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The Relevance of Rental Disputes to the Rights in Rem over
Immovable
Provisions of the CPC and IAA regulate that “the disputes arising
out of rights in rem over immovable” are non-arbitrable. Considering
the said phrase, certain authors in the doctrine opine that the disputes
arising out of rental agreements do not arise from the rights in rem, and
therefore, the rental agreement disputes may be resolved through arbi-
tration
2
.
It may be stated as a fact that rental agreement disputes are not
related to the rights in rem over immovable. However, it should be con-
sidered that, even though rental agreement disputes are not related to
the rights in rem over immovable, they may still be classified as dis-
putes which are not subject to the will of the parties. Moreover, the
Turkish Court of Cassation opines that the actions pertaining to fixa-
tion of rental or eviction of the immovable are non-arbitrable. This
issue shall be further analyzed below.
Actions Pertaining to Fixation of Rental or Eviction of the
Immovable
It is supported that certain disputes arising out of rental agreements
are not arbitrable, since the matter concerns the public order and the
will of the parties on the relevant matter are limited by the legislator.
The Turkish Court of Cassation opines that the disputes with
regard to fixation of rental arising out of the Law on the Rental of
Immovable numbered 6570 (“Law No. 6570”) are non-arbitrable:
“In the event that the parties may freely conclude agreements
in order to resolve the dispute and if the said agreement is
valid without a court decision, it is possible to conclude an
arbitration agreement (or arbitration clause) on that matter.
… Pursuant to the established precedents of the Court of
Cassation, disputes with regard to fixation of rental are non-
arbitrable. As the issue of fixation of rental is related to public
ARBITRATION LAW
211
2
AKINCI
, p. 203;
HUYSAL, Burak
, Milletlerarası Ticari Tahkimde Tahkime Elverişlilik,
İstanbul 2010, p. 135-136 (“HUYSAL”).