Introduction
The lease agreement regulated in the Turkish Code of Obligations is established through the mutual consent of the parties. Both the tenant and the landlord incur obligations upon the formation of this contract. The tenant's primary obligation is to pay the agreed-upon rent, while the landlord's main obligation is to deliver the leased property in accordance with the terms of the contract. Additionally, the landlord is responsible for maintaining the leased property during the contract's duration.
Compliant Use of Utility Subscriptions
In the Turkish legal system, the principle of contractual freedom prevails. Therefore, it can be agreed upon by the parties whether the bills are included in the rent. However, in practice, the payment of bills is typically excluded from the contract. According to Article 341 of the Turkish Code of Obligations, in the absence of any contractual provision or local custom to the contrary, the tenant is responsible for utility expenses such as heating, lighting, and water. Thus, if the tenant uses someone else's subscription, it constitutes unauthorized usage.
Regarding electricity bills, the Electricity Market Consumer Services Regulation states that "The consumption of electricity by paying the previous consumer's bills without having a retail sales contract or bilateral agreement in their own name... shall be deemed unauthorized consumption." Hence, just like a tenant who fails to pay their electricity bill, a tenant who pays someone else's bills also engages in unauthorized electricity consumption.
Similarly, the Natural Gas Market Distribution and Customer Services Regulation stipulates that "If the customer... uses natural gas in the name of a previous customer at the same address... the distribution company shall perform unauthorized natural gas usage transactions." As evident from this provision, the responsibility is not limited to tenants who fail to pay their natural gas bills.
Sanctions for Unauthorized Utility Usage
As per the aforementioned regulations, penalties such as disconnection and fines are imposed on tenants engaged in unauthorized usage. For instance, under Article 48 of the Electricity Market Consumer Services Regulation, the consumer engaging in unauthorized usage is given a 15-day period to transfer the subscription to their name, and a disconnection notice is left. If the consumer fails to transfer the subscription within this period, they will be charged five times the disconnection-reconnection fee, and their electricity supply will be cut off. Consequently, it is in the best interest of tenants to have the utilities billed under their name. While the assumption is that sanctions are only applicable if the tenant fails to pay their bills, this is a misconception, as even tenants who regularly pay their bills are still liable for unauthorized usage.
Moreover, the responsibility of the subscriber continues, even if the facilities in the leased property are not used. Hence, if the previous tenant or the landlord is the subscriber, and the non-subscribing tenant fails to pay the bills, the subscriber is responsible for the unpaid bills. This responsibility is stated in Article 31 of the Electricity Market Consumer Services Regulation, which reads: "The consumer cannot assign, transfer, or encumber their rights or obligations under the retail sales contract without obtaining prior written consent from the responsible supply company." Therefore, the right to use or terminate the subscription, as stipulated in the contract, belongs to the subscriber who signed the agreement, and it cannot be transferred without written consent.
Liability for Unpaid Bills
The question of who is responsible for unpaid bills when the tenant fails to pay or leaves without paying the bills has long been a matter of dispute before the judiciary. In cases where the subscription is in the name of the tenant who fails to pay, it is clear that the landlord is not responsible for the unpaid bills. This is because the landlord is not a party to the subscription agreement, and contracts create obligations only for the parties.
Holding someone liable for another person's debt without being a subscriber or guarantor is unlawful. The mandatory service providers are acting contrary to this by demanding the payment of subscriber debts from persons who are not responsible, and refusing to provide services until the debt is paid, which creates both criminal and legal liabilities.
There may be cases where the landlord or the previous tenant vacates the property without terminating the subscription agreement. In such situations, these individuals will still be listed as the subscriber on the bill, and they will be jointly responsible for the unpaid bills with the tenant who fails to pay. Several court decisions state that the tenant who fails to pay the electricity bill and the subscriber are jointly responsible. For instance, in a precedent it is stated that "... unless the subscription is canceled, the subscriber and the actual user are jointly and severally liable for the cost of water, electricity, and natural gas consumed through that subscription." Thus, if the subscriber is the landlord, and the actual user is the tenant who does not pay the bills, the subscriber will be liable for the debt. Likewise, in another decision, it was reiterated that the tenant who fails to pay the water bill and the subscriber are jointly responsible, and the subscriber cannot escape liability even if they vacate the property.
In summary, if the subscriber fails to terminate the contract, they are in violation of the agreement and become jointly responsible with the tenant who does not pay the bills. Given the joint liability, the subscriber may be held responsible for some or all of the bills. The choice is left to the creditors, which are the supply companies.
What Should Be Done If the Tenant Fails to Pay the Bills?
If the tenant fails to pay the bills and is not the subscriber, the landlord can first contact the tenant and request them to transfer the subscriptions to their name. If the amicable solution does not work, the supply companies can be informed about the situation. The supply companies, upon receiving the notice, will give the tenant a grace period and carry out the necessary procedures. If the tenant leaves without paying the bills or if enforcement proceedings are initiated against the subscriber, the subscriber must pay the bill. For instance, if there is an outstanding natural gas bill, the landlord can pay the debt and start the debt collection process against the tenant who fails to pay. If the tenant objects to the enforcement, the landlord can file a lawsuit to annul the objection. In this case, it can be ensured that enforcement proceedings continue by proving that the actual user is the tenant.
On the other hand, if the tenant consistently delays the payment of bills, causing harm to neighbors or the property owner's rights, the most appropriate course of action is to evict the tenant. In cases where the tenant is evicted, or when the rent is significantly below the market value, the landlord should consult a real estate lawyer in Turkey to initiate an eviction process or file a rent adjustment or rent determination lawsuit for prompt resolution of the issues.
Originally published 14 April 2022
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
