TAX LIABILITY RESPONSIBILITY IN COMPANIES IN TURKEY AND THE TAX LIABILITY OF LEGAL REPRESENTATIVES

The tax liability of legal representatives in companies is regulated under both the Tax Procedure Law (VUK) and the Law on the Collection Procedure of Public Receivables (AATUHK) within the scope of Company Law in Turkey.

Article 10 of the VUK specifically contains provisions regarding tax claims, penalties, and tax-related receivables. On the other hand, Article 35 of the AATUHK introduces general regulations concerning all public receivables. Due to the existence of these two separate norms, there have been different views in practice regarding which provision should apply to the tax liability of legal representatives in companies.

Since Article 10 of the Tax Procedure Law is a special provision related only to tax receivables, it takes precedence over Article 35 of the AATUHK, which is a general provision. According to general legal principles, a special provision prevails over a general one. Therefore, in tax disputes, the liability of legal representatives for tax debts should be evaluated according to Article 10 of the VUK.

However, in practice, it has been observed that collections are pursued based on Article 35 in order to ensure the state’s collection, which contradicts the hierarchy of norms and the principles of the rule of law. Applying the general provision instead of the special one creates legal uncertainty and expands the tax liability of the legal representatives in Turkey.

• Tax Liability in Joint-Stock Companies

The tax liability responsibility in companies in Turkey and obligations related to other public debts in joint-stock companies are fulfilled by the company’s legal representatives and board members. If these obligations are not fulfilled, the taxes and other public receivables that the state cannot collect may be personally demanded from the legal representatives.

Personal Liability of the Legal Representative for Tax Debts

Tax liability in Joint-Stock Companies is fulfilled through legal representatives. If the company’s tax and other related receivables cannot be fully or partially collected from the company’s assets, the tax debt liability of the company is collected from the legal representatives’ personal assets. This rule also applies to the representatives of foreign companies operating in Turkey. Legal representatives can seek recourse from the company for the public debts they have paid.

Liability for Social Security Debts

Unpaid insurance premiums to the Social Security Institution (SGK), general health insurance premiums, unemployment insurance premiums, administrative fines, late fees, and other receivables are jointly and severally the responsibility of the company’s board members, senior executives, and legal representatives. The debts that cannot be collected from the company’s assets are collected from these individuals’ personal assets.

Joint Liability in Public Receivables

If different individuals were the legal representative, board member, or senior executive at the time the public receivable arose and became due, these individuals will be held jointly liable for public debts. Board members are responsible for the public debts that arose during their term of office and are not liable for debts that arise after they leave office.

Tax Liability in Companies Under Liquidation

Even if a company has entered liquidation or has been dissolved, the legal representative’s tax liability for public debts arising before the liquidation date does not disappear.

Tax Liability of Board Members

Board members of a joint-stock company are responsible for all public debts incurred during their tenure at the company. This responsibility does not continue after they leave office. However, they are personally liable for debts arising during their tenure.

Tax Liability of Shareholders

Shareholders of joint-stock companies who are also board members are responsible for the company’s public debts, regardless of their shareholding ratio. However, this liability only arises from their board membership. Shareholders who are not board members and have no administrative role or representation authority in the company are not liable for public debts.

In summary, if public debts are not paid in joint-stock companies, the responsibility of tax liability in Joint-Stock Companies primarily falls on legal representatives, board members, and senior executives. These individuals are personally responsible for paying public debts with their assets and can seek recourse from the company for the amounts they have paid.

• Tax Liability Of Legal Representatives And Managers In Joint-stock Companies

In joint-stock companies, the authority to manage and represent the company is exercised by the board of directors under Article 365 of the Turkish Commercial Code (TCC) No. 6102. The board of directors is the highest body with the authority to manage and represent the company. According to Article 367/1 of the TCC, these powers can be partially or fully transferred to one or more board members or third parties by including a provision in the company’s articles of association or by issuing an internal directive. However, in cases where no such transfer is made, the board members hold the title of legal representatives and are held accountable for the company’s public debts.

Liability of Legal Representatives for Tax Debts:

According to Article 35 of the Law on the Collection Procedure of Public Receivables No. 6183, if the tax debts of a joint-stock company cannot be collected from the company, they can be personally collected from the legal representatives. Legal representatives and managers are considered liable for tax debts under the provisions of the TCC, as they are authorized to manage the company and incur obligations on behalf of the company. Court rulings from the Supreme Court and the Council of State indicate that the person held liable for the company’s tax debts must be authorized to represent and bind the company. In this context, unless the board members transfer their authority to managing members or managing directors under TCC Article 370/2, they retain their liability.

Tax Debts and Article 10 of the VUK:

When it comes to tax debts, Article 10 of the Tax Procedure Law (VUK) applies. According to Article 10, the person responsible for tax debts in a company is the one holding the title of legal representative. However, rulings from the Supreme Court and the Council of State emphasize that granting someone a certain signing authority is not sufficient to hold them accountable as a legal representative. For instance, in a ruling by the General Assembly of Tax Chambers of the Council of State, a person with second-degree signing authority was not considered a legal representative. These rulings show that the tax liability under the VUK is aligned with the provisions on liability in the Law No. 6183.

Application of Court Rulings:

• The Supreme Court and the Council of State require that those held responsible for public debts as legal representatives must have the authority to represent and bind the company. Board members and senior executives retain liability unless they have transferred this authority. However, even if they have transferred the authority, they may still be held liable for debts incurred during the period before the transfer.
• Example Court Decision: The General Assembly of Tax Chambers of the Council of State, in its decision dated 13.11.2013, ruled that a deputy general manager with second-degree signing authority did not have the status of a legal representative and, therefore, could not be held liable for public debts. This decision highlights the importance of carefully examining which individuals and periods are responsible for public debts.

In conclusion, board members in joint-stock companies hold the status of legal representatives and can be held liable for public debts. However, the extent of their liability depends on whether they have transferred their authority and the internal distribution of responsibilities within the company.

• Tax Liability in Limited Companies

Tax liability and collection in limited companies are among the most problematic areas concerning public receivables. One of the key features of limited companies is that the partners are not personally liable for the company’s debts with their private assets. Therefore, the limited company, as a legal entity, is generally held liable for its debts. However, legal issues arise in practice concerning the collection of tax debts.

From Whom and How Can Tax Debts Be Collected in Limited Companies?

The lack of clear provisions in the legislation regarding the order and individuals to be pursued for the collection of tax debts leads to problems. During collection, the following issues remain unclear:

• The order of collection based on tax liability responsibility in companies in Turkey,
• The individuals to be pursued,
• Whether the procedure will follow Article 10 of the VUK or Article 35 of the Law on the Collection Procedure of Public Receivables (AATUHK).

Individuals Liable for Tax Debts: Individuals who may be pursued for the collection of tax debts in limited companies, within the framework of tax liability, are regulated by different legislation:

• Under Article 573 of the TCC, the legal entity of the limited company is responsible for tax debts.
• If the debt cannot be fully or partially collected from the legal entity, the partners may be pursued based on their capital shares according to Article 35 of the AATUHK.
• Additionally, if the tax receivables cannot be collected from the assets of the legal entity, personal assets of the legal representatives may be pursued under Article 35 of the AATUHK and Article 10 of the VUK.

Decision of the Council of State’s Unification of Judgments Assembly dated 20.06.2019:

The Council of State has exhibited different approaches regarding which individuals to pursue in the collection of tax debts and in what order. This uncertainty was addressed in the Council of State’s Unification of Judgments Assembly decision dated 20.06.2019. The Assembly ruled that collection does not need to follow a specific order. This decision has provided more flexibility to tax offices in collection efforts.

• Liability of General Managers for Tax Debts in Limited Companies

General Managers and senior executives of limited companies are responsible for the company’s public debts. This responsibility applies to the debts incurred during the period they held office. Even if a manager’s term ends, liability of general managers for tax debts from their tenure continues.

1) Liability of General Managers and Shareholders for Tax Debts

Article 35 of Law No. 6183:

• Limited company shareholders are liable for the public debts that cannot be collected from the company, either fully or partially, according to their capital shares.
• The only condition for holding the shareholders and managers liable is that the tax debt must not be collectible from the company or deemed uncollectible.
• After proving that the debt cannot be collected from the company, personal assets of the shareholders and managers may be targeted, especially after amendments introduced by Law No. 5766.

Once the inability to collect the debt from the company is established, the tax authorities may pursue the personal assets of the shareholders and general managers.

2) Strict and Unlimited Liability for Tax Debts

The liability of shareholders and managing directors for tax debts is based on the proportion of their capital shares under commercial law in Turkey. However, this contradicts the founding principle of limited companies, which generally protects shareholders from being personally liable for the company’s debts. To safeguard the collection of public receivables, Article 35 of Law No. 6183 imposes such liability.

This liability is considered “strict liability” because shareholders and managers are held responsible for the debts without any personal fault or misconduct, solely based on their ownership shares. However, depending on the amount of the debt, this responsibility can effectively become unlimited, and their personal assets may be used to cover the debt beyond the proportion of their shares.

3) Liability for Tax Debts After the General Manager’s Term

Managers and senior executives remain liable for public debts incurred during their tenure even after their term ends. The termination of their managerial role does not remove their responsibility for tax debts from the period they served. In other words, managers continue to be liable for public debts and tax liabilities related to the time they were in office.

4) Priority in the Collection of Public Debts

As emphasized by the Council of State, if public debts cannot be collected from the legal entity (the company), the personal assets of the managers and shareholders may be pursued. Although there are no strict rules regarding the order of collection, the legislature aims to enhance the efficiency of collecting public receivables.

In conclusion, in limited companies, shareholders and managers bear significant liability for public debts. General Managers are responsible for debts incurred during their term, while shareholders are liable according to their shareholding percentages. This liability can become effectively unlimited, especially when the debt amount exceeds the capital share, allowing the tax authorities to target the personal assets of shareholders and managers.

When attempting to collect tax debts in limited companies, priority is first given to the legal entity. However, if the company’s assets are insufficient, the shareholders and legal representatives may be held personally liable under Article 35 of Law No. 6183 and Article 10 of the Tax Procedure Law (VUK), leading to ongoing legal debates regarding their responsibilities.

IMPACT OF SHARE TRANSFER ON TAX LIABILITY IN LIMITED COMPANIES

In limited companies, the transfer of partnership shares significantly affects the liability for tax debts. According to Article 35/2 of Law No. 6183 on the Collection of Public Receivables (AATUHK) and Article 10 of the Tax Procedure Law (VUK), both the transferring and receiving partners can be held liable for the company’s public debts incurred before the transfer.

1) Liability for Tax Debts Before the Transfer

Under Article 35/2 of AATUHK, both the party transferring the shares (the transferor) and the party acquiring the shares (the transferee) are jointly and severally liable for public debts incurred prior to the transfer, proportional to their shareholding. This means that even though the transferor has transferred their shares, they remain liable for tax debts that arose before the transfer.

This provision clarifies that share transfers do not absolve the transferor of liability for tax debts related to earlier periods.

2) Liability of General Managers for Tax Debts

Not only the shareholders but also the company managers are liable for the company’s tax debts. A shareholder who serves as a company manager bears both strict liability and fault-based liability under Article 35/2 of AATUHK and Article 10 of VUK.

• AATUHK Article 35/2: A manager who transfers their shares remains strictly liable for tax debts related to the transferred shares, in proportion to their shareholding.
• VUK Article 10: As a company manager, the individual is also liable for unpaid tax debts arising during their tenure based on fault. This means managers have personal liability if it can be shown that the tax debts arose due to their negligence or failure to act.

Thus, a manager who transfers their shares is still liable for tax debts incurred both before and during their tenure.

3) Liability for Tax Debts After the Share Transfer

After the share transfer, the transferee (new shareholder) becomes responsible for any tax debts that arise following the transfer date. This liability also extends to company managers who assume the role after the transfer. The new shareholder and manager will both be held accountable under AATUHK Article 35/2 and VUK Article 10 for their respective roles.

• The new shareholder bears strict liability for the tax debts tied to the shares they acquired.
• The new manager (if also a shareholder) holds strict liability for their shares and fault-based liability for any tax debts due to mismanagement during their term.

In conclusion, both the transferor and transferee can be held liable for tax liability responsibility in companies in Turkey, with responsibility shared between them for debts incurred before the transfer. Managers, regardless of whether they hold shares or not, face additional fault-based liability for tax debts that arise due to their actions or negligence. This dual framework of strict and fault-based liability ensures that the state can collect tax debts effectively from all parties involved.

DIFFERENCES IN LIABILITY FOR PUBLIC DEBTS IN JOINT-STOCK COMPANIES AND LIMITED COMPANIES

There is no difference in the liability of the directors for public debts in joint-stock and limited companies. Directors are jointly and severally liable with the company for its public debts.

Criteria	Limited Company	Joint-Stock Company
Representation Body	Company Managers	Board of Directors
Company’s Liability	With all its assets	With all its assets
Shareholders’ Liability	– Shareholders’ liability to third parties is limited to their subscribed capital. – Other than public debts, shareholders are not liable for the company’s debts or creditors. – At least one shareholder must be an unlimited authorized manager.	– Shareholders are only liable to the company to the extent of their subscribed capital. – Shareholders who are members of the Board of Directors (BoD) are liable for all public debts regardless of their shareholding. – Shareholders who are not BoD members are not liable for public debts.
Liability of BoD Members/Company Managers (According to Turkish Commercial Code)	– Managers are liable for damages caused to the company, shareholders, and creditors when they violate legal or contractual obligations.	– BoD members are liable for damages caused to the company, shareholders, and creditors when they violate legal or contractual obligations.
Public Debts Liability	– Public debts that cannot be collected from the company’s assets are subject to the personal liability of the managers. – If public debts cannot be collected, shareholders are directly liable in proportion to their capital shares.	– Public debts that cannot be collected from the company’s assets are subject to the personal liability of the legal representatives. – BoD members and top executives are jointly and severally liable for public debts.

IN THE CASE OF INHERITANCE THEFT, HOW ARE HIDDEN INHERITANCE ASSETS DETECTED?

The most definitive way to detect hidden inheritance assets is to file a “lawsuit for the determination of the estate“. This lawsuit allows for a thorough examination of all transactions involving the deceased’s estate. The court requests all transactions and records related to the estate made by the deceased and identifies any fraudulent transfer transactions. Thus, this lawsuit, filed to protect the rights of the heirs, helps uncover stolen inheritance assets and rights.

A lawsuit for the determination of the estate is especially effective when it is impossible to externally detect fraudulent transfers of assets. After the death of the deceased, all transactions, documents, and records concerning the estate are meticulously examined. The court also considers expert reports and witness statements when necessary. During this process, situations such as the deceased having transferred assets to others or concealed properties are identified, initiating a legal process.

If there is suspicion of fraudulent conveyance of inheritance assets, the most effective way for heirs to detect hidden assets in estate and expose the simulated transactions made by the deceased is to file a lawsuit for the determination of the estate.

WHAT IS FRAUDULENT TRANSFERS OF ASSETS IN INHERITANCE?

Fraudulent conveyance of inheritance assets is an agreement between parties to create a contract that appears valid but does not have any binding effect between them, with the intention of deceiving third parties by concealing their true intentions. For example, a decedent transferring property to third parties through a sale in the land registry to conceal assets from the inheritance has performed a simulated transaction. In this case, the purpose of the sale is to conceal the act of depriving heirs of their inheritance. Therefore, the ostensible sale transaction and the hidden (oral or written) contract behind it are invalid under contract law in Turkey.

Three fundamental conditions must be met for fraudulent conveyance of assets to occur:

• There must be a deliberate and intentional discrepancy between the actual intentions of the parties and the transactions they conduct.
• There must be an intention to deceive third parties.
• The parties must agree to conduct a fraudulent transfer transaction.

Concealment of assets from an inheritance, which should be considered within the scope of inheritance law, is also known as decedent simulation. The decedent is the person who has passed away, and in some cases, they may resort to such fraudulent actions to deprive their heirs of their inheritance. In such cases, heirs must seek legal remedies to protect their inheritance rights.

A decedent may transfer immovable properties through gratuitous transfers to deprive an heir of their inheritance. In this case, transactions are presented as sales contracts or contracts for maintenance until death, facilitating the transfer of immovable properties. These types of fraudulent transfers of assets transactions are legally invalid because they violate the rights of the heirs, and it is crucial for heirs to seek legal remedies against such inheritance theft actions.

WHAT DOES ‘STOLEN INHERITANCE’ ENCOMPASS IN TURKEY?

Fraudulent conveyance of assets is when a person makes gratuitous transfers (gifts) with the intention of depriving an heir of their inheritance rights and disguises these transfers as sales or contracts for maintenance until death. For fraudulent transfers of assets to occur, the decedent must act with the intent to conceal assets from the inheritance. Generally, in cases of stolen inheritance situation , the parties conceal the transaction they conducted between themselves with another contract to deceive third parties. In fraudulent conveyance of assets, however, the aim is to deceive the heirs or one or more of the heirs.

Fraudulent transfer of assets requires certain conditions to be met. If these conditions are not met, concealment of assets from the inheritance cannot be claimed. First, an ostensible transaction must be conducted, but this transaction should not align with the true intent of the decedent. The decedent must aim to deprive the heirs of their rights. Additionally, the decedent must have entered into a simulated contract. Simulated contracts can also be oral, meaning the act of concealing assets from the inheritance can be performed without a written document.

Another important condition relevant to fraudulent transfer is the existence of a hidden transaction. This hidden transaction, reflecting the true intention of the parties, is another element of concealment of assets from the inheritance. Generally, donations made as hidden transactions must meet the formal requirements stipulated by law. Otherwise, the transaction is considered invalid. In cases of stolen inheritance situation, it is crucial for heirs to seek legal remedies in Turkey to protect their rights and ensure justice for inheritance theft.

ELEMENTS OF FRAUDULENT TRANSFERS OF ASSETS IN INHERITANCE

Inheritance simulation involves showing gratuitous transfers, intended to deprive an heir of their inheritance rights, as sales or contracts for maintenance until death. The main purpose of these fraudulent conveyance transactions is to prevent heirs with reserved shares from filing a reduction lawsuit to claim their inheritance shares in the future. In other words, the decedent aims to prevent their heirs from filing a lawsuit by pretending to transfer assets they actually intend to gift as if they were sold. The lawsuit for recovering stolen inheritance investigates whether the four elements of simulation are present:

• Apparent Transaction

An apparent transaction typically appears as a sale, gift, or contract for maintenance until death in practice. These transactions are made by the decedent to conceal assets from the heirs in a way that does not reflect their true intentions and has no legal effect. For example, a decedent might transfer a house in the land registry as if it were a gift to someone, intending to prevent heirs with reserved shares from filing a lawsuit in the future.

• Simulation Agreement

A simulation agreement is an agreement between the decedent and a third party that the ostensible contract is only made to deceive the heirs. The parties agree that the apparent transaction, made to conceal inheritance assets, will have no effect or consequences between them. This agreement can be either oral or written.

• Intent to Deceive Heirs

Another element is that the transaction must be conducted with the intent to deceive the heirs. If the parties (the decedent and the third party) do not have the intent to deceive the heirs, a lawsuit for the concealment of inheritance assets cannot be filed regarding the transaction.

• Hidden Contract

The hidden contract reflects the decedent’s true intent and is concealed behind the apparent transaction. For example, the decedent may wish to gift the property but hides this intention behind a sales contract to deceive the heirs. The hidden contract (the gift) is generally valid because it aligns with the actual intent of the parties. However, whether the hidden contract must comply with formal requirements is important. A hidden transaction is not subject to formal requirements for unregistered immovables and movable properties. However, since registered immovables require an official form and the hidden contract does not comply with this formality, it is considered invalid.

• Intent to Conceal Assets

For fraudulent transfer of inheritance assets to be applicable, the decedent’s actual intent must be to conceal assets from the heir or heirs.

THE IMPORTANCE OF THE DECEDENT’S TRUE INTENT IN FRAUDULENT CONVEYANCE OF ASSETS

Determining the “true intent of the decedent” in fraudulent conveyance requires revealing the actual intent and will between the parties. Various factors are considered to determine this intent:

• Written or Oral Agreements Between the Parties: Explicit declarations, written or oral agreements, documents, or letters exchanged between the parties can serve as important evidence in revealing the decedent’s true intent. These documents and statements play a crucial role in understanding the decedent’s actual purpose.
• Conduct of the Parties: The transactions, actions, and behavior of the parties are also considered in determining the decedent’s true intent. For example, if the decedent continues to use the gifted property or maintains control over it, this may indicate that they did not intend to make a gift and wanted to retain the property.
• Indirect Evidence: Secondary evidence can be used to determine the decedent’s true intent. This evidence includes witness statements, correspondence, bank accounts, or other financial documents. Such evidence can indirectly reveal the decedent’s intent.

An evaluation is made by considering all these factors to determine the decedent’s true intent. Courts typically assess all the evidence to ascertain the decedent’s actual intent. However, this process can be challenging depending on the complexity of the situation and the reliability of the evidence. Accurately determining the decedent’s intent is crucial for resolving allegations of concealing inheritance assets.

HOW TO RECOVER STOLEN INHERITANCE IN TURKEY?

Any heir whose inheritance rights have been violated can file a lawsuit for recovering stolen inheritance. This includes all heirs, whether they are reserved share holders or not. Any type of evidence can be used to prove the fraudulent transfer. The individuals who can file such a lawsuit include legal heirs, appointed heirs, and adopted children. However, individuals who have renounced the inheritance, waived their inheritance rights, or have been disinherited cannot file the lawsuit to recover stolen inheritance.

Heirs can individually file this lawsuit. The joint ownership of the estate does not prevent each heir from filing a “Land Registration Cancellation and Registration Lawsuit” based on their share without needing the consent of the other heirs. However, if the heir wishes for the property to revert to the estate, rather than just their share, they must obtain the consent of the other heirs not involved in the lawsuit or continue the lawsuit with the estate representative.

The most important consideration when filing this lawsuit is that the heir must act with the aim of protecting their inheritance rights and ensuring justice. Courts will carefully evaluate the evidence to determine the true intent of the decedent and ensure fairness.

CAN AN HEIR FILE A CANCELLATION OF DEED LAWSUIT ALONE?

Lawsuits for the cancellation and registration of the title deed, based on incompetence, misuse of power of attorney, or fraud against non-heirs, cannot be filed proportionate to the inheritance share. To file such land registry cancellation lawsuits, all heirs must be included in the lawsuit. However, lawsuits filed among heirs are subject to the rules of shared ownership of the estate and can be filed proportionate to the inheritance share.

The estate of the decedent, according to the date of death, is subject to joint ownership. If there are other heirs besides the plaintiff, this is established within the scope of the case file. Except for lawsuits based on wrongful acts arising from ownership against the estate, such as fraudulent conveyance and prevention of interference, in cases of incompetence, misuse of power of attorney, error-fraud-exploitation, all heirs must act together.

If one of the heirs files a lawsuit for restitution to the estate, the consent of all heirs must be obtained for the lawsuit. Otherwise, the estate must be represented and managed by an appointed representative in the lawsuit. This is indisputable according to Article 640 of the Turkish Civil Code (Y1HD-K.2020/3302).

Summary:

1. Lawsuits Against Non-Heirs: Cancellation of deed lawsuit, based on incompetence, misuse of power of attorney, or fraud, must be filed with the inclusion of all heirs.
2. Lawsuits Among Heirs: Can be filed proportionate to the inheritance share and are subject to the rules of shared ownership of the estate.
3. Joint Ownership of the Estate: The estate is subject to joint ownership according to the date of death of the decedent, and if there are other heirs besides the plaintiff, this must be considered.
4. Representation and Consent: In lawsuits for incompetence, misuse of power of attorney, etc., all heirs must act together. If one of the heirs files a lawsuit for restitution to the estate, the consent of all heirs is required; otherwise, the estate must be represented by an appointed representative.

It appears that regardless of whether they have a reserved share, all heirs whose inheritance rights have been violated can file a lawsuit for the concealment of inheritance assets. In this case, there is no distinction made between heirs who were present at the time of the simulated transaction and those who may appear later.

What matters is that there is an heir whom the decedent intended to deceive at the time of the simulated transaction, and that the plaintiff is an heir at the time the lawsuit is filed. All heirs whose rights have been violated can file cancellation of deed lawsuit due to decedent simulation in proportion to their inheritance share or request the restitution of the property to the estate.

WHO DOES NOT HAVE THE RIGHT TO FILE A LAND REGISTRY CANCELLATION LAWSUIT?

Individuals who have renounced the inheritance, explicitly waived their inheritance rights, or have been disinherited due to the fulfillment of legal conditions are considered to have relinquished certain rights under inheritance law. These individuals do not have the right to initiate legal proceedings, such as a cancellation of deed lawsuit.

While equality and rights among heirs are important in inheritance law, these rights can be limited under specific circumstances. Individuals who have renounced the inheritance, explicitly waived their rights, or have been disinherited cannot initiate legal actions regarding transactions that conflict with the decedent’s intent. This includes the legal consequences of disinheritance or waiver.

Heirs who do not have the right to file a land registry cancellation lawsuit lawsuit include:

1. Individuals Who Have Renounced the Inheritance: Those who have renounced the inheritance have completely waived their inheritance rights and, therefore, do not have the right to question the transactions related to the decedent’s intent.
2. Individuals Who Have Waived Their Inheritance Rights: Those who have explicitly waived their inheritance rights are no longer considered heirs and thus do not participate in inheritance-related disputes.
3. Individuals Who Have Been Disinherited: Individuals who have been disinherited due to the fulfillment of legal conditions are not considered heirs and cannot be parties to inheritance-related lawsuits.

These individuals do not have the right to challenge the decedent’s intent or file a lawsuit for fraudulent transfers of assets involving inheritance concealment.

PROOF IN INHERITANCE CONCEALMENT OF ASSETS LAWSUITS

Inheritance concealment lawsuits, which play a crucial role in protecting the rights of heirs under inheritance law in Turkey, are filed to uncover the true intent of the decedent and prevent inheritance thefts. In these lawsuits, heirs are responsible for proving that the decedent engaged in a fraudulent conveyance transaction, such as presenting a gift as a sale or a contract for care until death.

According to the decision of the Grand General Assembly for the Unification of Judgments of the Court of Cassation (dated April 1, 1974, numbered 1974/1-2), heirs can use any type of evidence, including witness statements, to prove their claims, as they base their lawsuits on the decedent’s true intent. For example, in a case where a decedent has entered into a contract for care until death, it must be proven that the decedent did not actually require care or that the person receiving the property did not provide the promised care.

Witness statements are crucial in revealing the decedent’s true intent, and the case law of the Court of Cassation offers significant criteria shaping this process. Factors considered include the difference between the sale price and the actual value of the property, the decedent’s financial situation, family relationships, regional customs, and psychological factors. Additionally, the purchasing power of the third party who acquired the property and whether the decedent had realistic reasons for selling the property are also important.

To prove a claim of recovering stolen inheritance, various forms of evidence can be used, including witness statements, expert reports, discovery findings, and other legal evidence. The aim of these lawsuits is to prevent the decedent from depriving their heirs of their inheritance rights through fraudulent transfers of assets and to ensure justice is served.

STATUTE OF LIMITATIONS FOR HEIRS TO FILE A CANCELLATION OF DEED LAWSUIT

Cancellation of deed lawsuits, when based on the claim of recovering stolen iheritance, are not subject to any statute of limitations or peremptory period. Since fraudulent transfer transactions are legally void, they have no legal effect or consequence. This allows the claim of simulation to be brought to court at any time, and the passing of a certain period does not validate such transactions.

Therefore, a cancellation of deed lawsuit can be filed against fraudulent conveyance transactions intended to unjustly deprive heirs of their inheritance rights. There is no time restriction for filing such lawsuits in case of iheritance theft.

COMPETENT AND AUTHORIZED COURT FOR RECOVERING STOLEN INHERITANCE LAWSUITS

Land registry cancellation lawsuits due to recovering stolen inheritance fall under the jurisdiction of the Civil Court of General Jurisdiction  according to the Turkish Code of Civil Procedure. Since these lawsuits concern real estate law, the authorized court is the one located in the jurisdiction where the property is situated. If there is more than one property involved, the lawsuit can be filed in the court where any one of these properties is located.

COURT FEES FOR INHERITANCE CONCEALMENT OF ASSETS LAWSUITS

Decedent simulation-based lawsuits for the cancellation of title deeds are subject to a proportional fee system determined by the value of the lawsuit. Generally, at the beginning of the lawsuit, a proportional fee is paid based on the declared value of the property since the exact value is not known at the time of filing. As the lawsuit progresses, the court determines the actual value of the property through an expert appointed by the court, and the fee amount is updated or increased based on this value.

JUDGMENTS IN INHERITANCE THEFT-BASED LAWSUITS

Recovering stolen inheritance is an important concept in inheritance law that aims to protect the rights of heirs. In such cases, fraudulent transactions carried out by the deceased to deprive their heirs of inheritance rights are at issue for inheritance theft.

In cases of inheritance theft, two types of transactions typically come to the forefront:

• Disguised Transactions: Transactions that appear to be a sale or another type of agreement but are actually intended as a gift.
• Apparent Transactions: Transactions that appear as a sale or care agreement but do not reflect the actual intent.

According to Article 19 of the Turkish Code of Obligations, contracts must be interpreted according to their true intent. Therefore, if the apparent sales or other agreements do not reflect the actual intent, registrations based on such simulated transactions are considered void, and their cancellation can be requested.

SITUATIONS CONSIDERED AS INVALID GIFT TRANSFERS IN INHERITANCE

Hidden contracts such as gifts are subject to certain formal requirements. Under Article 706 of the Turkish Civil Code, specific rules must be followed for registered immovable properties. If these requirements are not met, the gift contract may be deemed invalid, and the transfer of property through inheritance concealment by gift may be considered an invalid gift transfer.

In cases of inheritance concealment through gifts, heirs may file a lawsuit for the cancellation of fraudulent transfers of assets transactions conducted by the deceased with third parties. The aim of such lawsuits is to protect the rights of the heirs and compensate for the damages caused by the fraudulent inheritance theft actions of the deceased.

If the court, as a result of the trial, determines that the sale transaction was indeed a gift or was conducted fraudulently, this means the transfer of ownership recorded in the land registry is invalid gift transfer. . Thus, the transaction carried out by the deceased to unjustly deprive their heirs of inheritance rights is considered legally nonexistent.

Upon establishing the inheritance concealment through gifts, heirs become entitled to rights over the property in question. This ruling has a retroactive effect on all legal consequences and aims to protect the heirs’ rights. This ensures justice and the preservation of inheritance law in Turkey.

INHERITANCE TRANSACTIONS CONSIDERED AS FRAUDULENT TRANSFERS OF ASSETS IN TURKEY

Transactions that can be considered as fraudulent transfers of assets involve the concealment of the true intent of the deceased or the performance of a different transaction in form to intentionally conceal assets. These transactions include:

1. Sale of Registered Immovable Property to One of the Heirs: The deceased shows the property transfer as a sale in the deed registry, while it is actually a gift. Since this sale transaction does not reflect the true intentions of the parties, it is void due to fraudulent transfer. Additionally, the concealed gift contract is invalid because it does not meet the formal requirements.
2. Sale of Registered Immovable Property Using an Intermediate Owner: The deceased transfers the immovable property registered in their name to a person referred to as an intermediate owner. The intermediate owner is shown as the owner for a short time, while in reality, they are under the control of the deceased’s will. Later, the intermediate owner sells the property at a low price to an heir or another third party. This method allows the deceased to seemingly hide the property from the heirs while actually maintaining control over it.
3. Lifetime Care Contract as a Simulated Transaction: The deceased may enter into a lifetime care contract as a facade while actually intending to gift the property. This contract is void because it does not reflect the true intentions of the parties. Similarly, the concealed gift contract is invalid due to non-compliance with formal requirements.
4. Gift Transaction as an Apparent Transaction: To conceal property from other heirs, the deceased might present the transfer of the registered immovable property as a gift. However, this gift transaction can also be void if it does not align with the true intent of the parties.

These types of fraudulent conveyance transactions can be brought to court with an inheritance concealment lawsuit to protect the heirs’ rights, and the invalidity of such transactions can be determined.

SITUATIONS NOT CONSIDERED AS FRAUDULENT CONVEYANCE OF ASSETS IN TURKEY

Transactions that are not considered as fraudulent transfers of assets are those that do not aim to deceive the heirs or conceal assets. These transactions reflect the true intentions of the parties and are valid. Some situations that are not considered as situation of stolen inheritance include:

1. Transfer of Registered Immovable Property for Consideration (Actual Value): The transfer of immovable property for its actual value is a transaction carried out with clear and genuine intent between the parties. Since it does not aim to deceive the heirs or conceal assets, it is not considered fraudulent conveyance.
2. Existence of Partition Intent: Partition transactions carried out among heirs indicate an agreement and unity of intent among the parties. In this case, fraudulent transfer is not an issue.
3. Transfer of Unregistered Immovable Property: The transfer of unregistered immovable property is not considered a inheritance theft transaction as long as it is carried out in accordance with legal regulations.
4. Transfer of Movables: The transfer of movables is not considered as concealment of assets as long as it is done with genuine intent between the parties.
5. Transfers Made by Will: Transfers made through a last will reflect the true intent of the deceased, so they are not considered fraudulent transfers of assets.
6. Transfers Made by Donation: Donation transactions carried out with genuine intent between the parties are not considered as invalid gift transfer.
7. Transfer of Cooperative and Company Partnership Shares: The transfer of cooperative or company partnership shares is not considered a simulated transaction as long as it is done with genuine intent between the parties.
8. Situations Envisaged in the Cadastre Law: Transactions made under the conditions specified in the cadastre law are not considered simulated as long as they comply with legal regulations.
9. Issuance of Debt Instruments by the Deceased: Debt instruments issued in accordance with the true intent of the deceased are not considered as concealment of assets transactions.
10. Registration of Immovable Property Sold by the Deceased to a Third Party in the Land Registry: The registration of an immovable property sold to an external party in the land registry, in accordance with the genuine intent of the deceased, is not considered a fraudulent transfer.
11. Establishment of Usufruct Rights: The establishment of usufruct rights is not considered a case of fraudulent conveyance as long as it is done according to the genuine intent of the parties.
12. Long-Term Lease Agreements: Long-term lease agreements are not considered as ihneritance theft as long as they are made with agreement and genuine intent between the parties.

These transactions are not considered as fraudulent conveyance transactions as long as they are carried out according to the genuine intent of the deceased and there is a clear agreement between the parties. Therefore, they do not involve an intention to conceal assets or deceive heirs.

WHAT IS THE INHERITANCE RIGHT OF A CHILD CARING FOR THEIR PARENTS?

Under Turkish Civil Code, there is no distinction between the inheritance rights of a child caring for their parents and other heirs. In fact, the Turkish Civil Code carefully regulates the issue of adjustment in inheritance matters. Article 669/1 of the Code imposes an obligation on legal heirs to adjust any gains they have received from the estate of the deceased that were obtained without compensation. These gains can manifest in various forms, such as debt relief, starting a business, or acquiring property. According to the law, any such unjust gains obtained by heirs during the life of the deceased must be returned to the estate; otherwise, the value of these gains must be reimbursed.

However, decisions by the Court of Cassation recognize some exceptional situations regarding the inheritance right of a child caring for their parents. For example, financial assistance given to heirs for the care of the deceased during their lifetime, provided it was given out of gratitude or to fulfill a moral obligation, is protected and does not need to be returned. Such contributions are considered as the heirs’ support for the care of the deceased and are legally protected. Therefore, these types of gains are evaluated as inheritance rights of the child caring for their parents and are not considered as an attempt to divert inheritance.

CAN A TRANSFER OF TITLE FOR A CARE -UNTIL-DEATH AGREEMENT BE REVERSED?

A “care until death” agreement is a transfer of real estate under specific conditions. In this agreement, typically an elderly or dependent individual (the care recipient) transfers ownership of their property (such as a house or land) to another person (the care provider). In return, the care provider gains ownership of the property and agrees to provide care and support to the care recipient for their lifetime.

This agreement ensures that the care recipient’s social and economic needs are met while giving the care provider the opportunity to acquire ownership of the property. Such agreements are usually formalized through notarized contracts, clarifying the rights and obligations of both parties. One of the most common questions in practice is whether a transfer of title for care can be reversed.

The initial response to whether a transfer of title for care can be reversed is that the “care until death” agreement must represent a genuine care relationship and need. A mere paper agreement made with the intent to divert inheritance from other heirs will not be deemed valid by the courts. If the courts determine that such an agreement is merely a formality, they may cancel the title deed and include the property back in the estate.

Therefore, it is crucial for the parties involved in a “care until death” agreement to have genuine and sincere intentions, for the care recipient to genuinely need care, and for the care to be provided as agreed. Otherwise, the contract may be considered legally invalid, and the title transfer for care could be reversed.

If the care conditions of the “care until death” agreement are met and the person receiving the property has truly provided and continued to provide care, then there will be no grounds for intervention such as cancellation of the title. As long as the care recipient’s real needs are met and the conditions of the agreement are followed, the validity of the contract can be maintained.

DIFFERENCES BETWEEN FRAUDULENT TRANSFER OF ASSETS AND REDUCTION CASES

1. Nature of the Case:

• Fraudulent Transfer of Assets: In cases of fraudulent transfer of assets, the primary issue is whether the deceased’s intent was concealed when transferring assets to third parties, creating a discrepancy between the apparent and the actual intent. The deceased may have executed a fraudulent transfer, such as a sale or a “care until death” contract, that does not reflect their true intention. The aim of such cases is to invalidate the fraudulent transaction and reveal the deceased’s true intent.
• Reduction Case: Reductioncases focus on the deceased’s transfers of assets made for insufficient consideration or exceeding the reserved share limits. In these cases, the deceased’s intention to transfer assets at an undervalued price or exceed the reserved share limits is real and valid. The purpose is not to invalidate the entire transaction but to adjust the portion of the transfer that exceeds the reserved share.

2. Claims:

• Fraudulent Transfer of Assets: The fraudulent transfer typically involves sales or “care until death” contracts that do not involve any actual consideration or involve a nominal amount to conceal the true nature of the transaction. The goal is to cancel the fraudulent transaction and restore the assets to the estate.
• Reduction: In reduction cases, the focus is on transactions where the deceased’s reserved share has been violated. The objective is to cancel only the portion of the transfer that exceeds the reserved share limit, ensuring the reserved share is protected.

3. Validity:

• Fraudulent Transfer of Assets: Transactions subject to fraudulent transfer of assets are inherently void due to their fraudulent nature. The purpose of the lawsuit is to annul these fraudulent conveyance transactions and expose the deceased’s true intention for stolen inheritance.
• Reduction: Transactions in reduction cases are valid but exceed the reserved share limits. Reduction cases aim to correct the part of the transaction that violates the reserved share, while the rest of the valid transaction remains unaffected.

4. Time Limit for Filing a Lawsuit:

• Fraudulent Transfer of Assets: There is no specific time limit for filing a lawsuit based on fraudulent transfer of assets..
• Reduction: According to Article 571 of the Turkish Civil Code, a reduction lawsuit must be filed within one year of discovering the violation of the reserved share and within ten years from the opening of the inheritance, or from the date of the will if there is one.

5. Eligibility to File a Lawsuit:

• Fraudulent Transfer of Assets: Any heir, regardless of whether they have a reserved share, can file a lawsuit based on ihneritance theft.
• Reduction: Reduction cases can only be filed by heirs with reserved shares. According to Article 562 of the Turkish Civil Code, creditors of the heirs with reserved shares can also file the lawsuit under certain conditions. However, the representative of the estate cannot file a reduction lawsuit as it is personal to the heirs.

Since these cases related to inheritance law are subject to strict procedural rules, it would be beneficial to seek support from an inheritance lawyer in Turkey.

CAN STOLEN INHERITANCE LAWSUIT AND REDUCTION CASES BE FILED TOGETHER?

Fraudulent transfer and reduction cases can be filed together. Practically, as often seen, both types of cases can be presented in the same petition, or they can be filed separately.

As indicated in the Supreme Court decision dated 22.05.1987 and numbered 4/5, heirs who are harmed by the deceased’s transfers can file a reduction case along with, or following, a separate petition for the annulment and registration of fraudulent transfers of assets. There is no legal obstacle to filing both types of lawsuits, and plaintiffs can decide the priority of their cases.

HOW TO EVICT A TENANT IN TURKEY?

The first thing that comes to mind when asking how to evict a tenant in Turkey is the belief that the tenant can be evicted upon the expiration of the rental period. Contrary to popular belief, it is not possible to evict a tenant just because the rental agreement has ended. A tenant can only be evicted if the conditions for eviction specified by law are present. However, even during the rental period, the landlord can request the eviction of the tenant through an eviction lawsuit if there are valid reasons.

The legal removal of a tenant from a rented property for any reason is called “tenant eviction.” The reasons for tenant eviction in Turkey are varied and are detailed in the law. The fundamental provisions for tenant eviction are found in Article 347 and the following articles of the Turkish Code of Obligations No. 6098. Additionally, various regulations regarding tenant eviction in Turkey are present in the legislation. This article explains what needs to be known about these provisions in detail and answers frequently asked questions.

To learn more about other disputes that may arise from the rental relationship, you can visit our pages on “Objection to High Rent Increase” and “Real Estate Law.”

REASONS FOR TENANT EVICTION IN TURKEY AND WAYS TO EVICT A TENANT THROUGH AN EVICTION LAWSUIT

The reasons for tenant eviction in Turkey are specified in the Turkish Code of Obligations. The landlord can evict the tenant based on one of these reasons. If these reasons do not exist, the tenant cannot be asked to vacate the property even if the rental agreement is for a fixed term. How is a tenant evicted in Turkey?

• Eviction of a Tenant for Non-Payment of Rent

The most commonly encountered reason for tenant eviction in practice is the eviction of a tenant through an eviction lawsuit for non-payment of rent. This method, also known as eviction due to default, is the easiest way to evict a tenant. However, the procedure of eviction of tenant for non payment of rent through an eviction lawsuit in Turkey is a legally intensive process. To briefly summarize:

Step 1: An eviction notice is first sent to the tenant for unpaid rent. This notice states that the tenant must pay the rent within 30 days, otherwise the landlord will terminate the contract. Theeviction  notice must include the month(s) for which the rent is unpaid, the amount, and other details.

Step 2: If the tenant does not pay within the specified period despite the eviction notice, the landlord can evict the tenant through an eviction lawsuit in Turkey. It is important to note that the landlord cannot self-evict the tenant if the payment is not made within the period specified in the notice. An eviction lawsuit is mandatory for eviction of tenant for non payment of rent.

Step 3: The landlord can initiate enforcement proceedings with an eviction request against the tenant to demand the eviction of the property. In this enforcement proceeding, the landlord requests both the eviction of the property and the payment of the unpaid rents. The payment order sent to the tenant gives them 30 days to pay, and if payment is not made or the enforcement proceeding is contested, the landlord gains the right to file an eviction lawsuit in Turkey. If the landlord opts for the enforcement proceeding route, sending an additional notice is not necessary. The payment order sent by the enforcement office, which gives a 30-day payment period, acts as the eviction notice.

Step 4: After all these steps are completed, an eviction lawsuit is filed, and the conditions for tenant eviction are examined by the judge based on the parties’ objections and evidence. If the court determines that the rent has not been paid, it rules in favor of the landlord and orders the eviction of the tenant.

• Eviction Due to Non-Payment of Rent with Two Valid Notices

According to the second paragraph of Article 352 of the Turkish Code of Obligations, a reason for the eviction of tenants in residential and roofed workplaces is the issuance of two valid eviction notices by the landlord due to the non-payment of rent. It is generally expected that the tenant pays the rent on time and in full. However, there may be situations where the rent is not paid on time or is paid incompletely. If the tenant has delayed or failed to pay the rent, the landlord has the right to send a written notice. It is important to make three distinctions at this point:

1. Rental agreement of less than one year: If two valid notices have been issued during the rental period, the landlord can terminate the rental agreement through an eviction lawsuit within one month from the end of the rental period.
2. Rental agreement of one year: If two valid notices have been issued within this period, the landlord can request the eviction of the tenant through an eviction lawsuit within one month from the end of the rental period.
3. Rental agreement of more than one year: If two valid notices have been issued within this period, the landlord can terminate the rental agreement through an eviction lawsuit within one month from the end of the year in which the notices were issued.

• Eviction Based on Eviction Commitment

According to the first paragraph of Article 352 of the Turkish Code of Obligations, another reason for an eviction lawsuit against the tenant is eviction based on a written eviction commitment. A document in which the tenant undertakes to vacate the rented property on a specific date is called a “written eviction commitment.” For the written eviction commitment to be considered valid, it must be prepared after the tenant has taken possession of the rented property. In other words, if it is prepared before the tenant takes possession of the property, for example, while signing the rental agreement, the written eviction commitment is not legally valid.

However, if the commitment is valid, the tenant must vacate the property on the specified date. If the property is not vacated despite the commitment, the landlord can initiate enforcement proceedings or file a lawsuit within one month from the committed date to terminate the rental agreement.

The most common situation in practice is the landlord obtaining a blank eviction commitment from the tenant. Although eviction commitments given by the tenant while signing the rental agreement are not valid, undated eviction commitments given at that time are later filled in by the landlord and used in eviction lawsuits. The Supreme Court considers blank eviction commitments valid and treats them as a “signature on a blank paper.” Therefore, tenants should be prepared for the possible consequences of giving an eviction commitment with the date left blank to the landlord.

• Eviction Due to the Need of the Landlord or Their Relatives

According to the first paragraph of Article 350 of the Turkish Code of Obligations, one of the conditions for tenant eviction in Turkey is the housing need of the landlord. According to the law, if the landlord needs to use the rented property for themselves, their spouse, their descendants, their ascendants, or other persons they are legally obliged to care for, they can evict the tenant by filing an eviction lawsuit in Turkey.

However, this need must be real and sincere. The sincerity required by the law means that the landlord genuinely needs the property for themselves, their spouse, their descendants, or other persons they are legally obliged to care for. If the landlord has another available property, the eviction lawsuit filed based on this need will be rejected. Therefore, the landlord must prove to the court with evidence that this housing need is genuine and not hypothetical.

If the landlord’s need for housing or workplace is sincere, they can file an eviction lawsuit within one month at the end of a fixed-term rental agreement or by adhering to the termination period and notification periods for indefinite-term rental agreements. During the court process, the genuineness and sincerity of the housing need will be evaluated, and if deemed genuine, the eviction of the tenant will be ordered. Additionally, if the tenant is evicted due to this need, the rented property cannot be leased to anyone other than the previous tenant for three years according to Article 355 of the Turkish Code of Obligations.

• Eviction Due to the New Owner’s Need

According to Article 351 of the Turkish Code of Obligations, another condition for evict a tenant in Turkey in residential and roofed workplaces is the need of the new owner. If the rented property changes hands for any reason after the rental relationship has begun, the new owner becomes a party to the rental agreement. The rental agreement is considered transferred, and the new owner is responsible under this rental agreement.

The new owner can continue the rental agreement under the same conditions in place of the previous owner. However, the new owner can also terminate the agreement due to their needs for the property. In this case, the new owner must notify the tenant in writing within one month from the date of the property’s transfer and can file an eviction lawsuit after six months.

Alternatively, the new owner can choose to terminate the agreement by filing a lawsuit within one month from the end of the rental period. The most critical aspect in this scenario is that the new owner must ensure that the notification reaches the tenant within one month. Simply sending a notice is not sufficient; the new owner must prove that the tenant received the notification within one month from the date of sale.

• Eviction Due to Reconstruction or Urban Renewal

According to the second paragraph of Article 350 of the Turkish Code of Obligations, another reason for eviction of tenant in residential and roofed workplaces through an eviction lawsuit is if the rented property is to be reconstructed or redeveloped. If the property needs to undergo substantial repairs, enlargement, or alteration, making it unusable by the tenant during this process, the rental agreement can be terminated. Therefore, the reconstruction or redevelopment must be significant, and the property must be unusable during this process. This method cannot be used for minor repairs.

If these conditions are met, an eviction lawsuit can be filed within one month at the end of a fixed-term rental agreement or by adhering to the termination period and notification periods for indefinite-term rental agreements. The court will evaluate the conditions for reconstruction and renovation in the lawsuit and issue an eviction order if the conditions are met. If the property is vacated due to reconstruction or renovation, it cannot be rented to anyone other than the former tenant for three years.

• Eviction Due to Disturbance of Neighbours

Tenants are required to respect their neighbours and adhere to the rules of good neighborliness. Violations of these obligations can be grounds for eviction of tenant in Turkey. Nowadays, landlords can suffer significant damages due to irregular or contract-violating use of the rented property.

To protect landlords from such damages, especially during the maintenance and termination of rental relationships, tenants are obligated to use the property carefully and respect their neighbors as stipulated in Article 316 of the Turkish Code of Obligations. This obligation applies to all rental agreements by its nature.

Respecting neighbors is a fundamental principle of communal living. According to the jurisprudence of the Court of Cassation, actions such as disturbing neighbors, causing unrest, using the rented property as a brothel, insulting the landlord, threatening with death, and playing loud music are considered violations of neighborly conduct.

According to Article 316/2 of the Turkish Code of Obligations, if a tenant violates this obligation, the landlord in residential and roofed workplace rentals must send a written notice, giving the tenant at least 30 days to rectify the violation, stating that otherwise, the contract will be terminated.

• Eviction of a Tenant After 10 Years

Eviction of a tenant who has rented for 10 years must be considered separately for fixed-term and indefinite-term lease agreements.

a) Eviction in Indefinite-Term Lease Agreements:

In indefinite-term lease agreements, the landlord has the right to evict the tenant without any specific reason at the end of ten years. However, the landlord must comply with the notice periods stipulated by law to exercise this right.

The legal termination period is the date when the six-month rental period ends. The notice period for termination is three months.

Therefore, the landlord can terminate the lease by giving the tenant written notice at least three months before the end of the six-month termination period. If the notice period specified in the contract or by law is not followed, the notice will be valid for the next termination period.

b) Eviction in Fixed-Term Lease Agreements:

In fixed-term lease agreements, if the tenant does not provide written notice at least 15 days before the end of the lease period, the lease is automatically extended for another year. If the lease continues to extend for ten additional years, the landlord gains the right to tenant eviction in Turkey at the end of the tenth extension year.

In this case, the landlord can terminate the lease by providing written notice at least three months before the end of each extension year following the tenth extension year. It is important to note that the eviction of a 10-year tenant can only be requested through a lease termination lawsuit starting from the 11th year after the 10-year lease period has elapsed.

WHERE TO FILE A TENANT EVICTION LAWSUIT IN TURKEY?

The court responsible for handling eviction lawsuits is the civil court of first instance. However, this court does not have exclusive jurisdiction. Therefore, the lawsuit can also be filed in the civil court of first instance located in the defendant’s place of residence or where the contract is to be performed. The competent court is the court where the property is located, but it is not mandatory to file the lawsuit there.

HOW LONG DOES AN EVICTION LAWSUIT TAKE IN TURKEY?

There is no definitive answer to how long an eviction lawsuit takes in Turkey. The duration depends on the content of the case, the workload of the court hearing the case, the location where the lawsuit is filed, and whether the tenant exercises their right to appeal.

On average, a typical eviction lawsuit in Turkey takes about 2 to 2.5 years. However, due to recent regulations on rental relationships and the limitation of rent increase rates to 25%, the number of disputes has increased significantly. Courts, due to their workload, are unable to allocate the necessary time to cases, extending the judicial process. Therefore, the most accurate answer to how long an eviction lawsuit takes is that it varies depending on the court and its workload.

MANDATORY MEDIATION IN RENTAL DISPUTES IN TURKEY

In recent years, mandatory mediation for resolving rental disputes in Turkey has been introduced as a significant change in the Turkish legal system. Mandatory mediation is an alternative dispute resolution method that aims to reach an agreement between parties before going to court. This mechanism aims to provide faster and more effective solutions by alleviating the burden on the judicial system.

Mandatory mediation in rental disputes in Turkey came into effect on September 1, 2023. According to the Turkish Code of Obligations, parties must apply to a mediator before filing a lawsuit for disputes arising from residential and roofed workplace rental agreements. If a lawsuit is filed without applying to a mediator, the court will dismiss the case due to a lack of procedural requirements.

However, mandatory mediation in rental disputes in Turkey is not applicable in every situation. For example, eviction lawsuits due to non-payment of rent are not subject to mandatory mediation and can be pursued directly through legal action.

The mandatory mediation process begins with the parties coming together under the supervision of a mediator. The mediator guides the parties impartially and fairly, helping them move towards an agreement. During this process, the rights of the parties are protected, and a fair resolution is sought.

Mandatory mediation aims to resolve rental disputes in Turkey quickly while ensuring the parties’ rights are upheld. By reducing the judicial system’s burden and accelerating the resolution process, it contributes to the more orderly and fair conduct of rental relationships.

In conclusion, mandatory mediation in rental disputes in Turkey aims to manage legal processes more effectively and efficiently. Understanding this process correctly and taking the necessary steps will significantly contribute to achieving a fair resolution.

WHAT HAPPENS IF A RENTED HOUSE IS SOLD?

The Turkish Code of Obligations includes provisions aimed at protecting tenants. The goal is to ensure that the tenant is not harmed in the event that the rented house is sold. If the landlord has signed a lease agreement with the tenant before selling the house, this agreement and its terms remain valid after the sale. This means that the new owner must comply with the terms of the existing agreement. The new owner cannot evict the tenant without adhering to the conditions specified in the law regarding tenant eviction in Turkey.

However, if the new owner wishes to use the house for their own needs, they can request the tenant’s eviction by fulfilling certain conditions as per the Turkish Code of Obligations. In this case of eviction for need, the new owner must give notice at least one month in advance from the date of acquisition of the house. If the tenant does not vacate the property within the specified time, the new owner can file an eviction lawsuit for the stated need.

In summary, the Turkish Code of Obligations protects the rights of the tenant in the event that the landlord sells the rented house, while also providing a legal basis for the new owner’s request for eviction under certain conditions. For detailed information on this topic, you can check our article titled “Tenants’ Rights After Sale of the Rented House.”

IS IT POSSIBLE TO EVICT A TENANT IN TURKEY WITHOUT A WRITTEN LEASE AGREEMENT THROUGH A LAWSUIT?

Lease agreements do not have to be made in writing in Turkey. Therefore, a verbally agreed lease is legally valid. However, it should be noted that having a written contract is more appropriate for documenting the agreement and proving claims in case of a dispute.

In cases where there is no lease agreement, challenges may arise in the tenant eviction process in Turkey regarding proof. However, if it can be demonstrated before the court that a lease agreement exists between the parties, the landlord can evict the tenant based on the grounds for eviction of tenant in Turkey specified in the law. The most crucial aspect of this case is to prove that a lease agreement exists, even if verbally.

First, the landlord has the obligation to prove that the property is being used by tenants. Various means can be used in this proof process. For instance, if rent payments are made through the bank, bank records can be requested by the court to prove the existence of the lease agreement. Additionally, utility bills (electricity, water, or natural gas) issued in the tenant’s name can also be used to establish the existence of the lease.

Once the existence of the lease agreement is proven in court using the above methods, an eviction lawsuit can be filed if the grounds for eviction of tenant in Turkey specified in the Turkish Code of Obligations are met.

HOW TO FILE EVICTION LAWSUITS IN THE EVENT OF THE LANDLORD’S DEATH?

If the landlord passes away during the lease, the eviction lawsuit in Turkey is filed by the landlord’s legal heirs. The heirs are officially identified with a “certificate of inheritance.” This document is issued by the court or a notary and clearly specifies the heirs of the deceased landlord.

In the event of the landlord’s death, there will be mandatory co-partnership among the heirs. This means that all heirs who are parties to the lease agreement must act together to file the eviction lawsuit. Heirs cannot file separately and must cooperate with one another.

Additionally, rental disputes in Turkey may arise among the heirs due to the landlord’s death. In such cases, the court will guide the parties to find a fair resolution. During this process, the legal rights and responsibilities of the heirs will be carefully assessed, and necessary steps will be taken to ensure justice.

WHAT IS THE EASIEST WAY TO EVICT A TENANT IN TURKEY?

Laws and regulations contain significant provisions to protect tenants’ rights in Turkey. Therefore, ensuring a tenant eviction process in Turkey can be a challenging. The Turkish legal system safeguards tenants’ rights, preventing landlords from unjustly evicting them.

For a tenant eviction in Turkey, specific reasons must be explicitly stated in the law, and the existence of these reasons must be confirmed by a court decision. Thus, for landlords, achieving grounds for eviction of tenant in Turkey adherence to legal processes and procedures. This situation can pose various challenges for landlords, making it essential to seek proper legal advice.

Below are five conditions considered the easiest ways to evict a tenant in Turkey in practice:

• Eviction through enforcement if the rent is not paid.
• Filing an eviction lawsuit if there is a necessity to use the property for the landlord, their spouse, descendants, ancestors, or others they are legally obliged to support.
• Filing an eviction lawsuit if essential repairs, reconstruction, or modifications are required that make the use of the rented property impossible.
• Obtaining a declaration of intent to vacate.
• Applying the procedure for the eviction of a tenant after 10 years.

Evicting a tenant in Turkey is a significant process that requires legal knowledge and experience. Tenant eviction process in Turkey involves numerous procedures and details. Additionally, failure to comply with the provisions of the Turkish Code of Obligations can lead to loss of rights for the parties involved. Therefore, working with an eviction lawyer in Turkey is crucial. You can find detailed information about the duties of an eviction lawyer on our “Rental Law Attorney” page.

The guidance and expertise of an eviction lawyer in Turkey play a critical role in ensuring the tenant eviction process in Turkey proceeds smoothly and fairly, protecting the rights of the parties involved. Given the complexity of the eviction process, the guidance of a specialized eviction lawyer in Turkey ensures that the parties take the right steps and manage the legal process effectively.

PRACTICES OF TAX ON FOREIGN INCOME IN TURKEY

Tax on foreign income in Turkey is significantly influenced by Article 23/14 of the Income Tax Law. According to this article, individuals residing in Turkey and receiving a salary from a foreign company can obtain an income tax exemption under certain conditions. Although these salaries are generally not taxed in the country where the employer is located, and Turkey holds the right to tax them, they are not subject to income tax in Turkey if the specified conditions are met. For this exemption to apply, the employee must reside in Turkey, and the employer must not have a workplace or representative in Turkey.

• Income Earned in Turkey Under the Income Tax Law

According to Article 7/3-a of the Income Tax Law, if a person resides in Turkey and earns a salary, this salary is considered to be earned in Turkey and is therefore subject to income tax, even if the employer is abroad.

• Double Taxation Avoidance Agreements

Double taxation avoidance agreements take precedence over domestic regulations. According to these agreements, the right to tax the income earned by personnel residing in Turkey and providing services to a foreign company belongs to Turkey. This situation is specified in the “Dependent Services” article (usually Article 15) of the double taxation avoidance agreements.

• Exemptions Under Article 23, Paragraph 14/a of the Income Tax Law

Paragraph 14/a of Article 23 of the Income Tax Law is as follows:

“14. a) Salaries paid in foreign currency to employees working for employers subject to limited tax liability whose legal and business centers are not in Turkey, based on the earnings obtained by the employer outside of Turkey;”

Accordingly, receiving salary from abroad in Turkey is exempt from income tax if a foreign company pays its personnel in Turkey in foreign currency, and the salaries are paid based on the income obtained by the employer outside of Turkey.

• Conditions for Exemption According to Income Tax Communiqué No. 147

Section c of Income Tax Communiqué No. 147 explains the conditions for this exemption as follows:

• Institutions making salary payments to personnel as employers must not have any legal or business center in Turkey. It is irrelevant whether the institutions that do not have a legal or business center in Turkey have any legal status, legal personality, or any economic enterprise in the state where they are fully taxable.
• The institution with limited tax liability, to which the individual providing services in Turkey is affiliated as an employer, must pay the salaries in foreign currency directly from the income obtained abroad, and these salaries should never be associated with income obtained in Turkey. In this context, it is irrelevant whether the recipient of the salary is fully taxable or subject to limited tax liability in Turkey. Since the payment is made based on income earned abroad, these salaries cannot be considered expenses according to Article 40 of the Income Tax Law due to activities in Turkey.

ADVANCE RULINGS ON THE TAX OBLIGATIONS OF RECEIVING A SALARY FROM ABROAD IN TURKEY

The following examples provide clear rules on the tax obligations and exemptions related to receiving income abroad in Turkey.

• Advance Ruling 1: Conditions for Exempting Salaries Received from Abroad from Income Tax in Turkey

A private ruling outlines the conditions under which a salary received from abroad can be considered exempt from income tax:

1. Condition of Being a Limited Taxpayer Institution: The employer of the individual providing services in Turkey must be a limited taxpayer institution, and this institution must not engage in any activities in Turkey that generate income.
2. Nature of the Employee and Salary: The individual working for the limited taxpayer institution must be an employee, and the payment made must be in the form of a salary/wage.
3. Payment from Foreign Earnings: The payment to the employee in Turkey must be made from the foreign earnings of the limited taxpayer institution.
4. Payment in Foreign Currency: The salary must be paid in foreign currency.
5. Non-deductibility of Expenses: The salary paid must not be recorded as an expense in the Turkish accounts of the limited taxpayer institution.

Based on these provisions and explanations, the salaries paid directly from the foreign headquarters to personnel working at the Turkish representative offices opened by a foreign institution in Ankara and Hatay, and paid in foreign currency, will be exempt from income tax under Article 23, paragraph 14 of the Income Tax Law, provided that the above conditions are met.

• Advance Ruling 2: Exemption Not Applied in Consultancy Services

Another private ruling is as follows:

“According to these provisions and explanations, the fee paid directly to you from abroad in foreign currency for the project consultancy services provided via the internet to a company domiciled abroad is not exempt from income tax under Article 23/14 of the Income Tax Law. This is because the conditions specified in the 147th Income Tax General Communiqué are violated, as the income was earned by providing consultancy services that contribute to the employer firm’s profit. Therefore, it is necessary to declare this income through an annual tax return according to Article 95 of the Income Tax Law.”

As seen, if the person providing services from Turkey is a consultant (not in a personnel position), in other words, acting as a freelancer, the exemption under Article 23/14-a of the Income Tax Law does not apply. Consultancy income earned from abroad must be taxed.

For the exemption to apply to foreign income, there must be an employer-employee relationship between the parties. The most important document proving this relationship is the employment contract made between the parties, defining them as employer and employee.

If such an employment contract exists and the other exemption conditions are met, the tax exemption for receiving income abroad in Turkey can be applied even if the employer-employee relationship is limited to or lasts for a specific project.

RECEIVING INCOME ABROAD IN TURKEY IN TERMS OF SOCIAL SECURITY

The “Social Insurances and General Health Insurance Law” No. 5510 stipulates that social security premiums are required for salary payments made within the framework of an employer-employee relationship. However, the employers specified in the Law are residents of Turkey. Therefore, if the employer resides abroad, it is not possible to apply the provisions of this Law to the situation where personnel receiving salary from abroad in Turkey.

For this reason, the salaries earned by individuals residing in Turkey from foreign employers as employees are not subject to Social Security Institution (SGK) premiums. Receiving a salary from abroad does not mean that SGK premiums need to be paid.

RECEIVING SALARY FROM ABROAD IN TURKEY IN TERMS OF LABOR LAW

The Labor Law No. 4857 regulates the rights and obligations of parties who have entered into an employment contract. However, the provisions of this Law consider the employer to be resident in Turkey. Since the legal regulations of each country are different, the law of the location of the employer will be applied in the context of labor law. Therefore, the provisions of the Labor Law cannot be applied when the employer is located abroad.

In summary, when the employer is located abroad, neither the SGK nor the provisions of the Labor Law are applicable. This should be taken into account in such cases.

UNDERSTANDING INCOME TAXES ABROAD IN TURKEY

The tax on foreign income of receiving salary from abroad in Turkey are significant. For individuals residing in Turkey, the salary income earned from foreign employers can be exempt from income tax, provided they meet the conditions specified in Article 23/14-a of the Income Tax Law and the 147th Income Tax Communiqué.

According to the aforementioned provisions and explanations, the salaries paid directly in foreign currency from the headquarters abroad to personnel working at the Turkish representative offices of organizations with headquarters abroad are exempt from income tax under Article 23, paragraph 14 of the Income Tax Law, if specific conditions are met.

However, consultancy services and other freelance activities do not qualify for this exemption. Therefore, tax on foreign income made by foreign employers to their personnel in Turkey must be carefully evaluated based on the relevant conditions.

When the employer is located abroad, social security premiums (SGK) cannot be applied, and the provisions of the Labor Law cannot be applied.

WHAT ARE THE DURATION OF RESIDENCE PERMITS FOR FOREIGNERS IN TURKEY?

A residence permit is a mandatory document for foreign nationals who wish to stay in Turkey for periods not covered by visa durations. Foreign nationals planning to stay in the Republic of Turkey for more than 90 days are required to obtain a residence permit in Turkey.

The durations of residence permits for foreigners vary depending on the type of permit applied for. For example, short-term residence permits are generally granted for up to 2 years, while long-term residence permits, with certain exceptions, are granted indefinitely. Family residence permits are typically issued for a period not exceeding 3 years.

HOW TO GETTING RESIDENCE PERMIT IN TURKEY?

There are two options for getting residence permit in Turkey. Foreigners can apply for a residence permit either from within Turkey or from abroad. The residence permit application in Turkey can be made in person by the individual or through a representative at the place of residence. Additionally, a lawyer can be hired for the residence permit in Turkey.

• Applying for a Residence Permit from Abroad: If foreigners wish to apply from abroad, their residence permit applications are submitted to the Turkish consulates in their respective countries. The consulates review the applications, provide their opinions, and then forward the applications to the Directorate General of Migration Management. The Directorate General evaluates the residence permit applications, taking into account the opinions of relevant institutions, and after making a decision, communicates with the consulate. Applications are finalized within a maximum of 90 days, and the applicant is informed of the outcome.
• Applying for a Residence Permit from Within Turkey: Residence permit applications made from within Turkey are conducted online through the e-residence system. The e-residence application allows the applicant to make an appointment and apply to the Directorate of Migration Management at the place of residence. The Directorate of Migration Management evaluates the applications and carries out the necessary procedures. Additionally, applications made from within Turkey can be accepted by the governorates, depending on the type of permit.

WHAT ARE THE RESIDENCE PERMIT TYPES IN TURKEY?

According to the Law on Foreigners and International Protection, which regulates the residence of foreigners in Turkey, residence permits types in Turkey are categorized into six main types based on different reasons. What are the residence permits types in Turkey?

• Short-Term Residence Permit: This type of residence permit is issued for individuals who wish to reside in Turkey for a short period. It is commonly used for tourism or business purposes. A short-term residence permit can be issued for a maximum of two years at a time.

WHAT IS WORKMEN COMPENSATION IN TURKEY?

The termination of an employee’s employment can lead to the accrual of workmen compensation in Turkey, but not every instance of termination requires the accrual of redundancy payment rights. Fulfilling the conditions specified in labor law is necessary for the accrual of redundancy payment rights. For instance, to be eligible for workmen compensation in Turkey, the employee must have worked with the same employer for a certain period of time, and the conditions determined by labor law according to the reasons for termination must be met.

In the event of termination, if the necessary conditions specified in labor law are not met, the right to worker compensation rights in Turkey may not accrue. It is important for the employer to terminate the employee in accordance with the law and to protect the employee’s compensation rights in Turkey.

Even in cases where termination does not occur, there are certain instances specified in labor law where the employee may have workers compensation rights in Turkey. For example, if an employee suffers harm as a result of workplace accidents or occupational diseases, compensation may need to be paid to the employee. Additionally, in cases where the employer fails to provide the employee with working conditions in accordance with the law or engages in mobbing against the employee, the employee may have the right to compensation.

In summary, the employee’s compensation rights in Turkey are an important mechanism for protecting their rights in the event of the termination of employment or in certain circumstances. However, fulfilling the conditions specified in labor law is necessary for these rights to accrue. Even in cases of termination, the conditions specified in labor law must be met. In this case, it is important to get support from a worker compensation lawyer in Turkey.

WORKER COMPENSATION RIGHTS IN TURKEY AND WORKER’S CLAIMS

Worker compensation rights in Turkey generally refer to payments made when an employee leaves their job or is terminated by the employer, and are regulated among the rights of terminated workers. Redundancy payment is calculated and paid based on specific regulations such as labor laws or employment contracts. The amount of redundancy payment can vary depending on the employee’s length of service, performance at the workplace, and the reason for departure.

On the other hand, worker’s claims represent the payments the worker is entitled to receive from the employer in exchange for their services. Worker’s claims typically include payments such as wages earned and owed during the period of employment, bonuses, overtime pay, and payments for accrued leave. Worker’s claims are calculated and paid based on the conditions set forth in labor laws and employment contracts.

Differences between redundancy payment and worker’s claims:

• Dismissal compensation in Turkey is a type of compensation paid in the event of leaving or termination of employment, while worker’s claims encompass the payments earned by the worker throughout their period of employment.
• While the employee’s compensation rights in Turkey of the worker are determined based on the employee’s length of service, reason for departure, and labor laws, worker’s claims are calculated based on the worker’s working conditions and employment contract.
• Dismissal compensation in turkey is typically paid in the form of seniority and notice pay, whereas worker’s claims include payments the worker is entitled to for regular work performed.

TYPES OF DISMISSAL COMPENSATION IN TURKEY

1. Seniority Pay: Seniority pay is compensation paid when an employee leaves their job or retires after serving the employer for an extended period. It is generally determined based on the employee’s length of service, working conditions, and the reason for departure. Seniority pay preserves the rights accrued by the employee during their tenure and provides a form of financial security upon departure.
2. Notice Pay: Notice pay is compensation paid when an employer wishes to terminate an employee and is required to provide a specific notice period in advance. The length of the notice period may vary depending on the employee’s length of service.
3. Job Security Compensation: Job security compensation is paid in cases where an employee is unjustly or unlawfully terminated by the employer under certain conditions. Job security serves as a mechanism to protect employees’ jobs, and compensation is paid as a measure to safeguard their rights.
4. Malicious Intent Compensation: This compensation arises when an employee is maliciously terminated by the employer. Malicious intent compensation typically amounts to three times the salary corresponding to the notice period and is calculated based on the duration of notice periods.
5. Compensation for Work Accidents / Occupational Diseases: A work accident refers to sudden incidents occurring at the workplace that have the potential to harm the employee. Occupational diseases are illnesses resulting from working conditions or various influences in the workplace. The employer has various obligations to prevent work accidents and occupational diseases. Failure to fulfill these obligations results in financial and moral compensation liabilities.
6. Union Compensation: Employers cannot discriminate against employees based on their membership in a union. Union compensation is paid to employees if the employer acts contrary to this principle. In the event of an employee’s termination due to union reasons, the employee is entitled to union compensation equivalent to at least one year’s salary based on their length of service.
7. Non-Discrimination Compensation: Discrimination is not tolerated in employment relationships. Non-discrimination compensation is paid if the employer exhibits discriminatory behavior based on factors such as language, race, color, gender, disability, political opinion, philosophical belief, religion, or sect. When the employer violates the principle of equal treatment, they are obliged to pay appropriate compensation of up to four months’ salary in addition to Workmen compensation in Turkey.

When determining the type of termination compensation to be claimed, it is important to get support from a worker compensation lawyer in Turkey.

TYPES OF WORKER’S CLAIMS

1. Wage Claims: Wage claims, the most fundamental employee’s compensation rights in Turkey, represent the compensation for the labor provided by the worker to the employer. According to labor law, the employer is obligated to pay the remuneration due for the worker’s work promptly and in full. Wage claims should be paid regularly every month throughout the worker’s employment.
2. Overtime Pay: Overtime pay is regulated by Article 41 of the Labor Law and relevant regulations. When employers wish to have employees work overtime, they must obtain consent from the employees. Overtime pay is fifty percent higher for work exceeding 45 hours per week. Overtime hours within a one-year period cannot exceed 270 hours. Additionally, if overtime pay is included in the worker’s salary, overtime pay exceeding 270 hours must be calculated and paid.
3. Holiday Pay: Workers are entitled to receive pay for weekly rest days provided they have worked a certain number of days before the weekly rest day. Additionally, if the employer suspends work at the workplace without a compelling reason, the days of the week not worked are considered as worked to earn paid weekly rest days.
4. National Holiday and Public Holiday Pay: Workers who work on national holidays and public holidays receive double the regular pay. National holidays and public holidays are considered as holidays for workers, subject to provisions in special laws.
5. Annual Leave Pay: Annual leave pay, regulated in Article 53 of the Labor Law, is granted if the worker has worked for one year from the start of employment. The right to paid annual leave is determined based on the worker’s seniority, and if the worker is not granted this leave, annual leave pay is provided.
6. Other Payments (Bonuses, Allowances for Children, etc.): Additional payments such as bonuses and allowances are made based on the worker’s performance or success in the workplace. Bonuses given to workers cannot be deducted, and written consent is required if changes are made to working conditions detrimental to the worker. Even if these payments are not specified in employment contracts or collective bargaining agreements, regular payment to workers is considered a workplace condition.

CONDITIONS FOR RECEIVING REDUNDANCY PAYMENT IN THE PRIVATE SECTOR

The conditions for receiving workmen compensation in Turkey in the private sector are subject to certain rules. Workers must meet certain conditions under the Labor Law to be eligible for redundancy payment.

The conditions for receiving compensation in the private sector may vary depending on the circumstances under which the employment contract is terminated and the terms thereof. Compliance with the conditions for receiving redundancy payment stipulated in the Labor Law is required. Failure to meet these conditions may result in workers being unable to obtain dismissal compensation in turkey or experiencing deficiencies in this right.

Therefore, it is important for workers to pay attention to the relevant articles of the labor law during the processes related to the termination of their employment contracts. The conditions for receiving compensation in the private sector are summarized as follows:

• When the employment contract ends due to reasons such as health, military service, or retirement, the conditions for receiving compensation in the private sector are met. However, these conditions need to be documented.
• Female employees must apply to the employer in writing within 1 year from the date of marriage and provide documentation of the marriage in order to leave their job due to marriage. Additionally, it must be clearly stated that the employment contract is terminated due to marriage. Marriage is one of the conditions for receiving compensation in the private sector for female workers.
• Women who leave their jobs due to pregnancy or childbirth are considered to have resigned, and in this case, they are not entitled to severance pay.
• If the employer makes changes to the working conditions, the changes must be communicated in writing. If the employee does not accept the changes and they are not communicated to the employee within 6 days, the employee has the right to receive severance pay.

HOW MANY YEARS OF WORK ARE REQUIRED TO RECEIVE WORKMEN COMPENSATION IN TURKEY FROM THE WORKPLACE?

To answer the question of how many years of work are required to receive workmen compensation in Turkey from the workplace, it is necessary to differentiate between severance pay and notice pay.

In Turkey, an employee is entitled to severance pay if they have worked in the workplace for at least one year. If the employee has worked for more than one year, they are entitled to severance pay.

There is no predetermined mandatory period of work for notice pay in Turkey. Notice pay arises when the employment contract is terminated or when the employee exercises the right to immediate termination for just cause. If the notice period is not granted to the employee, the employee is entitled to notice pay.

Another answer to the question of how many years of work are required to receive workmen compensation in Turkey from the workplace is the accrual of severance pay due to retirement. Employees who have reached a certain number of premium days and years of service according to the Social Security and General Health Insurance Law may request severance pay.

The conditions for severance pay due to retirement vary depending on the employee’s length of service and premium payment status. For example:

• Those insured before September 8, 1999, must have 15 years and 3600 premium days.
• Those insured between September 9, 1999, and April 30, 2008, must have 25 years and 4500 premium days.
• Those insured after May 1, 2008, must have been actively insured for 25 years and have 5400 premium days.

The employee does not have to complete premium days at the same workplace; what matters is meeting the specified conditions. Employees who meet these conditions can receive severance pay from their employers.

CONDITIONS FOR RECEIVING REDUNDANCY PAYMENT WHEN VOLUNTARILY LEAVING A JOB

The conditions for receiving dismissal compensation in Turkey when voluntarily leaving a job depend on the reason for the resignation and the working conditions.

When an employee wishes to leave their job voluntarily, they typically submit a resignation letter. However, the compensation rights of the person who resigns, concerning the post-resignation work process, depend on the reason for the resignation. If an employee resigns for a justifiable reason, they may receive severance pay. However, if the employee resigns voluntarily without a justifiable reason, they generally cannot claim any workmen compensation in Turkey. The conditions for receiving compensation when voluntarily leaving a job depend on complying with the reasons for termination stipulated in the Labor Law.

If an employee who resigns does not comply with the notice period and leaves the job without a valid reason, the employer may be required to pay notice pay upon the employer’s request.

In summary, the conditions for worker compensation rights in Turkey when voluntarily leaving a job vary depending on the reason for resignation and compliance with labor law rules. It is important for the employee to understand their rights during the resignation process and, if necessary, seek support from a Labor Law Attorney.

WHAT ARE THE NOTICE PERIODS FOR TERMINATING EMPLOYMENT?

Notice periods for terminating employment refer to the predetermined notification period for terminating an employment contract. When either the employee or the employer wishes to terminate the employment contract, they must provide notice to the other party in accordance with this period. Notice periods for terminating employment are determined to protect the rights of both the employee and the employer and to ensure the orderly termination of the employment relationship.

The characteristics of notice periods for terminating employment are as follows:

• Notice periods for terminating employment apply to indefinite-term employment contracts. In fixed-term employment contracts, the parties may terminate the contract automatically at the end of the specified period.
• Article 430/3 of the Labor Law states that fixed-term employment contracts may stipulate a notice period of up to 6 months for periods exceeding 10 years. This is an exceptional provision.
• Article 17 of the Labor Law sets the notice periods for terminating employment as 2, 4, 6, and 8 weeks based on the employee’s length of service. However, these periods can be extended through employment contracts or collective bargaining agreements.
• According to the Labor Law, the employer may terminate the employment immediately by paying the employee the predetermined wage in advance, in accordance with the notice period.
• An employee or employer who fails to comply with the notice period must pay compensation equal to the amount of wages corresponding to the notice period. This compensation is referred to as “notice pay.”

Notice periods for terminating employment are essential to ensure a fair termination process in employment relationships and to prevent disputes between parties.

WHAT IS NOTICE PAY IN TURKEY?

According to Article 17 of the Labor Law, notice periods vary depending on the length of time the employee has worked. As the duration of employment increases, the notice period that the employer must give to the employee also increases. The notice periods determined based on the duration of employment are as follows:

• For employees who have worked for less than 6 months, the notice period is set at 2 weeks (14 days).
• For employees who have worked between 6 months and 1.5 years, the notice period is set at 4 weeks (28 days).
• For employees who have worked between 1.5 years and 3 years, the notice period is set at 6 weeks (42 days).
• For employees who have worked for more than 3 years, the notice period is set at 8 weeks (56 days).

If the employer fails to comply with the notice period determined based on the employee’s length of service, they are obliged to pay notice pay in Turkey to the employee. This notice pay covers the wage amount up to the duration of the notice period determined based on the employee’s length of service.

WHEN IS NOTICE PAY EARNED IN TURKEY?

Notice pay in Turkey is a compensation that an employee is entitled to when their employment contract is violated by the employer. If the employer terminates the employment contract without meeting certain conditions or if the employee terminates the contract without a valid reason, the employee can obtain notice pay in Turkey.

If an employee leaves their job without adhering to a specified notice period, and the employer does not pay appropriate notice pay in Turkey, the employee can request notice pay. Similarly, if the employer terminates the employee without adhering to a specified notice period, the employee is entitled to compensation equivalent to that notice period.

The answer to when notice pay is earned in Turkey is when the employee’s exit from employment is given, at which point the entitlement to severance pay arises. If notice periods are not applied, notice pay in Turkey becomes due upon the employee’s wrongful termination.

WHEN IS NOTICE PAY IN TURKEY PAID?

Notice pay in Turkey is a compensation that must be paid when either the employee or the employer terminates the employment contract without adhering to the notice periods. According to Articles 4 and 5 of Article 17 of the Labor Law, the party not complying with the notice periods is obliged to pay compensation equivalent to the notice periods in terms of wage amount.

The notice pay in Turkey to be paid by the employer to the employee must be paid immediately after the employee’s departure. If the employer wishes to terminate the employment contract by paying workmen compensation in Turkey instead of providing notice, the employer must pay this compensation to the employee at the time of departure.

This arrangement allows the employee to leave their job promptly and enables the employer to terminate the employee quickly. Additionally, it is important for notice pay in Turkey to be paid immediately to compensate for the employee’s financial losses.

HOW IS SEVERANCE PAY IN TURKEY CALCULATED?

Severance pay in Turkey is a termination compensation, calculated at the rate of 30 days of gross salary for each full year the employee has worked in the workplace. If the employee’s duration of employment exceeds one year, the additional periods are included in the calculation of severance pay in Turkey.

Here’s how severance pay in Turkey is calculated:

1. Determining Gross Salary: To calculate severance pay in Turkey, the first step is to determine the gross salary the employee most recently received. Gross salary includes the employee’s regular wage and other benefits received regularly (such as transportation allowance, meal allowance, regular bonus payments, etc.).
2. Determining Years of Service: The number of full years the employee has worked in the workplace must be calculated. If there have been intermittent periods of work at the same workplace without working elsewhere in between, the period of work is counted as continuous.
3. Calculating the Gross Daily Salary: To calculate severance pay in Turkey, the most recent gross salary received by the employee is divided by 30 to determine the daily gross salary.
4. Multiplying Years of Service by the Daily Gross Salary: For each full year, the employee’s daily gross salary is multiplied by the number of days worked (normally 365 days). The remaining days of the year are also multiplied by the daily gross salary and added.
5. Summing Up All Years: The calculated amounts for severance pay in Turkey for each year are added together.
6. Checking Severance Pay Ceiling: The calculated severance pay amount is checked against the severance pay ceiling. If it does not exceed the ceiling, only stamp duty deduction is made.
7. Income Tax Deduction: If the severance pay exceeds the ceiling and the employer wishes to pay the excess portion, income tax deduction is made for the excess portion. Income tax rates vary based on the cumulative tax base and can range from 15% to 40%.

In conclusion, the calculation of severance pay in Turkey depends on the employee’s length of service, the most recent gross salary received, and the severance pay ceiling.

WHAT DOES SEVERANCE PAY IN TURKEY INCLUDE?

Severance pay is the most important among the worker compensation rights in Turkey, including the rights earned by the employee during their tenure in the workplace. When calculating severance pay in Turkey, not only the base salary but also other payments made to the employee should be taken into account. Payments that should and should not be considered in the calculation of severance pay are as follows:

Payments to be Considered in the Calculation of Severance Pay in Turkey:

• Meal allowance
• Cash compensation
• Food aid
• Heating aid
• Housing assistance
• Clothing aid
• Family aid
• Child allowance
• Dividends
• Vehicle assistance
• Health aid
• Financial liability compensation
• Holiday allowance
• Public Housing assignment
• Incentive bonus
• Monthly bonus

Payments Not Considered in the Calculation of Severance Pay in Turkey:

• Annual leave pay
• Marriage assistance
• Weekly holiday pay
• Non-continuous holiday allowance
• Sickness aid
• General holiday pay
• Leave allowance
• Travel bonuses
• Non-continuous bonuses
• Job search assistance
• Travel allowance
• One-time bonuses

Other considerations in severance pay calculation include:

• Severance pay in Turkey is not paid when fixed-term employment contracts expire.
• If the employee has worked intermittently or continuously renewed employment contracts at one or more workplaces belonging to the same employer, the total duration of service is considered for severance pay calculation.
• Periods of unpaid leave are not considered in the calculation of severance pay.
• If the employer unilaterally changes the working conditions and the employee does not wish to work under those conditions, the employee can terminate the employment contract within a certain period and be entitled to severance pay in Turkey.

SENIORITY PAY ELIGIBILITY CONDITIONS

The eligibility conditions for seniority pay in Turkey are specified in the Labor Law. The conditions for an employee to be eligible for severance pay are as follows:

• Being an Employee: The first condition for eligibility for seniority pay is that the individual must have entered into an employment contract with the employer under the scope of Law No. 4857. Whether the employment contract is written or oral does not make a difference. However, some professional groups are not considered employees under Article 14 of the Labor Law and therefore do not have seniority pay rights.
• One Year of Employment: The employee must have worked continuously for at least one year in the same workplace or workplaces of the same employer. If the employee has worked for less than one year, they are not eligible for severance pay in Turkey. Even if the employee has worked in different workplaces of the same employer or in different companies, all such periods of work are considered in calculating the one-year period.
• Justifiable Termination Condition: In order for the employee to be eligible for seniority pay, the employment contract must be indefinite. If the employer terminates the employment contract for unjust reasons, the employee is entitled to severance pay. However, in fixed-term employment contracts, the employee cannot claim severance pay upon the termination of the contract or upon the fulfillment of the specified conditions in the contract. Nevertheless, in fixed-term employment contracts, if either the employer or the employee terminates the contract for justifiable reasons, the employee can claim severance pay in Turkey.

For an employee to be eligible for seniority pay, the eligibility conditions specified in the Labor Law must be met. In cases where these conditions are not met, the employee cannot claim severance pay in Turkey.

HOW TO RECEIVE SEVERANCE PAY IN TURKEY?

Severance pay is only earned by fulfilling the eligibility conditions specified in the Labor Law. How is severance pay, considered as termination compensation, obtained?

For an employee to be entitled to severance pay, the termination of the employment contract must occur due to one of the limited circumstances specified in the Labor Law. This termination can occur either by terminating the employment contract based on one of the conditions specified by the employee or the employer, or in the event of the employee’s death.

Whether the employment contract is for a fixed or indefinite period does not matter for the accrual of seniority pay. What matters is that one of the eligibility conditions specified in the Labor Law has been met.

A) Termination of the Employment Contract by the Employer in Accordance with Article 25 or Article 17 of Law No. 4857

• Health Reasons

If an employee is absent from work for three (3) consecutive business days or a total of five (5) business days in a month due to illness or disability caused by the employee’s own intent or irregular lifestyle, or if the employee is determined to have an incurable illness by the Health Board, the employee may be entitled to severance pay if other conditions are also met.

However, if the employer terminates the employment contract without notice for a period exceeding the notification periods specified in Article 17 of Law No. 4857 during the employee’s illness, accident, childbirth, or pregnancy, the right to severance pay arises. In the case of childbirth and pregnancy, this period begins from the expiration of Article 74 of Law No. 4857.

• Compelling Reasons

If there is a compelling reason that prevents the employee from working in the workplace for more than one week, the employee may be entitled to severance pay if the employer terminates the employment contract, subject to other conditions being met. As long as the compelling reason continues, the employee always has the right to terminate the contract.

• Termination by the Employer in Accordance with Article 17 of the Labor Law

If the employer terminates the employment contract based on Article 17 of Law No. 4857, the employee is entitled to severance pay as termination compensation. If the employer terminates the employment contract in compliance with the notification periods or in advance, the employer is obligated to pay redundancy payment to the employee.

B) Termination of Employment by the Employee for Reasons Stated in Article 24 of the Law

• Health Reasons

If the nature of the work covered by the employment contract poses a risk to the employee’s health or life due to health reasons, the employee has the right to terminate the employment contract immediately. Additionally, if the employee contracts a contagious disease or a disease incompatible with their work due to close contact with the employer or another employee, the employee also has the right to terminate the employment contract immediately. In these cases, the employee is entitled to dismissal compensation in Turkey.

• Acts Contrary to Ethics and Good Faith and Similar Cases

If the employer provides false information during the employment contract, deceives the employee, makes remarks that offend honor and dignity, engages in sexual harassment, insults the employee, incites the employee to commit a crime, makes baseless allegations that damage the employee’s reputation, or fails to take necessary measures when the employee faces sexual harassment, the employee has the right to terminate the employment contract before its expiration or without waiting for the notice period. In this case, the employee is entitled to workmen compensation in Turkey as termination compensation.

• Compelling Reasons

If compelling reasons arise that necessitate the cessation of work at the workplace for more than one week, such as earthquakes, fires, or the government taking over the workplace, the employee has the right to terminate the employment contract.

C) Resignation Due to Compulsory Military Service

The Labor Law stipulates worker compensation rights for employees resigning due to compulsory military service. Whether the compulsory military service period is long or short does not affect the entitlement to severance pay in Turkey. Short-term military service obligations are considered equivalent to compulsory military service. Furthermore, whether the compulsory military service occurred before or after the establishment of the employment contract has no effect on the calculation of the seniority pay for the credited military service.

However, if an employee is mobilized for reasons other than compulsory military service, their contract is suspended and therefore redundancy payment is not paid. However, if the specified suspension period in the law elapses, the contract is considered terminated by the employer, and in this case, the employee is entitled to termination compensation.

D) Resignation Due to Retirement

The Labor Law stipulates that if an employee terminates their employment contract to receive old-age, retirement, or disability pension or lump sum payment from the institution or funds established by law, they are entitled to workmen compensation in Turkey. However, if an employee resigns to receive income or pension from privately held insurance or funds, they are considered to have resigned, and therefore, they are not entitled to worker compensation rights.

For the employee to be entitled to redundancy payment, it is not sufficient for them to terminate the employment contract; they must also prove that they are entitled to old-age, retirement, or disability pension or lump sum payment and have applied for it. This document should prove the application made to the relevant social security institution.

E) Death of the Employee

In the event of the death of an employee who has worked for at least one year under the labor law, their legal heirs are entitled to worker compensation rights. Whether the employee’s death occurs at the workplace or outside of it, and regardless of whether it is due to their own fault, it does not affect the payment of severance pay in Turkey.

SEVERANCE PAY LIMITATION PERIOD

The limitation period for severance pay is regulated as 5 years in the law. With the amendment dated October 12, 2017, the limitation period for severance pay, which was previously 10 years, was reduced to 5 years with an additional article to the Labor Law, and external regulations were made regarding the limitation periods, which are currently in effect.

However, considering the time elapsed after the amendment, it will be assumed that there is exclusively a 5-year limitation period for severance pay today. The starting point of the limitation period for severance pay is the date on which the employment contract is terminated in a way that qualifies for severance pay. It can be said that the right to claim is time-barred after 5 years have passed from this date.

IS SUDDEN RESIGNATION A BARRIER TO RECEIVING SEVERANCE PAY?

Resignation is one of the grounds for terminating an employment contract, and there are certain elements of a valid resignation. Resignation is a unilateral legal act and becomes valid when the resignation letter reaches the employer. If the reason for resignation is stated in the petition, the employee is bound by this reason, and the reason for resignation cannot be changed later.

However, conditional resignations have no validity. Even if an employee resigns suddenly, if the condition in the conditional resignation is accepted by the employer, this should be evaluated not as a resignation but as a mutual termination agreement. Unlike resignation, mutual termination is a termination agreement between the employee and the employer.

The Court of Cassation emphasizes that even in the case of sudden resignation, a comparison should be made between the actual reason relied upon by the employee and the reason stated in the resignation petition. In the decisions given, it is stated that the court should investigate whether the employee’s departure is justified and decide accordingly. For example, it is accepted that it is not a normal behavior for a person who has acquired certain rights based on their length of service in the workplace to waive these rights by resigning.

It is possible for an employment contract to be terminated by the employer or the employee for different reasons. However, for the employee to be entitled to termination compensation, there must be a justifiable and valid reason when terminating the employment contract. Even if an employee resigns based on a justifiable reason, they can still be entitled to workmen compensation in Turkey even if they resign suddenly. Therefore, it is important for the employee to know which situations can be considered as justifiable reasons.

There are some situations in which the employee can not receive termination compensation even if they resign suddenly:

• Abandonment of Employment by the Employee: If the employee terminates the employment contract arbitrarily without stating any reason, they can not claim worker compensation rights in Turkey.
• Abandonment of Workplace by the Employee: If the employee abandons the workplace without any notification, this action clearly demonstrates the employee’s intention to terminate the employment contract, and the employee loses the right to receive severance pay in Turkey.
• Employee Entering Another Job: If the employee decides to leave their current job and enter another job, they can not request dismissal compensation in Turkey due to this choice.

Employees should consider the above situations when deciding to resign suddenly and evaluate their rights correctly.

DOES RESIGNATION NULLIFY TERMINATION COMPENSATION ENTITLEMENT?

Resignation does nullify entitlement to severance pay. However, if there are resignation letters obtained under duress or subject to conditions, employees can still receive workmen compensation in Turkey. However, specific conditions must be met for this to be valid.

1. Signature Obtained on Blank Paper at Initial Employment: It’s common for employers to obtain a signature on a blank piece of paper during initial employment and later fill it out as a resignation letter. Such resignation letters are invalid. However, the employee must prove how such a resignation letter was created, either through witnesses or evidence.
2. Processing Resignation Letter at a Later Date: There are cases where an employee submits a resignation letter but the employer does not accept it. If the employee continues working with the employer who did not accept the resignation, then later the letter cannot be used as a resignation letter by the employer.
3. Contradictory Evidence and Statements with the Resignation Letter: Even if an employee submits a resignation letter, if the employer makes contradictory statements during court proceedings, the resignation letter becomes invalid.
4. Comparison of the Genuine Reason behind the Resignation with the Resignation Letter: An employee may have only stated “I resign” in the resignation letter without providing details of the real reason. The court can consider the genuine reason behind the resignation if there is a valid termination reason for the employee.

Considering these circumstances, it’s important for employees to carefully approach resignation letters and, if necessary, seek legal assistance from a worker compensation lawyer in Turkey to protect their rights.

WHAT IS A MARITIME EMPLOYMENT CONTRACT IN THE SCOPE OF MARITIME LABOR LAW IN TURKEY?

A maritime employment contract is an essential document that regulates the relationship between the worker and the employer and protects the rights of shipman in Turkey under contract law. According to Article 5 of Law No. 854 on Maritime Labor in Turkey, the employment contract between the shipman and the employer or their representative must be in writing, and each party should be provided with a copy. These maritime employment contracts can be made either notarized or through an ordinary agreement between the parties.

There are two fundamental aspects to the formation of a maritime employment contract. Firstly, it documents the employment relationship between the employer and the shipman and ensures the ship’s operability. While the Labor Law in Turkey does not impose any specific format for indefinite-term employment contracts, a written form requirement is stipulated for fixed-term contracts. According to Article 5 of the Maritime Labor Law in Turkey, the maritime employment contract between the shipman and the employer or their representative must be prepared in writing in two copies and provided to each party. Article 50/a of the Labor Law imposes an administrative fine in case of the absence of a written contract.

There are differing interpretations regarding whether the written form is a condition of validity or a requirement for proof. According to decisions by the Court of Cassation, the contract must be in writing and specify the salary. While some experts argue that the written form is a condition of validity, others suggest it’s a requirement for proof. Considering that the purpose of labor law is to ensure the continuity of contracts, interpreting the written form as a requirement for proof is more appropriate.

Under maritime labor law in Turkey, the maritime employment contract between the shipman and the employer or their representative, whether made through a notary or between the parties, is exempt from any fees or duties.

Article 7 of the Maritime Labor Law mentions three types of employment contracts: for a specific period, for a voyage, or indefinite. A service contract for a specific period terminates at the end of the period. A service contract for a specific voyage terminates at the end of the designated voyage. However, if the shipman continues to work with the approval of the employer or their representative, and the ship continues the voyage, the service contract is considered extended for the duration of that voyage.

THE ESSENTIALS TO BE INCLUDED IN A MARITIME EMPLOYMENT CONTRACT

A maritime employment contract must be drawn up in writing in accordance with Article 5 of the Maritime Labor Law and should contain specific information. According to Article 6 of the Maritime Labor Law, this information includes:

• Name, surname, and residential address of the employer.
• Name, surname, date and place of birth, registry number, and residential address of the shipman.
• Name of the ship where the shipman will work, registry number, gross tonnage, and the registry office where it is recorded.
• Place and date of the contract.
• Work to be performed by the shipman.
• Place and date where the shipman will commence service.
• Whether the service contract is made for a specific period, and if so, the duration, or if it is for a voyage, which voyage it is.
• Basis and amount of the agreed-upon wage.
• Time and place of wage payment, and for mandatory employers, the shipman’s bank account number for the payment of wages, bonuses, allowances, and any other similar entitlements.
• Conditions for advances.
• Other employment conditions.
• Summary of the contract approved by Law No. 7292 dated May 25, 1959, for service contracts to be concluded with trimmers and stokers.

In addition to these elements specified in maritime labor law in Turkey, provisions regarding unions or Collective Labor Agreements (CLA) may also be included in the contract according to the agreement of the parties. Having all of this information in the contract helps clarify the rights and obligations of the parties and contributes to preventing potential disputes.

WHO IS A SHIPMAN AND MARITIME WORKERS?

Due to the different conditions and challenges involved in maritime work compared to land-based labor, ship personnel are not subject to the general Labor Law but are regulated by Law No. 854, the Maritime Labor Law.

In Article 2/B of the Maritime Labor Law, a shipman is generally defined. According to maritime labor law, maritime workers refers to the captain, officers, crew, and other personnel working on board under a service contract. The only difference between a shipman and a worker regulated under the Labor Law is their employment on board a ship.

The definition of a shipman is also found in other laws and regulations, particularly in Commercial Law. Under Article 934 of the Turkish Commercial Code, a shipman is defined as the captain, officers, crew, and other ship personnel. The Shipman Regulation further specifies that a shipman encompasses the captain, officers, junior officers, trainees, crew, and auxiliary service personnel. These definitions determine the functions and scope of a shipman and lead to the application of the Maritime Labor Law in Turkey.

According to Article 1 of the Maritime Labor Law, it applies to shipmans and their maritime workers who work under a service contract on ships carrying the Turkish flag and with a gross tonnage of 100 tons or more. Even if the ship is under 100 gross tonnage, the Maritime Labor Law still applies if the total gross tonnage of ships owned by the same employer is 100 tons or more, or if the employer employs at least 5 shipmans.

QUALIFICATIONS TO BE A SHIPMAN IN TURKEY

Certain conditions must be met to become a shipman in Turkey. These conditions are as follows:

1. Citizenship and Education Status: One must be a citizen of the Republic of Turkey, or have received education related to maritime in Turkey or the Turkish Republic of Northern Cyprus, or be of Turkish descent.
2. Qualifications: Shipmans must possess specific qualifications as outlined in the Shipman Regulation. These qualifications include age, level of education, and sea service.
3. Health Status: Prospective shipmans must demonstrate their suitability for sea service. This entails meeting health standards set forth by regulations.
4. Criminal Record: One must not be convicted of crimes specified in the regulations. Crimes such as organized crime, drug trafficking, and human trafficking fall under this category.

To become a shipman, all of these conditions must be met, and one must work under a service contract. These conditions are established to ensure the employment of reliable and qualified personnel in the maritime sector.

SEVERANCE PAY REGULATIONS UNDER MARITIME LABOR LAW IN TURKEY

According to Law No. 854, there are several rules regarding severance pay in maritime labor law in Turkey:

1. Length of Service: According to the regulations of maritime labor law, severance pay is provided for each complete year of service during the continuation of the employment contract. Therefore, to be eligible for severance pay under maritime labor law, a shipman must have at least one year of service.
2. Termination Situations: If the employment contract is terminated by the employer under certain conditions stipulated in the Maritime Labor Law, severance pay is provided. However, in situations such as the shipman’s imprisonment, severance pay is not provided.
3. Payment Principles: Severance pay under maritime labor law is calculated based on the shipman’s last gross salary.
4. Reasons for Departure: Shipmans are entitled to severance pay in cases such as compulsory military service, old-age pension, retirement, disability pension, or termination of the employment contract for lump sum payment purposes.
5. Reemployment Situation: A shipman returning to work at the same workplace cannot receive severance pay for their previous service period.
6. Death Situation: In the event of the shipman’s death, severance pay is provided to their legal heirs.

These rules are important provisions that determine seafarers rights in Turkey and employer obligations. Article 20 of the Maritime Labor Law extensively regulates the rights and payment conditions related to severance pay.

ELIGIBILITY FOR SEVERANCE PAY UNDER MARITIME LABOR LAW IN TURKEY

Specific situations are outlined in Article 20 of the Maritime Labor Law for eligibility. Here are the instances in which a shipman is entitled to severance pay:

Termination or Resignation Situations:

• Employer termination of the shipman’s employment contract in violation of specific articles of the Maritime Labor Law.
• Shipman resignation (quitting) due to the employer’s actions contrary to legal rights.

Reasons for Departure:

• Non-payment of wages in accordance with legal provisions or the employment contract.
• Employer’s behavior contrary to laws, the employment contract, or working conditions.
• Shipman contracting an illness or becoming disabled, preventing continuous work on board.
• Ship being out of service for more than 30 days.

Other Situations:

• Shipman leaving employment due to compulsory military service.
• Shipman terminating the employment contract to receive old-age pension, retirement, disability pension, or lump sum payment.
• Termination of the employment contract due to the ship being lost, abandoned, seized as war booty, or losing the right to fly the Turkish flag.
• Shipman’s death.

Article 20 of the Maritime Labor Law also includes details on the calculation of severance pay. Accordingly, severance pay is calculated based on the last gross salary. In cases where the salary is not fixed, the average salary is calculated by dividing the total salary paid during the last year by the number of days worked during that period, and this average salary is used as the basis for the calculation of severance pay.

SHIPMAN’S STATUTORY LIEN RIGHT ON SHIP

The statutory lien right of a shipman is regulated by the relevant articles of the Turkish Commercial Code. Here are important details regarding the shipman’s lien right:

Shipman’s Claims and Lien Right:

• According to Article 1320 of the Turkish Commercial Code, the claims of a shipman against the shipowner or operator give rise to a statutory lien right on the ship and its appendages.
• Among the shipman’s claims are items such as wages due for work performed on board, repatriation expenses, and social security contributions.

Scope of the Lien Right:

• Article 1321/3 of the Turkish Commercial Code specifies that the lien also covers the shipowner’s claim for compensation against third parties due to the loss or damage to the ship.

Shipman’s Right to Sell:

• If a shipman cannot collect their claim against the ship, they have the right to sell the ship using their lien right.
• However, if the ship’s operation is unjustly hindered by the owner and the creditors are acting in bad faith, the owner can avoid the sale of the ship.
• For example, if a lease agreement has expired but the lessee has not returned the ship, and the shipman continues to work on the ship knowingly, the operation is unjust, and the creditors (shipman) are considered to be acting in bad faith.

The shipman’s lien right is established to ensure a fair and legal balance in the relationship between the shipowner or operator and the shipman.

SHIPMAN’S NOTICE PERIODS

According to the Maritime Labor Law in Turkey, the situations in which a shipman is entitled to severance compensation and the notice periods are parallel to those specified in the Labor Law. Here are the notice periods for shipmans according to the Maritime Labor Law:

• For shipmans who have worked up to 6 months: 2 weeks’ notice period
• For shipmans who have worked between 6 months and 1.5 years: 4 weeks’ notice period
• For shipmans who have worked between 1.5 and 3 years: 6 weeks’ notice period
• For shipmans who have worked more than 3 years: 8 weeks’ notice period.

These periods are effective from the time the termination notice reaches the employer. Upon the expiration of the notice periods, the maritime employment contract is terminated.

The notice periods are established to protect the rights of shipman in Turkey and the employee and to ensure the orderly termination of the employment relationship. It is important for both the shipman and the employer to properly adhere to and implement these periods in their relationship.

SEAFARERS RIGHTS IN TURKEY

Regulated by Law No. 854, which applies to workers and employers working under a service contract on ships flying the Turkish flag on the seas, lakes, and rivers, shipman rights and working conditions are of significant importance.

• Daily and Weekly Working Hours: The standard working hours for shipmans are 8 hours per day and 48 hours per week. The weekly working hours are distributed evenly among the working days of the week. A shipman working 5 days a week is considered to have worked 9.6 hours per day.
• Weekly Rest: A shipman who completes the weekly working hours is entitled to weekly rest for the remaining days of the week. The right to weekly rest is one of the shipman’s rights. However, shipmans cannot be made to work more than 6 days a week on port service and city line ships.
• Paid Leave: A shipman who does not work on a weekly rest day is entitled to receive a daily wage equivalent to one day’s wage without any work in return. If a shipman works on a weekly rest day, they are entitled to receive at least a 25% higher daily wage for that day.
• Free Travel Leave: According to the provision of free travel leave, shipmans can be granted up to 7 days of free travel leave.
• Paid Annual Leave: A shipman who has worked for at least 6 months under the same employer or on the same ship is entitled to paid annual leave. The duration of the leave cannot be less than 15 days for shipmans with service periods between 6 months and 1 year, and less than 1 month per year for those with service periods of 1 year or more.
• Termination Right and Compensation: If it is determined that the maritime employment contract of a shipman has been terminated by the employer in bad faith, the shipman is entitled to compensation equivalent to three times their wage. The notice period for termination is 6 working days from the date the employer or the shipman learns of the action.
• Other Matters: According to the Maritime Labor Law, shipmans are entitled to 2 days of paid leave in case of the death of their parents and 3 days in case of marriage. Additionally, indefinite-term employment contracts cannot be terminated until 6 months have passed, and employers must provide advances to shipmans upon request.
• Payment: In a ship where the employer employs 9 shipmans, wages must be paid through a bank channel. This ensures that payments to workers are made securely and in compliance with legal regulations.

Seafarers rights in Turkey are regulated under Law No. 854, determining the working conditions of shipmans. Protecting seaman rights ensures that their working environments are safe and fair. It is important for shipmans and employers to conduct their employment relationships in compliance with legal regulations.

SEAMAN RIGHTS OF TURKISH FLAGGED AND FOREIGN FLAGGED SHIPS

Maritime workers employed on Turkish-flagged ships have the following labor rights:

• Salary: The wages received by shipmans at specified intervals.
• Overtime Pay: Payments that must be made when shipmans work beyond their normal working hours.
• Annual Leave Pay: The wages received by shipmans during their annual leave periods.
• Weekly Rest Day Pay: Payments that must be made when shipmans work on their weekly rest days.
• Public Holiday Pay: Payments that must be made when shipmans work on official public holidays.

In addition, shipmans employed on Turkish-flagged ships may be entitled to severance pay and notice pay.

On the other hand, maritime workers employed on foreign-flagged ships usually enter into a contract with the shipowner, ship operator, or captain. This contract includes elements such as the shipman’s name, duration of the voyage, duties, and salary.

The rights of shipman in Turkey working on foreign-flagged ships are subject to the provisions of the Turkish Civil Code No. 6098. Therefore, the working conditions and entitlements may differ from those of workers on Turkish-flagged ships. Hence, the rights of shipman in Turkey working on foreign-flagged ships are determined based on their contracts and the applicable legal regulations.

WORKING HOURS OF SEAFARERS UNDER MARITIME LAW IN TURKEY

A ship is not just a workplace but also a living space. Therefore, the nature of work on board and the duration of shipmans’ voyages differ from those of other workers. Shipmans spend long periods on ships depending on the length of the voyage and do not have the opportunity to rest whenever they wish. This situation necessitates special regulations for the working hours of shipmans under Maritime Law in Turkey.

The working hours of shipmans are determined by legal regulations and the shipman’s maritime employment contract. However, the long voyages and living conditions on ships require a different arrangement for the continuous work and rest cycle, unlike other workers.

• Working Hours: The working hours of shipmans are determined based on the length of the ship’s voyage and the requirements of their duties. This period is regulated within the framework of Maritime Law and relevant regulations.
• Rest Periods: The rest periods of shipmans are determined according to the voyage schedule of the ship and in compliance with the rules prescribed by Maritime Law. It is important to provide shipmans with adequate rest opportunities.
• Employer’s Management Rights: The employer has the authority to regulate the operation on board and determine working hours. However, this authority must be exercised within the limits of Maritime Law and relevant legislation.
• Points to Consider in Practice: The working conditions and hours of shipmans are important in terms of occupational health and safety. Maritime workers must give due importance to the rights and health of shipmans. Additionally, the working arrangements must comply with the regulations prescribed by Maritime Law.

Ship operators are responsible for providing an environment that complies with the working hours and conditions of shipmans. This ensures that risks related to occupational health and safety for shipmans are minimized, and safe working conditions are provided.

• NORMAL WORKING HOURS OF SEAFARERS

The normal working hours of a seafarer refer to the time spent on duty and on watch. According to Article 26/1 of Maritime Labour Law No. 854, the daily working hours are set at eight hours, to be divided equally among the working days of the week, totaling forty-eight hours per week. While distributing this period equally among the working days of the week, no distinction is made between night and day.

However, the periods during which the shipman is on board but not on duty and can move freely are not included in the working hours. The Court of Cassation states that not the entire time spent on board by the shipman, but only the time spent working should be considered. Otherwise, the continuous work for 24 hours a day is not compatible with human nature.

The working hours of a shipman include not only the hours actually worked but also the presumed working hours deemed to have been worked legally. However, Maritime Labour Law does not explicitly regulate presumed working hours as in Article 66 of the Labour Law. Only in provisions related to weekly rest days, it is stated that permissions granted for reasons such as marriage, death, medical reports, etc., will be counted as worked days.

• SHIPMANS EXCLUDED FROM NORMAL WORKING HOURS

According to Article 27 of Maritime Labour Law, certain individuals are not subject to the provisions of this law regarding working hours. These individuals include first captains or pilot captains on ships with multiple captains, chief engineers on ships with multiple engineers, health officers and doctors, nurses and caregivers, as well as shipmans working on rescue ships whose primary duties involve rescuing lives, property, and ships, and those working on board under their own name and account.

Although these individuals perform different tasks, the captain, who is the most important person after the shipowner in maritime law in Turkey, has a different status from other shipmans from both technical and legal perspectives. The captain’s powers are used at all times during the navigation of the ship, and therefore, the captain and chief engineer are not subject to the eight-hour daily and forty-eight-hour weekly working hours.

• OVERTIME WORK UNDER MARITIME LABOUR LAW IN TURKEY

According to Maritime Labour Law, work performed exceeding the established working hours is considered overtime work. While the Labour Law states that overtime work should be done for reasons such as increasing production, the general interests of the country, or the nature of the work, Maritime Labour Law does not include such provisions for overtime work.

The overtime pay under Maritime Labour Law in Turkey is determined as 25% of the normal hourly wage, unlike the Labour Law, which generally calculates overtime pay as 50% of the normal hourly wage. Therefore, for each hour of overtime work under Maritime Labour Law, the hourly wage should be increased by 25%.

The employer and their representative must keep a separate ledger notarized by a notary public to document overtime work under Maritime Labour Law. However, the mandatory tasks and situations specified in Maritime Labour Law are not considered overtime work. For example, tasks deemed necessary by the captain for the safety of the ship and crew, customs, quarantine procedures, and fire, conflict, or rescue instructions at sea are not considered overtime work.

There are different opinions regarding whether individuals specified in Maritime Labour Law in Turkey are entitled to overtime pay. Some argue that these individuals should receive overtime pay due to their continuous work, while others emphasize the necessity of their presence on board, asserting that working hours are balanced, and therefore, no overtime pay should be paid.

It is possible to include overtime pay in employment contracts under Maritime Labour Law. However, there should be a specific limit to this situation. Determining these limits considering international sources and EU directives is important to protect the health, safety, and rights of shipman in Turkey.

Considering that the shipman’s rest time is spent on board and their free time is limited, the compensation for overtime work under maritime labour law should be evaluated separately. In some exceptional cases, emergencies encountered during the navigation of the ship or in port may require overtime work, and overtime payments under maritime labour law can be made.

• EXCEPTIONS TO OVERTIME UNDER MARITIME LABOUR LAW IN TURKEY

International Labour Organization (ILO) Convention No. 180 regulates emergency drills and instructions onboard ships in a manner that does not reduce the rest periods of shipmans. Accordingly, it is stated that the captain may always require shipmans to work when there is a danger to the ship’s crew, cargo, or other ships and persons onboard. However, such work should be considered outside normal working hours and should not be deemed as overtime.

Similar provisions are found in Maritime Labour Law in Turkey. Due to the working conditions at sea, Maritime Labour Law does not allow overtime work in certain circumstances. These circumstances include:

• Tasks deemed necessary by the captain for the safety of the ship’s crew, cargo, or the ship itself,
• Additional tasks required due to customs, quarantine, and other health formalities,
• Firefighting, abandoning ship, conflict at sea, rescue at sea, and defense instructions during ship navigation or in port.

Regardless of whether such work is carried out at sea or in port, it is crucial for the safety of the ship, cargo, and passengers. The shipman is obligated to comply with the captain’s requests for such work, including determining the duration and extent of the work, and does not have the right to refuse. Otherwise, the employment contract may be terminated with just cause.

• DOCUMENTATION OF OVERTIME UNDER MARITIME LABOUR LAW

According to Maritime Labour Law, the working hours of a shipman refer to the time spent on duty or on watch. The employer or their representative is obliged to post a schedule showing the shipman’s shifts, meal times, and rest periods in a place where the shipman can see it.

Furthermore, according to Article 28 of Maritime Labour Law, the employer or their representative must keep a separate ledger, notarized by a notary public, to document overtime work under Maritime Labour Law in Turkey. This ledger records the date and the corresponding amount of overtime worked, along with the applicable percentage of the shipman’s wage increase and the overtime pay earned. These ledger and documents serve as evidence of the overtime work performed.

In practice, in addition to the ledger that the employer is required to keep under the Collective Bargaining Agreement (CBA), overtime work performed outside of this ledger is recorded in another ledger belonging to the shipman, ensuring dual verification. However, the failure of the employer or their representative to keep this ledger does not invalidate the shipman’s claim for overtime under Maritime Labour Law.

Any evidence, such as workplace records, ship logs, payroll records, and witness statements, can be used to prove that the maritime workers worked overtime. However, if the ledger is maintained and the shipman signs it without any objection, they cannot claim to have worked overtime beyond the hours recorded in the ledger.

• OVERTIME PAY UNDER SEAFARERS RIGHTS IN TURKEY

According to Maritime Labour Law, overtime pay must be fully paid by the employer or their representative in accordance with the times, places, and periods specified in the shipman’s maritime employment contract to ensure the protection of shipman rights under Maritime Labour Law in Turkey.

In the judicial practice of the Court of Cassation, there is a practice known as “equity reduction.” This practice emphasizes that it is not normal for shipmans to work long periods in the same manner and that deductions should be made from working hours considering the days when shipmans are on leave, sick leave, or have legitimate excuses. This aims to protect the health of shipmans and meet their basic needs under seafarers rights in Turkey.

When calculating overtime pay, it is stipulated by the Turkish Code of Obligations and the Labour Law that the hourly wage for each hour of overtime work should be increased by 50% of the normal hourly wage. However, from the perspective of Maritime Labour Law in Turkey, it is stated that an amount not less than 25% should be determined, avoiding unnecessary distinctions arising from the nature of the work.

TERMINATION OF MARITIME WORKERS EMPLOYMENT CONTRACT WITH JUST CAUSE

The maritime workers employment contract of a shipman can be terminated without notice under certain conditions. In this case, shipman rights are protected under Maritime Labour Law in Turkey.

• Non-payment of Wages: If the employer fails to pay the wages as required by law or the employment contract, the shipman has the right to terminate the contract without notice.
• Non-Compliance with the Law: If the employer or their representative acts contrary to the law, employment contracts, or working conditions, and violates the rights of the shipman, the shipman may terminate the contract without notice.
• Violation of Maritime Rules: If the employer or their representative acts against maritime rules or behaves immorally or unethically towards the shipman, the shipman can terminate the contract without notice.

Article 14 of the Maritime Labour Law includes certain situations that grant the right to terminate the employment contract without notice to the employer or their representative. These situations are as follows:

• Extended Absence from Long Voyages: If the ship is withdrawn from service for more than 30 days for any reason, the employment contract can be terminated without notice and without compensation.
• Illness or Disability: If the shipman suffers from an illness or disability that continuously prevents them from working on board, the employment contract can be terminated without notice and without compensation.

Just like termination with notice, termination without notice will have legal consequences in accordance with the relevant articles of Maritime Labour Law. The employer or their representative must inform the shipman in writing of the reasons for termination and protect the rights of shipman in Turkey. If written notification is not possible, the situation is documented in a report.

IS THERE A RIGHT TO REINSTATEMENT LAWSUIT IN MARITIME LAW IN TURKEY?

The concept of “reinstatement” as found in labor law is not directly regulated in maritime law. Therefore, even if a shipman’s maritime employment contract is unjustly terminated, they do not have the right to file a lawsuit in Turkey. Instead, the shipman may demand labor claims, and if they prove that the employer terminated the contract in bad faith, they have the right to receive certain compensation under the Maritime Labor Law No. 854.

If the shipman can prove that the employer terminated the employment contract in bad faith, they can claim compensation for up to 3 months. This compensation aims to compensate for the material losses resulting from the unjust termination of the shipman’s employment contract and is determined in accordance with the relevant articles of Maritime Labor Law No. 854.

However, the absence of the right to file a reinstatement lawsuit does not reduce the shipman’s obligation to protect and prove seafarers rights in Turkey during the termination process. The shipman can present the necessary evidence to prove that the employer made an unjust termination and can pursue their rights in the legal process.

In conclusion, although the concept of reinstatement is not present in maritime law, if a shipman is unjustly dismissed, they can demand labor claims and have the right to receive certain compensation if they can prove that the employer terminated the contract in bad faith. It is important for shipmans to fully understand their seaman rights and obligations under maritime law and to seek legal support when necessary.

THE RIGHTS OF SHIPMAN IN TURKEY TO RETURN TO THEIR COUNTRY IN CASE OF TERMINATION OF THE MARITIME EMPLOYMENT CONTRACT

The obligation to return to the country generally involves the shipman returning to the port attached to the ship after the employment contract is terminated for a justifiable reason, and during this journey, all necessary expenses are covered by the employer. This obligation is fulfilled under the responsibility of the employer. Before the Maritime Labor Law came into force, this opportunity, which was only valid for captains, is now valid for all shipmans.

The concept of repatriation is usually used for travels abroad. However, Article 23 of the Maritime Labor Law regulates that if the maritime employment contract is terminated at any Turkish port, the shipman must be repatriated domestically. This article determines the domestic repatriation process in case of the shipman’s dismissal by the employer or the termination of the contract.

THE IMPORTANCE OF WORKING WITH MARITIME LAW FIRM IN TURKEY FOR THE PROTECTION OF SEAFARERS RIGHTS IN TURKEY

Working with maritime law firm in Turkey is highly important for businesses and individuals operating in the maritime sector. This is because maritime law is considered as a distinct branch with its own special laws and regulations. Effective management of legal processes and protection of rights in this field require technical knowledge and experience. Some key points emphasizing the importance of working with maritime law firm in Turkey include:

• Special Laws and Regulations: Maritime law is regulated by its own special laws and regulations. Therefore, it is important for businesses and maritime personnel to work with experienced maritime law firm in Turkey. These professionals are familiar with the complexity of maritime law and guide their clients in compliance with the regulations.
• Technical Knowledge and Expertise Requirement: Maritime law often involves complex technical details and is specifically tailored to meet the unique needs of the maritime sector. Hence, maritime law firm in Turkey is managed by maritime law attorneys and consultants who specialize in this field. These professionals understand the specific terminology and practices in the maritime industry and provide their clients with appropriate legal solutions.
• Application of Labor Law Provisions: Maritime law not only encompasses specific legal regulations tailored to the maritime sector but also includes general labor law principles. Therefore, maritime law firm in Turkey can also apply labor law provisions when necessary and provide their clients with comprehensive services.
• International Dimension: The maritime sector typically operates on an international scale. International maritime law, international trade law, and various other branches of law fall within this realm. Consequently, maritime law firm in Turkey specialize in international legal matters as well. This expertise can assist clients in areas such as international maritime law, ship operation regulations, and international maritime accidents.

In conclusion, working with maritime law firm in Turkey is important for businesses and individuals operating in the maritime sector because maritime law is a specialized field requiring technical knowledge, experience, and an international perspective. Maritime law firms have equipped and specialized teams to provide clients with legal solutions tailored to the complexities of the maritime industry.

HOW TO FILE A RENT DETERMINATION LAWSUIT?

To briefly summarize the process of how to file a rental determination case:

1. Application to Mediation: From September 1, 2023 onwards, it is mandatory to apply to mediation before starting rent assessment process. The parties enter into mediation and attempt to resolve their disputes.
2. Completion of Mediation Stage: After the mediation process is completed, if the parties cannot resolve their disputes, they can file the rent determination lawsuit.
3. Filing the Lawsuit with a Petition: The landlord or the tenant applies to the peace civil court with a lawsuit petition if they did not reach a conclusion through mediation.
4. Payment of Lawsuit Expenses: When filing the rent adjustment lawsuit, it is necessary to pay the lawsuit expenses in full. Payment of these expenses is crucial for the continuation of the lawsuit process.

This way, the lawsuit process continues in the peace civil court after going through the mediation stage. If the parties fail to reach an agreement through mediation for rent assessment, the court process begins, and the lawsuit is heard in the relevant court.

MANDATORY MEDIATION FOR RENT ASSESSMENT PROCESS

From September 1, 2023 onwards, it is a prerequisite to apply to mediation before filing a rental determination case. Therefore, initially applying to mediation is mandatory for starting the process of rent determination in Turkey. Otherwise, the court considers the lawsuit as not filed due to lack of this requirement.

During the mediation process, if the parties cannot resolve the dispute or if mediation fails, the right to file a lawsuit arises with the final mediation report. In other words, the right to file a lawsuit is obtained after the mediation process is completed and the final report is issued.

Therefore, it is important to complete the mediation process before proceeding to the lawsuit process for a determination of rent price. The mediation process aims to achieve a settlement between the parties and is a legal requirement. If the mediation process fails, only then does the right to file a lawsuit arise.

WHEN IS A RENT DETERMINATION LAWSUIT FILED?

A rent determination lawsuit can be filed at different times depending on the duration and conditions of the lease agreement. Different filing periods and procedures apply to lease agreements lasting longer than five years and those lasting less than five years.

When is a rent determination lawsuit filed?

1. Lease Agreements Lasting Five Years or Longer: If the lease agreement has been in effect for five years or more, a lawsuit can be filed. The judge will determine the rent amount based on the consumer price index (CPI) twelve-month change rate, the condition of the leased property, and comparable rental prices, in comparison to the market value.
2. Lease Agreements Lasting Less Than Five Years: If the lease agreement has not yet reached five years and the rate of rent increase has not been specified in the agreement, a lawsuit can still be filed to determining rental price. However, in this case, the judge cannot make a decision solely based on comparable rental prices. The judge may decide on a rent determination, provided that it does not exceed the twelve-month change rate of the consumer price index.

In both cases, the lawsuit can be filed by either the tenant or the landlord depending on the duration and conditions of the lease agreement. Before filing the lawsuit, both the tenant and the landlord must act in accordance with existing legal regulations and verify the presence of the conditions for a rent determination in Turkey.

CAN A RENT ADJUSTMENT LAWSUIT BE FILED BEFORE FIVE YEARS?

If there is no provision in the lease agreements for increasing the rent at certain intervals, a rent determination lawsuit can be filed before five years. In process of rent determination in Turkey, the court is determining  rental price based on the annual change rate of the consumer price index (CPI). However, the court does not investigate the market value of the property and only makes an increase based on the CPI.

However, under certain conditions, extraordinary circumstances that make the continuation of the lease agreement difficult may arise. For example, economic crises, natural disasters, or similar situations may affect the tenant’s ability to pay or adversely affect their livelihood. In such cases, a rent adjustment case can be filed based on Article 138 of the Turkish Code of Obligations. The rent adjustment case is different from rental determination lawsuits and has specific conditions and consequences.

A rent adjustment case requests the reorganization of the lease agreement based on the existence of specific conditions. These conditions usually include the presence of extraordinary circumstances and that the tenant’s situation is not caused by the plaintiff. The court evaluates these circumstances and may change the rent or terminate the agreement if deemed appropriate.

In conclusion, rent determination lawsuits and rent adjustment lawsuits are legal tools used to resolve uncertainties in lease agreements between tenants and landlords. However, both lawsuits have specific conditions and consequences that defendants must consider. To protect tenant rights in Turkey, it is important to seek legal advice from rental lawyer in Turkey and fully understand their legal rights during these processes.

HOW LONG DOES A RENT DETERMINATION LAWSUIT TAKE?

It’s not possible to provide a definitive answer to how long a process of rent determination in Turkey will take. The duration of these lawsuits is not governed by a strict rule and can vary depending on various factors. However, generally, it can be said that such lawsuits may take an average of 1 to 1.5 years to complete. Factors affecting the duration include:

1. Court Workload: The current workload of the court can affect the duration of the case. During busy periods, cases may take longer to process.
2. Expert Assessment Process: Depending on the complexity of the case, the court may send the file to an expert for rent assessment. The preparation and submission of the expert’s report can also prolong the process.
3. Evidence Collection: The gathering of evidence required by the case can also affect the duration.
4. Appeal Process: Rental determination cases are not finalized until a judgment is made. If one party appeals the decision, the process may be extended until the higher court completes its review.

Therefore, the resolution period of rent determination in Turkey is uncertain, and in addition to the factors mentioned above, other variables can also affect the process.

DOES A RENTAL DETERMINATION LAWSUIT REQUIRE A NOTICE?

A rent determination lawsuit does not require a notice. If the conditions for start the process of rent determination in Turkey are met, the lawsuit can be filed without sending a notice. However, sending a notice can be advantageous for the landlord if done in accordance with the procedure specified in Article 345/2 of the Turkish Code of Obligations.

Sending a written notice to the tenant when filing a rent determination lawsuit provides an advantage to the landlord. According to the second paragraph of Article 345 of the Turkish Code of Obligations, if the landlord sends a written notice to the tenant at least thirty (30) days before the end of the lease agreement, they can file their lawsuit for the new lease period. This notice must be in writing and is a requirement for validity.

However, it’s not mandatory for this notice to be sent through a notary or in accordance with the provisions of the Notification Law; the landlord can deliver the written notice to the tenant in an appropriate manner, but it must be in writing and timely. Therefore, even though there is no requirement for a notice in a rental determination case, if a written notice is sent in accordance with the relevant legal regulations, the lawsuit can be filed until the end of the new lease period.

DOES A RENTAL DETERMINATION LAWSUIT NEED TO BE FILED AFTER 5 YEARS IN EVERY RENTAL CONTRACTS?

If the increase rate specified in the contract has been agreed upon and determined by the parties, and they are satisfied with this rate, they are not required to file a rental determination case after 5 years. As long as the increase rate specified in the rental contract remains valid and the contract is not terminated by the parties, it is considered automatically extended for another year, and the specified increase rate is applied.

In this case, the increase in the rent will be subject to the terms of the contract according to legal process of rent determination in Turkey. If the parties have agreed upon this increase rate, it may not be necessary to file a rent determination lawsuit after 5 years. However, if there is a dispute between the parties or issues arise regarding the determining rental price, then a lawsuit can be filed to determining rental price.

In summary, the filing of a rental determination lawsuit after 5 years should be evaluated in accordance with the increase rate specified in the contract and the mutual agreement of the parties.

HOW IS THE 5-YEAR PERIOD CALCULATED IN RENT DETERMINATION IN TURKEY?

In rent determination in Turkey, the 5-year period is calculated from the start date of the rental contract. For example, if the start date of the rental contract is January 1, 2020, the five-year period is calculated from this date, and the 5-year period expires on January 1, 2025.

If the rental contract is renewed every year and a new rental contract is made in writing, the situation can become somewhat more complex.

How is the 5-year period calculated in process of rent determination in Turkey?

1. Calculation Based on the First Rental Contract: If there is no provision in the rental contracts signed between the parties indicating that the first contract has been completely invalidated and terminated, the 5-year period will be calculated based on the date of the first rental contract signed between the parties.
2. Calculation Based on Subsequently Signed Contracts: However, if there is a provision in the subsequently signed rental contract indicating that the first contract has been completely terminated, the five-year period will be calculated based on the date of the subsequently signed rental contract.

These considerations are important factors to be taken into account in calculating the 5-year period in process of rent determination in Turkey. Examining the details of the rental contracts and documents related to termination ensures accurate calculations and helps protect the rights of the parties in the lawsuit.

HOW IS DETERMINING RENTAL PRICE IN A RENTAL DETERMINATION CASE?

Determining rental price in rental determination cases is based on various criteria considered by the judge.

• CPI (Consumer Price Index) Change Rate: The twelve-month average CPI from the previous year is used as an important reference in determining rental price. The annual change in CPI is considered a fundamental indicator in determining the increase or decrease in the rental amount.
• Condition of the Rental Property: Factors such as the location, physical condition, intended use, features, and maintenance needs of the property play a crucial role in determining rental price. Well-maintained, modern, and functional properties are generally evaluated with higher rental amounts.
• Market Rental Value: The court also evaluates the rental amounts of other properties with similar characteristics in the area where the property is located. The market rental values ​​in the same area serve as an important reference in determining the rental amount.
• Equity: The principle of equity specified in Article 344 of the Turkish Code of Obligations plays a significant role in determining the rental amount. The court may apply discounts, such as discounts for previous tenants, taking equity into account when determining the rental amount.

The judge also considers factors such as the parties’ economic conditions, occupations, and sources of livelihood in determining rental price and strives to make a fair and equitable decision.

HOW IS AN EQUITY DISCOUNT APPLIED IN A PROCESS OF RENT DETERMINATION IN TURKEY?

In rent determination in Turkey, judges may apply a discount considering the principle of equity. This discount is often referred to as “equity discount” or “discount for previous tenants.”

The discount for previous tenants may be applied to individuals who have previously been tenants in the same property. This discount implies a reduction in the rental amount that new tenants would have to pay due to the long-term use of the property by previous tenants.

When determining rental price, the judge may decide on an equity discount by considering factors such as the condition of the property, market conditions, the general level of rental amounts, and other important factors. This discount is typically reflected as a decrease in the rental amount and is determined in accordance with the principle of equity by the judge in the rent determination lawsuit.

However, the amount of the equity discount and the conditions under which it is applied may vary in each case. Generally, an equity discount of between 10% and 20% is determined in rental determination lawsuits.

This rate is applied by the court based on the principle of equity during the process of determining rental price. Therefore, the conditions of each process of rental determination in Turkey are different, and judges evaluate each situation individually.

CAN A RETROSPECTIVE RENTAL DETERMINATION CASE BE FILED?

The rent determination lawsuit generally affects the rent prospectively. However, under certain conditions, a retrospective rental determination case can be filed. According to the legislation of rent determination in Turkey, these conditions are as follows:

• If there is a Provision Regarding Increase in the Contract

  If there is a provision in the lease agreement stating that the rent will be increased in the new lease term, if a retrospective rental determination case is filed in due time, the ruling by the court will be effective from the beginning of this new period.

• If There is No Provision Regarding Increase in the Contract

  If there is no provision in the lease agreement regarding an increase in rent, the lessor must file a rent determination lawsuit within thirty days of the start of the new lease term, or send a written notice to the tenant at least 30 days before this date, and must file the case by the end of the new term. When these conditions are met, the rent determined by the court will be effective from the beginning of the new term.

Therefore, before filing a retrospective rent determination case, it is important to carefully examine the terms of the contract and the legislation. These steps should be taken to protect the rights of both the lessor and the tenant and to act in accordance with the appropriate procedures.

WHEN DOES A RENT DETERMINATION LAWSUIT BECOME EFFECTIVE?

The answer to the question of when a rent determination lawsuit becomes effective is regulated in the Turkish Civil Code. If the lawsuit is filed within 30 days of the start of the new lease term, or if the tenant is sent a notice 30 days before the new lease term begins, or if there is a provision for an increase in the lease agreement, the new rent amount will be effective from the start of the lease period in which the case was filed. In this case, the court’s decision will be effective immediately for that period.

However, if these conditions are not met, if a notice is not sent to the tenant at the time of filing the lawsuit or within the 30-day period, and if there is no provision for an increase in the lease agreement, the court’s decision will be effective from the next lease period.

These explanations are important for understanding the procedures and decisions to be applied during the rent determination lawsuit process. By considering these rules, lessors and tenants can protect their rights and act in accordance with legal procedures.

HOW MUCH ARE LAWYER FEES AND LITIGATION COSTS IN A RENTAL DETERMINATION CASE?

Rental determination cases are subject to proportional fees. Proportional fees are calculated based on the annual value of the rent. In other words, the annual amount of the rent is used in the calculation of the court fee for the case. Proportional fees can vary depending on the value of the case and are usually calculated based on a certain percentage.

Additionally, fees determined by the court for procedures such as expert examination must be paid. These costs can vary depending on the process and requirements of the case. The parties to the case are responsible for paying the fees for the implementation of legal procedures such as discovery and expert examination.

If a lawyer is retained at any stage of the case, the lawyer fees for the rent determination lawsuit are subject to the minimum lawyer fee schedule. Attorney fees for a rent determination case may vary depending on the services provided by the attorney and the complexity of the case, and cannot be less than the minimum attorney fee schedule. The attorney fees for a rent determination case are determined based on the agreement between the attorney and the client and in accordance with legal regulations.

In this way, various expenses and fees may be incurred during the process of rent determination in Turkey. It is important for the parties to consider these expenses and plan the financial aspect of the case together with a real estate attorney.

CAN A COMMERCIAL RENTAL DETERMINATION CASE BE FILED?

In cases of commercial leasing, a lawsuit for rent determination can also be filed. A rent determination lawsuit is a legal process initiated to determine the rent for immovable properties such as commercial or residential premises between the tenant and the lessor. There is no separate regulation for commercial leases in the law, and the rent determination lawsuit is applicable to commercial premises as well.

The process of filing a lawsuit is generally carried out to ensure that the rent is determined fairly and in accordance with equity. In cases of commercial leasing, a rent determination lawsuit can be filed when there is a dispute between the tenant and the lessor regarding the rent or when the existing rent needs to be reassessed.

Tenants and lessors may resort to this option to protect their legal rights and ensure the determination of a fair rent during the process of determining rental price.

CAN A RENT DETERMINATION LAWSUIT BE FILED WHILE AN EVICTION CASE IS ONGOING?

A rent determination case and an eviction case can be filed simultaneously. According to decisions of the Court of Supreme, a rent determination case can be initiated while an eviction case is ongoing, and filing a rent determination case alongside an eviction case does not pose any obstacle or cause a conflict of interest.

In this scenario, while the tenant files a lawsuit to determine the rent amount, the landlord can also file an eviction case to remove the tenant. Both parties have the opportunity to defend their rights and seek legal recourse in both cases.

In conclusion, it is legally permissible to file a rent determination case while an eviction case is ongoing, and it is a method that the parties involved can use to protect their rights.

WHAT ARE THE RESULTS OF A RENT DETERMINATION IN TURKEY?

The results of a rent determination in Turkey case may vary depending on the court’s decision and the procedures applied. However, generally, the outcomes of a rent determination in Turkey can include:

• Determination of a New Rent Amount: As a result of a rent determination lawsuit, the court establishes a fair rent amount, which affects the rent payable by the tenant.
• Retrospective Effect: If the conditions for a rental determination case are met and the court determines a new rent amount, this amount typically applies retroactively from the beginning of the rental period in which the case was filed.
• Litigation Costs: The distribution of litigation costs among the parties is determined by the court. These costs usually vary depending on the length and complexity of the legal proceedings.
• Binding Nature of the Judicial Decision: The court’s decision is binding on the parties involved. Non-compliance with the decision may result in legal consequences.
• Resolution of Disputes: The court may resolve disputes between the tenant and the landlord regarding the rent amount. A clear determination of the rent amount by the court can prevent further disagreements between the parties.

The results of a rental determination case may vary based on the specifics of the case and the parties’ requests. However, the primary goals typically include establishing a fair rent amount and resolving disputes between the parties involved.

CAN A NEW LANDLORD FILE A RENTAL DETERMINATION CASE?

Purchasing a property with tenants in place means becoming a party to the landlord-tenant relationship. In this case, it’s important to consider the existing lease agreement and the continuation of the landlord-tenant relationship. When it comes to filing a rent determination case, the procedures and timelines to be followed depend on the terms of the existing lease agreement. Therefore, a new landlord is free to file a case for rent determination in Turkey.

When a new landlord files a rent determination case, they should take into account the provisions and timelines specified in the existing lease agreement. If specific procedures and timelines are outlined in the existing lease agreement, it’s important to adhere to these timelines and follow the procedures accordingly.

CAN A VERBAL LEASE AGREEMENT BE THE BASIS FOR A RENTAL DETERMINATION CASE?

There may be uncertainties for many people regarding the validity of verbal lease agreements in the process of filing a rent determination lawsuit. However, lease agreements are not subject to formal requirements. In other words, a lease agreement can be either written or verbal. Therefore, if the existence of a verbal lease agreement is acknowledged by both parties, it is possible to file a case for rent determination in Turkey.

However, there may be some difficulties in proving the existence and validity of verbal agreements. It is important to have evidence of the existence of verbal lease agreements and for both parties to acknowledge this agreement during the rental determination case process. Proving the existence of verbal lease agreements may be more challenging compared to written lease agreements.

In conclusion, if there is a verbal lease agreement in place, it is important for the parties to document this agreement and gather necessary evidence. This way, during the process of filing a rent determination case, the validity of verbal lease agreements can be evaluated, and a fair decision can be made.

WHAT IS AN ESTATE IN TURKISH LAW?

An estate is a legal concept encompassing the entire wealth left behind by an individual after their death. This term includes both the active and passive assets transferred to the heirs after the death of the deceased. Active assets represent the wealth and receivables of the deceased at the time of death, while passive assets represent their debts. Generally, all the rights and obligations of the deceased are included in the estate, except for some special circumstances. Therefore, the estate constitutes the total inheritance of an individual along with the determination of the estate.

The estate is the most significant concept in the fair distribution and sharing of inheritance. Legal heirs can initiate an estate determination lawsuit in Turkey to assess and distribute the estate. During this legal process, the deceased’s assets and debts are identified and recorded in an official register. However, this lawsuit is solely concerned with the determination of heritage; it does not involve a ruling on the distribution of the inheritance.

The estate encompasses various elements such as tangible assets, businesses, real estate, and receivable rights. It covers all private legal relationships acquired by the deceased during their lifetime and terminates upon their death. Therefore, the content and scope of the estate can sometimes be uncertain, and heirs may file an inheritance determination lawsuit to request the accurate determination of the estate from the court.

WHAT ITEMS ARE INCLUDED IN AN ESTATE?

Items included in an estate represent the wealth left behind by an individual after their death. The items typically included in an estate are as follows:

• Real Estate: Immovable properties such as land, houses, apartments, and commercial properties owned by the deceased are part of the estate.
• Personal Property: Moveable assets owned by the deceased, including items such as automobiles, cash, jewelry, furniture, electronic devices, artwork, antiques, and other personal valuables, are included in the estate.
• Bank Accounts and Financial Assets: Bank accounts, deposit accounts, investment accounts, and other financial assets registered in the name of the deceased are included in the estate.
• Securities: Stocks, bonds, debentures, and other securities held by the deceased are considered part of the estate.
• Debts and Credits: Debts owed to and by the deceased are evaluated within the estate. For example, the deceased’s credits and debts can be transferred to the heirs as part of the estate.
• Intellectual Property Rights: Intellectual property rights such as copyrights, patents, trademarks, and registered designs owned by the deceased are also included in the estate.

The aforementioned assets are typical examples of estate assets, but estate assets are not limited to these examples alone. The content of an estate can vary depending on the assets and rights owned by the deceased. The determination of estate assets is the most crucial aspect in the fair and lawful distribution of inheritance and should be managed carefully to protect the rights of the heirs.

WHAT IS AN ESTATE DETERMINATION LAWSUIT IN TURKEY?

An estate determination lawsuit in Turkey is a legal process initiated to accurately and comprehensively determine the assets left behind by an individual after their death. This lawsuit is typically pursued when there is disagreement among heirs or when there is insufficient information about the deceased’s estate. Regulated in detail in the relevant articles of the Turkish Civil Code, this lawsuit aims to protect the rights of the heirs according to inheritance determination in Turkey.

However, a succession determination lawsuit is solely a process of inheritance determination in Turkey and does not include a ruling on how the estate will be distributed. This lawsuit is opened for the purpose of identifying the inheritance assets and protecting the rights of the heirs. The stage of distributing the inheritance is a separate process, and various methods can be pursued to resolve disputes among the heirs.

HOW IS THE DETERMINATION OF HERITAGE ASSETS CONDUCTED?

In an succession determination lawsuit, the court takes various steps to accurately determine the deceased’s assets, rights, and liabilities. These steps can be outlined as follows:

1. Statements and Evidence of the Parties: Initially, the court relies on the statements and evidence provided by the parties to determine the assets and liabilities of the deceased. Heirs present information to the court regarding the assets and liabilities owned by the deceased.
2. Court Inquiries: The court sends inquiries to relevant institutions and organizations to obtain information and documents concerning the rights and liabilities of the deceased from the date of their death onwards. These institutions may include the Land Registry Office, Revenue Administration Presidency, Social Security Institution, and Turkish Banking Association, among others.
3. Discovery Process: When deemed necessary, the court may conduct a discovery process to physically examine the deceased’s assets and other elements. The discovery process allows the court to obtain more detailed information and examine evidence.
4. Evaluation of Information and Documents: Based on the statements of the parties, evidence presented, and responses received from relevant institutions and organizations, the court attempts to determine the inheritance assets. The assets and liabilities of the deceased are identified in accordance with the information and documents obtained.

In inheritance determination in Turkey, it cannot be expected for heirs to be aware of all the rights and liabilities of the deceased. Therefore, the process conducted by the court is crucial to accurately determine the deceased’s assets and to ensure lawful distribution to the heirs. Heirs initiate a lawsuit for the determination of the estate to ensure the collection of necessary information and documents by the court.

Identification of Active Estate Assets in an Inheritance Determination in Turkey

The identification of active estate assets is a critical step in the estate determination lawsuit in Turkey and is typically conducted through specific processes. The steps followed for the identification of active estate assets include:

• Gathering Information: Initially, all documents related to the deceased’s assets must be collected. These documents may include title deeds, vehicle registrations, bank account statements, stock certificates or bond certificates, borrowing documents, insurance policies, wills, promissory notes, tax returns, and other financial documents.
• Evaluation and Appraisal: To determine the value of inheritance assets, the value of each asset item must be determined. Real estate properties may undergo real estate appraisal, second-hand market values may be determined for vehicles, and the current market values of financial assets may be calculated. If deemed necessary, valuation reports can be prepared through expert appraisers.
• Court Proceedings: After the evaluation process, the determined values of active estate assets are presented to the court. The court determines and records the deceased’s estate based on these values.
• Exempted Assets: In some cases, certain types of assets may be excluded from the estate. For example, small items below a certain amount are generally not considered within the scope of the estate.
• Protection of the Estate: While valuable items such as jewelry are recorded in the court safe, other items are usually entrusted during the lawsuit process.

The process of identifying active estate assets is crucial for the fair distribution of inheritance and the protection of the heirs’ rights.

Identification of Passive Estate Assets in an Inheritance Determination in Turkey

The identification of passive estate assets is an important stage that ensures the accurate determination of the deceased’s liabilities. The steps followed for the identification of passive estate assets include:

• Identification of Debts: Firstly, all debts owed by the deceased must be identified. These debts typically include bank loans, mortgages, credit card debts, tax debts, borrowing documents, legal obligations, and other financial commitments. Information and documents regarding the deceased’s debts are collected through heirs, financial institutions, and other relevant parties.
• Classification of Debts: The collected debts may be classified as priority and secondary debts. Priority debts are considered debts that arose before the death of the deceased and are required to be paid off first. For example, tax debts, mortgages, or legal obligations may be considered priority debts. Secondary debts are the other debts paid after priority debts have been settled.
• Court Proceedings: After the collection and classification of debts, the court evaluates this information and determines the passive estate assets. Considering the payment feasibility and priority of debts, the court accurately determines the passive estate assets.
• Identification of Creditors: The court also attempts to identify the creditors of the deceased. This includes identifying individuals and institutions that were creditors of the deceased prior to their death.

The identification of passive estate assets ensures the determination of the deceased’s debts and helps protect the rights of the heirs. This process is important for accurately determining the estate.

WHICH VALUES ARE CONSIDERED IN SUCCESSION DETERMINATION PROCESS?

In the determination of heritage, the assets and rights of the deceased at the time of their death are considered. According to the relevant articles of the Turkish Civil Code, any acquisitions or distributions made by the deceased before their death are evaluated based on the situation at the time of death. Therefore, it is necessary to determine the values of the deceased’s assets based on the market values at the time of their death.

KEEPING RECORDS IN THE ESTATE DETERMINATION LAWSUIT IN TURKEY

The process of keeping records in the inheritance determination in Turkey is regulated by Article 590 of the Turkish Civil Code. This regulation states that if requested within 1 month from the date of death, the Peace Judge may decide to keep records of the estate.

Article 589 of the Turkish Civil Code considers record-keeping as a protective measure. This measure aims to determine the components of the estate at the time of death and provide a reference in case of disputes. It allows obtaining information about the status of the estate at the time of death and documents the formation of the estate.

After determining the values of the deceased’s active and passive assets in the process of succession determination, the court proceeds to the record-keeping stage. The court identifies the components of the estate and records them individually in the estate record book. If there are components that cannot be preserved, the court may sell them to convert them into cash.

A heir who disputes that the recorded assets belong to the estate has the right to file a claim by indicating this situation. In the claim, the heir may request the removal of an asset from the estate and its delivery to them if they prove that it belongs to them.

Keeping records of the estate is an important step to protect the rights of heirs and ensure the accurate determination of the estate. This process supports the fair distribution of the inheritance and resolution of potential disputes.

WHO CAN FILE AN INHERITANCE DETERMINATION LAWSUIT?

An estate determination lawsuit in Turkey can be filed by any one or all of the heirs of the deceased, or by a representative appointed for the estate on behalf of all the heirs. If only one of the heirs files a lawsuit for the determination of heritage, the other heirs are not required to file separate lawsuits, as the outcome of the lawsuit will apply to all heirs. Additionally, an estate determination lawsuit in Turkey is a non-contentious legal matter and is filed without adversaries. This means that any one of the heirs can file the lawsuit for the determination of the estate.

Each heir has the authority to file the lawsuit individually, and all heirs together can also file the lawsuit. However, even while other inheritance lawsuits are ongoing, a succession determination lawsuit can be requested and pursued. This is an important step for heirs to gain clarity on the distribution and sharing of the inheritance.

JURISDICTION AND COMPETENT COURT IN ESTATE DETERMINATION LAWSUITS

The competent court for an estate determination lawsuit in Turkey is determined as the Peace Civil Court according to Article 590 of the Turkish Civil Code. The Peace Civil Court evaluates requests for keeping records of the estate and manages this process.

The competent court is determined based on the deceased’s last place of residence. However, if the deceased’s last place of residence is abroad, the competent court is the place of residence court where assets are located in Turkey. In this way, the inheritance determination in Turkey is conducted and concluded by the relevant local court.

IS THERE A STATUTE OF LIMITATIONS IN ESTATE DETERMINATION LAWSUITS?

An estate determination lawsuit can be filed after the death of the deceased. There is no statute of limitations or time limit for filing an estate determination lawsuit. Therefore, the right to file the lawsuit is always available and not subject to any specific time limit.

As a result, heirs can file an estate determination lawsuit in Turkey at any time after the death of the deceased. The aim of this process is to accurately determine the estate and protect the rights of the heirs.

HOW LONG DOES AN ESTATE DETERMINATION LAWSUIT IN TURKEY TAKE?

The completion time of an inheritance determination in Turkey can vary depending on several factors and is typically case-specific. Some important factors influencing the duration of the lawsuit include:

1. Complexity of the Case: The succession determination lawsuit may take longer depending on the complexity of the estate. Detailed examination and determination of the estate’s assets can be time-consuming.
2. Collection of Evidence: Gathering and examining evidence presented by the parties may be necessary. The process of collecting and examining evidence can be time-consuming.
3. Expert Opinions and Expert Reports: The court may request expert opinions and expert reports for the resolution of the case. The preparation and examination of these reports can take time.
4. Disputes Among Parties: If there are disputes among the parties, the resolution of the lawsuit may take longer. In cases where no agreement can be reached, the court process may be further prolonged.
5. Adherence to Court Schedule: The court’s schedule affects the processing speed of lawsuits. The workload of the courts and the time taken to obtain appointments can affect the duration of the lawsuit.

Therefore, the completion time of the lawsuit is an unpredictable process. Depending on the complexity of the case, disputes among the parties, examination of evidence, and adherence to the court schedule, the duration may vary.

WHAT ARE THE FEES AND COURT COSTS IN AN ESTATE DETERMINATION LAWSUIT IN TURKEY?

The expenses incurred in an estate determination lawsuit typically include court costs and attorney fees. Court costs include covering formal procedures, presentation of evidence, expert examinations, and similar requirements during the lawsuit. Attorney fees refer to the fees paid to the attorney for handling the case and advocating for the rights of the heirs.

Attorney fees may vary depending on the complexity and duration of the lawsuit, the experience of the inheritance lawyer, and local fee schedules. In some cases, attorneys may charge their fees based on a certain percentage of the estate or on an hourly rate during the lawsuit process. However, some attorneys may prefer to charge their fees based on a portion of the inheritance obtained after the lawsuit.

An inheritance determination in Turkey is subject to a fixed fee. This means that a fixed court fee must be paid regardless of the value of the lawsuit. However, as the trial progresses, expenses such as notifications, discovery, expert reports may arise. An advance may be requested from the heir who filed the lawsuit to cover these expenses.

The expenses incurred after the conclusion of the lawsuit are typically covered by the estate assets. Therefore, the heir who initiated the determination lawsuit is free to claim the expenses incurred during the lawsuit process from the estate assets before the distribution of assets obtained as a result of the lawsuit. This process becomes clear with the court decision at the end of the lawsuit.

WHAT ARE THE RESULTS OF AN SUCCESSION DETERMINATION LAWSUIT?

An estate determination lawsuit in Turkey ensures the accurate determination of the deceased’s estate and protects the rights of the heirs. However, the outcomes obtained from this lawsuit focus solely on the determination of the estate and do not provide an automatic mechanism for the distribution of the inheritance.

• Determination of the Estate: The primary objective of the lawsuit is to accurately determine the deceased’s estate. During this process, the values of both active and passive assets of the deceased are determined, and the inheritance assets are identified.
• Identification of Heirs: After the estate is determined, the court identifies the heirs. Heirs are either statutory heirs or individuals designated in the will, if any. Additionally, any heirs who have renounced their inheritance rights are also identified by the court.
• Protection of Heirs’ Rights: This lawsuit aims to protect the rights of the heirs. As a result of the lawsuit, the heirs gain clear information about the deceased’s estate and can use this information to defend their rights.
• Distribution of the Inheritance: The court determines the rights and shares of the heirs. The information obtained as a result of the lawsuit forms the basis for how the inheritance will be distributed among the heirs. This information is used to determine the value of the inheritance and the rights of the heirs.
• Assertion Lawsuits: If the estate recorded in the estate ledger leads to disputes among the heirs, they can file assertion lawsuits. In these lawsuits, an heir can prove that certain assets recorded in the ledger belong to them and request their transfer.
• Evaluation of the Will: If the deceased left a will, the court evaluates and applies its provisions.
• Formalization of the Inheritance: The information obtained as a result of the lawsuit facilitates the formalization of the inheritance into official records. The heirs can take the necessary steps to formalize the inheritance based on the determined estate.

The inheritance determination in Turkey provides for the determination of the deceased’s assets and liabilities. As a result of the lawsuit, the estate is determined, heirs are identified, and the inheritance is distributed or debts are collected.

WHAT SHOULD BE DONE AFTER THE INHERITANCE DETERMINATION IN TURKEY?

After the determination of heritage, the following steps should be taken:

• Obtaining a Certificate of Inheritance: After the estate determination lawsuit in Turkey, heirs need to obtain a certificate of inheritance to officially transfer the inheritance to them. The certificate of inheritance is the official document required for the transfer of the inheritance and is used in the distribution of the estate.
• Distribution of the Inheritance: After obtaining the certificate of inheritance, heirs can proceed with the distribution of the inheritance. If there is an agreement among the heirs, the distribution of the inheritance can be done through mutual agreement. Thus, they acquire the inheritance through the process of inheritance transfer.
• Partition Lawsuit: If disputes arise among the heirs regarding the distribution of the inheritance, a partition lawsuit can be filed. As a result of the lawsuit, immovable property is put up for sale according to execution and bankruptcy law.
• Distribution of the Inheritance: After the partition of the inheritance or court decision, the distribution of the inheritance takes place. The heirs receive their respective shares, and the transfer of the inheritance is completed.

The estate determination lawsuit in Turkey and the process of inheritance distribution are important to protect the rights of the heirs and ensure the fair distribution of the inheritance. These processes should be carried out in compliance with legal procedures, and the rights of the heirs should be upheld.

WHAT IS AN INHERITANCE DIVISION AGREEMENT?

An inheritance division agreement is a contract that facilitates the distribution of the deceased’s estate among the heirs according to a specific arrangement. This agreement is made among the legal heirs after the death of the deceased when an agreement is reached.

• Based on Consent: The inheritance division agreement is based on reaching a consensus among the heirs. The parties agree on how the deceased’s estate will be divided, and this agreement is documented in the contract.
• Distribution of the Inheritance: The contract specifies how movable and immovable properties, cash, real estate, vehicles, bank accounts, and other assets in the deceased’s estate will be distributed. The division of the inheritance is detailed in the contract.
• Notarization: It is not mandatory for the inheritance division agreement to be made before a notary. However, it is recommended to do so in the presence of a notary to prevent potential disputes, and it is generally drawn up as notarized. Notarization serves as evidence in case of any future disputes.
• Prevention of Future Issues: The inheritance division agreement is made to prevent future disputes among the heirs. A clearly defined distribution plan helps minimize potential issues related to inheritance law in the future.
• Compliance with Legal Procedures: When making an inheritance division agreement, the inheritance law in Turkey and legal procedures of the relevant country should be considered. An inheritance division agreement that does not comply with the laws may be deemed invalid. The inheritance division agreement fosters clear communication and understanding among the heirs and facilitates the voluntary distribution of the inheritance. Therefore, it is recommended to draft an inheritance division agreement if an agreement is reached among the parties.

HOW IS ASSET HIDING FROM INHERITANCE DETECTED?

Detecting fraudulent actions aimed at depriving the heirs of their inheritance rights by the deceased is crucial, and filing a “collusive simulation lawsuit” against it is essential. Collusive simulation is a legal concept that refers to situations where the deceased intentionally conceals their true intentions by transferring or changing assets or rights.

Some points to consider regarding collusive simulation are as follows:

• Detection of Fraudulent Transactions: To file a collusive simulation lawsuit, it is first necessary to detect the fraudulent transactions where the deceased concealed their true intentions. These transactions can typically be uncovered by examining property records, contracts, or other ownership documents.
• Proving the True Intent: In a collusive simulation lawsuit, proving the deceased’s true intentions is essential. It is the responsibility of the plaintiff to prove this intent. Property records, written contracts, witnesses, and other evidence can be used to reveal the deceased’s true intentions.
• Filing the Lawsuit: A collusive simulation lawsuit is filed to prove the deceased’s true intentions and fraudulent transactions before the court. Generally, it is necessary to take action after the death of the deceased.
• Court Process: The collusive simulation lawsuit proceeds through the court process. The court evaluates the parties’ evidence and decides on the existence of collusive simulation. If collusive simulation is found, fraudulent transactions are deemed invalid, and the distribution of the deceased’s assets or rights is carried out according to their true intentions.

Some factors that may be considered in proving collusive simulation and calculating the true value of the inheritance are as follows:

• Intention to Evade Assets from the Estate: In a collusive simulation lawsuit, situations where the deceased transferred their assets to a third party while concealing their true intention are examined. It is crucial to prove that the true owner of the property was the deceased and that this transaction was indeed fraudulent.
• Difference between Asset Value and Sale Value: If the deceased transferred their assets at a price lower than their true value and had fraudulent intentions, this situation can be used as evidence in proving collusive simulation.
• Social Relationships between the Deceased and the Third Party: In a collusive simulation lawsuit, the social relationships and level of connection between the deceased and the third party who received the assets are examined. If there is a special relationship between them or if the transaction did not occur under normal market conditions, this may indicate fraudulent intent.
• Other Assets of the Deceased: In a collusive simulation lawsuit, the deceased’s other assets are also examined. If there is a tendency to evade assets from the estate when considering the deceased’s other assets, this can support the claim of collusive simulation.

These factors play a significant role in determining the deceased’s true intentions and the value of the assets in a collusive simulation lawsuit. The court evaluates this evidence to determine the existence of collusive simulation and the deceased’s true intentions.

HOW TO OBTAIN A TRADEMARK RIGHT?

A trademark right is a valuable asset created by a business or individual; however, it needs to be registered for legal protection. The answer to how to obtain a trademark right is through trademark registration in Turkey. Registering trademark rights provides legal protection and usage rights to the owner.

Trademark registration is done by applying to the trademark office of a specific country or region. The trademark application specifies the field and classes in which the trademark will be used, and usually includes the identity information of the applicant. The trademark office examines the trademark application, evaluating the uniqueness of the trademark, its registrability, and other legal requirements.

When a trademark right is registered, the owner is legally protected regarding the use of the trademark. In other words, the trademark owner has the right to protect and use the trademark against unauthorized users. Additionally, with trademark registration, the owner can use and market the trademark more securely for commercial purposes.

Failure to register a trademark can create issues in terms of protection under the Law on Intellectual and Artistic Works. Protecting and preventing unauthorized use of an unregistered trademark can be more challenging and legal processes can become more complex. Therefore, trademark registration is crucial for the owner to protect and assert their rights.

In conclusion, the first and most important step in obtaining a trademark right is trademark registration. Obtaining and protecting trademark rights is extremely important for businesses. Trademark registration in Turkey ensures legal protection of the trademark and grants the owner the authority to use the trademark securely. Therefore, it is essential to register trademark rights when creating a trademark and starting business activities.

WHAT IS TRADEMARK REGISTRATION IN TURKEY?

Trademark registration is the process by which a business or individual legally protects their commercial brand. This process aims to prevent confusion among consumers by registering the trademark, thereby preventing others from using the same or similar mark.

For businesses, trademark registration in Turkey ensures the protection of the brand and prevents the infringement of intellectual property rights in Turkey. Trademark registration is essential to prevent unauthorized use of the mark by others and to preserve the uniqueness of the brand.

Trademark registration provides legal protection for the trademark symbol (such as a logo). These symbols cannot be used without permission from the trademark owner. It is necessary for businesses of all scales and offers numerous advantages.

In summary, trademark registration in Turkey is crucial for businesses to protect and ensure the uniqueness of their brand. Registered trademarks help businesses gain a competitive advantage and establish a trustworthy brand image.

WHICH TRADEMARKS CAN NOT BE REGISTERED IN TURKEY?

For a trademark to be registered, it must first be distinctive, meaning it should clearly distinguish its products or services from others. However, there are some situations where registration is not suitable. These situations typically include:

• Descriptive Marks: Marks that merely describe the goods or services offered rather than indicating the source of those goods or services. For example, a brand name like “Delicious Pies” merely describes the characteristics of the pies rather than distinguishing them from others.
• Generic Terms: Marks that are the common name of a product or service. These marks typically describe all products or services within a category. For instance, the word “Beverage” is a generic term used to describe a type of food and therefore cannot be registered.
• Misleading or Confusing Marks: Marks that have a high likelihood of misleading or confusing consumers about the nature or characteristics of the goods or services offered. These marks can lead to misunderstandings or false expectations. Phrases like “Amazing Product” or “Superb Service” fall under this category.
• Inappropriate Marks: Marks that contain aggression or are not in line with general morality. These marks may go against accepted societal values and are generally not eligible for registration.

These situations cover trademarks that are not suitable for registration. Before filing a trademark application, it is essential to carefully assess whether the mark meets these registration requirements in Turkey. This way, unnecessary time and trademark registration costs can be avoided, and the brand can be built on a more solid foundation.

WHAT ARE THE TRADEMARK REGISTRATION BENEFITS?

Protecting the rights of a brand is crucial from the development stage of a business model or product onwards. This protection is ensured through trademark registration in Turkey, which is an industrial right. Trademark registration is essential to take precautions against potential brand infringements in the future and to protect the brand rights. There are trademark registration benefits;

• Exclusive Use Right: The individual or organization that registers the trademark can exclusively use the brand. Thus, the brand remains under the ownership and control of its owner.
• Ownership of Rights: With trademark registration in Turkey, all rights of the brand belong to the registered party. This gives the brand owner the right to use the brand as they wish and use trademark registration benefits.
• Authority to Grant Licenses: The party that registers the trademark gains the authority to license the brand. This allows the brand to be licensed to other businesses or transferred.
• Prestige and Reliability: Trademark registration in Turkey adds prestige to the business. A registered trademark creates a sense of trust and quality perception among customers.
• Acquisition of Domain Name Extensions: Upon registration, it becomes possible to acquire prestigious domain name extensions such as com.tr. This strengthens the brand’s online presence.
• Prevention of Copying: One of the trademark registration benefist is registration prevents the brand from being copied or similar brands from being used. This preserves the uniqueness of the brand and helps customers establish a connection with it.
• Facilitation of Obtaining Quality Certificates: Trademark registration facilitates the documentation of the business’s quality standards. Some quality certificates provide advantages to businesses that have registered trademarks.

In conclusion, trademark registration is an important aspect for businesses and is necessary for the long-term protection and strengthening of the brand. Therefore, it is important to consider trademark registration benefits when creating a brand and starting business activities.

PROTECTION OF TRADEMARK IN TURKEY

Law No. 6769 on Industrial Property introduces specific regulations to ensure protection of trademark in Turkey. Protection of trademark begins with the trademark being found compliant with the relevant legislation by the Turkish Patent and Trademark Office and registered in the Turkish trademark registry. During this process, the trademark owner begins to exercise their trademark rights from the date of trademark application for registration in the Turkish trademark registry and has the right to seek legal remedies in case of trademark infringement.

The registered trademark owner is granted the exclusive right to use their trademark in the goods or services class for which it is registered. This prevents unauthorized use of the trademark by competitors and provides the trademark owner with a competitive advantage. Additionally, in case of trademark infringement in Turkey, the trademark owner may seek legal remedies.

Law No. 6769 explicitly defines acts considered as infringement of trademark rights in Turkey. Actions such as the use of the trademark without the owner’s consent or the imitation of the trademark using a similar one are considered as infringement of trademark rights. In case of trademark infringement in Turkey, the trademark owner can apply to the court to determine, stop, and compensate for material/ moral damages resulting from the infringement.

However, to use trademark registration benefits, the trademark must be registered in the Turkish trademark registry. For trademarks not registered in the Turkish trademark registry, trademark protection under the Industrial Property Law cannot be utilized. In this case, the provisions of the Turkish Commercial Code regarding unfair competition may be applied. Unfair competition provisions aim to protect fair commercial relations and prevent persons without trademark rights from infringing upon trademark rights.

The applicable law in case of trademark infringement in Turkey and the burden of proof depend on whether the trademark is registered in the Turkish trademark registry. A trademark registered in the Turkish trademark registry provides protection to the rights holder for 10 years and can be renewed after this period.

HOW TO REGISTER A TRADEMARK IN TURKEY?

Trademark registration in Turkey involves following specific processes outlined in the legislation. Here’s how to register a trademark in Turkey:

1. Brand Analysis and Research: The first step in how to register a trademark in Turkey is analysis and research. First, it’s important to check whether the brand rights have been previously acquired. This step allows for selecting a unique brand by researching existing brand rights. Additionally, it’s essential to evaluate whether the brand aligns with the product or service and is compatible with the target audience.
2. Application Process: After conducting a brand analysis, a trademark application is submitted to the Turkish Patent and Trademark Office (TÜRKPATENT). The application process can be done online. TÜRKPATENT examines the application, and if deemed appropriate, publishes it in the official bulletin.
3. Objection Process: Any objections to the published trademark application in the official bulletin are checked. If there are no objections, the trademark registration application process is completed within approximately 2 months.
4. Registration Fee: Upon payment of the determined registration fee, the company can obtain the registration certificate. In addition to the registration fee, there may be additional fee requests in some cases.

During the trademark registration process, a registration decision is made by TÜRKPATENT based on the characteristics and type of the brand. Seeking assistance from a trademark lawyer for detailed information and support during the trademark registration process ensures more effective management of the process.