Evacuation of the tenant under Turkish Law through Article 315/2 of Law of Obligations due to tenant's default in payment

The article 315 of  Law of Obligations stipulates the terms regarding the evacuation of the real state on reason of default of the tenant, i.e. failing of the monthly payment of the rent by the tenant on time

The law and the Supreme Court (Yargıtay) requires to see the steps below for the fulfilment of the evacuation process:

1. The rent amount should be due and payable.

A notice of payment should be served to the tenant. The notice warns and requests that the tenant to pay the monthly amount within 30 days upon the serving of the notice; that otherwise, they will be evacuated from the immovable through force of the law.

The unpaid rent amount and the month that it belongs to should be stated openly and specifically in the notice served.

The notice should also openly include that the rent agreement will be terminated if the due amount is not paid within the 30 days given.

If the immovable is a residence or a roofed workplace/office, the duration to be given to the tenant should be 30 days. The duration is 60 days for usufructuary leases and 10 days for other kind of lease agreements.

Upon the serving of the notice the amount should be due and payable.

2. The rent should not have been paid within the duration given (i.e. 30 days if its a residence or a

roofed workplace)

Payment after the 30 days will not have a negative influence on the evacuation process as it is not fulfilled in the 30 days given.

Upon the passing of 30 days without any payment, a lawsuit can be filed in the Court of Peace where the defendant (in our case the tenant) resides with the request of evacuation of the tenant from the real estate.

The other way that can be followed to evacuate the tenant can be filing an evacuation order through Execution Offices, through which an evacuation order by the landlord is served to the tenant giving a duration of 30 days for the evacuation and a duration of 7 days for the objection.

This is a general information note to give the reader an overall idea on the evacuation of the tenant from the real estate/immovable by the landlord under Turkish Law through article 315/2 of Law of Obligations due to the reason of default of the tenant. Please note that every case has its own specifications and should be dealt accordingly in its own way. It is always better to contact a lawyer for the best results.

Convention on Mutual Administrative Assistance in Tax Matters is approved by the Turkish Parliament

Convention on Mutual Administrative Assistance in Tax Matters is approved by the Turkish Parliament and issued on the Official Gazette of May 20, 2017.

The law briefly says that Convention on Mutual Administrative Assistance in Tax Matter that has been signed in Cannes on November 3, 2011 has been approved with the reservations and declarations.

The law shall be in effect as of the date of issue of the Official Gazette (i.e May 20,2017).

See chart of participating jurisdictions here

See Convention here

20 Mayıs 2017 CUMARTESİ	Resmî Gazete	Sayı : 30071
KANUN
VERGİ KONULARINDA KARŞILIKLI İDARİ YARDIMLAŞMA SÖZLEŞMESİNİN ONAYLANMASININ UYGUN BULUNDUĞUNA DAİR KANUN Kanun No. 7018                                                                                                    Kabul Tarihi: 3/5/2017 MADDE 1 – (1) Türkiye Cumhuriyeti adına 3 Kasım 2011 tarihinde Cannes’te imzalanan “Vergi Konularında Karşılıklı İdari Yardımlaşma Sözleşmesi”nin çekince ve beyanlarla birlikte onaylanması uygun bulunmuştur. MADDE 2 – (1) Bu Kanun yayımı tarihinde yürürlüğe girer. MADDE 3 – (1) Bu Kanun hükümlerini Bakanlar Kurulu yürütür. 19/5/2017

Labour Contracts For a Specified Term and Labour Contracts For a Non-specified Term in Turkish Labour Law

In Turkish law, labour contracts can be signed either for a specified term or a non-specified term. Unless otherwise agreed by the parties the labour contracts are deemed to be contracts for a non-specified term. The principal is that the labour contracts are made for a non-specific term.

When the parties set a term of employment in a written labour contract, this contract terminates at the end of the period without parties having to give a notice of termination to each other.  

The contract whether tied to a term or not is significant because of the possible mutual claims connected to it. 

When an early termination is given by the employer in a Labour Contract For a Specified Term, the employee has the right to request the remaining wages that were to be paid monthly till the termination date of the contract. Severance pay and compensation for term of notice are quite controversial when the contract is for a specified term.

The disputes in Turkish Law regarding the subject generally arise when Labour Contracts For a Specified Term are signed one after the other (in chain).  

According to Article 11 of The Labour Law (#4857), "when a labour contract is not tied to a specific term, the contract is a Labour Contract For a Non-specific Term. It is a Labour Contract For a Specific Term when a contract is signed between the employer and the employee depending on the objective conditions like bringing out a specific result or completing a specific duty or in works that can be finished within a specific period. Labour Contracts For a Specific Term cannot be signed one after the other more than once (in chain) unless there is a substantial/solid/sound reason for it. Otherwise, the labour contract shall be deemed to be Labour Contract For a Non-specific Term as of the beginning of the contract. Chain labour contracts signed for a specific term keep their characteristics of being for a specified term depending on substantial/solid/sound reason".

In addition to the Article 11 and in line with the International Agreements, The Supreme Court (Yargıtay)'s interpretation appears as, the essence of the work is significant in a Labour Contract For a Specific Term. Labour contract for a specified term shall only be possible if the characteristics/essence of the work requires it. The characteristics of the work have been defined as the objective conditions like bringing out a specific result or completing a specific duty or in works that can be finished within a specific period.

In cases where the essence/characteristics of the work do not necessarily require a stipulation of period of time in a labour contract, the chain contracts are deemed to be a Labour Contract for a Non-specific Term. 

So, in some Supreme Court resolutions, it is possible to see that signing the second contract i.e signing a new contract only once (not more than once) is sufficient for the contract to be deemed Labour Contract for a non-Specific Term.  

I will be writing soon about the Labour Contracts for a Non-specific Term.

Please do not hesitate to leave your comments if you have any.

The term of notice for termination of Labour Contracts Signed for a Non-specified Term Under Turkish Law

According to the Turkish Labour Law (Article 17), depending on the period of time the employee has worked for the company, the period/term of notice for termination is stipulated as follows (Unless otherwise agreed between the parties):

i) For a work period less than six months, the contract can be terminated in two weeks after the notice of termination.

ii) For a work period more than six months but less than one and a half year, the contract can be terminated in four weeks after the notice of termination,

iii) For a work period more than one and a half year and less than three years, the contract can be terminated in six weeks after the notice of termination.

iv) For a work period more than three years, the contract can be terminated in eight weeks after the notice of termination.

So, let's say, if an employee has been working for more than one and a half year but less than three years, a term of six weeks must be granted before the date of termination.

If there is a written contract signed between the parties, the provisions of the contract will prevail. 

The terms of notice cannot be reduced against the benefit of the employee. 

Termination of a labour contract by the employer due to justified reason under Turkish Law - employee being arrested or taken under custody.

Below is a general note on termination of a labour contract due to employer's justified reason of the employee being arrested or taken under custody.

According to the Turkish Labour Law (Article 17), depending on the period of time the employee has worked for the company, the period/term of notice for termination is stipulated as follows (Unless otherwise agreed between the parties):

i) for a work period less than six months, the contract can be terminated in two weeks after the notice of termination.

ii) for a work period more than six months but less than one and a half year, the contract can be terminated in four weeks after the notice of termination,

iii) for a work period more than one and a half year and less than three years, the contract can be terminated in six weeks after the notice of termination.

iv) for a work period more than three years, the contract can be terminated in eight weeks after the notice of termination.

So, let's say, if an employee has been working for more than one and a half year but less than three years, a term of six weeks must be granted before the date of termination.

If there is a written contract signed between the parties, the provisions of the contract will prevail. Please note that the terms of notice cannot be reduced against the benefit of the employee. 

These terms of notice is related to the Article 25 of the Labour Law which regulates the right of the employer to terminate the labour contract immediately on justified reasons. According to the Paragraph IV of this article, it is a justified reason for the employer to terminate the labour contract if the employee is taken into custody or is under arrest provided that the duration of the absence of the employee surpasses the terms of notice stipulated in Article 17 (e.g. six weeks of absence for an employee who has worked for more than one and a half year and less than three years).

The notice of termination can be done within a reasonable period upon the end of the term of notice provided that the reason for termination is clearly stated in the notice.

In this case, the employee is entitled to a severance pay but not to the compensation for term of notice.

The employee has a right to file a case against the employer at the labour courts within a month starting from the date notice is served to the employee, with the claim that there is no valid reason for the termination of the contract or the reason set forth is not a valid reason. 

Obligation To Contract an In-house Lawyer in Société Anonym in Turkey

According to Turkish Law, a Societe anonym with a minimum share capital of 250,000 TL is obliged to contract a legal consultant.

According to Turkish Law, a societe anonym (which is an Anonim Şirket in Turkish/a joint stock company) should have a minimum share capital of 50,000-TL. The company is not allowed to have a lower share capital throughout its time of activity.

Anonim şirkets that have share capitals five times higher than this minimum amount are obliged to hire inhouse legal consultants as per Article 35 of Law Number 1136, which stipulates the provisions regarding the practice of lawyers/attorneys-at-law in Turkey.

With a simple calculation, it is clear that this regulation covers the Anonim Şirkets with share capitals higher than 250,000-TL. You can check the link of Central Bank of Turkey http://www.tcmb.gov.tr/wps/wcm/connect/tcmb+en/tcmb+en/main+page+site+area/today to see the exchange rates of currency.

Likewise, house-building societies (yapı kooperatifi in Turkish) which have 100 or more than 100 members are obliged to hire legal consultancy services as per the same regulation.

Upon any contrary action, the company shall be fined by Prosecuting Attorney for every month the company avoids hiring legal service; each monthly fine to be the sum of two monthly gross minimum wages. (Monthly gross minimum wage has been set as 1,134 TL for the second six months in Turkey. Please see the Relevant link in Turkish.

General Legal Procedure of Collecting Receivables in Turkey

This is a very brief look on the general legal procedure of collecting receivables in Turkey.

We sometimes see foreign companies seeking legal help for their receivables unpaid by the companies that are resident in Turkey under Turkish law.

In order to have their receivables paid, the companies may follow various legal procedures which may be listed very briefly as follows: 

1. The Company may look for a cautionary attachment from the court including a statement that cautionary attachment/liens can be placed on the immovables, receivables and immovables of the debtor company. Upon the reception of this court award/order, the Company may apply to the execution office for its enforcement.

This is a way that can be used in urgent cases when the debtor company is expected to transfer their assets to third parties to leave them out of reach of potential claimants.

This procedure may be used mostly when the receivable is bound to solid documents such as invoices and/or contracts where the receivable is obvious.

The court binds the enforcement of such award to the payment of 10 or 15% of the disputed amount as a deposit to the court safe as a guarantee. The percentage may change in different cases and different courts and is solely within the discretion of the judge.  This guarantee is for the protection of the debtor company in case otherwise is proved upon a detailed judgment in court. 

2.  Another way to collect receivables would be directly filing an execution request for the disputed amount through execution office without prior court award (for cautionary attachment). In this case, usual procedure of execution will be in effect where the execution office shall serve a notification to the debtor company (a payment order) ordering the amount to be paid to the execution office file within a certain period time given. If an objection is raised, the procedure stops and the claiming company is entitled to file a lawsuit for the collection of the disputed amount. The nature of the lawsuit depends on the nature of the objection raised (The objection may be raised against the signature or to the amount). Please also note that the execution procedure may vary in different payment orders as in bills of exchanges like cheques. In checks or bonds the procedure would not stop despite an objection is raised. As this is closely related to the law techniques and covers too much detail, it would be boring and unnecessary to speak about on here. 

3. The third way to have the amount paid would be filing a lawsuit directly at the court requesting the payment of the disputed amount. This lawsuit is carried out by the parties within general legal provisions where all the evidences are examined in detail during judgment.

Please note that this is only a brief general information on the collection of the receivables in Turkey and each case should be interpreted within its own dynamics.

Please do not hesitate to comment here whether this explanation was helpful to you or not.

How To Appoint A Guardian in Turkish Law

In Turkish Law, a guardian (vasi) is appointed in cases where

1. the minor has no parents as guardians (veli) or

2. where the adult

    i) has weak or no mental abilities or

    ii) is in a state of prodigality or addicted to alcohol or drugs or

    iii) is convicted by court to a detention of one or more years.

3. A guardian may be appointed as well upon the person's own request arising out of his needs due to his old age, physical handicap, lack of experience or serious illness.

This process starts like a lawsuit, with the claimant submitting a petition of request for a guardian to the Civil Court. The necessary charges and expenses should be paid to the court along with the petition. Please note that the request is not subject to any official charges. Upon the receipt of the petition, the court secretaria appoints a date for the hearing and requests the detailed birth records of the one to be restricted. If the one to be restricted is a person over 18 who has weak or no mental abilities, a medical report from a health establishment regarding his mental position shall be required (This report may be obtained not long before the filing of this case but the judges rather prefer this  report to be obtained from the state hospital after the filing of the case). It is in jugde's sole discretion whether to hear the restricted or not. He may choose not to listen to the restricted as well. But in cases where the restricted is in a state of prodigality or addicted to alcohol or drugs, it is mandatory by law for the the judge to hear the restricted.

The guardian to be appointed shall also be heard at the hearing by the court.

The judge chooses the guardian among the close relatives of the restricted and among the persons who have no conflict of interest with the restricted.

How To Buy and Sell Real Estate in Turkey

In Turkey, the immovables are registered at Land Registries in the districts where they are located. As Land Registries are state offices, they are controlled and checked by the State.

The information related to the substance of the immovables such as the owner, hypothecates and other attachments on can be observed through Land Registrations.

Hypothecates, attachments, shareowners, shareholdings of the owners, how the immovable has been acquired and such other information about the properties/specialties of the immovable are all information that should be registered at the Land Registry. When buying an immovable, checking the records of the immovable through Land Registrations is the safest way.

In the process of purchasing an immovable, there are a few necessary steps to be taken such as the completion of the documents, payment of the charges and completion of the signatures at the Land Registry.

The Land Registry asks both the buyer and seller to submit some documents:

The buyer and the seller should both submit their ID's or passports, 2 photographs and tax numbers of each. If the parties are to be represented by third persons or lawyers, the representatives of each party should submit photographs and IDs as well.

If one of the parties is a legal entity like a limited liable company, then the certificate issued by a Notary Public showing the authorised signatories of the company should be submitted as well in order to prove the power of the signatory to act on behalf of the company.

It is also important for the representative to have the power for all the transactions he is going to be involved in during this process i.e power for each transaction should be duly named on the proxy granted to the representative. Land Registry officials are very careful about this issue and they may not complete the transaction if the specific power is not duly indicated in the proxy.

The proxy should be prepared by and signed before a Notary Public and has to have a photo on.

The seller should also submit the land registry certificate (tapu belgesi)that he already possesses which shows that the seller is the rightful owner of the immovable.

Please note that a document from the municipality showing the value of the real estate (Rayiç Bedel Belgesi) is also required. The price agreed on between the parties is declared to the Land Registry and this forms the basis amount for the land registry charges. The charges are calculated in ratio with the price. But the price declared cannot be lower than the amount stated on this Rayiç Bedel Belgesi; otherwise a fine related to tax issues can be applicable.

The Land Registry does not move on to the next step if the real estate taxes belonging to the previous periods have not been fully paid. It can be checked at the municipality whether the taxes related to the real estate have been fully paid or not.

Regarding the financial aspect of a sale, each party shall pay 15 per mille of the sale price declared to the Registry as land registry charges and a fee as well for the Land Registry Fund.

When the documents are delivered to the official at the Land Registry, the official, upon the completion of the documents, shall determine the date and time of the appointment at the Land Registry for the completion of the signatures. In this appointment, the Land Registry Director shall examine the documents closely once again and ask the seller if he has received the payment or not. When the seller confirms the receipt orally, the parties sign the documents, the new land registry certificate prepared in the name of the buyer is delivered to the buyer.

So the seller must have already been paid for the immovable before the signatures are completed at the Land Registry.