Transfer Of The Lessee’s Right Of Use To A Third Party
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 in the form of assignment of receivables. Therefore, it can only be made in writing. The transferee may request the lessor to deliver the leased property and keep it in a condition suitable for use (Judg. HGK, E. 2011/749 K. 2012/50 T. 8.2.2012)
In terms of Ordinary Lease: The lessee may transfer the use receivable arising from the lease agreement to a third party, unless otherwise stipulated in the agreement.
In Residential and Roofed Workplace Lease: In residential and roofed workplace leases, the right of use may be transferred only with the written consent of the lessor.
PROVISIONS OF THE ASSIGNMENT OF THE RIGHT OF USE
In the event of the transfer of the right of use, the original lease relationship with the lessor is not terminated, and the lessee’s responsibilities, especially the payment of the rent, continue. The transferee must use the leased property diligently and in accordance with the original lease agreement. Otherwise, the lessor may terminate the lease agreement under the conditions stipulated in Article 316 of the TCO. The transferee cannot use the rights arising from innovation affecting the contract. However, he/she may use the rights that are dependent on the right of receivable (for example, the claim for rectification of the defect).
ASSIGNMENT OF THE LEASE AGREEMENT
The transfer of the lease agreement is in the nature of transfer of the contract. The party to the contract changes. In the transfer of sublease or right of use, the parties of the main lease relationship do not change. The annotation of the lease agreement does not prevent the transfer. The annotation continues to secure the right of the new tenant.
CONDITIONS FOR THE TRANSFER OF THE LEASE AGREEMENT
The transfer of the lease agreement is by contract. Agreement of the party who wants to be a party to the contract and the existing parties of the contract is required. The wills of the transferor (old tenant), the transferee (new tenant), the other party/parties (lessor/lessors) of the contract are required. This issue is stated in the law: “The lessee may not assign the lease relationship to another person unless he obtains the written consent of the lessor” (TCO Art. 323/f.1).
VALIDITY OF THE ASSIGNMENT
The validity of the assignment of the lease agreement requires compliance with the form of the original lease agreement (Article 205 of the TCO). If there is no such form requirement, the validity depends on the written consent of the lessor. The lessor may consent to the assignment of the lease agreement in general or may consent to a single assignment in particular. If the lessor does not consent, it is not possible for the lessee to force the lessor to make a declaration in this direction.
CONSENT IN WORKPLACE RENTS
In workplace leases, the lessor cannot refrain from giving this consent unless there is a justified reason. As can be seen, in workplace leases, the lessor is obliged to give consent unless there is a just cause. In workplace leases, if the lessor refrains from giving consent without just cause, the lessee may apply to the judge and realise the transfer of the contract. In this case, the decision of the judge replaces the consent of the party.
EXAMPLES OF JUST CAUSE
Lack of economic power of the new tenant,
The new tenant intends to use the leased workplace for a purpose other than the purpose of use agreed in the contract,
The new tenant will change the structure of the leased place
If the use of the leased premises requires special knowledge and skills, the new tenant does not have these qualifications,
Use of a business premises that is not in accordance with the concept of the place where the leased premises are located (e.g. shopping centre) ,
The fact that the former tenant’s personality was favoured (e.g. the rental price was determined low due to the former tenant’s personality), etc.
CONSEQUENCES OF ASSIGNMENT
The old tenant leaves his place in the contract to the new tenant. Accordingly, the old tenant leaves the agreement and the new tenant takes his place (TCO Art. 323/f.2). On the other hand, in workplace leases, the transferor lessee is jointly and severally liable to the lessor together with the transferee (new lessee) until the end of the lease agreement and for a maximum period of two years (TCO Art. 323/f.3). The secondary guarantees (e.g. suretyship, pledge) given for the former lessee shall automatically terminate at the latest at the time of the transfer, unless the lessee consents (by analogy to Article 198 of the TCO).
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