Prohibition of Subletting

In lease relationships, it is common in practice for the tenant to lease all or part of the rented immovable property to third parties. However, in certain circumstances, this may lead to serious legal consequences, including the tenant’s eviction and liability for damages. The prohibition of subletting is a legal restriction preventing the tenant from leasing the rented property to third parties or transferring the right of use without the landlord’s consent. Pursuant to Article 322 of the Turkish Code of Obligations (TCO), the tenant may not allow the leased property to be used by another person, in whole or in part, without the landlord’s written consent. This provision protects the landlord’s right to know and control who uses the property. At the same time, it reflects the tenant’s duty to use the leased property with due care.

Legal Basis of the Prohibition of Subletting

Under Article 322 of the Turkish Code of Obligations, the tenant may not, without the landlord’s written consent, sublease the leased property in whole or in part or transfer the right of use.

Accordingly, the following may constitute a breach of contract from the landlord’s perspective:

• subletting without the landlord’s express written consent,
• allowing third parties to use the property,
• transferring the right of use.

This prohibition is of particular importance in residential and roofed workplace leases. In commercial relationships, however, depending on the nature of the transaction, the landlord may grant prior approval for subletting.

Purpose of the Prohibition of Subletting

The principal interest protected by the prohibition of subletting is the landlord’s right to know who will occupy and use the property and to supervise such use.

When entering into a lease agreement with a specific tenant, the landlord generally takes into account:

• the tenant’s identity,
• financial standing,
• intended purpose of use, and
• manner of using the property.

Therefore, if the tenant unilaterally places the property at the disposal of third parties, this may disturb the contractual balance on which the landlord relied when concluding the lease.

Consequences of Breaching the Prohibition of Subletting

If the tenant acts in violation of the prohibition of subletting, several legal consequences may arise for the benefit of the landlord.

1. Breach of Contract

Subletting without the landlord’s written consent may be regarded as a material breach of the lease agreement.

2. Ground for Eviction

A breach of the prohibition of subletting may constitute a ground for eviction.

3. Liability for Damages

The tenant may also be obliged to compensate the landlord for any damage arising from such breach.

4. Non-Binding Nature of the Sublease for the Landlord

The sublease agreement concluded in breach of the prohibition is not binding upon the original landlord. In other words, the subtenant cannot assert against the landlord any right arising from the principal lease agreement.

Eviction Due to Breach of the Prohibition of Subletting

A breach of the prohibition of subletting constitutes a breach of contract and may serve as a ground for eviction. However, particularly in residential and roofed workplace leases, the landlord must comply with a specific procedural requirement before directly bringing an eviction action.

Pursuant to Article 316 of the Turkish Code of Obligations, the landlord must:

• grant the tenant at least 30 days in writing to remedy the breach, and
• notify the tenant that the lease agreement will be terminated if the breach is not remedied within that period.

An eviction action brought without complying with this procedural requirement may be dismissed.

This principle was also emphasized in the decision of the 6th Civil Chamber of the Court of Cassation dated 2 November 2016 (2016/9679 E., 2016/6356 K.), which stated:

“In residential and roofed workplace leases, the landlord must notify the tenant in writing, granting at least thirty days to remedy the breach and warning that the contract will otherwise be terminated, and the breach must remain unremedied within the granted period.”

The 30-Day Notice Requirement under Article 316 TCO

In residential and roofed workplace leases, if the prohibition of subletting is violated, the landlord must first send a written notice.

This notice must clearly:

• specify the nature of the breach,
• request termination of the subletting,
• grant at least 30 days, and
• state that the lease agreement will be terminated otherwise.

This requirement is not merely a formal step; it is a mandatory precondition for the success of the lawsuit. Therefore, if no notice is sent or if the notice period is not properly granted, the eviction action may be dismissed.

Legal Status of the Subtenant

Where subletting has taken place despite a contractual prohibition, the legal position of the subtenant vis-à-vis the original landlord is assessed differently.

In its decision numbered 2012/1067 E., the General Assembly of Civil Chambers of the Court of Cassation held that a third party using the leased property under a sublease, despite the prohibition on transfer, is deemed a “fuzuli şagil” (unlawful occupier).

This approach demonstrates that the subtenant does not possess a legitimate right of use against the original landlord.

What Is a “Fuzuli Şagil”?

A fuzuli şagil is a person who uses immovable property without a legally valid right.

Accordingly, a subtenant using the property in violation of the prohibition of subletting is considered, from the perspective of the original landlord, to be a person who:

• does not rely on a valid lease relationship with the landlord,
• cannot be regarded as lawfully using the property, and
• is treated as an unlawful occupier.

For this reason, the original landlord may resort to different legal remedies against the subtenant.

Eviction Action Against the Subtenant and the Notice Requirement

In actions brought against an unlawful occupier (fuzuli şagil), the 30-day notice requirement applicable to the principal tenant does not apply.

In its decision numbered 2012/7988 E., the 6th Civil Chamber of the Court of Cassation stated:

“In an action brought against an unlawful occupier, prior notice is not required.”

This gives the landlord the opportunity to act more swiftly against a third party who unlawfully occupies the property.

Dependence of the Sublease on the Principal Lease Agreement

By its legal nature, the sublease relationship is dependent on the principal lease agreement.

As a result:

• if the principal lease agreement terminates,
• if eviction or termination occurs, or
• if the tenant’s right of use ceases,

the sublease relationship also comes to an end.

Therefore, the subtenant’s presence in the property depends entirely on the continuation of the principal tenant’s contractual right.

Assessment in Light of the Case Law of the Court of Cassation

The basic approach adopted in the case law of the Court of Cassation concerning the prohibition of subletting may be summarized as follows:

• subletting without the landlord’s written consent constitutes a breach of contract,
• this breach is regarded as a ground for eviction in residential and roofed workplace leases,
• however, for the eviction of the principal tenant, written notice and a minimum 30-day cure period under Article 316 TCO are required,
• a subtenant who uses the property despite the prohibition is considered a fuzuli şagil vis-à-vis the original landlord,
• in actions brought against a fuzuli şagil, no prior notice is required.

Conclusion

The prohibition of subletting is one of the fundamental rules in lease law and may give rise to significant legal consequences. Subletting carried out without the landlord’s written consent or in breach of an express contractual prohibition may constitute a valid ground for eviction due to breach of contract.

However, especially in residential and roofed workplace leases, before initiating an eviction action against the principal tenant, the landlord must strictly comply with the written notice requirement and grant a minimum 30-day period as prescribed under Article 316 of the Turkish Code of Obligations. Failure to comply with this procedural requirement may result in dismissal of the action.

A subtenant who occupies the leased property despite the prohibition is in the position of a fuzuli şagil vis-à-vis the original landlord, and eviction may be sought directly against such person without any prior notice requirement.

Frequently Asked Questions

What is the prohibition of subletting?

The prohibition of subletting is a legal restriction preventing the tenant from leasing the property, in whole or in part, to third parties or allowing them to use it without the landlord’s written consent.

Can the tenant sublease without the landlord’s permission?

No. Pursuant to Article 322 of the Turkish Code of Obligations, the tenant may not allow another person to use the leased property, in whole or in part, without the landlord’s written consent.

Is breach of the prohibition of subletting a ground for eviction?

Yes. A breach of the prohibition of subletting constitutes a breach of contract and may serve as a ground for eviction. However, in residential and roofed workplace leases, notice under Article 316 TCO must first be given.

Is it necessary to send a notice to the subtenant?

No. Since the subtenant is regarded as a fuzuli şagil vis-à-vis the original landlord, prior notice is not required in actions brought against the subtenant.

Does the sublease continue after the principal lease ends?

No. The sublease relationship is dependent on the principal lease agreement. Once the principal lease ends, the sublease also terminates.

Legal Assistance in Disputes Concerning the Prohibition of Subletting

Disputes relating to the prohibition of subletting require technical legal assessment in terms of the interpretation of the lease agreement, determination of whether written consent exists, proper conduct of the notice procedure under Article 316 TCO, and identification of the subtenant’s legal status.

For this reason, conducting the process with the assistance of a lawyer specialized in tenancy law is important in order to prevent potential loss of rights.