With the Covid-19 pandemic affecting the whole world, curfews were imposed in our country from 17 March to 1 June from time to time and social life was limited within the scope of the measurements to combat the pandemic. Although the restrictions have been easing starting from 1st June, unfortunately, it was not possible to return to the social life before Covid-19 outbreak.

With the Circular by the Ministry of the Interior dated 16 March 2020, sports halls, cafes, restaurants were closed for an indefinite period, yet takeaway services were excluded. With the provisional article 2 of the Law Number 7226 Law on the Amendments of Certain Laws on 26 March 2020, it was regulated that the failure to pay the business rental fees from 1 March 2020 to 30 June 2020 will not constitute an end to the lease agreement and a reason for eviction. Although this judgement brings tenants of the business a relieving; essentially, it does not nullify the tenant's duty to pay rent, but only states that the failure to pay the rent is not a reason for eviction. Upon this, it was discussed in the doctrine that a lawsuit will be filed for the adjustment of rental fees due to force majeure, but especially emphasized that it is not known what conclusions it will bring.

During the period of strict measures, a restaurant owner filed an adjustment of rental fees lawsuit in Bursa Civil Courts of Peace and claim that he rented an 8-year lease with a monthly fee of 23,000.00 TL, yet that his commercial activities came to the point of ending due to the pandemic and his monthly rental fees were unpaid as of the decrease in business volume. It has been requested that the monthly rent of the subject matter obligation shall be adjusted to 11,500.00 TL per month effective from 01/05/2020 and to be valid during the period of the Covid-19 epidemic is effective, yet primarily it has been requested to make a preliminary injunction decision to be paid as 11,500.00 TL per month to be valid from 01/05/2020 and to be valid during the period of the Covid-19 epidemic is effective according to the conditions stipulated in Article 138 of the Turkish Code of Obligations (hardship). With the interlocutory decision dated 10.08.2020, the court decided to dismiss the request for a interim injunction, and the plaintiff’s counsel filed an appeal to this decision.

As a result of the appeal review, with the decision of the Regional Court of Appeal 4th Civil Chamber, dated 29.09.2020, numbered 2020/1103 E. 2020/1008 K. ruled the annulment of the court decision which was rejection by Bursa 9th Civil Court of Peace, and decided to the preliminary injunction for monthly rent should be paid with a discount 50% of the rents that have not yet been paid as of 01.05.2020 and the rents to be committed from the date of this decision.

In the justification of the Regional Court of Appeal, it was stated that the epidemic process was an extraordinary situation, it was clear that it could not be foreseen by the parties, and in line with this context, the epidemic process shall be considered as an extraordinary situation specified in Article 138 of the Turkish Code of Obligations.

The court has stated that it is not possible to interpose in all contracts and that the effects of the epidemic and its measurements on the tenant need to be considered by the court within the scope of concrete events, and considering that this adverse situation is not caused by the lessor, it should be adopted to adjustment the contract to the new conditions so that the burden is distributed on both parties of the contract.

Considering that some businesses were completely closed down during the epidemic and could not generate income in any way, it is clear that the tenant will not be able to pay the current rent and the lessor can make a 30-day warning or 30-day execution follow-up and evict the tenant in default if the decision is not made, the tenant will have to pay the rent in full until the case is concluded, it is understood that the adjustment of the rent will not have any meaning after the default and eviction so that the expected result of the lawsuit related to the adjustment of the rent is '' concerned about the occurrence of a serious damage'' in article 389/1 of the Turkish Civil Procedure Code is available and an injunction can be given.

Besides, it was stated by the court that the above-mentioned regulation, adopted by the provisional article 2 of the Law Number 7226, showed that the legislator acting with the same concern and prevented the end of the lease agreements and eviction for a certain period within the scope of the pandemic and the measurements.

However, it was accepted by the court that since the Covid-19 outbreak is a temporary period, the adjustment should be made to cover only this period and the rent should be restored when the effects of the epidemic completely disappear and the tenant's business situation returns to normal volume as it was before the epidemic.

In consideration of all these principles, it has been adopted that the request for preliminary injunction should be accepted, considering that the process and the measures taken may have certain effects on the business volume of the plaintiff, although the lease operated as a restaurant by the tenant continued his business with the takeaway service method. However, taking into account that for the businesses the process of being affected during pandemic changes on a monthly basis and it is not clear how long these effects will continue, it is accepted that the precautionary measure should be reviewed by the court every 6 months and a decision should be made on whether to abolish or augment or decrease it according to new situations. Although the judgement of the Regional Court of Appeal is final, it is grant leave to appeal legally, which is an extraordinary legal remedy.

Result

The decision has been made definitively by the Regional Court of Appeal and can be set as a precedent in similar cases. However, it should not be forgotten that; preliminary injunction decisions can be made in order to achieve the expected result in the case of adjustment of the rent, taking into account how, to what extent and for how long the sector of the business owner requesting an adjustment in his/her rent is affected. Thus, both the survival of the businesses that suffered heavy financial losses during the epidemic process and the continuation of the employment of their employees will be ensured.