Lawyer in Turkey: September 2012

Thursday, September 27, 2012

Irish couple

An Irish couple soon falls in love with Alanya. They decide to buy a house and are even ready to invest as soon as they find the right partner for this. After a while they think they have found the right person. He speaks quite good English, appears to be confident, and updates the couple in his 'business affairs' and "political connections' with the local council. In short they trust him, and soon agree to purchase a plot where they can build villas. The contract is drafted and confirmed by email. The Irish couple transfer funds regularly on the basis of this contract. They get positive feedback about the build via email and when they visit Alanya once or twice a year, they get a warm welcome. Another contract is drawn up in English through the businessman's advocate, stating that the land and villas built upon it are owned by the Irish couple. Satisfied with progress, they purchase a further apartment and a plot for future investment. The fact that ownership appears in the name of their Turkish partner is not an issue.

In the meantime, however, the Irish couple's marriage breaks down. The legal costs associated with divorce mean that the husband can not afford to make payments to Turkey for the time being, When he tries to resume things, he is confronted by his business partner asking for more money than was agreed. Sorry, prices have gone up in Turkey and if he fails to transfer the funds, the villas will not be finished. Out of necessity the Irishman takes out a second mortgage on his home in Ireland and transfers the funds. In the meantime he learns that one of the villas has been sold to a Finish couple. That's good news. It means he can pay his ex-wife and probably see a return on his investment. Upon arrival in Alanya, the Irishman sees that the villas are still a long way off completion. When he enquires as to the whereabouts of the funds, his partner informs him that the amount was received in TL instead of Euros. The exchange rate is too low and it makes sense to wait until it goes up. The Irishman will get his cash later.

Whilst the Irishman is well aware of the situation, he wants to remain keep ahead of the game. With considerable difficulty and patience he arranges for the Tapu for the apartment and plot outside Alanya to be transferred into his name. He has to return to Ireland. When he gets there he receives part of the amount in the name of his ex-wife and a small sum in his own name. This is nothing like the sum that he had expected. Returning to Turkey he sees that the sold villa is not only complete, but has been furnished by the new buyers. When he asks his partner for the final balance he comes across many irregularities. There are random deductions without invoices to support them. Finally his 'partner' transfers the incomplete villa into his name. His partner says that he cannot transfer the funds owed because it would bankrupt him.

You've probably already guessed that this story will end in a difficult court case.

It says a lot about Trust' in the Turkish business world, while the legal system in Turkey is rather based on mistrust. Well thought-out plans, in advance of investing in any kind of venture in the beautiful country of Turkey, can save so much grief and expense afterwards. Profitable business in Turkey is very much a reality, providing that agreements and contracts are drawn up properly and incorporate suitable guarantees. To do this, a lawyer can help you.

Thursday, September 20, 2012

The position of the tenant

In this article I would like to bring the right of tenant to your attention. Tenants are no owners of the property, but with the rent contract as a base they have the right of usage and usufruct of the house. Except what about the obligations of the tenant? For example what is the role of the tenant in relation to the Homeowners Association? Till what extension does tenants have voting rights? Can a tenant attend the meeting? Can the tenant be denied access to the swimming pool if he did not pay his service fees? Is a dept collecting procedure against the tenant legal? What to do if a tenant is reckless or unpleasant as a neighbour.

The apartment regulations stipulate that all obligations arising from the regulations apply not only to the property owner (in this case the landlord), but also to the tenant. This means that like the landlord, the tenant is accountable and jointly responsible for satisfying all of the obligations arising from occupying the apartment or villa in a complex. For example, to prevent damage to the appearance of the building, to communal areas and facilities of the complex, to obey the house rules, to follow the decisions of the General Homeowners Meeting, to pay the service fee, to be no nuisance to anyone etc.

At the General Homeowners meeting the tenant has no voting right. Voting rights are strictly reserved for the landlord or property owner. The tenant is an interested party and can therefore attend the meeting, but in theory they are unable to influence its decisions. However the landlord may authorize the tenant to play an active role in the decision making process of the General Homeowners meeting. On the other hand the tenant can be appointed as a manager of the complex, but not as a financial auditor.

Next to the landlord, the tenant is also responsible jointly responsible for paying the specified annual/monthly service fee, insofar that this does not exceed the monthly rent. Even if there is nothing mentioned in the rent contract regarding the service fees, the tenant can be approached with a debt recovery procedure for the payment. The installment payments can not be higher than the monthly rent. The tenant cannot be barred from the complex or from using its facilities simply on the grounds that the contribution has not been paid. In these cases the management has to right and even the obligation to start a debt collecting procedure against the not paying owner and/or tenant.

The tenant is required to behave as any good neighbor would do and has to abide by the general house rules laid down by the Homeowners Association. An owner who is subject of damage due to the acts or omissions of a tenant can refer the matter to the local cantonal court. One some cases it is even possible to claim damages from the landlord. For example, an apartment is rented furnished. The tables and chairs on the balcony are blown away in a high wind and falls onto a car nearby. In this case the landlord, as well as the tenant, would be liable for the damage caused to the car. My advice: Make sure as a landlord to get a complete insurance when you rent a furnished apartment.

Friday, September 14, 2012

Industrial Accidents in Turkey

Turkey is listed as number 3 in the list of the countries with the most common industrial accidents. In 2010 the International Labour Organization (ILO) determined 62.903 industrial accidents, 1000 with a deadly end. Due to number of accidents the Ministry of Labour and Social Affairs changed the law regarding the health and security of the employees. The new law has higher penalties and measurements against employers in case of industrial accidents and the government will inspect more frequently.

For an employee it is important to work in a secure environment. In case of an industrial accident, the employer needs to inform the local public prosecutor or the gendarme about this matter. When the employer does not fulfill this obligation, the employee is also authorized to inform these authorities. The situation must then be presented to the Social Security Organization (SGK) by sending a petition. The inspectors of the SGK will inspect the workplace and will judge if the accident was indeed an industrial accident or not. It is obligatory that the related employee is also at the inspection, if the health situation is permitting. If the related employee is not able to attend the inspection, colleagues / witnesses must attend for a correct result and progress of the inspection.

The employee has the right to a recovery/rest period that the Social Insurance Organization (SGK) will give. Within this period the employee can not be fired. In case the recovery/rest period lasts more then 6 weeks, the employee can only be fired by giving him a compensation or damage restitution. The employee has the right to claim material and immaterial damage restitution from the accident damage causer. It is therefore advisable to consult a specialized lawyer (industrial accident and damage claim).

Thursday, September 6, 2012

Camera footage

Sometimes we let ourselves be dragged into a case as a lawyer, which turns out to be very different than we had originally thought it would be. You know the saying: there are two sides to every story.

Recently the following happened: a middle-aged couple approached us with the following problem. They felt they had been “cheated and lied to” by a close Turkish friend who they had welcomed in their home for many years and who was a helping hand to them and other foreigners in their apartment complex. “It is not so much about the money, said the man in a stressed and shaken manner, “but because I have considered this man as my friend for years and he has endangered my life for only a few hundred Euros.”

Against better judgment the friend lets the man eat sweets. The man becomes unwell and this friend brings him home and puts him in to bed. According to the woman, at this time the friend and the man are alone for a couple of minutes. The condition of the man then gets worse, so much that he had to be taken to the hospital. After a few ours he is released, but when his wife wants to pay the bill she notices that the bank card of her husband is missing.  The husband and wife suspect their friend of stealing the bank card in the short time that he was alone in the bedroom with the husband. The next morning the couple discovers that there is a small cash withdrawal at two separate locations. They confront their friend but with no result and therefore the couple decides to get legal advice.

The husband and wife would like to have the camera footage of the bank in order to catch the man who did it. The bank however, informs the couple that such camera footage will not be released just like that. Even a request of a lawyer to release the images was not honored, only the public prosecutor can do such a request. This means that couple would need to file a criminal offence claim, something that they would have like to avoid. Eventually they go ahead and file a claim anyhow and the claim is treated seriously. However it turns out that the bank only stores the footage for 3 months! And though the claim had been filed before the three months passes, the request from the prosecutor had not reached the bank on time.

But there is a slight twist to the story. The suspected friend informs that for a couple of years he had an affair with the wife. By coincidence he had found out that she also was having an affair with someone else. As by his saying, the friend gets remorse and ends the relationship with the wife. He says that this makes the wife enraged to the extent that she puts the whole stolen bank card in scene to get revenge on the friend. Eventually the public prosecutor has dropped the case due to a lack of evidence.