The transition to executing lease agreements via the e-Devlet platform has been a subject of discussion and its preparatory works were recently announced as completed, and finally it was officially implemented on November 4, 2024. e-Devlet is a platform where services provided by the Turkish government are delivered to citizens in the easiest and most efficient way, in a high-quality, fast, uninterrupted, and secure manner through electronic means. This new regulatory framework aims to address a variety of practical issues previously encountered in relation to lease agreements, moreover it offers enhanced transactional efficiency and security for the contracting parties. Currently, only real persons who are over the age of 18 and are property owners may utilize the e-Devlet platform to execute lease agreements. Currently, rental agreements can only be executed via e-Devlet by individuals, meaning legal entities such as associations, foundations, and companies are not yet able to utilize this feature. The implementation of this system is not yet compulsory. Nonetheless, in the future mandatory implementation of this platform may be considered as a tool to combat the informal economy and to prevent the challenges posed by the unreported or underreported declaration of rental income in oral lease agreements, which leads to significant tax losses for the Ministry of Finance and Treasury.
Pursuant to the provisions of the Turkish Code of Obligations, lease agreements are not subject to any formal requirements owing to the principle of freedom of form. Such agreements may be concluded either in written or oral form. Written documentation in lease agreements serves as evidence rather than as a formal requirement. However, the absence of a formal requirement has occasionally resulted in practical challenges. To illustrate, lease agreements that are not documented in writing often lead to ambiguities concerning essential terms such as the rental amount, termination conditions, and duration of the lease. Such ambiguities have been the source of disputes that must be resolved through subjective and potentially unreliable means, such as witness testimony. Unfortunately, these deficiencies have frequently resulted in the loss of rights, prolonged judicial processes, and difficulties in establishing the existence or terms of the lease relationship. Contrary to the mentioned deficiencies, the transition to executing lease agreements via the e-Devlet platform is expected to mitigate these issues significantly, while ensuring the security of related data under the state’s protection. To be questioned, if the use of the e-Devlet platform becomes mandatory for the execution of lease agreements, it would effectively introduce a formal requirement, contrary to the principle of freedom of form enshrined in the Turkish Code of Obligations. It is a matter of legal debate whether such a change would be deemed acceptable and whether corresponding amendments to the Turkish Code of Obligations will be enacted. Contrary to what has been mentioned in the previous sentence, it is anticipated that mandatory implementation may be necessary in the future as part of broader efforts to combat the informal economy.
While the lessor and property owner are commonly the same individual, there are instances where they differ. It is also legally permissible for the property owner to lease the property through a legal representative or real estate consultant. However, as of now, the e-Devlet platform is accessible exclusively to property owners who are natural persons. Consequently, in cases where the lessor is not the property owner, it is currently not possible to conclude lease agreements via the e-Devlet platform, thereby narrowing the scope of the lessor’s legal capacity to act. It is promising that this limitation is expected to be addressed in a subsequent phase by the end of the year, which will extend access to legal representatives and authorized consultants.
It is inevitable that the execution of lease agreements via the e-Devlet platform also raises certain concerns regarding data security. In the event of a security breach or cyberattack, there exists a risk that personal data or, in the case of commercial lessors, trade secrets may fall into the possession of malicious actors, potentially resulting in identity theft, fraud, or other forms of data leakage. In addition to the risks arising from data security, another significant issue pertains to the validity of surety agreements. For instance, surety agreements, wherein a third party assumes liability for the tenant’s debts in the event of non-payment, are required by law to be executed in writing. For such agreements to be valid, the surety must specify the amount and date of liability in their own handwriting. It is unclear how such handwritten requirements will be satisfied if the surety agreement is incorporated into a lease agreement executed via the e-Devlet platform and signed solely in an electronic format. In the view of all these contradictions, the transition to executing lease agreements via the e-Devlet platform raises questions regarding the compatibility of such agreements with the principles and provisions of the Turkish Code of Obligations.
