Although the lease relationship creates a structure in which the rights and obligations of the parties are determined reciprocally, in residential and roofed business premises leases that structure is surrounded by mandatory rules that look to the tenant. The prohibition of linked contracts, laid down in Article 340 of the Turkish Code of Obligations No. 6098, is foremost among those protective rules. Under that provision, agreements that bear no direct connection with the use of the leased property and that impose an additional obligation upon the tenant are, as a rule, void.
A great many situations touching upon this prohibition are encountered in practice: the taking of undertakings from the tenant in addition to the principal contract, the making of the purchase of particular services compulsory, or the shifting onto the tenant of payments that cannot be connected with the lease relationship are the foremost among them.
In this briefing note we examine in which cases additional arrangements that worsen the tenant’s position are treated as void, which protocols may nonetheless survive, and the consequences that flow from a breach of the prohibition, within the framework of Article 340 of the Turkish Code of Obligations and of the settled principles of practice.
Article 340 of the Turkish Code of Obligations and Its Protective Purpose
One of the mandatory provisions protecting the tenant in residential and roofed business premises leases is found in Article 340 of the Turkish Code of Obligations No. 6098:
Turkish Code of Obligations No. 6098, Art. 340 – Linked contract
“In residential and roofed business premises leases, where the conclusion or the continuation of the contract has been made conditional upon the tenant undertaking an obligation which bears no direct relation to the use of the leased property, without there being any benefit to the tenant, the contract linked to the lease is invalid.”
The scope of the provision is clear: additional agreements which, at the stage where the lease relationship is concluded or continued, bring the tenant an obligation or a liability bearing no direct connection with the principal contract are prohibited as a rule. The aim of the legislature here is twofold: to prevent the tenant from being pushed into a straitened position, economically or legally, on the pretext of the lease relationship, and to keep the balance of the contract intact.
The Concept of the Supplementary Contract (Additional Protocol)
The making of a supplementary contract is in principle free and produces legal effects. The criterion here is not the existence of the text but its content: the arrangement must not conflict with mandatory provisions and must not place a new burden upon the tenant. For that reason, in the examination of validity the fact that the parties have reached agreement is not regarded as sufficient in itself; whether the text is directly connected with the lease relationship and whether it brings an additional burden upon the tenant are questioned separately.
Provisions Added to the Contract at a Later Stage
The insertion of additional provisions into the lease agreement at a later stage is possible where the parties agree. Such an additional arrangement may arise in matters such as the redetermination of the rent, the alteration of the conditions of use, the apportionment of ancillary expenses, or the clarification of points left uncertain in the text.
Conversely, provisions added at a later stage may be treated as invalid if they produce an adverse result for the tenant. In particular, arrangements that load new financial liabilities upon the tenant while the relationship is continuing, or that enlarge the tenant’s existing obligations, may produce no legal effect even though they have been adopted by the parties.
The Legal Nature of the Supplementary Contract
The supplementary contract is not a text severed from the principal lease agreement but an inseparable part of it, and it is assessed together with the principal contract. As the natural consequence of this, the provisions in the supplementary text are likewise subject to the mandatory rules governing the lease relationship. The fact that the additional arrangement has been drawn up as a separate document does not prevent the application of the statutory restrictions.
In determining that nature, what is taken as the basis is not the name given to the document or the form chosen, but the content it carries. The fact that “additional protocol” or “undertaking” has been written at the head of a text does not render valid a provision that loads a burden upon the tenant. Terms that conflict with the law are treated as void, whatever the document may be called.
Additional Arrangements Treated as Invalid Against the Tenant
Even where provisions added at a later stage have arisen from the reciprocal will of the parties, they may produce no legal effect to the extent that they bring new liabilities upon the tenant. Under Article 340 of the Turkish Code of Obligations, additional terms that bear no direct connection with the lease relationship, or that aggravate the tenant’s obligations, acquire no binding force even where they have been agreed upon.
The Introduction of a New Obligation or Penalty by Additional Protocol
The imposition upon the tenant of a new obligation or of a penalty clause by a protocol signed at a later stage may be treated as invalid to the extent that it produces a result against the tenant. The subsequent addition to the text of a payment liability that was not present at the outset of the contract, or the stipulation of an additional penalty upon the tenant tied to particular conduct, may conflict with the protective provisions of the law.
For that reason, an attempt to collect an additional payment or penalty from the tenant while the relationship continues may not be accepted in law, even where the term in question appears expressly in the contract. Two criteria are decisive in the assessment: whether the liability introduced has a direct connection with the lease relationship, and whether it produces an aggravating effect as regards the tenant.
Additional Arrangements That Increase the Rent
An increase in the rent is possible; the increase must, however, remain within the statutory limits. Where an increase exceeding the threshold laid down by law is agreed by an additional protocol, that arrangement is treated as invalid.
The picture frequently seen in practice is as follows: while the lease relationship is continuing, the tenant is asked to sign an additional protocol, and by that text the rent is raised above the statutory ceiling. Such an arrangement is not binding even though it has been signed; the rent is valid only within the limit permitted by law.
The Transfer of Additional Costs or Expenses to the Tenant
The loading of new costs or expenses upon the tenant by arrangements made at a later stage is possible within certain limits. Where, by contrast, items that the landlord is required by law to bear are transferred to the tenant, terms of that kind are treated as invalid.
Additional arrangements providing for expenditure directed at the comprehensive repair of the immovable property, at its structural renewal or at increasing its value to be shifted onto the tenant produce no legal effect, even if they have been agreed by the parties. For that reason, when expense terms added at a later stage are examined, the nature of the cost in question and the allocation of responsibility prescribed by law must be considered together.
Additional Arrangements That May Survive
Not every provision added to the lease agreement at a later stage is treated as void on the assumption that it operates against the tenant. Article 340 of the Turkish Code of Obligations prohibits only two categories: those that bring a new liability upon the tenant and those that have no direct connection with the lease relationship. Additional arrangements that are to the tenant’s benefit, or that serve the common interest of the parties, may on the other hand be made.
Supplementary Contracts Made in the Tenant’s Favour
Supplementary contracts producing a result in the tenant’s favour are as a rule treated as valid, since they coincide with the protective purpose of the law. A reduction of the rent, an extension of the time for payment, an agreement that no increase will be made for a particular period, or the grant to the tenant of an additional facility of use are examples of arrangements of this character.
Terms of this kind contribute to the lease relationship being conducted in a more balanced manner between the parties and are generally formed by common will. There is no statutory obstacle to the validity of arrangements that lighten the tenant’s obligations or widen the tenant’s rights.
Terms Serving the Common Benefit of the Parties
Provisions serving the interest of both parties may likewise be added to the contract at a later stage and produce legal effects. Terms directed at the protection of the leased property, at regulating the manner of its use or at the sounder continuation of the relationship acquire validity to the extent that they serve the common benefit.
The laying down of rules of maintenance and use, the making of arrangements as to the hours during which the immovable property is to be used, or the clarification of the principles governing the use of common areas may be assessed within this scope. Provisions of this kind, which ease the operation of the lease relationship, may be validly applied between the parties so long as they place no additional burden upon the tenant.
The Consequences of a Supplementary Contract Contrary to the Prohibition
Additional terms operating against the tenant produce no legal effect to the extent that they conflict with the mandatory provisions of the Turkish Code of Obligations. The fact that such a text has been signed by the parties does not render it valid. The legislature has restricted this field in order to protect the tenant and has expressly provided that arrangements contrary to the prohibition are to be treated as void.
The Additional Arrangement Being Treated as Invalid From the Outset
An additional term that brings a new liability upon the tenant, or that bears no direct connection with the lease relationship, is void from the moment it is concluded. In other words, a provision of that kind is treated as though it had never been drawn up and creates no binding result for the parties.
In that event it is not open to the landlord to demand payment from the tenant, or to widen the tenant’s obligations, on the strength of an invalid term. The tenant is not bound to perform the obligation demanded on the basis of a void arrangement, and may in addition claim restitution of the payments made by reason of that term.
The Statutory Provision Taking the Place of the Invalid Term
Where an additional provision is treated as invalid, the gap it leaves is filled directly by the arrangement contained in the law. This result becomes particularly apparent under the headings of the rent, ancillary expenses and the penalty clause.
If, for example, a term has been inserted to the effect that an expense belonging by law to the landlord is loaded upon the tenant, that provision is treated as invalid and the party by whom the cost in question is to be met is determined according to the statutory provisions. For that reason, a careful examination at the outset of the legal validity of protocols added to the contract is of great importance in preventing disputes that may arise later.
Related Topics
The prohibition on stipulating a penalty clause against the tenant in the lease relationship carries a particular weight as regards the performance of the rent obligation, the validity of contractual provisions and the mandatory rules protecting the tenant. The following topics may also be examined in connection with the subject:
- How Is the Rent Increase Rate Determined? (Article 344, Turkish Code of Obligations)
- Action for the Adaptation of the Rent: Conditions and Procedure (Article 138, Turkish Code of Obligations)
- What Is a Lease Agreement? Its Types and Legal Nature
- The Prohibition of Penalty Clauses Against the Tenant (Article 346, Turkish Code of Obligations)
Independent Legal Assessment
In disputes concerning the prohibition of linked contracts the argument turns, for the most part, not on whether the document was signed but on the point of whether the obligation undertaken has a genuine connection with the use of the leased property. If that connection cannot be established, the name of the text and the consent of the parties do not, in themselves, alter the outcome. In practice, because the undertakings presented to the tenant have the appearance of a document separate from the principal contract, that separateness sometimes creates an impression of validity; the scrutiny is, however, carried out together with the principal lease relationship.
When a road map is drawn up in a particular file, it is appropriate for the following heads to be addressed first:
- Establishing whether the obligation undertaken by the supplementary text has a direct connection with the use of the leased property
- Examining whether the arrangement provides any benefit to the tenant, or has been imposed merely for the continuation of the contract
- Scrutinising protocols containing a rent increase against the statutory upper limit
- Separating out the statutory allocation of responsibility in expense and cost terms
- Preparing a claim for restitution where sums have been collected on the basis of an invalid term
In disputes arising from lease relationships, Independent Legal provides advisory services and conducts litigation throughout the entire process, from the validity review of additional protocol and undertaking texts to the bringing of restitution and declaratory claims before the courts.