant Who Did Not Pay Dues Debt
If the tenant does not pay the dues debt, which is a side expense, the lessor may give the tenant at least thirty days in writing and inform him that he will terminate the contract if he does not pay the dues debt within this period. In accordance with Article 315 of the Turkish Code of Obligations, it is possible to evict the tenant who does not pay the dues.
The points that the lessor should pay attention to before filing an eviction lawsuit against the tenant who does not pay the dues can be listed as follows;
In residential and roofed workplace lease agreements, the responsibility for “dues” and “side expense” debts should be on the tenant.
If there is a regulation that the dues debt for the rented house or workplace will be paid directly to the bank account of the site or apartment management, the lessor must first pay the unpaid and overdue dues debt and document this.
A tenant who does not pay the lessor’s dues debt has two options for the eviction process: The first option is to send a written warning to the tenant and request that the dues debt be paid to the notified account within at least thirty days. If the dues debt is not paid despite the warning in question, an eviction lawsuit may be filed in the Civil Court of Peace. The second option would be to pursue enforcement proceedings (Example No: 13 Enforcement Proceedings) for ordinary rents and revenue rents. Despite the enforcement proceedings in question, if the tenant-debtor does not object to the enforcement proceedings; After thirty days have passed from the notification of the payment order, it is possible to obtain release by filing a lawsuit in the Enforcement Civil Court.
Comparison of Processes in Terms of Advantages and Disadvantages;
In terms of both options mentioned above, an eviction lawsuit cannot be filed if the tenant pays the dues debt in full within 30 days. In addition, failure to pay the dues will not be considered a justified reason for eviction due to two justified warnings.
If the tenant who does not pay the dues is requested to pay the dues debt with a notice; If the tenant does not pay the dues, the eviction lawsuit must be filed in the civil court of peace.
In terms of duration;
Eviction cases filed in the civil court of peace generally take longer than eviction cases filed in the civil enforcement court. In addition, even if an eviction decision is issued in favor of the lessor in the eviction case filed in the civil court of peace, it may be possible for the tenant to have the execution postponed during the appeal process by storing three months’ rent.
In terms of expenses;
Eviction cases heard in the civil courts of peace are subject to a relative fee based on the annual rent. The eviction case to be heard in the enforcement civil courts is subject to a fixed fee. In this respect, an eviction lawsuit filed in the enforcement civil court will be more advantageous for the lessor.
If the tenant, who is put in default by sending a notice, does not pay the dues within thirty days, the unpaid receivable may be requested along with the eviction case in the civil court of peace. However, in this case, the litigation period will be considerably longer. If an eviction lawsuit is filed in the civil court of peace and an enforcement proceeding is carried out without a judgment through general seizure, a separate lawsuit will need to be filed in case the debtor objects. This will extend the process for retrieving the paid dues debt.
If enforcement proceedings are initiated in terms of ordinary rents and revenue rents; A written notice will be provided to the tenant for the eviction process and the collection process will be initiated. In terms of all the above-mentioned issues, it is more advantageous to initiate enforcement proceedings (example no: 13) and file an eviction lawsuit in the enforcement civil court if the tenant does not pay the dues within the thirty-day payment period. However, this process has legal risks.
In many of their decisions, the 6th and 8th Civil Chambers of the Supreme Court of Appeals, which carries out legal supervision regarding the removal of objections and eviction cases, decided to approve the enforcement proceedings in terms of ordinary rent and revenue rents initiated against the tenant who did not pay the “dues” debt, and subsequently the eviction cases filed in the enforcement civil court.
Supreme Court Decisions that may set a precedent for the eviction of tenants who do not pay their dues;
In the decision of the 6th Civil Chamber of the Supreme Court of Appeals dated 05/05/2016, numbered 2015/11213 Principles and Decision 2016/3718; “Although the decision given by the enforcement court with the date and number written above has been appealed by the plaintiff within the time limit, … Termination of the contract may be requested by the lessor creditor due to the default of the tenant who does not pay not only the rent debt but also the incidental expenses. In this case, while the court should make a decision based on the outcome by submitting a written lease contract as a basis for follow-up and collecting party evidence (payment documents regarding the payment claim), it is not correct to decide to reject the case with written justification…”
In the decision of the 6th Civil Chamber of the Supreme Court of Appeals dated 05/09/2016, 2015/11891 Principles and 2016/5132 Decision; “The defendant debtor paid 4,700 TL to the bank account of the plaintiff creditor within the legal thirty-day period given in the payment order given by the enforcement court, and 50 TL of the dues fee, which is one of the expenses he is obliged to pay in accordance with Article 314 of the TBK and Article 315 of the TBK. Since he did not pay the dues, the event of default occurred. “While the court should decide to evict the rented property and remove the objection regarding the unpaid receivable, it is not correct to make a decision in writing.” provision is included.
In the decision of the 8th Civil Chamber of the Supreme Court of Appeals dated 04/10/2017, numbered 2017/3731 Principles and Decision 2017/12158; “Upon the objection of the defendant debtor to the enforcement proceedings initiated by the plaintiff creditor against the defendant debtor with a request for rent receivable and eviction, the plaintiff requested the enforcement court to remove the objection and for eviction. The court ruled that the fuel money was not certain, the tenant objected to the debt because the fuel money was not certain, therefore the determination of the fuel expense was not determined. The plaintiff creditor appealed the decision, which rejected the case on the grounds that it required trial and could not be counted as a rent receivable, therefore no default had occurred. Articles 314 and 315 of the Turkish Code of Obligations regulate the default of the tenant who does not fulfill his obligation to pay the rent or ancillary expenses, depending on usage. Termination of the contract may be requested by the lessor’s creditor due to the default of the tenant who does not pay not only the rent debt but also the incidental expenses. The basis for pursuit is in Article 2 of the lease agreement; It has been decided that the water, electricity, air gas, fuel expenses and doorman money of the rented place belong to the tenant, and it has been clearly determined by the management of the apartment building where the rented real estate is located that the advance share of the common operating expenses of the rented real estate is 250.00 TL. Ancillary expenses are fixed and paid by the lessor. There is no issue in the dispute that requires trial. In this case, although the court should examine the merits of the case and make a decision based on its outcome, it is not right to decide to reject the case with written justification.” provision is included.
However, the 12th Civil Chamber of the Supreme Court of Appeals, which carries out legal review in terms of “Cancellation of Proceedings” cases, summarizes some of its decisions as follows; There are some decisions stating that enforcement proceedings regarding ordinary rents and revenue rents (Example No: 13 Enforcement Proceeding) can only be carried out regarding rental amounts, and that “dues” debts and “site expenses” cannot be subject to such enforcement proceedings.
Due to this difference in practice between the Supreme Court Chambers, it may be possible for the Execution No. 13 enforcement proceeding to be initiated against the tenant who does not pay the dues to be annulled by a “cancellation of the proceedings” lawsuit filed by the tenant or his lawyer.
The reason why false information is given on some news sites or on the websites of law firms, citing the decisions of the 12th Civil Chamber of the Supreme Court of Appeals, stating that tenants who do not pay their “dues” debt cannot be evicted, is due to the difference between the jurisprudence.
If an eviction process is to be initiated against a tenant who does not pay the dues, it would be appropriate to get support from an expert lawyer or law firm that provides legal support in the field of rental law.
Memduh Remzi BAL
Attorney at Law | Lawyer in Turkey
Landlord Tenant Attorney Services
Call us : +90 212 909 86 34
Send mail : info@ballawfirm.com
