THE TERMINATION OF RENTAL AGREEMENT DUE TO EARLY RELEASE

The termination of the rental agreement due to the return of the rental object before the predicted agreement end date; which is also mentioned in Turkish Code of Obligations numbered 6098; has become a problem frequently confronted in practice. Concerning the workplace renting; due to increased economic crisis in recent years; the tenants who cannot reach the desired profit rate or who sometimes makes losses is forced to terminate the agreement before the predicted agreement end date without any rightful reason.[1] The pertinent application of the Supreme Court during the old law period; is specified as a provision under the article numbered 325 of the new Law of Obligations.  

When the tenant’s right to terminate due to early release is applicable? 

Although the right to terminate unilaterally the agreement without justified reason, cannot be granted to the lessor in the agreement due to the mandatory regulations to protect the tenant who is the weaker party; in the agreement, the parties can grant to the tenant the right to terminate the agreement without any justified reason but by giving an unilateral notice. In this case, with this notice of dissolving novelty; the agreement will be forward effectively terminated.[2]  But, although such right is not granted to the tenant in the agreement, if the tenant release the renting object before the predicted agreement end date, this will be deemed as a violation of the agreement and the tenant will be obliged to indemnify the loss suffered by the lessor due to this situation. 

 How should a notice of early release be given by the tenant?  

The Supreme Court indicates that the rental agreement can be terminated due to an early release only by a rental key delivery and also says that the rental key delivery is a legal procedure and consequently the proof of it can be possible only by written evidence. The fact of the key delivery cannot be proven by a witness. The Supreme Court accepts that the notice is void as long as the key is not delivered, and the rental object is still in use of the tenant. Thus, the agreement will be terminated on the date of key delivery by the tenant to the lessor.[3] The tenants should act with the awareness that the factual release of the rental object is not enough for the termination, otherwise their obligations arising from the agreement, including the obligation to pay the rental fee will remain. 

What to do if the lessor abstain from receiving the key? 

In practice, it is frequently encountered that the lessor abstains from receiving the key, in this case, the tenant should intrust the key to the notary and should notify the informations of this notary  by a warning notice sent to the central civil registration system address of the lessor.[4]

What are the obligations of the lessor and the tenant after the early release?

According to the good faith (Turkish Civil Code Art. 2) and the liability to do not increase the loss (Turkish Code Of Obligations Art.52) ;  the lessor is obliged to find a new tenant who will rent the rental object in similar conditions.[5]

As the agreement is terminated before the predicted termination date; the tenant will be obliged to pay an indemnity for the time elapsed until that a similar place can be let out on hire because if the tenant did not early release the rental, the lessor could obtain the rental income. When observing the Supreme Court’s decisions, generally accepted reasonable duration is 3 months. But, of course, the duration of the rental agreement constitutes the upper limit of the indemnity.

What is the amount of the indemnity to be paid by the tenant? 

If the lessor let out on hire in similar conditions the rental object before the reasonable duration, it can be claimed an indemnity amount corresponding to the rental fees of the idle period. 

Although that the lessor found a new tenant; if it is predicted a lower rental fee, in this case the tenant should pay as an indemnity amount corresponding to the rental fees of the said reasonable duration, plus the difference between the rental fees paid by himself/herself and the new tenant; this difference will be calculated for the period until the predicted end date of the rental agreement. 

From the indemnity to be paid by the tenant, it will be deducted the expenses that the lessor became liberated and the profits that the lessor obtains or intentionally avoids to obtain.

What is the characteristic of the indemnity liability of the tenant?

For the indemnity liability of the tenant; he/she does not necessarily have to be faulty, the Law is regulated on the basis of strict liability state.

Is it possible that the tenant find a new tenant?

When releasing the rental, the tenant can be liberated from his/ her indemnity liability by finding a new tenant.

The Law indicated the eligibility conditions for the new tenant: 

        •This person should be acceptable by the lessor.

        •This person must have the ability to pay. This will be determined by comparing the rental fee  amount and the new tenant’s monthly earning.[6]

        •This person should be ready to take over the rental liability.

It should be noted that; the lessor will be free to refuse even the person who meets all above mentioned conditions. But, if the lessor refuses the new tenant without any justification, then he/ she cannot claim any indemnity from the tenant who early released the rental object. The justification of this refusal should be based on a an objective criteria and the reason of the refusal should be notified to the tenant .[7]

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[1] Burcuoğlu Haluk, “Kiracının Kiralananı Erken Tahliyesi Halinde Uygulamada Çıkan Bazı Sorunların İrdelenmesi” Prof. Dr. Zahit İmre’ye Armağan, Der, İstanbul 2009, (Burcuoğlu- Erken Tahliye) p. 139.

 [2] Günel Mustafa Cahit, Taşınmaz Kiralarında Sözleşmenin Sözleşme Kiracı Tarafından Vaktinden Önce Sona Erdirilmesi, İstanbul, 2010, p.257

[3] Yargıtay 6. HD. 2011/15289 Esas, 2012/3446 Karar

[4] Yargıtay HGK. E.2006/6-89, K. 2006/89, T.22.3.2006

[5] Yargıtay 13. HD. E.2003/6088, K. 2003/1044, T.22.9.2003

[6] Günel, p.277

[7] Günel, p.277