I. ENTRANCE

The economic fluctuations in our country, particularly in major cities, have led to a significant increase in rental prices, mainly due to the rise in inflation. In order to ensure that the rent does not fall below the standards, the legislator has introduced the possibility of filing a rent determination lawsuit under certain conditions. The regulations regarding rent determination lawsuits can be found in Articles 343 and onwards of Law No. 6098, the Turkish Civil Code.

Article 344/III of the law stipulates, "Regardless of whether the parties have reached an agreement on this matter, in lease agreements lasting longer than five years or renewed after five years, and at the end of every subsequent five-year period, the rent for the upcoming lease year shall be determined by the judge in a fair manner, taking into account the rate of change according to the twelve-month averages of the consumer price index, the condition of the leased property, and comparable rental prices. The rent thus determined for the year after every five years can be modified according to the principles set forth in the preceding paragraphs."

Following the general information about the rent determination lawsuit, in this article, we will examine the execution of the judgment issued as a result of the rent determination lawsuit

II. FINALIZATION OF THE DECISION AND THE TYPE OF ENFORCEMENT

Decisions rendered by the court generally have an immediate enforceable effect from the moment they are issued. However, some decisions are not allowed to be put into execution until they become final. While the law explicitly mentions certain decisions that cannot be enforced until they become final, others have arisen through legal precedents. In the Judicial Plenary Decision dated 12/11/1979 with the reference number 1979/1-3, the Court of Cassation ruled that decisions related to the determination of rent cannot be subject to enforcement until they become final.1

For the rent difference receivable determined by the court decision on rent to be considered due for performance, it is not sufficient for the creditor to demand payment from the debtor only when the time for such a demand arrives; additionally, the decision must have become final. The amount of the rent difference must be definitively determined for it to be subject to litigation in court or enforcement proceedings. This definiteness can only be achieved through the finalization of the decision on determination, and the tenant's obligation to perform can only be deemed to have arrived at that time.2

As observed, it is established by the precedents of the Court of Cassation that the finalization of rent determination lawsuits is necessary for them to be subject to enforcement. Regarding determination clauses that are to be enforced before finalization, the legislator has granted the right to object.3

Another important issue is the type of enforcement for the final judgment in a rent determination lawsuit. At first glance, one might think that an enforcement order can be obtained since the court issues a judgment. However, as rent determination lawsuits do not contain a provision for the collection of receivables, they have a declarative nature. Therefore, it is not possible to subject the decision issued in rent determination lawsuits to enforcement with an enforcement order. Only when the judgment for the rent difference receivable, determined as a result of the lawsuit, becomes final, can it be demanded through non-enforcement proceedings. In case of non-payment and if eviction is sought, initiation of proceedings with Example No: 13 is required.

Even though the judgment regarding the rent difference receivable, given as a result of the rent determination lawsuit, can be subject to non-enforcement proceedings, it is still necessary to initiate enforcement proceedings for the attorney fees and litigation costs mentioned in the judgment.4

III. STARTING OF INTEREST IN RENT DETERMINATION CASES

As mentioned above, the decision in rent determination cases does not involve the collection of receivables but is aimed at determining them. The rent differences for the period until the finalization of the rent determination decision do not transform into ordinary receivables. With the finalization of the determination decision, the rent difference receivable becomes distinct and due, and the tenant must be aware of these facts. Since the rent difference receivable is based on the finalized court decision and, by its nature, interest should accrue from the date of finalization of the court decision without the need for a separate notice.5

In the established precedents of the Court of Cassation, it is accepted that for the rent difference to become subject to litigation in court or enforcement proceedings, its amount must be determined. This determinacy can only be achieved with the finalization of the decision related to rent determination, and the tenant's obligation to perform can only be considered to have arrived at that time. Consequently, it has been decided that it is not sufficient for the time to request performance from the debtor to have arrived only when the creditor can demand payment without the need for a separate notice; at the same time, the decision must have become final.

IV. RESULT

In recent disputes, it is observed that the enforcement of rent determination lawsuits differs from other court decisions. Firstly, it must become final to be subject to enforcement proceedings. Unlike court judgments involving the collection of receivables, rent determination judgments can only be subject to non-enforcement proceedings. Furthermore, the starting date for the interest to be requested after the finalization of the decision should be calculated from the date of finalization. Unlike the usual enforcement of judgments, there are differences in the enforcement of decisions in rent determination cases.

Footnotes

1. In order for the time of performance to be deemed to have arrived for the collection of the rent difference determined by the court decision regarding rent, it is not sufficient merely for the creditor to demand payment from the debtor; it is also necessary for the decision to become final. This was decided by the Plenary Assembly of the Court of Cassation in its second meeting held on November 12, 1979, with a simple majority. (Court of Cassation's Judicial Plenary Decision dated 12/11/1979 with reference number 1979/1-3)

2. In this regard, Plenary Assembly of Civil Chambers of the Court of Cassation decision dated 09.11.2021 with file number E: 2017/(6)8-1847, Decision: 1376.

3. Enforcement proceedings containing requests contrary to this acceptance can be objected to indefinitely in the enforcement court, as they would create a discrepancy with the enforcement order (Plenary Assembly of Civil Chambers of the Court of Cassation Decision dated 21.6.2000, File No: 2000/12-1002 E)

4. In the examination of the enforcement based on the execution decree, it is understood that, apart from the litigation costs and attorney fees, it does not include an execution clause. It is further understood that it relates to the determination of the monthly rent, and in the absence of an execution clause, this item related to rent determination cannot be subject to enforcement with an execution order. It is evident that this should be considered ex officio. Therefore, while a decision should be made to cancel the enforcement of the execution decree concerning items other than attorney fees and litigation costs, the judgment is erroneous in its current form and requires reversal. (Court of Cassation 12th Civil Chamber Decision dated 2018/5932 and numbered 2019/3733)

5. According to the court decision regarding rent determination, the rent difference receivable, which becomes evident, is deemed to accrue interest from the date the rent determination decision becomes final, without the need for a separate notice. This decision was made with a majority vote on November 24, 1995, during the third meeting of the Plenary Assembly of the Court of Cassation. (Court of Cassation Judicial Plenary General Assembly Decision dated 24.11.1995, File No: 1994/2 K. 1995/2 T.)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.