Commercial Lease Defects, Disclosures & Permits (Turkey)

Effective from 1 July 2012 under the primary governing legislation (Turkish Code of Obligations No. 6098), even when corporate Shopping Malls (AVMs) or Plaza developers in the Turkish market deliver offices and Logistics bases to commercial workplace company tenants (B2B) as Shell and Core (concrete form, un-decorated interior), the law (TCO) does not grant legal permission to the door of being completely 100% exempt from the "defect, flaw deficiency, or official obstacles of the property" under the asymmetric protection rule, even if contrary provisions are fictionalized to be put in the contracts!

1. Defects upon Delivery and the Presumption of "Fitness for Purpose" Commercially

In the legal articles in Turkey, even if you are a commercial B2B merchant, the shop or office property owner is under the obligation to deliver the leased property on the agreed date "suitable/fit for the intended commercial use in the contract" and to maintain it in this condition for the duration of the contract (TCO Art. 301 Mandatory - A Contrary Contract Cannot Be Made Rule for roofed workplaces). If the leasing fund (property owner) left the fire extinguishing main generator connection severed in the shopping mall shop, if the warehouse is wet due to missing concrete insulations in the external jacketing of the store, or if it does not provide enough fuse power (kW Watt) for industrial electricity, and if this brings damage to the commercial goods of the tenant company (Hidden Defects) and was hidden or delivered unpredictably and the merchant reported it later:

• The tenant company directly enters legal Recourse (Rücû) against the landlord (from the defect of the leased property). Under TCO Art. 305-307, the tenant may demand: (a) Rectification of the defect, (b) A proportional reduction in rent, (c) Compensation for damages, or (d) Termination of the contract if the defect renders the property unusable. These are civil remedies; lease disputes and defects are strictly civil matters under the Turkish Code of Obligations.

In Incomplete Deliveries B2Bs (As a Due-Diligence Annex): In large corporate leases, absolutely between the Lawyer of the Property Owner and the Tenant Company, a "Physical / Technical Protocol Annex" and "Delivery & Confiscation Document" are signed underneath the delivery from A to Z with photos and drawings (How many columns are sound in the shop, is there inside concrete or not, is there an air conditioning duct?) to provide a zero-evidentiary protection in mutual security regarding a defect excuse that will emerge in the future and damage penalties in store returns).

2. "Occupancy Permit (İskân)" and "Workplace Opening License (Municipality)"

The most important paper of the Disclosures in B2B according to the law is the "Building Occupancy Document (Yapı İskân Belgesi)"! When a business renting a shop (For example, a new Brand Restaurant will open or the Ithaki company will enter Logistics into a warehouse); goes to the District Municipality of the State where it is located and requests approval for a "Workplace Operation / License" for operating tax; the Municipality Urbanism authority first asks for the full "Occupancy Certificate (İskân Belgesi) (The Set Occupancy Permission Paper that the building construction has finished orderly and soundly according to the law matching its Project and the Fire Board)" approved from the Landlord of that rented plaza and warehouse!

• Under the "Regulation on Workplace Opening and Operation Licenses" (İşyeri Açma ve Çalışma Ruhsatlarına İlişkin Yönetmelik), a "Building Occupancy Permit" (Yapı Kullanma İzin Belgesi) is a prerequisite for obtaining a business license. If the Property owner hid from the lease that the "Occupancy Permit" of this warehouse or shopping mall shop never existed, the failure to provide a property capable of being licensed constitutes a legal defect under TCO Art. 301. The Tenant may seek full termination of the contract and damages for missing profit due to the property being unfit for its intended legal use.

• To Be Established by Contract (Asymmetric Escape): In the contrary claim (restaurant oven chimney rules of the tenant), for the special commercial (oven permission / industrial gas permission, etc.) the tenant will do; the strong lawyers of Property owners often write heavy exclusionary contract defense clauses: "That the lessor is 100% responsible for the License-Operation permit of the immobile, or Disclosure and commercial municipal fire approvals to be taken and that the risks / impossibilities of these licenses will not bind the Landlord (Lessor) in any way." However, TCO Art. 301 is mandatory for roofed workplace leases, and no provision contrary to this can be made. Clauses that completely exempt the landlord from delivering a property fit for its intended legal use (including İskân) are generally void under TCO Art. 27.

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