08.02.2024

Authors: Serdarhan Güler, Cüneyt Baş

An office contract is a bilateral contract. One party ("office provider/lessor") undertakes to provide the use of all or part of its office and its contents and provides services such as security, cafeteria, secretariat, customer reception, meeting organizations, mail pick-up, use of offices in different locations etc. to the other party (the "office user/tenant"). The other party is usually obliged to pay money in exchange for the provision of these services[1].

The cost of opening a workspace, rents, staff salaries, insurance, electricity, heating, internet bills, decorating, cleaning, etc. can add up to a significant sum[2]. Entrepreneurs, especially start-ups agree with the owner of the office to pay a certain price in order to benefit from the office atmosphere when needed and to be able to benefit from other services such as secretariat, security, which provide common services to all offices when they are out of the office, and to provide an address to official institutions and organizations.

TYPES OF OFFICE CONTRACT

Although there are many types of office contracts, we can basically count them as private office, shared office and virtual office contracts.

The place offered to the office tenant in a serviced office contract is an area suitable for individual use, usually separated from other office users by a glass, wall or similar structure. In a shared office contract, users are allocated an office space, but this space is designed so that multiple office users can work.

A virtual office is a type of office where the user who does not have a physical office, communicates with the person who has a physical office through the internet network or other communication tools. Although it contains the word "office", there is actually no physical office space offered to the user in the virtual office. The person using a virtual office fulfills the need for providing an address to official institutions and organizations and the needs such as cargo tracking.

ELEMENTS OF OFFICE CONTRACT      

One of the main elements of an office contract is that the office provider undertakes more than one performance, which is a characteristic feature of the contract. In addition to providing the office space, they also perform various tasks such as welcoming guests, answering phone calls, receiving mail, scheduling appointments, and cleaning. Unlike the usual practices, the agreed performances in the office contract, which is not subject to any formal conditions, are offered to the office user as a whole, continuously and for a price.

THE QUESTION OF THE LEGAL NATURE OF THE OFFICE CONTRACT AND WHICH PROVISIONS APPLY TO THE CONTRACT

The contract between the office provider and the office user has some differences from ordinary rental agreements in terms of the obligations undertaken. However, unless there is a provision requiring a contrary interpretation, the main type of performance in private office and shared office contracts, which are types of office contracts, is the provision of a part of a workplace in the nature of an office to the office user.

Pursuant to Article 339 of the Turkish Code of Obligations, "The provisions relating to residential and workplace tenancies shall also apply to the property, the use of which is left to the tenant". Therefore, it can be stated that the consequence of the furniture and other items in the rented workplace is connected to the consequence of the contract regarding the renting of the workplace. At this point, the question of whether office contracts can be evaluated as residential and workplace tenancies gains importance. For this purpose, it is necessary to look at the difference between typical and atypical agreements.

The dominant opinion in the doctrine is that adding a subsidiary performance to the dominant main performance of a contract does not alter the contract type. As a result, the contract remains subject to the rules governing typical contracts as regulated by law[3].

There is an opinion in the doctrine that the provision of certain services to the tenants in addition to the tenancy element in private office and shared office tenancy agreements will not disqualify these agreements from being office tenancy agreements, and that the main purpose of the office user is to obtain a working place, and that the provision of secretarial services, answering the phone, cleaning the office, and receiving mail will be considered as secondary performance[4]. Therefore, it is stated by the proponents of this opinion that the tenancy agreements for private and shared offices fall within the scope of the workplace tenancy within the scope of Article 339 of the TCO. If this opinion is adopted, the provisions regarding the tenancy will be applicable in termination and such legal disputes arising from tenancy agreements.

Another opinion is that when the spirit of the contract is considered, the purpose of the office user in concluding this contract is not to acquire a workplace, but to conclude a contract where he can receive other services such as secretariat and cafeteria together, and that if s/he did not receive a combined performance package in this way, s/he would have to conclude an contract for other services, Therefore, it is stated that the purpose of the office user is not only to rent a workplace, but also to obtain the relevant services from a single person in order to reduce the cost of other performances s/he needs, and that office contracts are in accordance with the atypical contracts in which the office provider is obliged to fulfill more than one performance, each of which is essential, for a single price.[5]

If the opinion that accepts there is a atypical contract is adopted, then in order to determine the rule to be applied in the atypical contract, the judge shall determine the rule to be applied to the case by making use of the views such as exclusion, absorption, combination, application of individual provisions in the law, application by analogy, and creation of law by the judge[6]. Adopting only one of these may not be a solution for every dispute. As a matter of fact, it is possible to see that different opinions are applied in different court decisions[7].

In our opinion, each case and each office contract should be evaluated in its own context, and it should be determined by examining the will of the parties as to which performance(s) are principal and which are secondary. After making this definition, we need to provide a solution to the dispute arising in line with the doctrinal opinions given above.

In virtual office contracts, there is no act of providing an office. Although the content may vary, the office provider undertakes to provide a legal address, to answer telephone calls, to recieve cargo, and sometimes to provide a venue for a meeting. Therefore, it can be easily stated that although this type of contract has an atypical nature, it will not fall within the scope of Article 339 of the TCO.

OFFICE CONTRACTS IN JUDICIAL DECISIONS

Although it is not yet an established case practice, most of Commercial Courts of First Instance state that office contracts should generally be characterized as tenancy agreements and that the Civil Courts of Peace  are authorized to resolve the relevant disputes[8].

In another local court decision[9], the court considered the virtual office contract as a tenancy agreement and ruled that the authorized court is the Civil Court of Peace. However, the Court of Appeal decided that the commercial courts is the competent court, taking into account the matters contained in the contract and the nature of the contract[10].

The judgments to be made on the establishment, termination, qualifications and other issues of virtual office contracts, should be evaluated according to the nature of the performances. In this context, the authorized court in office contracts may change according to the type of the dispute and the type of performance.

CONCLUSION

There is an opinion that office contracts are workplace tenancy agreements, and there is also a view that office tenancy agreements are combined type of atypical contracts, as the person providing the office may also undertake the obligation to provide various services.

In practice, there are many different office use packages and it may be possible to make a different interpretation in each of them. In our opinion, each case and each office contract should be evaluated within its own context, and the will of the parties should be analyzed to determine which act(s) is(are) main acts and which is(are) subsidiary acts undertaken by the person providing the office under the contract.

The most important part of this discussion, which affects users in the event that the office contract is considered to be a tenancy agreement,  are the legal provisions regarding the termination of the tenancy agreement and that the rental price to be applied in the renewed tenancy periods pursuant to Article 344 of the TCO in the extension years does not exceed the rate of change in the consumer price index in the previous tenancy year according to the twelve-month averages.

Therefore, in the process of drafting office contracts and determining the services to be received, a decision should be made that considers these issues.