Tenancy agreements regulate the balance of use between the landlord and the tenant through detailed rules. At the top of these rules comes whether the tenant may allow third parties to use the leased property. One of the situations that most frequently gives rise to disputes in practice is when the tenant lets the immovable property to someone else, despite there being an explicit provision in the tenancy agreement stating that it “cannot be sublet”. In this case, the issue is not merely a breach of contract; the three-way legal relationship between the landlord, the principal tenant, and the subtenant needs to be correctly evaluated.
In this article, the consequences of a sublease agreement made despite the prohibition of subletting are examined together with the dimensions of eviction, the obligation to serve a formal notice, the validity of the sublease agreement, occupational rent (ecrimisil), unjust enrichment, compensation for damages, and criminal law, Turkish Code of Obligations we are addressing it comprehensively within its own system.
Legal Basis of the Prohibition of Subletting and the Nature of Breach of Contract
Article 322 of the Turkish Code of Obligations requires the written consent of the lessor for the tenant to sublease the leased property to third parties. If there is also an express prohibition in the lease agreement, the sublease agreement made by the tenant with a third party constitutes an explicit and serious breach of contract.
This breach is independent of how the tenant uses the property. The act of subleasing alone gives the landlord terminate the contract and request eviction grants the right. Because what is being infringed here is not the manner of use, but the fundamental obligation of the contract.
Eviction Due to Breach of Contract and the Issue of Formal Notice (Turkish Code of Obligations Art. 316)
At this point, the primary regulation to be consulted is Article 316 of the Turkish Code of Obligations. If the tenant acts contrary to the contract, the lessor may request the remedy of the breach; in the event of its continuation, they may terminate the contract and request eviction.
The requirement for a formal notice varies according to the nature of the leased property. For residential and roofed business premises, the courts mostly require a 30-day notice, on the assumption that the sublease relationship can be terminated. In contrast, for plots of land, open spaces or unroofed leases, termination and eviction without notice are more readily accepted. This distinction is a critical point that determines the fate of the lawsuit.
Defendant in an Eviction Lawsuit: Why Only the Principal Tenant?
There is no contractual bond between the landlord and the subtenant. The subtenant uses the immovable property based on the possession of the principal tenant. Therefore, the eviction lawsuit is filed only against the principal tenant. The subtenant is not a defendant. However, the eviction decision to be rendered will also bind the subtenant, and they will be removed from the property at the enforcement stage.
This matter prevents one of the most common mistakes made in practice: joining the sub-tenant to the lawsuit is unnecessary and can lead to a procedural error.
Is a Sublease Agreement Invalid, or Does It Just Not Bind [the Landlord]?
A sublease agreement is not binding on the lessor; however, it is valid between the lessee and the sublessee. For this reason, the sublessee occupies the immovable property based on a legal ground until eviction. This situation prevents the sublessee from being considered a “wrongful occupier”.
The ban on subletting does not automatically render the sublease agreement void. It simply produces no legal effect with regard to the lessor.
Can ecrimisil be claimed from a sub-tenant?
mesne profits An unlawful occupation is required for the claim. However, the sub-tenant relies on the principal tenant's possession and the sub-tenancy agreement. Therefore, damages for occupation (ecrimisil) cannot be claimed from the sub-tenant until eviction.
Mesne profit only comes onto the agenda if use continues after the eviction order has become final and the tenant must be removed at the enforcement stage. From this moment on, the sub-tenant falls into the position of a wrongful occupier.
Why the Rent Difference and Unjust Enrichment Claim Are Not Valid
According to Article 77 of the Turkish Code of Obligations, unjust enrichment requires a decrease in the lessor’s assets. However, the lessor continues to receive the rental fee specified in the contract. The tenant receiving a higher rent from the subtenant does not represent a value leaving the lessor.
Therefore, rent difference cannot, as a rule, be claimed under the heading of unjust enrichment. However, the situation may change if there is a penal clause in the contract or if there is an explicit regulation.
Possibility of Compensation if Damage Arises Due to Sublease
If the sublease relationship has led to intensive and improper use of the immovable property, physical wear and tear or damage may occur. In this case, compensation for damages can be claimed within the scope of Article 334 of the Turkish Code of Obligations. What is claimed here is not the difference in rent, but concrete material damage.
Criminal Law Dimension: Why Does It Not Constitute a Crime?
Breach of the prohibition on subletting is not an offence within the scope of criminal law. The headings of breach of trust or fraud result in non-prosecution in practice. The dispute is entirely a relationship of the law of obligations.
Frequently Asked Questions (FAQ)
Can I file an eviction lawsuit directly against the subtenant?
No. The sub-tenant is not a contracting party to the lessor. The lawsuit is filed solely against the principal tenant. However, the eviction order also binds the sub-tenant, and they are removed from the property during the enforcement stage.
Is the sublease agreement invalid?
No. It is not binding on the landlord, but it is valid between the tenant and the subtenant. Therefore, the subtenant stays in the property based on a legal ground until eviction.
Can I claim damages for wrongful occupation (ecrimisil) from a subtenant?
No until the eviction. Because the sub-tenant is not an unlawful occupant. However, if they continue use after the eviction order, damages for use and occupation can be claimed.
Can I claim the rent difference that the tenant received from the subtenant?
As a rule, no. The conditions for unjust enrichment are not met. However, if there is a penalty clause or an explicit provision in the contract, the right to claim may arise.
Does a criminal complaint yield results?
No. This situation is not a breach of criminal law, but of the law of obligations, and complaints generally result in a decision of non-prosecution.
Result
Despite the ban on subleasing, sublease agreements made constitute a strong ground for termination and eviction from the landlord's perspective. However, the process must be based on the correct legal foundation. Ecrimisil, unjust enrichment or penalty headings often create false expectations. The essential thing is that the breach of the lease agreement is evaluated correctly within the systematics of the Turkish Code of Obligations (TCO).
As Azel Law and Consultancy, in disputes relating to tenancy law We protect our clients' rights through correct legal characterisation, a strong evidence strategy and effective litigation planning. If your property is being used by third parties despite a prohibition on subletting, it is of great importance that you manage the process professionally to avoid loss of rights.
