Inheritance Rights of Non-Turkish Citizens on Properties Located in Turkey

In cases where the legator and the inheritors are non-Turkish citizens, it is first necessary to determine which country's law shall be applicable for the transition of the inheritable properties located in Turkey (“Heritage”) to the inheritors. Within this framework, pursuant to Article 20 of the International Private and Civil Procedure Law numbered 5718, Turkish law shall apply for the transition of immovable properties and for the transition of movable properties, the national law of the deceased/legator shall apply.

It is necessary to determine whether there are any restrictions in the legislation of the law of foreigners of the country where the Heritage is located regarding the transition of the Heritage to the non-Turkish citizen inheritors. For instance, pursuant to Article 35/1 of the Land Registry Law numbered 2644, for the transition of immovable properties to non-Turkish citizen inheritors, (i) those inheritors must be the citizens of one of the countries determined by the President of the Republic in terms of international bilateral relations and in cases where the interests of the country require it, and (ii) the total area of the immovable properties and independent and permanent limited real rights must not exceed 10% of the area of the district subject to private property and 30 hectares per person throughout the country. Another example is, pursuant to Law on Prohibited Military Zones and Security Zones numbered 2565, the transition of immovable properties located in prohibited military zones, military and private security zones and strategic zones to non-Turkish citizen inheritors is subject to prohibition or permission depending on the nature of the immovable properties.

After the transition of the Heritage to the inheritors, if the inheritors decide to exercise not only the right of use but also the right of disposition over the immovable properties and registered movable properties, they must not only obtain the certificate of inheritance but also register such properties in their own names at the land registry or notary in proportion to their shares.

Turkey: The Legal Aspect of Sublease Agreements

• - “The lessee may lease the leased property to someone else fully or partially, as well as transfer the right of use to someone else, provided that it does not lead to a change that will harm the lessor.

• - In residential and roofed workplace leases, the lessee may not lease the leased property to another person or transfer the right of use without the written consent of the lessor.

• - If the lessee uses the leased property in a manner other than the granted subject, the lessee shall be liable to the lessor. In this case, the lessor can also use the rights he/she has against the lessee to the sub-lessee or the transferee.”

There are two parties in both main lease agreement and the sublease agreement. However, the de facto relationship between these agreements arises from the fact that one party is a party to both contracts at the same time and the performances subject to both agreements are partially harmonised. Therefore, the main lease agreement and the sublease agreement are de facto, if not de jure, interdependent and the obligations under both agreements affect each other.

i. Legal Nature of Sublease Agreement

According to the sublease agreement’s legal nature, it is a lease agreement. As a lease agreement, the sublease agreement is by mutual and appropriate declarations of will of the parties, it imposes obligations on both parties, therefore it is accelerated. The difference of the sublease agreement from the lease agreement is that the main-lessee of the actual lease agreement is become a sub-lessor in the sublease agreement and the lease right of sub-lessor is arising from the main lease agreement.

ii. The Relation Between the Main Lease and the Sublease

a. Parties

1. In Terms of the Main Lessee and Sub-Lessee

Sublease agreement is an agreement concluded between the main-lessee and the sub-lessee. The party who is the lessee in the main lease agreement becomes the sub-lessor. This does not establish a direct legal relationship between the lessor and the sub-lessee. On the other hand, even if the party who has the title of sub-lessee subsequently concludes another lease agreement with the main-lessor, this does not eliminate the liability of the party who has the title of sub-lessor.

The addressee of the sub-lessee is the main-lessee who partially or fully leases the leased property. The reason is that, the main-lessee is in the position of the "lessor" to the sub-lessee and has the same responsibilities and rights as the main-lessor. The sublease agreement is entirely subject to the provisions of the main lease agreement. The fact that the lessee has partially or fully leased the leased property does not eliminate its contractual connection with the lessor. The main lease agreement retains all its provisions.

2. In Terms of Main Lessor and Sub-Lessee

Even though the sublease agreement is an agreement concluded between the sub-lessee and the main-lessee, in some cases, the lessor has the right of direct claim against the sub-lessee, even though the main lessor is not a party to the contract. Accordingly, the main-lessor has the right to apply directly to the sub-lessee and ask him/her to act in accordance with the agreement. As a matter of fact, as can be seen in Article 322; “If the lessee uses the leased property in a manner other than the granted subject, the lessee shall be liable to the lessor. In this case, the lessor can also use the rights he/she has against the lessee to the sub-lessee or the transferee”. Accordingly, if the sub-lessee fails to use the property in accordance with the agreement, the sub-lessee shall be liable to the main-lessee for breach of the sublease agreement. The lessor's right of claim is based on the ownership of the premise. In line with the powers granted by the ownership right, the main-lessor has the right of direct claim to the sub-lessee, even though he/she is not a party to the sublease agreement.

Another right of the lessor against the sub-lessee is the right of retention. As a matter of fact, pursuant to Article 336; "... The lessor's right of retention covers the movables of the same nature brought by the sub-lessee to the leased property, provided that it does not exceed the sub-lessee's rent debt to the main-lessee..."

b. Subject

The subject matter of the sublease agreement is the partial or full lease of the leased property to another person. However, it is limited to the subject matter of the main lease agreement, and is prohibited by law to include a contrary commitment in the sublease agreement.

c. Content

Pursuant to Article 322, since a sublease agreement may only be concluded on the condition that it does not harm the main-lessor, the rules applicable to the main lease agreement shall apply even if the sublease agreement has different provisions from the main lease agreement. However, this does not affect the independence of the sublease agreement.

d. Duration

iii. The Context of Roofed Workplace and Sublease

“... According to Article 322 of the TCO, sublease can be defined as the lessee renting the leased property to a third party with the written consent of the lessor in residential and roofed workplace leases.” (6th Civil Chamber of the Supreme Court E. 2015/4040 K. 2015/5966 T. 16.6.2015)

If, without the written consent of the lessor, the main-lessee concludes a sublease agreement in roofed workplace leases, this agreement will be deemed invalid and the main-lessee will be in breach of the main lease agreement. In cases where the main-lessee does not comply with the sublease prohibition, the main-lessor should take legal remedies without delay upon learning of this situation. The main-lessor's silence for a long period of time may be interpreted as consent to the sublease. Within the scope of Article 316, the main-lessor is required to notify the main-lessee in writing that the agreement will be terminated if the main-lessee fails to remedy the breach by giving at least thirty days' notice.

iv. Transfer of the Sublease and Relationship of the Lease

In accordance with the Supreme Court’s decision, all rights and obligations of the first lessee (main lessee) passes to the transferee lessee which becomes responsible to the lessor until the end of the lease agreement. In a situation where a party has a disagreement with the other, what are the processes for taking legal actions? On May 5th 2023, the Ministry of Justice announced that any disputes arising out of the lease agreement shall be included within the scope of mandatory arbitration as a pre-liminary condition of litigation stage. In other words, the party at first shall need to apply to an arbitration centre from the local court as a mandatory stage prior to filing a lawsuit. After the conclusion of the arbitration stage and concluded as “no agreement was made”, the party who files a lawsuit is obliged to attach the original or a copy approved by the arbitrator of the final minutes at the end of the arbitration to the lawsuit petition.