T.C.
JUDGMENT
6TH CIVIL CHAMBER
E. 2015/9980
K. 2016/5837
T. 1.12.2016
CASE : The decision on the determination of tenancy, negative determination and the lawsuit of dispute, given by the local court and dated and numbered above, has been appealed by the plaintiff in due time, and all the papers in the file have been read and discussed and considered.
DECISION : The lawsuit is related to the claim for determination of tenancy, negative determination and recovery of the amount of the letter of guarantee converted into money. The court decided to dismiss the lawsuit and the judgement was appealed by the plaintiff’s attorney.
The plaintiff’s attorney; on 01/02/2013, two separate lease agreements were signed between the parties, the defendant notified that the lease agreement was terminated according to the article …. of the contract, and in addition to the rent receivables from his client, compensation in the amount of the current year rent was requested, the letters of guarantee were cashed and 228. 000 TL was collected, the unilateral termination was contrary to the law and the contract, and requested the determination of the invalidity of the transaction regarding the termination of the contract, the cancellation of the compensation demand requested as a penalty clause, and the recovery of 228.000 TL, which is the amount of the letter of guarantee converted into money. The defendant’s attorney defended the dismissal of the lawsuit by stating that the plaintiff did not pay the rent, electricity, water and natural gas fees, for this reason, the lease agreement signed with the plaintiff, who did not perform the operation duly and did not fulfil the contractual commitments despite the warning and warning notices, was terminated and the performance bond was recorded as revenue, and the termination was justified.
There is no dispute between the plaintiff and the defendant administration regarding the three-year lease agreement dated 01/02/2013, which was organised in accordance with the provisions of Law No. 2886. The place subject to the contract was leased to the plaintiff to be used as a cafeteria, kitchen and dining halls, tea centre and photocopying area. In the article …/…. of the lease agreement …/…. “The contract may be cancelled if the rent payment is delayed for the second time within one year despite the previous notice.” and …/…. “In the event that the lessee requests termination, ceases its activity before the end of the lease period, uses the leased property for other purposes, does not fulfil its commitment in accordance with the provisions of the contract and specifications, or the operating license is cancelled for any reason, the lease agreement is terminated by the administration in accordance with Article 54 of the Revolving Fund Institutions Tender Regulation, the final guarantee is recorded as revenue and the current year’s rent is collected as compensation. ” regulations. The defendant administration has unilaterally terminated the contract on the grounds that the rent and electricity, water and natural gas fees that should be paid based on the provision of the article …. of the contract have not been paid. The plaintiff filed this lawsuit with the claim that the termination was not in accordance with the law. According to the scope of the file, it is understood that the leased premises is a place subject to the roofed workplace provisions of the Code of Obligations. One of the reasons for the termination of the lease agreement is the default of the lessee, and the form and conditions of the termination of the contract in case of non-payment or late payment of the rent money are regulated in Article 315 of the Turkish Code of Obligations No. 6098. Accordingly, the rent or ancillary expenses must be due and payable, the rent and ancillary expenses must not be paid within the given period, and the notice must clearly state that the contract will be terminated if the rent is not paid within the given period. The period to be given to the lessee is at least thirty days for residential and roofed workplace leases, at least sixty days for product leases, and at least ten days for other lease relations. The existence of these conditions alone is not sufficient for the termination of the contract. In addition, the eviction request must be attached to a judgement. In the concrete case, the lease agreements dated 01/02/2013 have not yet expired. Even if the conditions for filing an eviction case due to default are present, it cannot be said that the contract has been terminated unless an eviction writ is obtained by court decision. While the lawsuit filed with the claim that the termination is unlawful should be examined and concluded by taking this issue into consideration, it is not correct to make a written judgement with the justification that has no legal basis.
The judgement should be reversed for this reason.
CONCLUSION : For the reasons explained above, it was unanimously decided on 1.12.2016 to accept the appellate objections and to VACATE the judgement pursuant to Article 428 of the Code of Civil Procedure in accordance with the provision of the provisional article …. added to the Code of Civil Procedure No. 6100 with the Law No. 6217 and to refund the prepaid appeal fee to the appellant, if requested.
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