26 November 2024The Regulation On Lease Contract Concluded Through The E-Government Gateway Has Been İmplemented As Of 04.11.2024. The Ministry of Treasury and Finance’s Risk Analysis Directorate General has prepared the 2023-2025 Action Plan for the Fight Against the Informal Economy (“Action Plan”), which outlines legal, administrative, and technical measures to combat the informal economy. Among these measures, the provision regarding the “Regulation of Lease Contracts through the e Government Portal” is included in Article 36 of the Action Plan. The new regulation allowing lease contracts to be drafted through the e Government system is planned to be implemented in two phases. The first of these phases started to be implemented on 04.11.2024. The Ministry of Treasury and Finance (“Ministry”) has projected that the second phase, which has not yet been implemented, will begin providing services by the end of the year. In the first phase of the implementation, it has been determined that only individuals 18 years of age and older will be able to benefit from this service. The property owner must initially prepare a lease contract through the “Ministry of Treasury and Finance / Lease Contract Procedures” section on the e-Government Portal, ensuring that the contract includes all details such as the tenant’s identification information, rent amount, payment terms, and deposit. After the property owner prepares the lease contract, the tenant will be given a 3-day period to approve it. Once the approval is completed, the e Government system will generate a barcode-enabled document. Article 299 of the Turkish Code of Obligations (No. 6098) (“Code”) defines a lease contract as follows: ” The lease agreement is the contract in which the lessor undertakes to leave the use of something or to benefit from it together with the use to the lessee, and the tenant undertakes to pay the agreed rent in return.” As can be understood from this definition, the Code does not explicitly state that the lessor must be the owner of the property. However, the newly implemented e-Government system stipulates that only the property owner can act as the lessor. Thus, a limitation has been imposed on the freedom of contract. This regulation aims to prevent common legal issues in practice, such as agency without authority, summary possession, adequate pay, and indemnity to the property owner, tenant, and an unauthorized third party signing the lease agreement as the lessor.Additionally, since a suretyship requires a special written form under the law, there are concerns that a valid suretyship may not be possible if the lease contract is conducted through the e-Government Portal, as the written form requirement would not be fulfilled. Furthermore, it should also be noted that the approval of all shareholders is mandatory in the case of joint ownership, and the approval of the majority of the shareholders is mandatory in the case of shared ownership. In the second phase, which has not yet been implemented, it is planned to include real estate consultants and authorized individuals in the functions of preparing lease contracts and submitting them for the parties’ approval. The Ministry has decided that this phase will be implemented by the end of the year. The inclusion of individuals other than lawyers in the “contract preparation” function in the second phase has caused legal discussions. In the letter titled “Works on Lease Contracts to Be Made via the e-Government Portal” dated 04.11.2024, sent by the Turkish Bar Association (“TBB”) to the Ministry of Treasury and Finance, it was stated that “The authority to prepare and submit the lease contract for approval by the property owner and the tenant, as foreseen for the second phase of the planned implementation, should only be granted to lawyers in accordance with the provisions of the Attorney’s Act.” It has been determined that lease contracts made through the e-Government system will have all the legal consequences of the lease contract provisions found in Articles 299 et seq. of the Code. Conclusion Although the regulation allowing lease contracts through the e-Government system is a highly innovative arrangement in terms of transparency and practicality, when evaluating the process in all its legal dimensions, there are various shortcomings as mentioned above. Given that the regulation is quite new, it is expected that the existing gaps will be filled over time.The Regulation On Lease Contract Concluded Through The E-Government Gateway Has Been İmplemented As Of 04.11.2024. The Ministry of Treasury and Finance’s Risk Analysis Directorate General […]
