Sublease Agreement in Residential and Roofed Business Premises

According to Article 299 of the Turkish Code of Obligation No. 6098 (“TCO”), the parties to a lease agreement are the “lessor” and the “lessee”. Besides, Article 322/2 of the TCO states that “In residential and roofed business premises, the lessee shall not sublease, or transfer the right of use of the leased premises to another person without the written consent of the lessor.” Accordingly, the sublease of the leased property by the lessee without the consent of the lessor shall constitute a breach of the agreement, unless otherwise specified in the agreement. In such a case, the lease agreement may even be terminated, and the lessor may claim the benefits (rental fees) obtained through the sublease from the lessee.

The expression “sublease or transfer of the right of use to another person” in the TCO does not cover cases where the lessee keeps or hosts its close family members or a close friend, boy/girlfriend, or servant for a period of time. In such temporary situations, and usually in the cases of performing moral duties, there is no sublease or transfer of the right of use that would require the consent of the lessor. Except for these cases, the lessee’s sublease, or transfer of the right of use -unless otherwise specified in the agreement- shall constitute a breach. At this point, subleasing on a daily, weekly, or monthly basis does not make any difference in terms of breach of the agreement. Moreover, such subleases may result in civil and criminal liabilities.

In cases where the lessee does not comply with the prohibition of subleasing, the lessor must obtain legal remedies without any delay as soon as it becomes aware of these circumstances. The lessor’s silence for a long period of time may be deemed as consent to the sublease. The legal remedy to be obtained in case the lessee breaches the agreement is to notify the lessee, that the agreement is going to be terminated unless the breach is rectified in a certain period of time. There is no doubt that the abovementioned period to be given to the lessee shall not be less than 30 (thirty) days in accordance with Article 316 of the TCO.

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