Regulation Amending the Regulation on Shopping Malls

With the Regulation Amending the Regulation on Shopping Malls (“Amendment”), which was published in the Official Gazette No. 31927 dated 18 August 2022 and entered into force as of its publication date, regulations have been introduced regarding the determination of the scope of common revenues and common expenses in shopping malls.

Within the scope of the Amendment, it is aimed to resolve disputes arising from various expenses of shopping malls within the framework of the relationship between tenants and landlords and to fill the gaps existing in the Law No. 6585 on the Regulation of Retail Trade.

In this information note, we present our explanations regarding the amendments introduced for your consideration.

Has a New Regulation Been Introduced Regarding the Common Revenues of Shopping Malls?

Yes.

With the amendment, the following revenues have been defined as common revenues:

• Temporary rental revenues obtained from common areas,

• Advertising revenues,

• Marketing revenues,

• Cultural and artistic activity revenues,

• Base station revenues,

• ATM revenues,

• Other revenues obtained from common areas,

• All kinds of revenues obtained from advances collected within the scope of paragraph 3 of Article 11.

Is There Any Regulation Regarding Common Expenses?

With the amendment made to the Regulation, the definition of common expenses has been introduced.

Accordingly, expenses related to common areas, such as:

• Electricity,

• Water,

• Natural gas,

• Maintenance and repair expenses that are not considered renovation expenses,

• Security,

• Cleaning,

• Health expenses,

which are not related to the ownership of the shopping mall itself, as well as management expenses, are considered common expenses.

How Will Common Expense Participation Shares Be Calculated?

With the amendment introducing the definition of expenses related to common areas regulated under Article 6 of the Regulation;

expenses related to common areas such as electricity, water, natural gas, maintenance and repair works that are not renovation works, as well as expenses related to the duties of salaried management personnel actually working in the shopping mall, are considered common expenses.

It has been accepted that common expense participation fees may only be collected from retail businesses in the shopping mall for these expenses and in proportion to:

“the ratio of the sales areas of retail businesses to the total sales area of the shopping mall.”

What Are the Management Expenses Considered Within Common Expenses?

It has been regulated that expenses related to the duties of salaried management personnel actually working in the shopping mall shall be considered management expenses.

How Has the Distribution of Common Expenses in Shopping Malls Been Regulated by the New Amendment?

Common expenses shall be distributed according to the ratio of the sales areas of retail businesses located in the shopping mall to the total sales area of the shopping mall.

Which Expenses Are Excluded from the Definition of Common Expenses?

Expenses that do not qualify as common expenses, such as:

• Advertising expenses,

• Marketing expenses,

• Consultancy expenses,

as well as expenses that are not documented, cannot be requested from retail businesses under the name of common expenses.

Can It Be Agreed by Contract That Advertising, Marketing and Consultancy Expenses Are Common Expenses?

Advertising, marketing and consultancy expenses, which are not considered common expenses of the shopping mall and are accepted as expenses belonging to the shopping mall owner or management, can no longer be collected from businesses operating within the shopping mall.

However, if the parties have agreed in the contract that such expenses shall be collected under the name of common expenses, this agreement shall remain valid throughout the term of the contract.

Nevertheless, in cases where the contract is renewed or the parties extend the term of the contract, participation fees for such expenses cannot be collected, and provisions stating that advertising, marketing and consultancy expenses shall be covered by retail businesses shall be deemed invalid.