The lessee transfers his right of use to another person in accordance with the lease agreement. This transfer may be partial or complete. The transfer of the right of use is essentially the assignment of the receivable. Therefore, it can only be done in written form. The transferee may request from the lessor to deliver the leased property and to keep it suitable for use (Judgment. HGK., E. 2011/749 K. 2012/50 T. 8.2.2012)
For Ordinary Rental Maintenance: The lessee may transfer the usage receivable arising from the rental agreement to a third party, unless there is a contractual provision to the contrary.
In Residential and Roofed Workplace Lease: In residential and roofed workplace rentals, the transfer of the right of use can only be made with the written consent of the lessor.
PROVISIONS OF TRANSFER OF RIGHT TO USE
In the event that the right of use is transferred, the actual rental relationship with the lessor does not end, and the tenant’s responsibilities, especially paying the rent, continue. The transferee must use the leased property with care and in accordance with the original lease agreement. Otherwise, the lessor, Turkish Code of Obligations art. It will be able to terminate the lease agreement under the conditions stipulated in 316. The transferee cannot use the innovative rights affecting the contract. However, he can use the rights that are dependent on the right to claim (for example, the request for rectification of the defect).
TRANSFER OF LEASING AGREEMENT
The transfer of the lease agreement is the transfer of the contract. The party to the contract changes. The parties to the original lease do not change during the sub-lease or right of use transfer. The annotation of the lease agreement does not prevent the transfer. The annotation continues to secure the right of the new tenant.
TERMS OF THE TRANSFER OF THE LEASING AGREEMENT
The transfer of the lease agreement is made by the contract. It is necessary to agree with the existing parties to the contract with the one who wants to be a party to the contract. The will of the transferor (former tenant), the transferee (new tenant), the other party(s) of the agreement (lessor/lessee) is required. This issue is stated in the law as: “The lessee cannot transfer the rental relationship to another person unless he obtains the written consent of the lessor” (Turkish Code of Obligations art. 323/f.1).
VALIDITY OF THE PERIOD
The validity of the transfer of the lease agreement requires compliance with the form of the original lease agreement (Turkish Code of Obligations art. 205). ‘If there is no such form requirement; validity is subject to the written consent of the lessor. The lessor may consent to the transfer of the lease agreement in general, or it may give consent for a single period in concrete terms. If the lessor does not consent, it is not possible for the lessee to force the lessor to make such a statement.
CONSENT IN WORKPLACE RENTALS
In workplace leases, the lessor cannot refrain from giving this consent unless there is a justifiable reason. As it can be seen, if there is no justifiable reason for workplace rentals, the lessor has to give consent. In workplace leases, if the lessor refrains from giving consent without a justified reason, the lessee may apply to the judge and transfer the contract. In this case, the judge’s decision replaces the consent of the party.
EXAMPLES OF LEGAL CAUSE
Insufficient economic power of the new tenant,
The new tenant wants to use the leased workplace for a different purpose than the intended use in the contract,
The new tenant will change the structure of the leased place
If the use of the rented place requires special knowledge and skills, the new tenant does not have these features,
Workplace use that does not comply with the concept of the place where the rented is located (eg, the shopping mall),
If the person of the former tenant was taken into account (eg: the rental price was determined low due to the person of the former tenant), etc.
RESULTS OF THE ERA
The old tenant leaves his place in the contract to the new tenant. According to this; the former tenant leaves the contract; replaced by the new tenant (Turkish Code of Obligations art. 323/f.2). Despite that; In workplace leases, the transferee is jointly liable to the lessor together with the transferee (new tenant) until the end of the lease agreement and for a maximum of two years (Turkish Code of Obligations art. 323/f.3). Ancillary guarantees given for the former tenant (for example, surety, pledge) automatically expire unless the guarantee giver’s consent is obtained at the latest at the time of transfer (compared to Turkish Code of Obligations art. 198).
