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UTU Hukuk ve Danışmanlık5 min readUpdate:
Faizsiz konut edindirme one of the most debated issues for those wishing to withdraw from such an agreement is the refund of the organisation fee paid. In this article, we examine how the system works, the concept of unfair terms in consumer legislation and the nature of contractual clauses stating that the organisation fee will not be refunded.
Currency note
This article was prepared on the basis of the legislation and practice in force on the date of publication. The specific statutory provisions and supervisory rules governing companies engaged in interest-free home financing and the contracts concluded with them may have changed since then. You are advised to consult a lawyer for the current position.
It can be observed that companies, which are preferred by many citizens today and operate under various names, set up organisations promising home ownership without interest and without a guarantor, collect amounts in regular monthly instalments from the people who join these organisations, and enable them to acquire homes as a result of a lottery draw. At the same time, the citizens joining the organisation are asked for how many months they can pay the instalments, are grouped according to a term suitable for them, and, in order to join the organisation, “organisation fee” are asked to pay fees that may be described as a commission under the name of
It should first be noted that, while the system works well in some organisations, in others the system has not been properly set up and citizens suffer various grievances regarding the acquisition of a home even though they pay their instalment debts regularly. Citizens who wish to leave the organisations for various reasons experience situations where the instalments they paid during their membership are refunded very late and the organisation fees are not refunded at all because the agreement contains a clause stating that they will not be refunded.
In Turkish law “principle of freedom of contract” is accepted; however, it should not be forgotten that contractual clauses drafted in breach of mandatory provisions may be invalid. The persons wishing to acquire a home who are parties to such “home acquisition contract”are in the position of consumers. The other party is mostly companies acting for commercial purposes. For this reason, where a dispute arises between the parties, the provisions of Consumer Protection Law No. 6502 will apply. Article 5 of the Law provides: “unfair terms”. Furthermore, Article 5 of the Regulation on Unfair Terms defines an unfair term as follows:
” Unfair term
ARTICLE 5 – (1) For a term in a contract concluded with a consumer to be regarded as an unfair term, the following elements must be present together:
a) it has been included in the contract without being negotiated with the consumer,
b) it causes an imbalance in the parties’ rights and obligations arising from the contract to the detriment of the consumer, contrary to the rule of good faith. “
Regulation on Unfair Terms, Art. 5
Unfair term contractual terms included in the contract without negotiation with the consumer which, contrary to the principle of good faith, cause an imbalance to the detriment of the consumer in the parties’ rights and obligations arising from the contract.
Birinci unsur
Included in the contract without negotiation with the consumer
Second element
Causes an imbalance to the detriment of the consumer, contrary to the principle of good faith
As expressly stated in the law, considering that in such home acquisition systems the agreements are mostly drawn up in pre-printed form, that is, as standard form contracts, it is clear that the content of the agreement is not discussed or negotiated with the consumers who are parties to it. For this reason, in our opinion, clauses unilaterally added to the agreement by the organisation companies stating that the organisation fee will not be refunded upon termination of the agreement constitute unfair terms. Therefore, as stated further on in the Regulation’s provisions, clauses constituting unfair terms are null and void.
” Effect of unfair terms on the contract
ARTICLE 7 – (1) Unfair terms in contracts concluded with consumers are null and void. However, the provisions of the contract other than the unfair terms remain valid. In this case, the party that drew up the contract cannot claim that it would not have concluded the contract with the other provisions had it not been for the terms deemed null and void.”
Regulation on Unfair Terms, Art. 7
Under both the Consumer Protection Law and the Regulation on Unfair Terms, as well as judicial decisions, clauses added to the agreement without being negotiated with the consumer constitute unfair terms and are null and void. In this respect, since fees charged under the name of organisation fee are a contractual term included in the agreement without being negotiated with the consumer and causing an imbalance in the parties’ rights and obligations arising from the agreement to the detriment of the consumer, contrary to the rule of good faith, they constitute an unfair term under Consumer Protection Law No. 6502 and will be null and void. For the reasons explained, the fee in question must be refunded to the consumer.
Related legislation: Law No. 6502 on Consumer Protection (mevzuat.gov.tr)
According to the article, persons wishing to acquire housing who are parties to a housing acquisition contract are consumers; the other party is usually a company acting for commercial purposes. Therefore, the provisions of Law No. 6502 apply to disputes.
Under Article 5 of the Regulation as cited in the article, for a term to be considered unfair, it must both have been included in the contract without negotiation with the consumer and cause an imbalance to the consumer's detriment contrary to the principle of good faith.
Unfair terms in contracts concluded with consumers are absolutely null and void; the other provisions of the contract remain valid. The party that drafted the contract cannot argue that it would not have concluded the contract without these terms.
The article argues that, since these contracts are mostly standard-form and not negotiated with the consumer, clauses providing that the organisation fee will not be refunded constitute unfair terms and the fee must be repaid to the consumer.
The article states that those wishing to leave face situations such as very late refunds of the instalments they have paid and non-payment of the organisation fee on the ground that the contract contains a clause excluding its refund.
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