Beginning Point of the Ten-Year Extension Period in Fixed Term Lease Contracts for Residential and Roofed Business Premises and the Earliest Time Period for the Lessor to Notify Termination
The termination of lease contracts of residential and roofed business premises has been regulated under the 347th article of Turkish Code of Obligations numbered 6098. First paragraph of the article regulates the termination of lease contracts for residences (dwelling houses) and roofed business premises (working places) concluded for a limited duration (fixed term contracts). Pursuant to the first paragraph of Article 347, at the fixed term lease contract of residential and roofed business premises, the contract is deemed to be extended for one year under the same conditions unless the tenant gives notice at least fifteen days prior to the expiration of the contract. The lessor cannot terminate the contract based on the expiry of the contract period. However, at the end of the ten-year extension period, the lessor may terminate the contract without any justification grounds, by giving at least three months’ notice before the end of each extension period. It is controversial when the ten-year extension period will begin and when the lessor can use the right to terminate at the earliest. In addition, in cases where the lease term is agreed for a period of more than ten years, when the lessor can use the right of termination, is a matter to be evaluated separately. In this study, in terms of the termination of fixed term lease contracts for residential and roofed business premises, the issue of the beginning of the ten-year extension period and the earliest time that the lessor can notify the end of the contract for termination is evaluated in the context of opinions and judicial practice. Finally, our opinion regarding the subject as de lege lata and de lege ferenda is explained.
Belirli Süreli Konut ve Çatılı İşyeri Kiralarında On Yıllık Uzama Süresinin Başlangıç Anı ve Kiraya Verenin Fesih Bildiriminde Bulunabileceği En Erken Zaman Dilimi
Konut ve çatılı işyeri kira sözleşmelerinin bildirim yoluyla sona ermesi 6098 sayılı Türk Borçlar Kanununun 347. maddesinde düzenlenmiştir. Söz konusu maddenin birinci fıkrasında, belirli süreli konut ve çatılı işyeri kira sözleşmelerinin sona ermesi düzenlenmektedir. Türk Borçlar Kanununun 347.maddesinin birinci fıkrası gereğince, konut ve çatılı işyeri kiralarında kiracı, belirli süreli sözleşmelerin süresinin bitiminden en az on beş gün önce bildirimde bulunmadıkça, sözleşme aynı koşullarla bir yıl için uzatılmış sayılır. Kiraya veren, sözleşme süresinin bitimine dayanarak sözleşmeyi sona erdiremez. Ancak, on yıllık uzama süresi sonunda kiraya veren, bu süreyi izleyen her uzama yılının bitiminden en az üç ay önce bildirimde bulunmak koşuluyla, herhangi bir sebep göstermeksizin sözleşmeye son verebilir. Söz konusu on yıllık uzama süresinin ne zaman başlayacağı ve kiraya verenin fesih hakkını en erken ne zaman kullanabileceği konusu, tartışmalıdır. Ayrıca, kira süresinin on yıldan daha uzun olduğu durumlarda, kiraya verenin fesih hakkını ne zaman kullanacağı da değerlendirilmesi gereken ayrı bir konudur. Bu çalışmamızda, belirli süreli konut ve çatılı işyeri kiralarının kiraya veren tarafından bildirim yoluyla sona erdirilmesi bakımından on yıllık uzama süresinin başlangıç anı ile kiraya verenin sözleşmeyi sona erdirmek için en erken ne zaman bildirimde bulunabileceği konusu, öğretide ileri sürülen görüşler ve yargı uygulaması bağlamında ele alınarak değerlendirilmiştir. Ardından, gerek de lege lata gerekse de lege ferenda olarak konuya ilişkin görüşümüz açıklanmıştır.
The termination of lease contracts of residential and roofed business premises has been regulated under the 347th article of Turkish Code of Obligations (TCO) numbered 6098. First paragraph of the article regulates the termination of lease contracts for residences (dwelling houses) and roofed business premises (working places) concluded for a limited duration (fixed term contracts). Pursuant to the first paragraph of Article 347, at the fixed term lease contract of residential and roofed business premises, the contract is deemed to be extended for one year under the same conditions unless the tenant gives notice at least fifteen days prior to the expiration of the contract. The lessor cannot terminate the contract based on the expiry of the contract period. However, at the end of the ten-year extension period, the lessor may terminate the contract without any justification grounds, by giving at least three months’ notice before the end of each extension period. It is controversial when the ten-year extension period will begin and when the lessor can use the right to terminate at the earliest. According to an opinion defended in the doctrine, the lease term agreed in the contract should be included in the ten-year extension period; thus, the ten-year period should begin to operate from the beginning of the lease. This opinion has been criticized on the grounds that according to the wording of the regulation, the ten-year extension period starts from the end of the lease term, not from the beginning of the lease term. According to a second opinion, the purpose of the legislator to establish a tenyear period is to protect the tenant for a period of twelve years, consisting of the first lease year, ten extension years and a subsequent extension year. Even if the lease term is longer than one year, only the first year of the lease period should be taken into account in accordance with the “tenant’s system of protection for twelve years”. Thus, the tenant has been protected for only twelve years and the lessor shall be given the opportunity to ensure that the contract does not extend to the thirteenth year. This opinion was criticized for the lack of a legal basis for the calculation of the time period, based solely on the first year of the lease period; however, the law refers to an entire lease period. According to the prevailing opinion and the Turkish Court of Cassation’s practice, the ten-year extension period starts from the expiry of the lease period determined by the contract. Accordingly, the lessor shall have the right to terminate the contract without giving any reason, after each one-year extension period following the completion of the ten-year extension period after the lease period (Lease period + ten-year extension time + at least one-year subsequent extension period). However, this view cannot provide justification grounds as to why the tenant in indefinite-term lease agreements is less protected than the tenant in fixed-term lease agreements. Unlike Art.347/I of TCO, which regulates fixed term lease agreements, pursuant to the Art.347/II of TCO, which regulates indefinite term lease agreements, in the case of indeterminate lease terms, the lessor may terminate the contract upon notification of termination pursuant to the general provisions of TCO ten years after the beginning of the lease. According to the majority of the authors who is in the opinion that the lease period in the contract is included in the ten-year extension period, the tenant may terminate the lease at the end of the ten-year period. As a second opinion, according to the authors defending the tenant’s 12-year preservation (1 lease-year + 10-year extension + 1-year subsequent extension), the lessor may terminate the lease at the end of the first year of extension following the completion of the 10-year extension period. The prevailing opinion and the application of the Turkish Court of Cassation are that the lessor may terminate the lease agreement at the end of the first year of extension following the completion of the ten years from the end of the lease term. In addition, in cases where the lease term is agreed for a period of more than ten years, when the lessor can use the right of termination, is a matter to be evaluated separately. For instance, that a ten-year lease has been concluded. According to the opinions expressed above, at which moment the lessor can terminate the lease? After ten years? At the end of the agreed 15-year lease period? Or at the end of 26 years (15 years of lease term + 10-year extension period + 1-year subsequent extension period)? According to the above-mentioned views, this issue is also evaluated. On the other hand, while the lease agreement continues, the parties may sometimes come together and make a new lease agreement or extend the term of the existing lease. When may the lessor in such cases terminate the contract at the earliest time? This question is another issue dealt with in our study. Finally, one of the questions that should be answered is whether the termination of the lease by the lessor at the end of the ten-year extension period may be prevented by the tenant, as it would be contrary to the principle of good faith. In particular, in the case of lease contracts for roofed business premises (working places), the lessor may want to rent this place to another tenant after the termination of the lease. However, the existing tenant may be willing to pay the rent requested by the lessor from the new tenant in order not to leave this place. Is the lessor still entitled to terminate the lease with the existing tenant? In this study, in terms of the termination of fixed term lease contracts for residential and roofed business premises, the issue of the beginning of the ten-year extension period and the earliest time that the lessor can notify the end of the contract for termination is evaluated in the context of opinions and judicial practice. In our opinion de lege lata, there is a hidden gap in the law for the first paragraph of Article 347 of TCO. Because there is no justification for the artificial separation created by the legislator in terms of ten-year extension period between fixed-term lease agreements (TCO Art.347 /I) and indefinite-term lease agreements (TCO Art.347/II). The different applications associated with this distinction lead to unpredictable and/ or unfair results in concrete events. We are of the opinion that, this hidden gap should be filled by applying second paragraph of Article 347 of TCO mutatis mutandis in terms of fixed term lease agreements. In other words, as in the Art.347/II of TCO is stated, the ten-year extension period should be calculated from the beginning of the lease period. Furthermore, in the case of de lege ferenda, amendments to the provision of Art.347 of TCO have been proposed.
