Landlord's Right of Retention

Landlord's Right of Lien | Lawyer in Izmir

The right of lien is the right that allows a creditor to withhold movable property and securities belonging to a debtor over whom they have actual control and which must be returned, as security for the debt until it is paid, and to convert them into cash. In lease agreements, there are certain legal provisions to protect the landlord (in terms of collecting rent). An example of this is the right of lien granted to the lessor in the Turkish Code of Obligations.

Since the tenant already has personal responsibility for rent arrears, the subject of the right of lien is the movable property belonging to the tenant. With this right of lien, the landlord can seize these properties. This demonstrates that the right of lien is a real right, specifically a right of pledge for security purposes, and that the legislator has granted a special right to the landlord.

Landlord's right of lien Türk BorçTurkish Code of Obligations (TBK) Madde 336‘'da düIt has been organized. Accordingly:  

1. In real estate leases, the lessor has a lien on the movable property located in the leased premises and used for furnishing or using the leased property, as security for one year's accrued rent and six months' current rent.
2. The landlord's right of lien extends to movable property of the same nature brought into the leased property by the subtenant, provided that this right does not exceed the subtenant's rent debt to the principal tenant.
3. The right of lien cannot be exercised over the tenant's exempt property.

According to Article 336/1 of the Turkish Code of Obligations, receivables secured by a right of lien include movable property used for furnishing or using the leased premises, which the lessor may use as security for rent receivables from the past year and the next six months. The lessor may exercise this right at any time to secure rent receivables that have arisen or will arise during the period described above.

In addition to the Law of Obligations, Articles 270 and 271 of the Enforcement and Bankruptcy Law (EBL) also contain provisions regarding the lessor's right of lien. This right of lien can be exercised over movable property subject to attachment, brought to the leased property as security for rent. Based on this right of lien, the lessor can seize the movable property in the leased property until the rent is paid and demand that the debt be satisfied by converting this property into cash. This legal provision is applicable to all real estate leases.

Goods Subject to the Right of Retention

The landlord has the right of lien., TBK According to the explicit provision of Article 336/1, the right of lien applies to movable property located in the leased property and used for furnishing or using the leased property. In this sense, movable property such as armchairs and tables in a leased residence, and machinery used for business activities in a leased workplace, constitute the subject matter of the right of lien, as is generally accepted in doctrine and practice. While it is possible to make a distinction between residence and workplace, fundamentally, the subject matter of the right of lien will be the items used in the residence or workplace. To give an example:

In terms of housing (residence)

TBK According to Article 336 of the Turkish Code of Obligations, furnishing and utility items such as carpets, armchairs, tables, bookcases, display cabinets, shelves, coffee tables, chairs, refrigerators, washing machines and dishwashers, as well as electronic equipment such as televisions, music systems, and satellite receivers, fall within the scope of the right of lien under Article 336, paragraph 3, of the Turkish Code of Obligations, provided that they are subject to seizure.

However, unlike Article 267/1 of the old Code of Obligations, Article 336/1 of the new Code of Obligations does not include items kept in a dwelling for the purpose of decorating the property, i.e., making the rented property look more beautiful or pleasant, within the scope of the right of lien. For example, wall hangings, silver candlesticks, valuable ornaments, and picture frames are no longer considered "necessary" items for furnishing and using the house, but rather items kept solely to enhance its appearance; therefore, they can no longer be considered within the scope of the right of lien.

From a Workplace Perspective

Items such as tables, chairs, shelves, machinery, cash registers, refrigerators, computers, telephones, and printers found in rented premises for the purpose of furnishing and using them in commercial or industrial activities carried out at the workplace are subject to seizure. TBK It falls within the scope of the right of detention under Article 336.

How to Exercise the Right to Imprisonment?

The procedure for the landlord to exercise their right of lien is regulated in Article 338 of the Turkish Code of Obligations. This article states: ’If the tenant wishes to move out or transport movable property located in the leased property to another location, the landlord may, with the decision of a magistrate or enforcement officer, retain movable property to the extent necessary to secure their claim. If the property subject to the retention order is removed secretly or by force, it shall be returned to the leased property with the assistance of law enforcement within ten days of its removal.“

As can be understood from the legal provision, the lessor has an optional right and can request the enforcement of the lien on movable property either from the Magistrate's Court or from the enforcement office through the keeping of a register.

Furthermore, Article 270 of the Enforcement and Bankruptcy Law, which must be considered in the application of the right of lien, states: “The lessor may request the assistance of the enforcement office for the temporary preservation of the right of lien he possesses without first initiating the necessary enforcement proceedings. If there is a risk of delay, the assistance of the police or the district director may also be requested. The enforcement office shall prepare an inventory of the goods subject to the right of lien and grant the lessor a suitable period, not exceeding fifteen days, to initiate proceedings for the liquidation of the pledged assets.”.

 Therefore, when examining how the landlord can exercise their right of lien, both provisions must be considered and the appropriate method of seeking lien must be determined.

According to the proceedings and evidence gathered by the Enforcement Court; the plaintiff requested the establishment of a lien on May 14, 2002, after the enforcement proceedings were initiated, but did not apply to the enforcement office to have an inventory of these assets kept and did not initiate proceedings for the sale of the pledged assets. The court ruled that proceedings related to rent receivables initiated without exercising the lien do not have priority and dismissed the case; the judgment was appealed by the plaintiff company's attorney.

SUPREME COURT OF APPEALS, 19TH CIVIL CHAMBER, CASE NO. 2004/9522, DECISION NO. 2005/3781

”"According to Article 267 of the Code of Obligations, the lessor has a lien on movable property allocated for the furnishing, decoration, and facilitating the use of the leased property, as security for the rent arrears of the past year and the next six months. The lessor may exercise this right at any time to secure the rent arrears that have arisen and will arise during the period described above. Considering that the conditions in Article 269 of the same law are not met in this case, the plaintiff's lien on the goods subject to the distribution of the proceeds should be protected and given priority in the order of priority. The court's dismissal of the case on the grounds that no inventory of the goods was kept and that no condition not stipulated in the law exists is incorrect. Furthermore, in cases of lien and pledge, the claim has priority within the scope of the security and should be paid first even if no enforcement proceedings are initiated. For these reasons, the local court's decision must be overturned."”

Termination of the Right to Retention

The reasons that terminate a pledge based on delivery also lead to the termination of the right of lien. The right of lien terminates when the creditor loses possession. If the creditor has lost possession without their consent, the right of lien remains suspended until the property is recovered through legal action. For the most effective progress of the process and to protect the plaintiff's rights, it is legally beneficial to have these cases handled by a lawyer specializing in this field. To contact us... here You can click.

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