When a landlord in Turkey has doubts about a prospective tenant’s financial reliability, requiring a surety is the most common mechanism used to secure performance of the lease. A surety, known as a kefil under Turkish law, is a third party who undertakes personal liability toward the landlord in the event that the tenant fails to fulfill the obligations arising from the lease agreement. This arrangement is governed by the suretyship provisions of the Turkish Code of Obligations No. 6098, specifically Articles 581 through 603, which impose strict formal requirements and define the scope and limits of the surety’s liability in considerable detail. The consequences of non-compliance with these requirements can be severe: a suretyship that fails to satisfy the statutory conditions is entirely void, leaving the landlord without recourse against the surety regardless of the tenant’s default.
In practice, the suretyship clause is typically incorporated into the body of the lease agreement itself, rather than being formalized as a separate contract. While both approaches are permitted under Turkish law, the formal requirements for a valid suretyship apply with equal force in either case. Courts and enforcement proceedings have produced a substantial volume of disputes arising from improperly executed suretyship clauses in printed lease forms, making it essential for all parties to understand precisely what the law demands before signing.
The Legal Definition and Nature of Suretyship Under Turkish Law
The Turkish Code of Obligations defines suretyship in Article 581 as a contract under which the surety undertakes personal liability toward the creditor for the consequences of the debtor’s failure to perform an obligation. In the context of a lease, the creditor is the landlord, the debtor is the tenant, and the surety is the guarantor who steps into the picture if the tenant defaults on rent payments, causes damage to the property, or otherwise breaches the lease.
Article 581 of the Turkish Code of Obligations: A suretyship is a contract by which the surety undertakes personal liability to the creditor for the consequences arising from the debtor’s failure to perform an obligation.
A fundamental characteristic of suretyship under Turkish law is its accessory nature. The surety’s obligation is dependent on and subordinate to the existence of a valid principal obligation between the tenant and the landlord. If the underlying lease agreement is invalid, the suretyship built upon it also becomes invalid. Conversely, defenses available to the tenant against the landlord’s claims may, in certain circumstances, also be raised by the surety. This principle protects the surety from being held to a broader obligation than the one the tenant originally assumed.
Formal Requirements for a Valid Suretyship
Turkish law imposes what is known as a qualified written form requirement for suretyship agreements. Ordinary writing — such as a printed contract signed by the surety — does not suffice. The law requires that certain elements be written in the surety’s own handwriting, and the absence of any one of these elements renders the entire suretyship void.
Article 583 of the Turkish Code of Obligations: A suretyship agreement is not valid unless it is made in writing and specifies the maximum amount for which the surety is liable and the date of the suretyship. The surety must write by hand the maximum amount for which the surety is liable, the date of the suretyship, and, where the surety assumes joint and several liability, the surety’s capacity as joint and several surety or any other expression to that effect.
This provision has generated extensive litigation in Turkish courts. A recurring problem in practice is the use of printed lease forms where the suretyship section is pre-typed, with the surety merely adding a signature. The Court of Cassation has consistently held that such arrangements are invalid: the maximum amount of liability, the date, and — where applicable — the designation as joint and several surety must all appear in the surety’s own handwriting. A printed or stamped version of these elements, even if the surety has signed the document, does not satisfy the statutory requirement.
The maximum amount of liability is a mandatory element. This figure caps the surety’s exposure and provides certainty about the extent of the guarantee. It is not sufficient to include a vague reference to liability for all rental obligations; a specific monetary figure must be stated. In practice, the maximum amount is typically set equal to one year’s rent or a multiple thereof, depending on the parties’ negotiation. If the maximum amount is omitted entirely, the suretyship is null and void, and no claim can be brought against the surety even if the tenant has clearly defaulted on debts that arose during the original lease term.
Ordinary and Joint and Several Suretyship
Turkish law recognizes two primary types of suretyship: ordinary suretyship, known as adi kefalet, and joint and several suretyship, known as müteselsil kefalet. The distinction has significant practical consequences for the landlord.
In an ordinary suretyship, the landlord must first pursue the tenant and exhaust available remedies before turning to the surety. This means that a landlord who has not yet initiated enforcement proceedings against the tenant, or who has not demonstrated the impossibility of collecting from the tenant, cannot simply proceed directly against the ordinary surety. The subsidiary nature of ordinary suretyship thus creates a sequential obligation that can considerably delay the landlord’s ability to recover unpaid rent.
Joint and several suretyship places the surety in a position similar to a co-debtor. Under Article 586, the landlord may pursue the joint and several surety once the tenant has failed to pay a matured debt and has been given formal notice. If the tenant is manifestly insolvent, the landlord may proceed directly against the joint and several surety without even sending prior notice to the tenant. This makes joint and several suretyship considerably more favorable from the landlord’s perspective, which is why it is the more commonly requested type in residential and commercial lease practice.
For a suretyship to qualify as joint and several, the surety must have written the words “joint and several surety” or a phrase conveying the same meaning in his or her own handwriting. If the phrase appears only in the printed text of the form, without a corresponding handwritten notation by the surety, the suretyship defaults to the ordinary type, even if the parties intended a stronger form of guarantee.
The Spouse’s Consent Requirement
One of the most frequently overlooked requirements in Turkish suretyship law is the obligation to obtain the written consent of the surety’s spouse. Article 584 of the Turkish Code of Obligations provides that where a surety is married at the time of concluding the suretyship, the written consent of the other spouse must be obtained before or at the time the suretyship is executed.
Article 584 of the Turkish Code of Obligations: For a suretyship to be valid, the written consent of the surety’s spouse must be obtained, unless the spouses have legally separated. This consent must be given prior to or at the same time as the suretyship.
This requirement reflects the legislature’s intention to protect the family unit from the financial consequences of one spouse assuming potentially significant personal liability without the other’s knowledge. The consent must be contemporaneous with the suretyship: a spouse’s approval given after the suretyship has already been signed does not retroactively validate the agreement. If the consent is missing at the time of execution, the suretyship is void in its entirety, and the landlord has no claim against the surety regardless of how substantial the tenant’s unpaid obligations may be.
In practice, this means that landlords and their advisors must verify at the time of signing whether the surety is married and, if so, ensure that the other spouse is either present to sign a written consent or has submitted such consent in advance. A common error is to obtain the main signatures and later seek the spouse’s consent, which is legally ineffective under the statute as interpreted by the Court of Cassation.
Scope of the Surety’s Liability
The scope of what the surety is liable for is determined primarily by the terms of the suretyship agreement, subject to the statutory maximum. Unless the parties have expressly limited the scope to a particular type of obligation, the surety’s liability generally extends to all of the tenant’s obligations arising from the lease, including unpaid rent, damages to the premises, utility debts that have been assumed by the tenant under the lease, and similar financial consequences of the tenant’s default.
Interest, enforcement costs, and ancillary charges may also fall within the surety’s liability if they are within the agreed maximum amount and were contemplated by the parties at the time the suretyship was executed. However, any increase in the tenant’s obligations that results from a subsequent unilateral modification of the lease — for example, an increase in the rent agreed between the landlord and tenant after the suretyship was signed — does not automatically extend the surety’s liability unless the surety has expressly consented to be bound by the modified terms.
Surety Liability in Extended and Renewed Lease Periods
A particularly complex and frequently litigated issue concerns the extent of the surety’s liability when a fixed-term lease is automatically renewed upon its expiry. Under Article 347 of the Turkish Code of Obligations, residential and roofed workplace leases are automatically extended for one-year periods unless the tenant gives timely notice of termination. This mechanism of automatic extension creates uncertainty about whether the surety remains liable during the extended periods that were not explicitly contemplated at the time of signing.
The Court of Cassation has developed a relatively clear position on this issue. Where the suretyship agreement does not expressly state that the surety’s liability extends to renewed or extended lease periods, the surety’s responsibility is generally limited to the obligations arising during the original agreed term of the lease. For the surety to be held liable for obligations arising during automatic extensions, this must be explicitly provided for in the suretyship, and the maximum amount and any time limit applicable to the extended period must also be stated in the surety’s own handwriting.
This rule has important consequences for landlords who rely on suretyships executed at the beginning of a multi-year tenancy. If the lease continues beyond its initial term without the surety being re-engaged under a new or amended suretyship document that complies with all formal requirements, the landlord may find that the surety can no longer be held liable for the tenant’s obligations in the later phases of the tenancy.
The Ten-Year Limit and Termination of Suretyship
Turkish law imposes an absolute maximum duration of ten years on suretyships provided by natural persons. Under Article 598, paragraph 3 of the Turkish Code of Obligations, a suretyship given by a natural person automatically terminates upon the completion of ten years, regardless of what the parties may have agreed. This rule applies even where the lease itself continues beyond the ten-year mark. The parties cannot contractually extend a suretyship beyond this period; once ten years have elapsed, the landlord must obtain a new suretyship from the same or a different surety in order to maintain secured coverage.
Article 598, paragraph 3 of the Turkish Code of Obligations: A suretyship given by a natural person for an indefinite period or for a period exceeding ten years shall, following the expiry of ten years from the date of the suretyship, be terminated by the surety giving six months’ written notice.
Separate from the ten-year rule, a surety may also seek to be released from the obligation in specific circumstances provided by law, such as a material change in the tenant’s financial situation that was not foreseeable at the time of the suretyship, or a significant modification of the principal obligation without the surety’s consent. These grounds for release are interpreted narrowly by Turkish courts, and a surety seeking to escape liability on such grounds must establish clear and significant changes rather than general deterioration of economic conditions.
Enforcement Proceedings Against the Surety
When the tenant defaults and the landlord decides to proceed against the surety, the enforcement path depends on the type of suretyship established. For a joint and several surety, the landlord may initiate enforcement proceedings directly after giving the tenant formal notice of default, provided the tenant has failed to pay a matured debt. The surety may challenge the enforcement by raising objections based on the invalidity of the suretyship — most commonly, failure to comply with the formal requirements of Article 583 or absence of the spouse’s consent under Article 584 — or by asserting that the claimed amount exceeds the agreed maximum liability.
A surety who pays the landlord’s claim acquires a right of recourse against the tenant for the amount paid. This subrogation right allows the surety to step into the landlord’s shoes and pursue the tenant through ordinary civil enforcement channels. In practice, however, the effectiveness of this recourse depends entirely on the tenant’s financial situation, and a surety who has been called upon to pay a defaulting tenant’s debts may find it difficult to recover the amounts disbursed.
Tenant and Landlord Lawyer in Istanbul – Attorney Ozan Soylu
Attorney Ozan Soylu is a practicing lawyer based in Istanbul, advising both landlords and tenants on lease agreement structuring, suretyship validity, and enforcement of guarantor obligations under Turkish law. His practice covers the drafting and review of lease and suretyship agreements, disputes arising from defective guarantees, and representation in enforcement proceedings involving surety claims before Turkish courts.
For all legal matters concerning Turkish law, you can reach out to Attorney Ozan Soylu. Legal consultancy and representation services are provided with a dedicated approach for foreign nationals. To submit your questions, contact us.
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