EFFECT OF CORONAVIRUS (COVID-19) MEASURES ON RENTAL AGREEMENTS

EFFECT OF CORONAVIRUS (COVID-19) MEASURES ON RENTAL AGREEMENTS


With the Covid 19 virus, which affects the whole world, also in our country, the government has started to take measures one after another to stop the epidemic. The first of these measures is T.C. It is the temporary closure of some workplaces by the Ministry of Interior. In the process starting with the additional circular sent to all governorships on March 15, 2020, the activities of more than 200,000 workplaces have already been suspended. Subsequently, on 22.03.2020, with the Presidential Decree No. 2279, it was decided to cease execution and bankruptcy proceedings. Then, with the Provisional Article 2 of the Law No. 7226, which entered into force on March 26, 2020, it was ruled that the rental fees that cannot be paid between 1.3.2020-30.6.2020 will not constitute a reason for termination and evacuation of the lease agreements. These regulations, which are a precautionary measure in terms of lease contracts, have led to some questions regarding whether the rent will be paid. The effects of these regulations on lease contracts will be discussed below.

 

DOES THE COVID-19 OUTBREAK CAUSE MAJEURE FORCE?

Although there is no general provision regulating force majeure in Turkish law, situations that can be considered as force majeure are stated in special laws such as "Public Procurement Contracts Law No. 4735" and "Turkish Petroleum Law No. 6491". As examples of force majeure situations in the relevant laws, natural disasters, legal strike, general epidemic disease, partial or general mobilization situations are shown.

 

The absence of definitions and principles in the general laws regarding force majeure in Turkish Law has been tried to be eliminated by the doctrine and the Court of Cassation and the framework of the application area of ​​force majeure has been drawn. For example, in a Supreme Court decision, it is stipulated that in order for an event to be considered as force majeure, that event must be inescapable, irresistible and originated from an external factor.[1]

 

In another decision of the Supreme Court, force majeure "is an extraordinary event that is impossible to predict and resist, causing the violation of a general norms of behavior or debt that occurs outside the activity and operation of the responsible or debtor. Natural disasters such as epidemics are considered force majeure. "[2] In accordance with Turkish law, the parties that arise after the establishment of the contract are not foreseeable, develop beyond the control of the parties, and cause impossibility of performance.[3]

 

If the epidemic does not make performance impossible, the force majeure will not be mentioned, and if there are conditions, excessive performance may arise. Namely; TBK art. 138, in the event that an extraordinary situation that could not be foreseen by the parties at the time of conclusion of the contract arises for a reason not caused by the debtor and changes the existing facts against the debtor at the time of the contract to the extent that it is against the rules of integrity, the adversely affected party has not fulfilled its debt yet or . To request from the judge to adapt the contract to the changing conditions - provided that the rights arising from Art. 138 are reserved; If this is not possible, he has the right to terminate the contract.

 

I. EXISTENCE OF FORCE MAJEURE AND SIMILAR PROVISIONS IN RENTAL CONTRACTS


When issuing lease agreements, the main thing is the free will of the parties. In this context, the parties are bound by mandatory provisions, public order and general moral rules, but also with the provisions they determine with their free will. In particular, there are provisions titled "force majeure" in Lease Agreements issued for commercial purposes, and as a result, various termination methods are stipulated.


Force majeure, in general terms, is death, bankruptcy, sickness, detention and similar situations that may constitute an obstacle to the fulfillment of duty, commitment and responsibility.However, in the Lease Contracts concluded by the parties, force majeure reasons are examined more broadly and are also defined with phrases such as fire, flood, earthquake, landslide, epidemic, war, widespread violence movements that cause social effects. In short, many contracts are not satisfied with these, and additional conditions are regulated or there is the phrase "but not limited to those listed here" in front of the possibilities listed.

 

Although concrete events and conditions vary, if there are force majeure provisions in the Lease Contracts, the parties have the right to unilaterally terminate the contract based on this provision as a result of the developments. Covidien-19, commercial life in Turkey is under the influence rapidly. If the effect created by Covid-19 causes great obstacles to the parties of the Lease Contracts in the performance of the contract and this obstacle creates financial destruction, the force majeure provisions determined by the parties with their free will may come into effect if the aforementioned situations are provable.

 

In this context, in the event of a dispute, the party relying on the force majeure clause will be able to request the termination of the contract by supporting with evidence that Covid-19 has emerged as an unpredictable element, its commercial activities and the performance difficulties it has created within the scope of Lease Contracts, and the damages it has incurred. We would like to emphasize that it would not be legally correct to state that force majeure provision can be put forward strictly, since every concrete event will differ from each other and each sector has its own internal dynamics. However, parties to the Lease Contract, who have experienced the conditions specified in the contract and have sufficient evidence to prove it, will be able to benefit from the force majeure provisions determined by their free will within the scope of the contract.

 

II. NO PROVISION IN RENTAL CONTRACTS REGARDING FORCE MAJEURE

A. IN TERMS OF BUSINESS RENTALS


a. CONSEQUENCES OF RENTAL CONTRACTS OF WORKPLACES CLOSED BY THE CIRCULAR


T.R. The Ministry of Interior has temporarily suspended the activities of some workplaces across the country with the circulars on Coronavirus Measures. Naturally, this situation has brought to mind the question of how the lease contracts of workplaces whose activities have been suspended will be affected by the said circulars.

 

As stated above, it should be noted that if there is a provision applicable to the emergency situation in the contract between the parties, it will be necessary to reach a solution according to this provision in accordance with the principle of freedom of contract. In the absence of a regulation applicable to such an event in the contract, the following issues may be based on;

  • Impossibility of Performance / Temporary Impossibility
  • Adaptation of the Contract Due to Excessive Performance Difficulty
  • Extraordinary Termination


aa. IMPOSSIBILITY OF PERFORMANCE / TEMPORARY IMPOSSIBILITY


With the circular, it was stated that enterprises whose activities were suspended would not have to pay rent in this period, and the impossibility of performance was shown as a basis for this. Accordingly, it is the obligation of the lessor, whose execution becomes impossible, to "keep the leased property suitable for the intended use during the period specified in the contract" regulated in article 301 of the TCO. In this case, the lessor is unable to fulfill the obligation to keep the leased property suitable for use - at least for a period of time. In the current situation, although the lessor wants to fulfill his debt, he is unable to do so. In the explanations made, it is stated that the impossibility is also temporary, considering that the activity restriction is imposed for a temporary period.


At this point, it should be noted that if the existence of the impossibility is accepted here - and below will focus on the possible situations in which this is possible - a fault of the lessor cannot be mentioned, this impossibility is will be the impossibility of perfect performance found in TBK art. 136. 


According to the TBK Art.136 provision, "If the execution of the debt becomes impossible due to reasons for which the debtor cannot be held responsible, the debt terminates. The debtor, who is freed from the debt due to impossibility in the contracts bearing mutual debt, is obliged to return the act he has taken from the other party in accordance with the provisions of unjust enrichment, and to request the action that has not yet been performed to him. loses its right. Situations where the damage arising before the execution of the debt is attributed to the creditor by law or contract are excluded from this provision. If the debtor does not inform the creditor without delay that the performance has become impossible and does not take the necessary measures to prevent the damage from increasing, he is liable to compensate the damages arising from it.


The authors, stating that the lessor's "obligation to keep the leased property suitable for the tenant's use" has become impossible, the authors rely on the second paragraph of this provision and accordingly relieve the tenant from the obligation to pay the rent. According to this view, when the lessor gets rid of his debt of "keeping the leased person ready for use during the term of the contract", he will have to return the action he has received from the other party (for example, if he has already received the rental price in advance); He will lose his right to demand actions that have not yet been performed.


It should not be overlooked that the aforementioned provision regulates the permanent impossibility of performance in terms of sudden action contracts and is intended to terminate the debt. According to this provision, in case of impossibility, the debt terminates and the parties have to give back their actions according to the provisions of unjust enrichment. However, the termination of the contracts due to the current extraordinary situation will not be in the interests of the parties under all circumstances. On the other hand, in cases where it can be said that the impossibility exists, this provision can only be applied in cases where the impossibility is permanent.


For this reason, in the light of the developments experienced, whether the said circular makes the execution of the lessor's act impossible or not; In cases where it is deemed impossible, it should be determined whether it is temporary or permanent.

 

In order to be able to say that the obligation to keep the leased property suitable for the tenant's use during the contract period in accordance with the TCO Art.301 becomes impossible by the Ministry of Internal Affairs, the activity carried out in the leased person should be an activity prohibited by circulars, as well as in the lease contract signed between the parties, It must have been agreed that the "prohibited activity" will take place. Of course, in this case, it would be appropriate to interpret the lease contracts in a way that they are not subject to a form condition in order to be valid and therefore the purpose of use of the leased is known or should be known by the lessor. For this reason, it will be mentioned that the obligation of the lessor to keep the leased property suitable for the "said use" only in cases where it is decided for what purpose the leased property will be used for, and therefore it becomes impossible with the circular issued. In this case, it will be necessary to move to the second stage, that is to look at whether the impossibility is temporary or permanent, and come to a conclusion accordingly.


On the other hand, in cases where the tenant rents a workplace without specifying any type of activity, it will not be possible to say that the obligation of the lessor to keep the leased person ready with the said circulars becomes impossible. Because in this case, the lessor is not obliged to keep the rented person ready to carry out a certain activity. Therefore, the circular does not prevent the leased from being kept ready. The tenant is in a position to enter the rental property and use it despite this circular. In this possibility, the inability to use the leased property is not due to the lessor not being available, but from the activity carried out by the tenant. The tenant is in a position to use the leased for an unlawful activity. Because it is the execution of the activity, not the use of the leased, which is prohibited by the said circulars. Therefore, it will not be mentioned here that the lessor contravenes his obligation pursuant to TBK Art.301. In this case, the tenant's debt to pay the rent will continue; However, the tenant will be able to apply to the TBK Art.138 as explained below.

 

In the meantime, it should be emphasized that this distinction we make according to whether the activity of the tenant is specified in the contract or not in terms of impossibility is valid in terms of the workplace rent. However, in the operating lease, it should be said that the circular makes the performance of the debt impossible. Likewise, within the scope of the measures to be taken, it will be necessary to mention that if the shopping malls are closed, there is a situation arising from the nature of the leased person, and here the obligation of the lessor to keep the rented one ready for use becomes impossible.

 

As stated above, circulars make it impossible for the lessor to keep the lessee ready, in cases where the tenant's activity is specified in the lease contract. In these cases where it is accepted that the failure has become impossible, it will be necessary to determine whether this impossibility is permanent or temporary and to determine the consequences accordingly.


Although temporary impossibility and permanent impossibility show similarities in terms of the impossibility of performance, there is a difference between them in terms of the duration of the performance impediment. While the debt could be fulfilled later in temporary impossibility, it was blocked from being possible to perform the act later in permanent impossibility. In other words, in case of temporary impossibility, the debtor is in a position to fulfill the debt later, perhaps not at that moment, due to a temporary performance obstacle. In some cases, the debtor does not have permanent debt, such as in cases where the act is temporarily unavailable due to some prohibitions (strike, embargo, zoning prohibition, etc.) or the contractual goods being temporarily unavailable, However, they may not be able to perform due to an existing performance obstacle at the due date.


If the impossibility is permanent, the TCO will find an application area of ​​Article 112 or Article 136 depending on whether the debtor has a fault in this, whereas there is no clear provision in the law regarding situations where the debt becomes temporarily impossible. Various opinions have been put forward on the issue of which provisions to apply in this case. It should be noted that instead of giving a long place to these opinions here, it should be noted that in case of temporary impossibility - if it is in line with the imaginary will of the parties - the date of performance is postponed until the date the impossibility of performance is eliminated.[4]

 

However, some situations may arise in such cases that, in the presence of certain conditions, the impossibility is considered as if it is permanent, although it is temporary. In such cases where the purpose of the contract becomes questionable due to a temporary performance obstacle and therefore the counter-contract cannot be expected to continue to act in accordance with the contract in accordance with the rule of honesty, the temporary impossibility will have the same consequences as the permanent impossibility. The implementation of the provisions regarding the impossibility in cases of temporary impossibility will only be possible in cases where the temporary impossibility interferes with the achievement of the intended purpose by contract and the creditor cannot be expected to be bound by the contract. It can also be said that there is temporary impossibility in cases where it can be predicted when the performance obstacle will disappear, and permanent impossibility in cases where it cannot be predicted. For example, although it is known that the impossibility of performance will eventually disappear, in cases where it cannot be predicted exactly when it will occur, it will be accepted that the impossibility is of a permanent nature and the impossibility provisions will have to be applied to the incident.


In the verdict of the Supreme Court H.G.K. on 28.4.2010 and numbered 2010 / 15-193 E. and 2010/235, the following statements are used for this situation: "Undoubtedly, the existence of temporary impossibility brings along the problem of how long the parties will be bound by this contract. The rule in this matter is that the parties are bound by a contract as per the principle of "pledge loyalty, loyalty to words". However, there are some special cases that considering the parties to be bound by that contract both prevents their economic freedom and eliminates the opportunity to make a contract with another person. In practice, in case of temporary impossibility, the duration of the parties to be bound by that contract is called "contractual endurance period". It is necessary to evaluate whether this period is realized or not according to each concrete event and within its framework.


In the decision of the Supreme Court General Assembly dated 29.09.2010 and numbered 2010 / 14-386 E. and 2010/427 K., and the Supreme Court Legal General Assembly dated 28.09.2011, 2010 / 13-528 E. and 2011/571 K in the order numbered. "... Undoubtedly, the existence of temporary impossibility brings with it the problem of how long the parties will be bound by this contract. The rule in this matter is to keep the parties bound by a contract as per the principle of pledge loyalty and loyalty to words. However, there are some special cases that considering the parties to be bound by that contract both prevents their economic freedom and eliminates the opportunity to make a contract with another person. In practice, in case of temporary impossibility, the duration of the parties to be bound by that contract is called the contractual endurance period. It is necessary to evaluate whether this period is realized or not according to each concrete event and within its framework (Decision of the General Assembly of the Supreme Court of Law on 28.04.2010 and numbered 2010 / 15-193-235)... "


In the said circular, some workplaces were closed for an indefinite period. Looking at the corona virus restrictions experienced around the world, it is seen that the process follows different courses in different countries. For example, a quarantine of about 3 months was applied in some parts of China, where the virus originated, and with the end of this period, the process of returning to normal, albeit slowly, was entered. From this point of view, it seems correct to accept this impossibility temporarily and accordingly, it can be said that the debt to pay the rental fee will be postponed until the impossibility is eliminated. However, due to the fact that the measures taken by each country against this virus and the period of control of the virus may differ from each other, it does not seem possible to say how long the parties should endure to be bound by the existing lease agreements.

 

ba. EXTREME PERFORMANCE DIFFICULTIES

In cases where it is accepted that the circular does not make the performance of the debt of the lessor impossible, this risk is put on the shoulders of the tenant, since the tenant will have to pay the rent even though the tenant cannot operate and cannot gain profit; On the other hand, in cases where temporary impossibility is accepted, the tenant may avoid paying the rent until this impossibility is eliminated, and this time the lessor is obliged to bear this negative result.

 

In cases where there is no impossibility and the tenant has to continue to pay the rent, the tenant will be able to request an adaptation based on TBK Art.138. According to this provision,


"An extraordinary situation that is not foreseen and expected to be anticipated by the parties at the time of conclusion of the contract occurs for a reason that is not caused by the debtor and changes the existing facts against the debtor at the time of the contract to the extent that it is against the rules of honesty and the debtor has not yet fulfilled the debt or the performance becomes extremely difficult. The debtor has the right to ask the judge to adapt the contract to the new conditions, and to withdraw from the contract if this is not possible. In continuous action contracts, the debtor uses the right of termination instead of the right to return as a rule."


In order for the provision on excessive performance difficulty regulated in article 138 of the TCO to find a field of application in terms of an event, certain conditions must be established.


The conditions sought are listed in the justification of the article as follows:

  • During the conclusion of the contract, an extraordinary situation that was not foreseen and unexpected by the parties should have occurred;
  • This situation should not have been caused by the borrower;
  • This must have changed the facts present at the time of conclusion of the contract against the borrower in such a way that it would be contrary to the rules of honesty for performance from her;
  • The debtor must have not fulfilled her debt yet or have performed it by reserving her rights arising from excessive difficulty in performance.

This general provision also applies to rents of residential and roofed workplaces where movable and immovable rents are available. The legislator states that, in the event of an unpredictable change in the conditions that existed when the contract was established, and the balance in the contract as a result of this change, the balance in the contract becomes unbearable for a party, the strict commitment to the contract cannot be expected from the said party. The provision of the law gives the contracting parties the right to terminate the continuous acting contracts if the adaptation and adaptation would be inconclusive as a result of the negative consequences.


In order to be able to request an adaptation in accordance with the express provision of TBK article 138, the act has not yet been performed or it must have been performed by reserving the rights arising from the excessive difficulty of performance. The meaning derived from this is that the reservation in question must be put forward during the performance. Otherwise, the possibility of adaptation will be lost. However, this issue is actually a question of proof. However, if the injustice brought about by the situation change and the characteristics of the concrete event, the status of the parties to the contract indicate the unexpected performance despite the performance, adaptation in a narrow sense should be considered possible.


The most accepted solution in Turkish law for adapting the contract to changing conditions is to bring the dispute before a judge. As a matter of fact, In the provision of TBK art.138, it was stipulated that the judge would not be able to withdraw from the contract but to adapt the contract in a narrow sense.Contracting parties may request the adaptation of the contract according to the changing conditions by applying to the court. The judge can also adapt the contract to the changing conditions or terminate the contract, taking into account the nature of the situation. Due to the Covid-19 outbreak, it is clear that the provisions of the relevant article may also find application in terms of the tenant and the lessor. However, it should not be forgotten that TBK article 138 should be applied as a last resort (ultima ratio), and the parties should first try to resolve the dispute between them through friendly solutions. Finally, we should add that as long as the effects of the Covid-19 epidemic continue, the rights arising from the excessive difficulty of performance should be reserved and the performance should be made with reservation (with reservation) in order not to lose any rights.


ca. IMPORTANT REASONS UNDER THE ARTICLE 331 OF THE TURKISH DEBTS LAW NO. 6098, "EXTRAORDINARY TERMINATION" (TBK art.331)


As mentioned above, the basic principle in Lease Contracts is the free will of the parties, but general provisions will be applied in cases that the parties do not arrange or arise later. In this context, as a result of the effects of the Virus, the parties of the Lease Contracts that do not include the provision of force majeure may claim Article 331 of the Turkish Code of Obligations No. 6098. Art.331 of TBK; "Each of the parties may terminate the contract at any time by complying with the legal termination notice period in the presence of important reasons that make the continuation of the lease unbearable for itself. The judge decides on the monetary consequences of the extraordinary termination notice, taking into account the circumstances and conditions "and the parties of the Lease Contracts will be able to terminate the contract by complying with the legal termination notice periods in the event of a situation that makes the continuation of the lease unbearable. However, it should not be forgotten that the article in question is within the scope of the provisions postponed within the scope of the TCO and will not be implemented until 01.07.2020.


The concept of "important reason" in the article of the law has not been explained and it is a broadly interpretable expression. The reason for this is the variety of concrete facts and the discretion of the judge. In this respect, it is necessary to pay attention to the elements of the important reason concept in order to get to the essence of the event.

The event defined as an important cause;

  • It should have a significant effect on the Lease Agreements and
  • It should bear the elements of unbearable.

For this reason, if the Virus incident that we have examined has the elements mentioned in terms of the parties of the Lease Agreements, after the postponement period, Article 331 of the TBK can be specified according to the concrete event. As a result, if the virus, whose effects are only recently seen, leads to the legal evaluations we share in this article, the concrete event will be examined in detail and the termination methods specified can be applied.

b. THE EFFECT OF PROVISIONAL ARTICLE 2 OF THE LAW NO 7226 AND THE PRESIDENTIAL DECISION 2279 ON THE PAYMENT OF RENTAL FEES

 

According to the Provisional Article 2 of the Law on Amendment of Some Laws No. 7226, which entered into force on 26.03.2020; "Failure to pay the rent of the workplace from 1/3/2020 until 30/6/2020 does not constitute a reason for termination of the lease contract and eviction."


It should be noted that the first mentioned law provision will only be applied in terms of office rent prices. The provision will find application in all workplace lease agreements, regardless of the distinction between roofed and non-roofed workplaces. There is no change in the current regulation regarding the non-payment of the rental fee within the specified period in the rental agreements other than workplace rental agreements.

 

Secondly, the aforementioned provision is not related to the non-payment of rental fees, but merely that the non-payment (in the case of the tenant's default in paying the rent) will not be a reason for termination or discharge. Therefore, the tenant's debt to pay the rent within the specified period will continue.


In the workplace lease agreements, we have evaluated the non-payment of the rental fee within the specified periods as the reason for termination and eviction separately below.


aa. In terms of Termination of Contracts (TBK Art.315)

 

As a rule, the principal debt of the tenant in the lease is the payment of the rental fee. In the event that the tenant fails to fulfill this principal debt and is delayed in paying the rental fee, the termination of the lease contract, which has a permanent debt relationship, is regulated in the article 315 of the Turkish Code of Obligations titled "Tenant's default ".[5]


According to TBK Art. 315 / f.1, "If the tenant does not fulfill the debt to pay the due rent or ancillary expenses after the delivery of the leased, the lessor can give the tenant a period of time in writing and notify that he will terminate the contract if he does not perform it within this period."


TBK Art. 315, gives the lessor the opportunity to terminate the contract if the lessee goes into default in paying the rent or ancillary expenses. In order to use this right, the lessor must give the tenant at least 30 (thirty) days in writing for residential and roofed workplace rents, and 10 (ten) days in other rents, and will be able to terminate the contract if the tenant does not pay the fee. In this context, although the current regulation is like this, according to the provision of "Provisional Article 2" of the Law No. 7226, if the rental fees are not paid in the office rents between 01.03.2020 and 30.06.2020, the lessor will not be able to benefit from this provision and will not terminate the lease contract.


ba. In terms of Evacuation (TBK m.352)


According to the provision of the second paragraph of Article 352 of the Turkish Code of Obligations, "within the lease period of the tenant in the lease contracts of less than one year; In the lease contracts of one year or more, if the lessor caused two justified warnings to be given in writing for not paying the rent within a lease year or more than a lease year, the lessor shall be one month starting from the end of the lease term and the lease year for rents longer than one within, will be able to terminate the lease through lawsuits. " With this arrangement, the lessor will have the opportunity to evacuate without waiting for the end of the lease term, especially in long-term lease contracts, against the tenant who does not pay his debts on time.

 

According to the provision of "Provisional Article 2" of the Law No. 7226, between 01.03.2020 and 30.06.2020, if the tenant paid the rental fee within the given period, as a result of the notices to be made by the lessors in the sense of the TBK Art.315 provision, Even this warning, TBK m. It cannot be considered as a justified warning in the sense of 352 / f.2. Therefore, warnings made or to be made within the specified time period will not be accepted as just warnings and will not provide the landlords with the opportunity to file an eviction action due to "two just warnings".


ca. Legal Consequences of the Tenant's Paying the Lease Prices in Terms of Process


As we have stated above, the Provisional Article 2 of Law No. 7226 is not a provision that prevents the payment of rental fees. Therefore, the tenant will continue to be the leaseholder and the lessor will continue to be the leaseholder. In this case, the lessor who has the right to claim will be able to claim the unpaid rent together with the interest.


However, according to the Presidential Decree No. 2279 on the Suspension of Execution and Bankruptcy Proceedings dated 22.03.2020 (22.03.2020, RG 31076), the 'Attached' Decision on the Suspension of Execution and Bankruptcy Proceedings has been put into effect, 330 of the Enforcement and Bankruptcy Law No. It was decided in accordance with article.


ARTICLE 1- (1) Within the scope of the measures taken to prevent the spread of the COVID-19 epidemic disease in our country; Until the date of entry into force of this Decision, until 30/4/2020, all enforcement and bankruptcy proceedings carried out throughout the country, excluding the enforcement proceedings regarding alimony receivables, are stopped and the parties and follow-up proceedings are not carried out within this framework, new enforcement and bankruptcy proceedings are not received and It has been decided not to execute and not execute attachment orders. "


As can be seen, with the aforementioned decision, it was decided to stop all enforcement and bankruptcy proceedings carried out throughout the country, except for the enforcement proceedings regarding alimony receivables until 30.4.2020, and within this framework, the party and follow-up proceedings will not be carried out, and new enforcement and bankruptcy proceedings will not be received. Accordingly, if the tenant is delayed in paying the rental fee, the lessor will be able to initiate a follow-up as of 01.05.2020 at the earliest (in case the specified period is not extended). In this case, there will be no legal benefit for the lessor to send a warning other than the payment order. Because, as of the end of the period given with the warning, the workplace will not be able to terminate the contract in terms of rent, and if the unpaid rent is demanded with a warning in terms of all lease contracts, there will be no sanctions for the tenant to not pay the rent within the given period. This execution follow-up to be made by the lessor as of 01.05.2020, TBK due to Temporary Article 2. It will not provide the opportunity to terminate the contract in 315. The lessor will only be able to benefit from the regulations regarding the default of the tenant after 30.06.2020, starting from 01.07.2020, and the TBK art. 315 and TBK m. As it can apply the legal remedies in 352, it will also be able to give a justified warning.


After 30.04.2020, the period to be given to the tenant for the payment of the rent in the payment order or warning sent to the tenant for the payment of the rent will be at least 30 (thirty) days for residential and roofed workplace rents, and 10 (ten) days for other rents. The period will start from the day following the date of written notification to the tenant.


In this case, the tenant in the workplace rental agreements If he wants to pay the rental fee in order to prevent the continuation of the follow-up, he will be able to pay (together with the interest) at the latest from the day following the notification to the end of the given period. If he does not pay the rental fee within the specified period, the execution follow-up will be finalized and the follow-up will continue. However, the non-payment of the fee will not be the reason for the termination of the contract in the sense of TCO Art.315, in accordance with the Provisional Article 2 of the Law No. 7226.


B. IN TERMS OF HOUSING RENTALS


In terms of house rents, it seems relatively unlikely that the pandemic causes impossibility or excessive performance difficulties.


For this reason, even if the person is taken on unpaid leave by his employer due to the Covid-19 measures, or even if his employer dismisses the worker in the economic environment that has deteriorated due to the epidemic, since the residence is an area rented by the person to survive in any case, the force majeure of the requirements of the lease It will not be legally possible to avoid execution by driving.


In the case that the quality of the leased in the lease contract is "residence", TBK art. 315 and art. Although 352 / f.2 continues to be implemented, in case the tenant is delayed in paying the rental fee for unpaid rental fees pursuant to the President's Decree on the Suspension of Execution and Bankruptcy Proceedings, which we have just mentioned above, the lessor will follow up as of 01.05.2020 at the earliest (in case the specified period is not extended). will be able to start. The period to be given to the tenant for the payment of the rent in the payment order or warning will be at least 30 (thirty) days. The period will start from the day following the date of written notification to the tenant. The tenant does not pay the rent within the specified period and if the lessor has declared that the contract will be terminated in the event that the amount is not paid within the specified period, he / she may terminate the lease contract with a notice of termination at the end of the period.


If the tenant pays the rent within the given period (at least 30 days) for the payment of the unpaid rent, the warning made can be considered as a "justified warning" and this situation can be considered as a "justified warning". It will constitute a reason for evacuation in the sense of 352 / f.2.

 

CONCLUSION


It is an undeniable fact that the Covid-19 disease has an unforgettable impact on the history of the world, that it interrupts many legal relations in this process, makes many giant companies inoperable, and that its effects cannot be erased for a long time after the end of this process. In this regard, in the assumption that a person's workplace and the residence he lives in are rented, in other words, in the case of a workplace tenant in terms of the workplace and a housing tenant in terms of his residence, in the days of the Covid-19 epidemic, in the current days of the Covid-19 epidemic, in the possibility of his business disruption and economic trouble and unable to pay his workplace and housing rent The possibilities to be applied were explained in detail above.


If it is necessary to summarize, in terms of evaluating the existing workplace rental relations; Workplace tenants should first take into account the special provisions in lease contracts due to the corona virus epidemic in the face of existing legal regulations.


If there are force majeure provisions in the Lease Contracts, as a result of the developments experienced, the contract should be interpreted according to this provision based on this provision. The absence of the phrase "epidemic" in the force majeure article in the contract does not mean that the epidemic disease will not be considered as force majeure within the scope of the contract. As a matter of fact, an epidemic is accepted as force majeure by judicial decisions and doctrine.


If there is no provision regarding these issues in the contract, an evaluation should be made in the context of Final-Temporary Impossibility of Performance and Excessive Performance Difficulty. However, in a possible dispute, the characteristics of the concrete event will undoubtedly be taken into account in terms of each tenancy relationship.


Workplace tenants may have the right to request adaptation or termination of the contract if the corona virus epidemic continues and the lease becomes unbearable. However, due to unforeseen reasons, extraordinary termination of the lease may be requested by complying with the legal termination notice periods.


However, the point to be considered is that if any action can be performed due to the possibility of a conflict in the future, it is absolutely necessary to make an annotation regarding the reserve of all demand rights regarding the current process.


Although the Covid-19 epidemic is progressing rapidly around the world, it is not possible to talk with certain judgments about how much legal disputes will be affected, since it is uncertain how long this progress will take and to what rates the rate of progress will increase. For this reason, a more conciliatory attitude should be adopted in disputes that will arise in commercial relations in the relevant process. However, if this is not possible, it will be in accordance with the current situation to resort to "adaptation" with the intervention of the judge, which is regulated as an exception to the principle of loyalty. Likewise, in case of dispute, TBK Art. When it is claimed that the contractual relationship has been terminated within the scope of 136, the other party may claim that the contract continues due to "temporary impossibility". For this reason, A reasonable option would be to request adaptation under TBK Art. 138. In cases where the adaptation would not be appropriate due to the duration of the lease contract or the nature of the leased workplace, the contractual relationship may be terminated by using the right to terminate the contract prospectively.

 

Adaptation of the convention comes in a variety of ways. This adaptation can be in the form of suspending the provisions of the contract for a certain period of time, as well as in the form of a reduction of the contract price, an extension of the maturity of the price or a reduction of the interests included in the contract.


In our opinion; In terms of workplaces whose activities are suspended temporarily, the provisions of the contract may be suspended during this period. Especially for workplaces that cannot continue their activities due to the closure of workplaces or shopping centers whose activities are suspended by a Circular and otherwise impossible to use (in case the opinion of temporary impossibility of performance is not accepted for a moment), the suspension of the contract provisions may be on the agenda during this period. In this case, it is clear that the rental fee will not work in the period when the contract provisions are suspended. In addition, in the current period, the adjustment of the rental price can be seen as a discount from the rental price. However, if adaptation is not possible, termination of the lease is also possible. However, in most cases, we think that both landlords and tenants will prefer the possibility of adaptation rather than termination of the contract.


In our opinion; It would be appropriate to adapt the lease contracts for workplaces whose activities are prohibited or suspended with a circular, as long as the conditions specified in Article 138 of the Turkish Code of Obligations (in terms of rental fee, common expenses and all other elements). However, in this regard TBK m. 138 conditions should not be ignored and tenants must pay the rent on reservation. Otherwise, the tenants who have fully paid their rent, TBK m. It will not be possible to apply to 138.


[1] The decision of the Supreme Court General Assembly, dated 20.03.2013, numbered 2012/1096 E. and 2013/382 K.

[2] Eren, Fikret,Borçlar Hukuku Genel Hükümler, Ankara, 2017,s. 582.

[3] The decision of the Supreme Court General Assembly, dated 27.6.2018, numbered 2017/1190 E. and 2018/1259 K.

 

[4]  Gündoğdu, Fatih, Borca Aykırılık Hallerinden Kusurlu İfa İmkânsızlığı ve Hukuki Sonuçları, İstanbul 2014, s.106.

 

[5] Ural Çınar, Nihal, Kira Bedelinin Ödenmemesi ve Hukuki Sonuçları, İstanbul 2014, s.243 vd.

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