Mediation as a Condition for Litigation in Disputes Arising from Rental Law

A rental contract is regulated in Article 299 and subsequent provisions of the Turkish Code of Obligations. According to Article 299 of the Law, a rental contract is a contract in which the lessor undertakes to leave the use of a thing or to benefit from it together with its use to the tenant, and the tenant undertakes to pay the agreed rental fee in return.

A rental contract is a contract that imposes a debt on both parties. According to the contract, the lessor undertakes to deliver the subject of the lease to the tenant in a ready and suitable manner, while the tenant undertakes to pay a fee in return. In addition, in rental contracts, the lessor does not have to be the owner of the subject of the lease. In fact, it is possible for there to be more than one tenant or more than one lessor within the scope of the rental contract.

On the other hand, according to Article 18/B of the Law on Mediation in Legal Disputes No. 6325, resorting to mediation in disputes arising from rental law is regulated as a condition for litigation. The regulation in question has come into effect as of September 1, 2023. If there is a dispute regarding the rental receivable arising from the tenancy relationship, the determination of the rental fee, adaptation, return of the leased property, permission to show the leased property and security, it is mandatory to apply to mediation before filing a lawsuit.

However, Article 18/B of the Law on Mediation in Legal Disputes No. 6325 includes cases that are outside the scope of mediation as a condition of action. According to the provision, the provisions of the Enforcement and Bankruptcy Law regarding the eviction by non-judgmental execution are not within the scope of mediation as a condition of action. It should be noted that in cases where an application is made to the enforcement court for the removal of the objection in the way of non-judgmental eviction due to non-payment of the rent, the lessor must have a lease agreement drawn up or approved by a notary in order for the objection to be removed. If the lessor has such an agreement, he can request the enforcement court to remove the objection. In this case, there is no obligation to apply to mediation. However, if the lessor only has a lease agreement signed by the tenant or if the lease agreement is not made in writing, mediation must be sought before an eviction case can be filed in the civil court of peace.

If the tenant has objected to the rent receivable, for example, outside the lease agreement, the landlord may request the enforcement court to lift the tenant’s objection and to decide to evict the leased property. The tenant must prove the reasons for the objection with the documents in the article 269/c of ​​the Enforcement and Bankruptcy Law. If the tenant cannot prove that the debt has ended or that he is not in debt with one of these documents, the enforcement court will decide to lift the objection and evict the leased property. In this case, mediation is not a condition for litigation.

On the other hand, in the event of a non-judicial eviction due to the expiration of the lease term, if the landlord has a lease agreement or written eviction commitment prepared by a notary public in the form of a draft or approval, if the tenant objects to the eviction order in due time, the enforcement court may be requested to lift the objection. Mediation is not a condition for litigation here. If the landlord does not have these documents, he may file a lawsuit in the civil court of peace, and mediation is mandatory before filing this lawsuit.

In rental disputes, the lessor or the tenant may initiate the mediation process as a condition of litigation. The limitation periods and limitation periods stop when the lessor or the tenant applies to the mediation office.

The mediation process ends in cases where the parties agree, it is determined that further efforts for mediation are unnecessary, one of the parties withdraws, the dispute is determined to be unsuitable for mediation, and one of the parties dies. If the process ends for reasons other than agreement, it is assumed that the parties have not reached an agreement.

When the mediation activity as a condition of litigation in rental disputes ends, the final report must document how the process ended. The final report indicates whether the process ended with an agreement or not. In addition, the final report must be signed by the mediator and the parties or their legal representatives or lawyers.

It should be noted that if the parties agree at the end of the mediation process, the agreement made is not subject to a form. Therefore, the agreement can also be made verbally. However, it is not possible to issue an enforceability note to an agreement made verbally. In cases where no written agreement document is prepared between the lessor and the tenant, the final minutes should be reviewed regarding the issues agreed upon by the parties. In our opinion, if the final minutes contain the signatures of the parties or their lawyers or authorized representatives, since this document is also signed by the mediator, the final minutes should be accepted as the mediation agreement document.[1]

In addition, for the execution of the agreement between the parties, the obligations of the lessor and the tenant must be clearly understood from the content of the agreement. The Court of Cassation is of the opinion that the issues agreed upon and the obligations that the parties must fulfill in the event that the parties reach an agreement at the end of the mediation process must be clearly stated. The Court of Cassation, 9th Civil Chamber, in its decision dated 31.10.2022, numbered Docket No: 2022/11077 and Decision No: 2022/13780, states that it is not sufficient for the parties to state that they have reached an agreement on severance pay, and that it should be understood from the agreement document whether they have agreed on the payment or non-payment of severance pay. The Court of Cassation is of the opinion that otherwise the process should not be accepted as having ended with the agreement.

At this point, another issue that needs to be emphasized is that the parties apply to a mediator after reaching an agreement between themselves in order to obtain a document in the nature of a judgment or to prevent a lawsuit being filed on the agreed issues. One of the essential elements of the mediation agreement document is that the document emerges after the mediation process. The 9th Civil Chamber of the Supreme Court of Appeals, in its decision numbered 31.10.2022, Case No: 2022/11077, Decision No: 2022/13780; stated that if the agreement document is signed by the mediator on a matter agreed upon by the parties, it cannot be said that a mediation process in accordance with the law has taken place. According to the Supreme Court of Appeals, in order to speak of a mediation process in accordance with the law, the entire process must be carried out in accordance with the law. Otherwise, even if an agreement document is issued, the document in question must be canceled.[2]

[1] Çelik, A., & Doğu, H. M. (2024). KİRA UYUŞMAZLIKLARINDA DAVA ŞARTI ARABULUCULUK VE TİCARİ DAVA ŞARTI ARABULUCULUK ÜZERİNDEKİ ETKİLERİ. Selçuk Üniversitesi Hukuk Fakültesi Dergisi, 32(2), 811-860. https://doi.org/10.15337/suhfd.1410937

[2] Çelik, A., & Doğu, H. M. (2024). KİRA UYUŞMAZLIKLARINDA DAVA ŞARTI ARABULUCULUK VE TİCARİ DAVA ŞARTI ARABULUCULUK ÜZERİNDEKİ ETKİLERİ. Selçuk Üniversitesi Hukuk Fakültesi Dergisi, 32(2), 811-860. https://doi.org/10.15337/suhfd.1410937