The obligation to tolerate the remedy of defects and the showing of the leased property is defined in Article 319 of the Turkish Code of Obligations (TCO). TCO Article 319: The tenant is obliged to tolerate activities aimed at remedying defects or preventing damages to the leased property. To the extent necessary for maintenance, sale, or subsequent leasing, the tenant is also required to allow the lessor and the third party appointed by them to visit and inspect the leased property. The lessor must inform the tenant of the activities and the planned inspection of the leased property within a reasonable period of time, and must take the tenant’s interests into account during these activities. The tenant’s rights to reduce the rent and compensate for damages remain reserved.
According to Articles 319/2-3 of the TCO, the tenant is required to allow the lessor and the third party designated by the lessor to visit and inspect the leased property for maintenance, sale, or subsequent leasing purposes. In addition to the tenant’s obligation, the lessor also has an obligation. The lessor’s obligation is to inform the tenant in advance, within a reasonable period, of the intention to show the leased property, and to ensure that this notification is made without coercing the tenant, while also considering the tenant’s interests.
The common conclusion drawn from the explanations above regarding Articles 319/2-3 of the law is that it would be unlawful for the tenant to exhibit behaviors that prevent the showing of the leased property, and for the lessor to impose coercive deadlines on the tenant regarding when the property will be shown, thereby disregarding the tenant’s interests.
Competent Court
If the tenant does not show the property, the lessor can request the court to order the showing of the leased property by filing a lawsuit at the Civil Court of Peace.
Example Court of Cassation Decisions
- Civil Chamber 2015/6282 E., 2015/6125 K.
“Judgment Text”
COURT: Civil Court of First Instance
The decision regarding the case for permission to show the rental property and determination of the viewing times, issued by the local court with the above-mentioned date and number, has been appealed by the defendant within the specified period. All documents in the case file have been read, and the necessary deliberations have been made.
The case is related to the request for permission to show the rented property in accordance with Article 319/2 of the Turkish Code of Obligations (T.B.K.). The court decided to accept the request, and the judgment has been appealed by the defendant’s attorney.
The plaintiff requested the determination of the dates and times for showing the rented property to potential buyers until it is sold. The defendant’s attorney argued that since the defendant and their spouse are employed, permission should only be granted for a reasonable period during holidays. The court decided that the property must be made available for viewing between 12-14 hours every Saturday and Wednesday for a period of six months.
In the regulation under the heading “Obligations of the Tenant” in the Turkish Code of Obligations, the obligation to allow the property to be shown is mentioned, and this is explained in Article 319 of the T.B.K. According to Article 319/2 of the T.B.K., “The tenant is obligated to allow the lessor and any third party designated by the lessor to visit and view the rented property to the extent necessary for maintenance, sale, or future rental.” Furthermore, Article 319/3 of the T.B.K. states, “The lessor is required to inform the tenant of the works and the intended viewing of the rented property in advance and to consider the tenant’s interests during these activities.”
The defendant’s attorney mentioned during the trial that the defendant and their spouse are employed, and at the appeal stage, the attorney submitted documents showing the defendant and their spouse’s current places of employment. In this case, the court should investigate the working conditions of the defendant and their spouse, and in accordance with the provision in the law, determine both the duration and the days and hours when the property should be made available, taking into account the interests of the tenant and ensuring fairness. It is incorrect for the court to make a decision without considering these factors.
Therefore, the judgment should be overturned.
CONCLUSION: For the reasons stated above, the appeal objections are accepted, and in accordance with the temporary Article 3 added to the Civil Procedure Code (HMK) by Law No. 6217, the judgment is OVERTURNED under Article 428 of the Civil Procedure Code (HUMK). Since there are no grounds for further examination of the other appeal objections based on the reason for the overturning, the appeal fee paid in advance will be refunded to the appellant upon request. The decision was made unanimously on 18/06/2015.
(Closed) 6th Civil Chamber 2014/10759 E., 2014/11968 K.
“Judgment Text”
COURT: Civil Court of Peace
CASE TYPE: Request for permission to show the leased property
The decision regarding the request for permission to allow the leased property to be shown, dated and numbered as written above, issued by the local court, was appealed by the defendant within the specified period. All documents in the case file have been read, and the necessary considerations have been made.
The case is related to the request for permission to allow third parties to visit and view the leased property. The court has decided to accept the claim, and the judgment has been appealed by the defendant’s attorney.
Based on the case file, the gathered evidence, and the reasoning on which the decision is based, the defendant’s appeal regarding the merits of the decision is unfounded. However, since the plaintiff’s request is to allow the leased property to be shown for sale, and although the court did not decide to allow the leased property to be shown to potential tenants by the lessor under the tenant’s burden of tolerance, in order to facilitate the lessor’s ability to find a suitable tenant, it is not considered necessary to hold a new trial to correct this mistake. Therefore, the phrase in the first paragraph of the judgment reading “to allow the leased property to be shown to potential tenants by the lessor under the tenant’s burden of tolerance in order to facilitate the lessor’s ability to find a suitable tenant” is to be removed and replaced with the phrase “to allow the leased property to be shown to potential buyers by the lessor under the tenant’s burden of tolerance in order to facilitate the lessor’s ability to find a suitable buyer.” The decision is to be corrected and upheld in this revised form, in accordance with Article 428 of the Civil Procedure Law (HUMK), and with consideration of the temporary Article 3 added to the Law No. 6217. The appeal fee, if paid in advance, will be refunded to the appellant upon request. The decision was unanimously made on 05/11/2014.
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