Which Period Can You Sue For in a Rent Determination Lawsuit? A Timing Guide

For landlords who want the rent to be brought in line with market conditions, the "rent determination lawsuit" (kira tespit davası) is a frequently used remedy. However, the most commonly misunderstood aspect of this lawsuit is which period it will take effect for. If the timing of the lawsuit is calculated incorrectly, even a justified claim can be dismissed. In this article, we examine, in light of Court of Cassation (Yargıtay) decisions, how the period is calculated in a rent determination lawsuit and who must file it (claimant status).

Why This Matters

Many landlords considering a rent determination lawsuit wonder, "when I file the lawsuit, can I also collect the difference for past periods?" Since the answer is generally no, not knowing the correct timing results in a loss of both time and money. In addition, failing to clarify whether the lease was signed on behalf of a company or a natural person creates the risk that the lawsuit will be filed by the wrong person and dismissed on a standing (lack of privity) objection.

Summary of the Situation

A landlord believes that, despite the increase rate agreed in the lease, the current market rent is considerably higher, and is planning to file a rent determination lawsuit. However, neither the question of "for which rental periods the lawsuit can be filed" nor the question of "whether the lawsuit should be filed by the company or the individual, given that there is a company stamp on the lease" has been clarified.

The Legal Issue

Retroactive Determination Is Not Possible

Under the Court of Cassation's settled case law, rent determination lawsuits, as a rule, take effect for periods after the filing date. A retroactive determination cannot be requested for a completed, past rental period.

The Condition for Validity From the Start of the New Period (TCO Article 345)

For the determined rent to be considered valid from the start of the current or approaching new rental period, one of two alternative conditions must be met:

• The lawsuit must be filed at least 30 days before the start of the new period, or
• A written notice stating that the rent will be increased must be given within that period, and the lawsuit must be filed by the end of the new period.

Claimant Status: Who Must File the Lawsuit?

On whose behalf the lease was signed is critically important in determining the correct party to file the lawsuit. Even if a natural person's name appears in the body of the lease, if there is a company stamp on the signature section, the party may be deemed to be the company.

What Does the Court of Cassation Say?

Period and Timing

• Court of Cassation, 23rd Civil Chamber, E. 2016/379, K. 2018/4500, T. 2018: Held that there is no legal interest in filing a determination lawsuit that does not include a performance claim for periods before the filing date, and that such claims must be dismissed.
• Court of Cassation, 3rd Civil Chamber, E. 2017/3985, K. 2017/12377, T. 2017: Expressly emphasized that rent determination cannot be requested for periods (retroactively) before the filing date of the lawsuit.
• Court of Cassation, 6th Civil Chamber, E. 2014/13590, K. 2015/399, T. 2015: Stated that the claimant cannot request a determination for a completed/past rental period.
• Court of Cassation, 3rd Civil Chamber, E. 2017/4508, K. 2018/11752, T. 2018 and Court of Cassation, 6th Civil Chamber, E. 2015/10145, K. 2016/5259, T. 2016: Held that in lawsuits filed at least 30 days before the start of the new period, or supported by written notice, the determined rent will be valid from the start of the new period.
• Court of Cassation, 6th Civil Chamber, E. 2014/7060, K. 2014/9000, T. 2014: Held that there is no procedural defect in a landlord seeking rent determination for a future period that has not yet begun.

Claimant Status and Standing

• Court of Cassation, 6th Civil Chamber, E. 2011/7913, K. 2011/12102, T. 2011: Held that even if a natural person's name is written on the front of the lease, if there is a company stamp on the signature section, the party is deemed to be the company.
• Court of Cassation, 6th Civil Chamber, E. 2013/9576, K. 2014/2680, T. 2014: Emphasized that where the lease is signed on behalf of a company, the party is the company.
• Court of Cassation, 3rd Civil Chamber, E. 2017/5341, K. 2018/11195, T. 2018: Held that a rent determination lawsuit may be filed either by the landlord or by the owner; however, in determining standing to sue, the land registry record and the landlord status set out in the lease must be assessed together.
• Court of Cassation, 3rd Civil Chamber, E. 2017/3750, K. 2017/17498, T. 2017: Held that where there is an "excusable mistake," a request for substitution of party or correction of the opposing party is possible under Article 124 of the Code of Civil Procedure (HMK); however, filing the lawsuit from the outset with the correct status eliminates the risk of dismissal.

Points to Watch

• Plan your filing date carefully: If you file the lawsuit at least 30 days before the end of the current rental period (for example, the contract renewal date), the determined rent will be valid from the start of that period.
• Written notice is an alternative: If you missed filing 30 days in advance, you can achieve the same result by sending written notice of the increase for the period and filing the lawsuit by the end of the new period.
• Compare the land registry record with the lease: Before filing the lawsuit, be sure to check whether the owner information in the land registry record is consistent with the landlord status set out in the lease.
• The company stamp is decisive: Even if the lease bears an individual's name, if there is a company stamp on the signature section, filing the lawsuit on behalf of the company is much safer from a procedural-economy standpoint.

Conclusion: What Should You Do?

In a rent determination lawsuit, timing and claimant status are the two fundamental factors that determine the fate of the case.

• Do not request determination for past, completed rental periods; such requests will be dismissed.
• If you plan to file for the current or a future period, pay attention to the 30-day rule or the written-notice alternative.
• Before filing, determine the correct claimant status by examining the lease and the land registry record together.
• If you have any doubt about timing or claimant status, seek the opinion of a rental law attorney before filing; a lawsuit filed incorrectly leads to loss of time and expense.