Sublease in Residential and Roofed Workplace Lease Agreements

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Sublease in Residential and Roofed Workplace Lease Agreements

Sublease in Residential and Roofed Workplace Lease Agreements: Legal Analysis and Implementation Principles

 

Note: The following text is an academic and practical summary of my Master’s thesis titled "Sublease in Residential and Roofed Workplace Lease Agreements," prepared at Istanbul University, Institute of Social Sciences under the supervision of Prof. Dr. Arzu Genç Arıdemir. The full text of this study, which has also been published as a book, can be accessed via Tezyök or through Istanbul University publications.

https://tez.yok.gov.tr/UlusalTezMerkezi/giris.jsp

https://www.filizkitabevi.com/konut-ve-catili-isyeri-kira-sozlesmelerinde-alt-kira

 

1. The Concept and Legal Nature of Sublease

A sublease agreement is a type of "sub-contract" formed when the tenant, who is a party to the principal lease agreement, leases all or part of the property to a third party (the sub-tenant). This legal structure involves a tripartite relationship:

Original Lessor: The property owner or the individual authorized to lease the property.

Original Tenant (Sub-lessor): The individual who is the tenant in the first contract and the lessor in the second.

Sub-tenant: The third party who effectively utilizes the property.
 

The sublease agreement is a debt relationship that is legally independent from the principal lease. However, it is functionally and economically dependent on the principal lease; the scope of the sub-tenant's right of use is strictly limited by the rights held by the original tenant.


2. Written Consent Requirement for Residential and Workplaces

Pursuant to Article 322/2 of the Turkish Code of Obligations (TCO) No. 6098, a tenant cannot sublease a residential or roofed workplace property without obtaining the written consent of the original lessor.

Validity Requirement: This consent is not merely an evidentiary tool but a validity requirement (condition of lawfulness) for the subleasing authority.

Lack of Consent: Sublease agreements established without written consent are not binding upon the original lessor and constitute a fundamental breach of the principal lease agreement. This may lead to the eviction of the original tenant.

3. Rights and Obligations Between the Parties

The establishment of a sublease relationship creates a complex network of responsibilities:

  • Original Lessor and Sub-tenant: While there is kural olarak (as a rule) no direct contract between them, Article 322/3 of the TCO authorizes the original lessor to directly demand that the sub-tenant use the property in accordance with the principal lease.

    Right of Lien (Lessor’s Privilege): The original lessor may exercise a right of lien over the sub-tenant's movable property located on the premises for unpaid rent. This right is limited to the amount the sub-tenant owes to the original tenant.
    Joint Liability: In the event of damage to the property by the sub-tenant, both the original tenant and the sub-tenant are jointly and severally liable to the original lessor.

4. Termination of the Agreement and Eviction Dynamics

The termination of the principal lease for any reason directly impacts the sublease:

  • Impossibility of Performance: When the principal lease ends, the sub-lessor (original tenant) becomes unable to fulfill the obligation to provide the use of the property, resulting in subjective impossibility.

    Claims for Damages: If the principal lease is terminated due to the fault of the original tenant (e.g., eviction due to non-payment), the sub-tenant may file a lawsuit for damages against the original tenant.

    Effect of Eviction Orders: According to established Court of Cassation (Yargıtay) precedents, an eviction order issued against the original tenant is also enforceable against the sub-tenant.

5. Protection Against Collusive (Sham) Evictions

A critical focus of this thesis is the protection of the sub-tenant in cases where the original lessor and original tenant collude to terminate the principal lease solely to evict the sub-tenant (muvazaa). This study argues that the sub-tenant should be protected through the principle of good faith and the right to seek compensation or determination of the sham transaction.

 

6. Recommendations for Future Legislation (Lege Ferenda)

The concluding section of the study offers proposals to increase the legal security of sub-tenants:

Notification Requirement: It should be mandatory to notify the sub-tenant of default notices sent to the original tenant and eviction lawsuits filed against them.

Official Document Status: Sublease agreements established with the original lessor’s written consent should be granted a status similar to "official documents" under Article 276 of the Bankruptcy and Enforcement Law to stay eviction proceedings.

 

Ali Haydar BEKTAŞ