The current situation and mediation in determining rent for the new term

The exorbitant rise in rent prices has pitted tenants and landlords against each other. Within the scope of recent legal changes, the determination of rent in new rental agreements has also become a subject of debate. Mediator and Attorney Nurdan Heris writes for 12punto on the recent discussions and the new era.

The first part of Heris's two-part article is as follows:

PART ONE

First Steps in Rent Determination in Light of Recent Regulations

The rental relationship is regulated in our legal system under the Turkish Code of Obligations No. 6098, articles 299-378. The section concerning residential and roofed workplace rentals, which closely concerns the public, is regulated under articles 339-356. These regulations will be examined in conjunction with the provisions of the Law on Mediation in Civil Disputes No. 6325.

What is the subject of a rental relationship, and what does a rental relationship mean?

The subject of a rental relationship is a property, and most commonly, because it meets the need for shelter, “residential rental” is on the public agenda.

A rental relationship is the delivery of the right to use a property belonging to another person to a third party for a certain fee, within the framework of legal limits and the contract signed between the parties.

Who are the parties to a rental relationship?

In a rental relationship, there is a tenant on one side and a landlord on the other. The landlord may be the owner or someone authorized by the owner.

How is the rent determined in a rental relationship?

At the beginning of the rental relationship, the rent can be freely determined. This amount can be in Turkish Lira or in foreign currency.

Does the rental agreement end when the term of the agreement expires?

In residential and roofed workplace rentals, unless the tenant provides notice at least fifteen days before the expiration of fixed-term contracts, the contract is considered extended for one year under the same conditions. Regardless of how many years the rental agreement is drawn up for, it is a relationship that continues by extending for one-year periods at the end of the term.

What will the rent be in the renewed rental period?

1. If the parties have determined the increase rate in the contract: The agreement of the parties regarding the rent to be applied in renewed rental periods is valid, provided that it does not exceed the “twelve-month average change in the consumer price index” of the previous rental year. This rule also applies to rental agreements longer than one year.

2. If the parties have not determined the increase rate in the contract: If no agreement has been made by the parties on this matter, the rent is determined by the judge according to equity, taking into account the condition of the rented property, provided that it does not exceed the “twelve-month average change in the consumer price index” of the previous rental year.

Can the parties go directly to court?

If the parties cannot agree on the new rent for rental agreements to be renewed as of September 1, 2023, they are required to first apply to the Mediation Bureau or voluntarily appoint a mediator they deem appropriate, as the subject will be evaluated within the scope of “mandatory mediation as a condition for litigation.” They can make this application personally or through their lawyers.

What happens if the parties do not apply to a mediator?

Applying to a mediator before filing a lawsuit is a requirement for fulfilling the condition of litigation. If a lawsuit is filed without making this application, the case will be dismissed without proceeding to a substantive examination because the condition for litigation has not been met.

Can a mediator be applied to for rent determination lawsuits filed before September 1, 2023?

For rent determination lawsuits filed before September 1, 2023, the parties may benefit from the mediation institution by requesting time from the court and making a voluntary application. The provisions for mandatory mediation as a condition for litigation do not apply here. The judge may treat this application as a preliminary issue. If the parties cannot reach an agreement in this application, their lawsuits may continue from where they left off. If the parties reach an agreement in this application, the lawsuit becomes moot upon the submission of the agreement to the court, and since the mediator's report will serve as a court judgment, the parties will continue their relationship within the framework of this report.

How long is the mediation process?

The mediator concludes the application within THREE WEEKS from the date of their assignment. This period may be extended by the mediator for a maximum of one week in mandatory circumstances.

Do statutes of limitations and time limits run during the mediation process?

Statutes of limitations and time limits are suspended upon application for mediation. They begin to run again from where they left off once the process ends.

What is the situation for a party who does not attend the mediation process without a valid reason?

A party who, despite the application of the other party and the invitation of the mediator, does not attend the first meeting without a valid reason and thus causes the meeting not to be held, shall be held responsible for all litigation costs, even if the case is partially or completely decided in their favor, and no attorney's fee shall be awarded in their favor.

What is obtained as a result of mediation?

Discussions during the mediation process are kept confidential. If an agreement is reached, the resulting document has the status of a JUDGMENT (court decision). If the parties do not fulfill the requirements of the decision despite the agreement, the DECISION can be put into enforcement by obtaining an ENFORCEABILITY ENDORSEMENT from the civil court of peace.

What is the fee to be paid to the mediator?

1. When an appointment is made by the mediation bureau as a condition for litigation; if the parties reach an agreement: A mediation fee determined by applying a 6% rate to the difference between the new rent and the old one is paid. This amount can be shared equally between the parties or assumed by one of the parties. This amount cannot be lower than the two-hour fee determined by the ministry.

2. When an appointment is made by the mediation bureau as a condition for litigation; if the parties cannot reach an agreement: The amount is equal to the two-hour fee determined by the Ministry and is paid to the mediator by the Ministry; the parties do not make any payment.

3. In voluntary mediation, the parties have the opportunity to freely determine and pay an amount above the lower limit determined by the Ministry and above the 6% rate to be applied to the amount in the agreement document. If the parties cannot reach an agreement in voluntary mediation, the Ministry does not make any payment to the mediator. The parties are obliged to pay the mediator the amount up to the lower limit determined by the Ministry, i.e., the two-hour fee.

What happens if an agreement is reached in mediation?

The parties fulfill their obligations in accordance with the prepared mediation report. If the obligations are not fulfilled, the parties can put the decision into enforcement by obtaining an ENFORCEABILITY ENDORSEMENT from the civil court of peace.

What happens if an agreement cannot be reached in mediation?

The parties apply to the court personally or through their lawyers to determine the new rent.

Which court has jurisdiction?

Civil courts of peace have jurisdiction for the determination of rent.

MEDIATOR ATTORNEY NURDAN HERIS