Amendments Have Been Made to the Regulation on Shopping Malls in Respect of Common Costs and Security Services

Accordingly, a certain number of substantial amendments and additions have been made to the “Regulation on Shopping Malls” (“Regulation”) which has been published in the Official Gazette dated 20.02.2016 and numbered 29636 and entered into force as of the publication date. 

Aforementioned amendments have been made to Article 11 (Common Costs) and additions have been made within Article 19 (Security Services) of the Regulation.

1. Amendments made under the “Common Costs” title of the Regulation:

By means of the Amendment Regulation, a number of comprehensive amendments have been made to Article 11 of the Regulation which regulates the method and tariff of allocation regarding common costs. In the former state of Article 11; certain standards and thresholds were foreseen by referring to Annex-1 of the Regulation which included a number of tables and formulas where common cost contribution fees were fixed within. Along with the Amendment Regulation, allocation method of the common costs has been simplified and the entire content of Article 11 has been made compatible with the amendment. 

• In the former first (1st) paragraph of Article 11 of the Regulation; which kind of tariff shall be used for the allocation of repetitive common costs (“Common Costs”) not relating to the immovable (shopping mall) in kind regarding the electricity, water, heating, maintenance and repair (not as a restoration), security services and cleaning services was stated comprehensively under Annex-1. With the Amendment Regulation which provides freedom of choice to the retailers in shopping malls and the shopping mall managements (“Parties”); it is being questioned whether there is any method for the allocation of Common Costs mutually agreed upon by the Parties. In the event that there is not any mutual agreement between the Parties; Common Costs shall be distributed in accordance with the ratio of each selling space of the retailers compared to the general selling space of the shopping mall according to the Amendment Regulation. A method mutually agreed upon by the Parties for the allocation of the Common Costs on the other hand, may only be applicable for a period of 5 (five) years at most. (Article 11/1)
• Although the second (2nd) paragraph of Article 11 has also been amended, it does not implicate any substantial changes. Second (2nd) paragraph regulating the contribution fees payable by retailers in the shopping malls for the disbursements in relation to the services which serve the common interest such as marketing and management used to refer to the Annex-1 to produce a method for calculating the contribution fees of each retailer for the disbursements of the mentioned costs before the Amendment Regulation came into force. In accordance with the Amendment Regulation, such costs spent in the service of common interest shall be distributed in compliance with a contribution tariff provided that such tariff is determined by means of an agreement between the Parties. Unless the Parties agree otherwise by constituting an agreement; contribution fees for the disbursements stated in the second (2nd) paragraph of Article 11 shall be calculated for each retailer in accordance with the ratio of each selling space leased by retailers compared to the general selling space of the shopping mall. (Article 11/2)
• Seventh (7th) paragraph of Article 11 is another part of the Regulation affected by the Amendment Regulation. This paragraph provides that the shopping mall management is obliged to prepare a report each year until the end of March in respect of the last year’s Common Costs and the income generated by the common areas (“Report”). The Report shall be submitted to retailers according to the Regulation. In accordance with the latest amendments to the seventh (7th) paragraph of Article 11 dealing with the context of the Report; contribution fees for the Common Costs to be collected or already have been collected from retailers, information in relation with the income generated by common areas and the payments made from the collected contributions in respect of the payment of Common Costs and Common Costs calculations made for any type of disbursements shall be included within the Report. Retailers shall be provided with the copies of documents in relation to the income generated by common areas and the payments made from the collected contributions for Common Costs in the event of a requisition by retailers of shopping mall and the shopping mall management. (Article 11/7)
• It is also observed that the amendments made to the ninth (9th) paragraph of Article 11 are performed based on compatibility reasons. Despite the former state of the ninth (9th) paragraph which was referring to Annex-1 as well as the aforementioned paragraphs; the amended ninth (9th) paragraph states “In the event that the contribution fee for Common Costs calculated pursuant to this Article from the retailer cannot be exactly collected, the outstanding amount from the contribution fee shall be paid by owner of the workplace”. By such statement the liability of the owner of the workplace came into prominence in relation to the event of a deficient collection. (Article 11/9)

2. Additions made under the “Security Services” title of the Regulation

State of apprehension and fear occupying the public opinion because of the frequently occurring terrorist attacks country-wide affects the people’s social habitat and routine in a negative way and constrain people from going into crowded places such as shopping malls. New paragraphs have been added to Article 19 of the Regulation by the Amendment Regulation due to the reason of relieving the environment of apprehension and fear and reducing its negative effects on shopping malls by taking effective precautions and providing security for visitors.

• A third (3rd) paragraph has been added to Article 19 stating that shopping mall managements are obliged to install and run “license plate recognition systems” in their shopping malls. Information obtained by using such systems shall be instantly shared with the law enforcement officers. (Article 19/3)
• A forth (4th) paragraph has been added to Article 19 stating that under vehicle scanning systems shall be installed and ran at the controllable gates of parking places of shopping malls which are selected in terms of public safety by the Ministry of Internal Affairs. (Article 19/4)
• By the additional fifth (5th) paragraph regulated under Article 19 with the Amendment Regulation; it is stipulated that the technical specifications, issues related to data sharing and other issues about operation of the systems that have been mentioned in the third (3rd) and forth (4th) paragraphs shall be determined by the Ministry of Internal Affairs.

By Bilge Binay Kanat, Senior Associate, and Kaan Beylen, Trainee Lawyer, Moral Law Firm