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Economic fluctuations experienced in our country in recent years have directly affected the housing market, particularly in metropolitan cities, and have led to unforeseeable increases in rent. With a view to limiting the social effects of these increases, certain temporary provisions were added to the Turkish Code of Obligations (TCO) in 2022, and the rate of increase that may be applied in residential lease agreements was capped at 25%. These provisions amount to an exceptional intervention in lease law, and the effect of this intervention on the parties' performances, and in particular the problems it has caused in practice, are still being brought before the courts. In this article, the legal bases and scope of the temporary rent increase cap will first be explained; then the legal validity of rent payments made by tenants above 25% despite this cap will be examined. In particular, the question whether an overpayment of rent made by the tenant without a reservation of rights can later be recovered will be addressed in detail in the light of a recent decision of the 23rd Civil Chamber of the İzmir Regional Court of Appeal.
Economic fluctuations experienced in our country in recent years have directly affected the housing market, particularly in metropolitan cities, and have led to unforeseeable increases in rent. With a view to limiting the social effects of these increases, certain temporary provisions were added to the Turkish Code of Obligations (TCO) in 2022, and the rate of increase that may be applied in residential lease agreements was capped at 25%. These provisions amount to an exceptional intervention in lease law, and the effect of this intervention on the parties' performances, and in particular the problems it has caused in practice, are still being brought before the courts.
In this article, the legal bases and scope of the temporary rent increase cap will first be explained; then the legal validity of rent payments made by tenants above 25% despite this cap will be examined. In particular, the question whether an overpayment of rent made by the tenant without an express reservation of rights (ihtirazi kayıt) can later be recovered will be addressed in detail in the light of a recent decision of the 23rd Civil Chamber of the İzmir Regional Court of Appeal.
1. The Legal Framework of the Temporary 25% Rent Increase Cap
With the temporary provisions added to Law No. 6098, the Turkish Code of Obligations, in 2022, the rate of rent increase that may be applied to residential leases was capped at 25% for a specified period. This limitation was introduced in view of high inflation rates and for the protection of tenants, and was accepted as a mandatory provision constituting an intervention in lease agreements.
Pursuant to Temporary Article 1, first added to the TCO by Article 4 of Law No. 7409, the rate of rent increase in residential lease agreements renewed between 11.06.2022 and 01.07.2023 was capped so as not to exceed 25% of the rent for the preceding rental year. It was provided that, even where the parties had agreed on higher rates of increase, the portion exceeding this rate is invalid.
Subsequently, by the amendment made by Article 23 of Law No. 7456, this limitation continued to apply between 01.07.2023 and 01.07.2024. Both temporary articles expressly state that, even if a higher rate of increase has been agreed between the landlord and the tenant, the portion exceeding that rate is legally invalid. The cap is thus mandatory in nature and has been framed in such a way that it cannot be set aside by the will of the parties.
Under these provisions, it is clear that even where the rate of increase agreed by the parties for residential rents exceeds 25%, the excess portion has no legal validity and therefore produces no effect and does not bind the parties.
2. Legal Validity of Payments Exceeding the Rent Increase Cap
Despite the temporary 25% rent increase cap, in practice lease relationships have in fact been established between tenants and landlords at higher rents; the cap has been exceeded sometimes by express declaration of intent and sometimes on the basis of implied consent. Where the tenant has overpaid rent in this way and, after payment, claims the excess back, the fundamental legal question to be resolved is this: even though the temporary rent increase cap is mandatory, if the tenant made the overpayment without a reservation of rights, can he or she later recover that amount?
The 25% cap introduced by Temporary Article 1 and Temporary Article 2 consists of provisions that are expressly mandatory. Agreements or actual payments made in breach of these norms are regarded as invalid in respect of the excess portion. In this regard, in a case where freedom of contract is restricted and a mandatory rule of law applies, the excess rent paid may be regarded as a performance rendered pursuant to an invalid transaction. According to this view, since an invalid debt has been performed, the tenant may claim the payment back on the basis of the provisions on unjust enrichment.
At this point, however, Article 78 of the Turkish Code of Obligations draws a critical limit and guides practice. According to the provision:
“A person who voluntarily performs an obligation that he or she did not owe may reclaim it only if he or she proves that he or she performed it in the belief that he or she was a debtor.”
Proceeding from this provision, we can say that where the tenant pays the excess rent knowing that it is not owed, that is, being aware of the 25% cap and without asserting a reservation of rights, this performance is deemed a conscious one and the tenant's right of restitution falls away. For the payment in question is then a non-obligatory performance made knowingly and voluntarily within the meaning of Article 78 of the TCO. In this case, the tenant has acted knowing the legal consequences. If the payment was made knowing that it was not owed and yet restitution is later requested, this situation must be assessed separately under Article 2 of the Turkish Civil Code (TCC). Under Article 2 of the TCC, everyone is bound to comply with the rule of good faith when exercising their rights. A tenant's paying high rents for months without any reservation and then demanding restitution of those amounts is in most cases characterised as an abuse of right.
The inclusion of a reservation of rights in payments has in practice become an almost indispensable element for a restitution claim to be accepted. A reservation of rights shows that the tenant's consent at the time of payment was limited, that the payment was conditional and that he or she reserved his or her rights. This reservation may be reflected in bank receipts, notarial notices, e-mail correspondence or written statements. Where a reservation of rights expressly stated in this way exists, the obstacle of Article 78 of the TCO can be overcome and the unjust enrichment claim can be successfully asserted.
However, the point to be borne in mind is that the reservation must be repeated for each payment. Otherwise, whether a reservation made once covers subsequent payments becomes disputed.
3. Assessment in the Light of a Recent Court Decision
However mandatory the rent increase cap may be in theory, in practice actual rental relationships in breach of this cap are frequently seen. Even where no increase above 25% has been expressly agreed between the parties, the tenant's regular and long-term payment of higher rents is interpreted as meaning that a new rent level has been tacitly accepted despite the cap. This leads to outcomes against the tenant, particularly in cases where the courts assess the matter in terms of the “absence of a reservation of rights”.
Cases in which, between the parties to a lease agreement, payments exceeding the temporary 25% rent increase cap were made over a long period despite the cap, and the tenant raised no objection or reservation of rights in respect of those payments, are being decided by the judicial authorities against the tenant. One of the recent decisions that gives concrete form to this trend is the decision of the 23rd Civil Chamber of the İzmir Regional Court of Appeal dated 27.06.2025, File No. 2024/3426, Decision No. 2025/1209.
In the case underlying the decision, in the 2022-2023 and 2023-2024 rental periods the tenant paid the landlord monthly the rent determined according to the rate of increase agreed in the contract. Although these payments exceeded the 25% cap under the temporary provisions added to the TCO, they were made by the tenant regularly over a long period and without any reservation of rights. In the action he or she later brought, the tenant argued that the amounts exceeding the 25% cap were legally invalid and that the overpayments should therefore be refunded.
However, the Regional Court of Appeal found the first-instance court's dismissal decision correct, rejected the appeal (istinaf) and, with a ruling stating “…However, the excess rent amounts paid by the tenant with his or her consent within the scope of the regulation of the new rent in the contract are not subject to this limitation, and since there is no allegation or proof by the tenant of a defect of consent, it is contrary to the rule of good faith contained in Article 2 of the TCC…”, held that refund of the overpaid rent was not possible. The court expressly held that the plaintiff tenant paid the disputed rents with his or her own consent and within the scope of the regulation of the new rent in the contract, that the excess amount paid could therefore no longer be assessed within the scope of the mandatory cap, that in order for the amount exceeding the rent increase cap to be refundable the tenant must prove that his or her consent was vitiated, and, with express reference to Article 2 of the Turkish Civil Code, that in this state of affairs the plaintiff's claim is contrary to the rule of good faith.
The decision sets out a highly significant precedent on the interpretation of the temporary articles added to the TCO. The court treats these articles not as provisions producing absolute invalidity but as provisions that find application relatively, in the tenant's favour, and accepts that where the tenant remains silent, does not enter a reservation of rights or pays with express consent, he or she is deemed to have waived this protection.
This approach means that a tenant who has overpaid rent can request a refund only if he or she proves that the payments were made with a reservation of rights or that his or her intention to pay was vitiated: otherwise, the court treats the 25% cap as a protective provision that is not applied.
4. Assessment and Conclusion
Although the temporary 25% rent increase cap was added to the Turkish Code of Obligations as a mandatory intervention and aimed at protecting tenants, in practice the sphere of influence of this cap has turned into an area of flexibility shaped largely by the tenant's manner of conduct. The decision of the 23rd Civil Chamber of the İzmir Regional Court of Appeal dated 27.06.2025, File No. 2024/3426, Decision No. 2025/1209, is one of the clearest examples of this trend.
The 25% rent increase cap in the temporary articles added to the Turkish Code of Obligations is expressly mandatory in nature, and the purpose of this cap, beyond freedom of contract, was to protect, at that time, the public interest and the economic integrity of tenants. This provision is not merely a right that “any tenant who wishes may benefit from”; it is a limitation whose application is directly compulsory and which cannot produce effect by contrary will of the parties. A tenant cannot be expected to remain silent or not to mount a legal response in a high-inflation environment, under rising living costs and while facing the threat of eviction. On the contrary, the legislature, foreseeing this social imbalance, itself constructed the protective norm. This being so, the courts' refusal to apply an express mandatory provision by treating the tenant's silence as tacit acceptance is, in my opinion, clearly contrary to the principle of legal certainty, the principle of the social state and the will of the legislature. Where a mandatory provision exists, the rule should be the refund of payments made notwithstanding it, not their validity; for the law expressly states that “the portion exceeding it is invalid”. The opposite would mean the absolutisation of freedom of will, not of law.
Mehmet Emre Darıcı, Attorney at Law
