6502 Sayılı Tüketicinin Korunması Hakkında Kanun Kapsamında Konut Finansmanı Sözleşmeleri
6502 sayılı Tüketicinin Korunması Hakkında Kanunda (TKHK) konut finansmanı sözleşmesi, konut edinmeleri amacıyla; tüketicilere kredi kullandırılması, konutların finansal kiralama yoluyla tüketicilere kiralanması, sahip oldukları konutların teminatı altında tüketicilere kredi kullandırılması ve bu kredilerin yeniden finansmanı amacıyla kredi kullandırılmasına yönelik sözleşme olarak tanımlanmıştır. Konut finansmanı sözleşmeleri Tüketicinin Korunması Hakkında Kanunda düzenlenmek sureti ile tüketici işlemi olarak kabul edilmiştir. Bu çerçevede 6502 sayılı TKHK kapsamında konut finansmanı sözleşmesinden bahsedebilmek için bu sözleşmenin tüketici ile konut finansmanı kuruluşu arasında kurulması gerekmektedir. Gerçekten de kanunda sayılanlar dışında başka gerçek veya tüzel kişilerden kredi temin edilmesi halinde yapılan sözleşmenin konut finansmanı sözleşmesi olarak kabul edilmesi mümkün değildir. Çalışmamızda tüketicilerin konut edinmeleri amacıyla kurulan finansman sözleşmeleri 6502 sayılı TKHK kapsamında sözleşmenin tanımı, tarafları, unsurları, türleri, hukuki niteliği, bağlı kredi, tarafların karşılıklı hakları ve borçları ile sözleşmenin sona ermesi hususları çerçevesinde inceleme konusu yapılacaktır. Belirtilmelidir ki konut finansmanı sisteminin, tüketicilerin ihtiyaç duydukları konutu edinmek amacıyla konut finansmanı kuruluşuyla konut finansmanı sözleşmesi yapması ve teminatlı kredi alacağının menkul kıymete bağlanarak tedavüle konulması şeklinde iki aşaması bulunmakta ise de çalışmamızda sadece konut finansmanı sisteminin birinci aşaması, yani tüketici ile konut finansmanı kuruluşu arasında konut edinme amacıyla yapılan kredi sözleşmeleri incelenecektir.
The Housing Finance Agreements in Content of the Law on Consumer Protection Number 6502
In the Code on Consumer Protection number 6502 a housing finance agreement is described as an agreement intended at providing loan facilities to consumers for acquiring a house, leasing of houses for the consumers through financial leasing, extension of loans for consumers where such loans are secured by the houses that the consumer owns and loans extended to refinance the loans explained in this context. The housing finance agreements are adopted as a consumer transaction by arranging in the Code on Consumer Protection. Within this framework, to mention about the housing finance agreement in content of the Law on Consumer Protection number 6502, concluding between consumer and housing finance institute of this agreement is required. In fact that accepting as the housing finance agreement of concluded agreement is not possible when the credits are acqured from another natural or legal persons except stated in code. In our study within scope of the Law on Consumer Protection number 6502 finance agreements that are concluded for acquiring a house of consumers will be explained in comprehension matters which contact its definition, its content, its parties, its factors, its kinds, its legal characteristic, linked credit, parties’ mutual rights and debts and discharging of contact. It is crucial to state that although there are two stages of housing finance system that concludes the housing finance agreement with housing finance institute for acquring a house which consumers require and in shape of putting into circulation by bonding to transferable security of secured credit, in our study, only first stage of the housing finance system namely credit contacts that are concluded so as to acquire a house between consumer and the housing finance institute will be examined.
Housing finance refers to providing loan facilities to the consumers for the purpose of acquiring housing, leasing housing to the consumers for the purpose of leasing, providing loan facilities to the consumers under the guarantee of the houses they own and providing loan facilities to refinance these loans. There are two stages in the housing finance system: Making a housing finance agreement with the housing finance company to acquire the housing that consumers need and putting the guaranteed credit into circulation by bonding to the security. However, in our study, only the first stage has been examined, that is, the issue of making the loan agreement with the aim of acquiring a housing between the consumer and the housing finance company. The aim of the housing finance contracts is to enable consumers to acquire housing. The housing finance contracts have four types; providing loan facilities to the consumers with the aim of acquiring housing, leasing housing to the consumers on the purpose of leasing, providing loan facilities to the consumers under the guarantee of the house they own and providing loan facilities to refinance these loans. These types of housing finance contracts are limited and besides these, even if they are intended to acquire housing, the loan agreement is not accepted as a housing finance contract. The housing finance contracts are contracts in which a certain amount of money is given to the consumer who receives loans for the purpose of acquiring housing and the consumer gets into debt to repay the loan used at certain maturities. The legal characteristics of housing finance contracts, as a form of consumer contracts, is controversial in the doctrine. According to our predominant opinion, housing finance contracts are in the form of consumption debt contracts. Accordingly, the housing finance contracts are firstly applied to the provisions of the Law on the Consumer Protection regarding housing finance, and in cases where there are no provisions in the Law on the Consumer Protection, the general provisions regarding the consumption debt in the Turkish Code of Obligations shall apply. The housing finance contracts are established in two stages. In the first stage, the consumer requesting a loan applies to the housing finance institution and fills the form prepared in advance and makes a proposal for a loan. In the second stage, the housing finance institution makes a search about the consumer and if it finds the result positive, the consumer is given a pre-contractual information form that includes credit conditions and credit information, the contract is established upon acceptance of the proposal by the consumer. While the main debt of the financing institution from the contracting parties is to transfer and deliver the loan amount determined in the contract to the consumer, the main debt of the consumer is to repay the loan granted to the housing finance institution in the housing finance contracts. Apart from this, the housing finance institution has the rights to demand interest from the consumer in return of providing loan facilities, to request the execution of the entire loan debt in case of default and to demand early payment compensation in case of early payment and to use the loan determined to the consumer in the contract, informing the consumer, as well as debts. The consumer has the rights to use the loan, to request a reduction in the rate of interest and early payment and has the debts provide accurate information to the housing finance institution during loan negotiations, accept the loan, show guarantee against the loan, pay the contractual expenses and pay interest on the loan. According to the Turkish Code of Obligations, the debt relationship ends in cases of performance, impossibility of performance, release, exchange, renewal and merger of creditor and debtor. Some of these situations ends the debt in the Turkish Code of Obligations are specially regulated in terms of housing finance contracts in the Law on the Consumer Protection. The most natural way to end debts is performance. Accordingly, the housing finance contract expires in case the entire loan provided by the consumer under the contract is executed. Also the housing finance contract ends if the consumer pays entire debt in the housing finance contract. Finally, in the event that the consumer has the right to demand the full amount of remaining debt in the case that the consumer is in default in payment of the installments, the housing finance contract expires upon the consumer’s payment of the entire debt. Lastly, we include the tied loan agreement to our study. The tied loan agreement refers to an agreement in which the housing finance loan exclusively granted for the financing of an agreement in the case of the purchase of a particular house and these two agreements form an objective economic union. The independent agreements are the points in quetion in the tied loan agreements. The first one is the sales agreement between the consumer and the seller, and the second one is the loan agreement which is intented to finance the sales agreement. As well as, the sales agreement and the loan agreement are legally independent from each other, there is an economic commitment between these two agreements. Since the loan agreement has the characterictics of the housing finance agreement, in case of the agreement’s form, content, pre-contractual information obligation, early payment, default and etc. the provisions in the Law on the Consumer Protection concerning the housing finance contract are applied.
