Subject of Lessor’s Right of Lien
The Turkish Code of Obligations (TCO) recognizes a statutory lien right, known as the lessor’s right of lien, over the movable property brought onto a leased immovable property by the lessee in lease agreements pertaining to immovable properties. The lessor’s right of lien, which is regulated by Articles 336-338 of the TCO, is a type of statutory lien right that arises from the law and is one of the general lien rights regulated by Articles 395 et seq. of the Turkish Civil Code1. While the right of lien can only be established over due debts, the lessor may exercise this right over non-due rent payments as well. Nevertheless, it is accepted that the rules regarding general lien rights will apply to the lessor’s right of lien to the extent that they are compatible2. Additionally, the lessor’s right of lien, which is established in favor of the lessor as a security for the rent debt, can be exercised over movable properties that are subject to seizure under Articles 270-271 of the Enforcement and Bankruptcy Law3. (EBL) Through this right, the lessor may retain the movable property in question until the specified amount of rent is paid, and if the rent is not paid, the lessor may demand that the rent be satisfied through the conversion of the movable property into money4.
The Court of Cassation has defined the right of lien as a legal lien right arising from the law and the goods subject to lien may be seized by a third party and, if seized, the past one-year and current six-month rent due to the lessor must be paid first from the sale price of the seized goods:
Court of Cassation 23rd Civil Chamber, 2015/243 E., 2015/2172 K., 01.04.2015.
“Under Article 336 of the Turkish Code of Obligations, in force at the time of the complaint, the lessor has a lien on the movables of the lessee located on the leased property to secure one-year and current six-month rent. The lessor’s lien is a type of legal lien that gives the lessor the power to retain the lessee’s movable property located on the leased property against rent due and to collect the rent owed by converting it to cash. The lien right arises due to the six-month rent to be accrued by the arrival of the movables to the leased property. Since the lien right arises when the movables arrive at the leased property, in case the seized goods are seized by a third party and converted to cash, the past one-year and current six-month rent due to the lessor must be paid first from the sale price. (Decisions of the Court of Cassation 19th Civil Chamber, 18.3.1999 T., 1199 E., 1767 K., and 21st Civil Chamber, 29.11.2005 T., 6074 E., 12377 K., and our Chamber’s decision dated 16.12.2014, numbered 5154E., 8161 K., are in line with this.)”
The subject matter of this right is the movable property located in the leased property and used for the furnishing or use of the leased property, in accordance with Article 336 of the TCO. It should be emphasized that this right does not cover all kinds of movable property the leased immovable property, but only the movable property that serves the furnishing or use of the relevant property. However, in accordance with Article 336/f.3 of the TCO and Article 82 of the EBL, the right can only be used on attachable assets, and cannot be used on personal property reserved for the tenant’s personal use5.
II. Lien on Property Belonging to Sub-Tenant
The lien right of the lessor can also be applied in sub-lease relationships. Regardless of whether it is a general lease agreement or a residential or commercial lease agreement, including sub-lease agreements, the right can be exercised without making a distinction as to whether sub-leasing is permissible or not. In order for the right to be exercised against the sub-tenant, the sub-tenant must have an unpaid rent debt to the main tenant. Therefore, if the sub-tenant does not have an unpaid rent debt to the main tenant, the lessor cannot exercise the lien right on the movable property belonging to the sub-tenant in the leased property due to the unpaid rent debt of the main tenant6.
III. Lien on Property Belonging to Third Parties
The right of lien of the lessor on property belonging to third parties in the rented property is only applicable if the lessor is acting in good faith, as stipulated in Article 337/2 of the TCO. In this regard, the lessor should not know or need to know that the items in the rental property belong to the tenant. The lessor’s good faith at the time the third party’s property was brought into the property is sufficient7. If the property belonging to a third party in the rented property is registered in a public registry that provides publicity, the lessor cannot be considered acting in good faith.
IV. Scope of the Right
The lessor may exercise the right of lien not for any debt owed by the lessee, but only for rental debt and within the time limits prescribed by law for rental debts. In this regard, pursuant to article 336/1 of TCO, the lessor may exercise the right of lien for a total of eighteen months of rent receivables, retrospectively and prospectively8, in order to secure one year’s rent and six months’ rent. Although there is no regulation in the Turkish Code of Obligations regarding the beginning of the period covered by the right, according to the prevailing opinion in doctrine, the date of the request for execution made by the lessor with respect to the lien should be considered as the beginning of the relevant period, and one year of arrears and six months of future rent should be calculated backwards from the last rent payment due before this date9. Increases in the accrued and future rent must be taken into account when determining the amount of one year of arrears and six months of current rent10. In fact, the precedent-setting decisions of the Supreme Court of Appeals support this view:
Court of Cassation 23rd Civil Chamber, Case No. 2014/4772, Decision No. 2015/3997, Date: 28.05.2015
“In Article 336 of the Turkish Civil Code which regulates the right of lien on movables in immovable leases, it is stated that “In inmovable property lease, the lessor has lien on the objects used for furnishing or for serving to the use of the property, as the warranty for the one year accrued rental or for the upcoming six months’s rental.” The lessor’s right of lien is a type of statutory lien that gives the lessor the power to retain the movable property belonging to the tenant on the leased property against the rental debt and, if the rent is not paid, to convert it into money and recover the debt primarily. The right of lien arises for six-monthly rental fees that will accrue with the arrival of movable property to the leased property. As the right of lien arises with the arrival of movables to the leased property, if the seized assets are later seized by a third party and sold, the past one-year and six-month accruing rent debt of the lessor must be paid primarily from the sale price”
V. Exercise of Lien Right
In order for the lessor to exercise the lien right, the lessee who owes rent must attempt to move the movables that can be subject to the lien right to another place. In such a case, the lessor may request the retention of movable property in an amount sufficient to secure the rent debt in accordance with Article 338 of the TCO from the Civil Courts of Peace or the enforcement offices. In a situation where applying to the judge or the enforcement office takes time and the movables subject to the lien right must be immediately prevented from being removed from the leased property, the law enforcement may be applied directly11.
If the court or direct application to the enforcement office is made and the request for the exercise of the right is found to be appropriate, the enforcement office makes a record of the movables subject to the lien right. The lessee’s authority to dispose of the movable property recorded in the book is restricted. In other words, with the record made, the lessee can no longer remove the movable property subject to the lien right from the immovable property, but can continue to use them until they are taken from them for the purpose of converting them into money12.
VI. Return of Property Secretly or by Force Taken from the Leased Property
According to article 338/2 of TCO, if the movable property subject to the lien decision is taken secretly or by force from the leased property, it can be returned to the lessee with the help of law enforcement within ten days from the date of taking. A similar provision is also included in the Execution and Bankruptcy Law Article 271. The important point in this regard is that the lessor must have made the request within the ten-day period and that the request should have been made to the enforcement office, except in cases where delay would cause harm13.
The right of lien of the lessor, in lease agreements related to immovable property, is a legal right similar to the right of statutory lien granted to the lessor over the movable property brought by the tenant. Thanks to this right, the lessor can withhold the relevant movable property until a certain amount of rent is paid, or request that the rent be paid by converting the property into money if the rent is not paid. This right covers movable property that is used in furnishing or using the relevant immovable property and can be exercised against subtenants as well, provided that the subtenant has unpaid rent debt to the main tenant. The use of the right against third parties who own the property in the immovable property is possible only if the lessor acted in good faith.
According to Article 336/1 of the TCO, the lessor may exercise the right of lien for a total of eighteen months of rent receivables, retrospectively and prospectively, in order to secure one year’s rent and six months’ rent. The lessor can exercise the right of lien if the tenant who owes rent to the lessor attempts to move the movable property that can be subject to the right of lien elsewhere.
However, if the movable property subject to the retention order is secretly or forcibly removed from the leased property, it is possible to apply to the enforcement office and have it returned to the lessor within ten days of the removal.
2 İNCEOĞLU, Murat, Kira Hukuku, 1. Baskı, On İki Levha Yayıncılık, İstanbul, 2014, C.1 s. 303.
3 AKARTEPE, Alpaslan, Kiraya Verenin Hapis Hakkı The Lien of Lessor . Yaşar Üniversitesi E-Dergisi, 8 (Özel), 2013, s. 0-78.
4 YAVUZ, Cevdet, Borçlar Hukuku Dersleri, Özel Hükümler 9. Baskı, Beta Yayıncılık, 2011, s. 23
5 GÜMÜŞ, Mustafa Alper, Borçlar Hukuku, Özel Hükümler, C. I, İstanbul 2008, s. 383
6 ARAL, Fahrettin, Borçlar Hukuku, Özel Borç İlişkileri, Genişletilmiş 8. Baskı, Ankara 2010, s. 269
7 BİLGE, Necip, Borçlar Hukuku, Özel Borç Münasebetleri, Ankara 1971, s. 161
8 AKARTEPE, Alpaslan, Kiraya Verenin Hapis Hakkı The Lien of Lessor . Yaşar Üniversitesi E-Dergisi, 8 (Özel), 2013, s. 0-78.
10 AKARTEPE, Alpaslan, Kiraya Verenin Hapis Hakkı The Lien of Lessor . Yaşar Üniversitesi E-Dergisi, 8 (Özel), 2013, s. 0-78.
11 BUDAK, Ali Cem, İcra ve İflas Hukukunda Kiralayanın Hapis Hakkının Kullanılması, Ankara 2003, s. 107.
12 GÜMÜŞ, Mustafa Alper, 6098 Sayılı Türk Borçlar Kanunu’na Göre Kira Sözleşmesi, İstanbul 2011. s. 204.
13 AKARTEPE, Alpaslan, Kiraya Verenin Hapis Hakkı The Lien of Lessor . Yaşar Üniversitesi E-Dergisi, 8 (Özel), 2013, s. 0-78.