Rights and Responsibilities of the Guarantor in Rental Agreements Under Turkish Law

In rental agreements, it is common practice to provide a guarantor to secure the landlord’s claims in case the tenant fails to meet the rent payment and other obligations. The guarantor becomes responsible to the landlord if the tenant does not fulfill their debt.

What are the Responsibilities of the Guarantor?

The guarantor’s responsibilities are subject to the provisions specified in the rental agreement and the Code of Obligations. As explicitly stated in Supreme Court decisions, unless otherwise agreed, the guarantor is only responsible for the unpaid rent.

” (…) Since the specific amount for which the guarantor will be responsible is not clearly indicated, the provisions of the surety other than the portion related to the rent are invalid. In this case, the guarantor is only responsible for the unpaid rent. Holding the guarantor jointly liable for items such as misuse, electricity, water costs, repair costs, and claims arising from the rental period is contrary to procedure and law. Accepting these claims instead of rejecting them has necessitated the annulment of the decision (…) THIRTEENTH CIVIL CHAMBER Case 2002/12935 Decision 2003/1555 Date 18.02.2003

Limits of the Guarantor’s Responsibility

The guarantor’s responsibility can be limited in certain circumstances. These limitations should be explicitly stated in the agreement. For example, the guarantor can be held responsible for a specific rent amount or for a certain period. Moreover, the guarantor cannot be held liable for damages caused by the tenant’s fault.

Guarantor’s Rights

The guarantor also has certain rights. Before paying the tenant’s debt, the guarantor can demand payment from the landlord. Additionally, the guarantor can terminate the rental agreement and be released from the surety obligation by paying the debt.

Form and Elements of Suretyship

To be valid, the guarantor’s responsibility in the rental agreement must be established in writing. The following elements must be included in this written document:

Guarantor’s Identity Information: The guarantor’s name, surname, Turkish ID number, and other identification details must be clearly stated.
Scope of Responsibility: The specific debts for which the guarantor is responsible, such as rent, late fees, and eviction costs, can be listed individually or a general statement like “all debts arising from the rental agreement” can be used.
Limit of Responsibility: The duration and amount of the guarantor’s responsibility should be explicitly stated in the agreement. For example, the suretyship can be limited to 2 years and a maximum of 12,000 TL. If this limit is not specified, the suretyship is limited to 10 years, and the guarantor is responsible for all the tenant’s debts throughout the rental agreement.
Guarantor’s Handwritten Signature: The guarantor’s handwritten signature is mandatory for the validity of the suretyship. Computer printouts or signatures from unauthorized persons are invalid.

Joint and Several Suretyship and Co-Suretyship

Two types of suretyship practices can be applied in rental agreements:

Joint and Several Suretyship: In this case, the landlord can directly demand the debt from the guarantor if desired. After paying the debt, the guarantor has the right of recourse against the tenant (can claim the money back).

Co-Suretyship: The landlord first demands the debt from the tenant. If the tenant cannot pay the debt, the landlord can turn to the guarantor. In this case, the guarantor and the tenant share the debt proportionally. Unless otherwise stated in the agreement, the guarantor and tenant share the debt equally.

Guarantor’s Responsibility in Extended Rental Agreement

If the rental agreement is extended, the guarantor’s responsibility is generally evaluated as follows:

If the Suretyship Duration is Specified: If the suretyship duration is specified, the guarantor’s responsibility is limited to that duration even if the rental agreement is extended. For example, if the suretyship duration is specified as 2 years, the guarantor is only responsible for the first 2 years.

If the Suretyship Duration is Not Specified: Rental agreements are typically renewed annually. Therefore, the suretyship agreement essentially ends after one year. However, those signing a suretyship agreement for rent generally intend for the guarantor’s responsibility to continue until the rental agreement completely ends. The guarantor should specifically state whether they will extend the agreement at the end of each renewal year. The maximum duration the guarantor can be held responsible is 10 years.

Conclusion of Guarantor’s Responsibility

The guarantor’s responsibility ends in the following situations:

Termination of the Rental Agreement: When the rental agreement is terminated or ends, the guarantor’s responsibility also ends.
Payment of the Debt: The guarantor is released from responsibility when the tenant’s debt is paid.
Completion of the Suretyship Duration: When the suretyship duration specified in the agreement ends, the guarantor’s responsibility also ends.

Protection and Objection Rights of the Guarantor

The guarantor in a rental agreement can protect themselves and be released from responsibility in certain situations:

Principal Debtor’s Default: The guarantor is only responsible if the tenant defaults, i.e., fails to pay on time, and the landlord notifies the guarantor. If the landlord does not inform the guarantor of the tenant’s delay, the guarantor may not be responsible for the entire debt.
Contract Amendment: If the rental agreement is significantly changed to the tenant’s detriment without the guarantor’s knowledge and consent, the guarantor can be released from responsibility. For example, if the rent amount is significantly increased or additional obligations are added to the agreement without the guarantor’s knowledge, the guarantor may not be responsible.
Force Majeure: If the tenant cannot fulfill their debt due to force majeure (e.g., earthquake, flood) and it is not possible to prevent this situation, the guarantor may also not be responsible.

Guarantor’s Rights Against the Creditor

After taking over the payments in the rental agreement, the guarantor has certain rights:

Right of Recourse: After paying the tenant’s debt, the guarantor can demand payment from the tenant (right of recourse). This way, the guarantor can reclaim the payment they made.
Securing the Debt: The guarantor has the right to request collateral (such as a rental deposit) from the landlord to secure the tenant’s debt. Thus, the guarantor can partially or completely cover the debt they had to pay with the collateral.
Termination of the Contract: The guarantor may want to withdraw from the suretyship obligation after a certain period. In this case, the guarantor can notify the landlord and terminate the agreement. However, if termination is to be made before the suretyship period expires, the guarantor must take necessary measures to secure the tenant’s debt.

Examples Related to Suretyship in Rental Agreement

It will be beneficial to reinforce the topic with some examples of suretyship practices in rental agreements:

Example 1: Ahmet becomes a guarantor for his friend Mehmet to rent a house. The suretyship period is set for 1 year in the rental agreement, and Ahmet signs as a joint and several guarantor. Six months later, Mehmet starts to delay his rent payments. In this case, the landlord can demand the entire debt from Ahmet. After Ahmet pays the debt, he has the right of recourse against Mehmet (can claim his money back).

Example 2: Ayşe is shown as a co-guarantor while renting a house for her student daughter. The agreement specifies that the guarantor’s responsibility is limited to the rent. When her daughter cannot pay the rent three months later, the landlord first demands the debt from her daughter and then from Ayşe. In this case, Ayşe and her daughter are obliged to pay the debt equally (assuming no different proportion is stated in the agreement).

Example 3: Ali becomes a guarantor for his cousin Deniz to rent a shop. The suretyship agreement does not specify any limit. Later, Deniz transfers the business and terminates the rental agreement, but the new tenant also fails to pay the rent. In this case, Ali can be held responsible for all debts incurred during the rental agreement, which can last up to 10 years.

Points the Guarantor Should Consider

If you are considering becoming a guarantor in a rental agreement, it is beneficial to pay attention to the following points:

Tenant’s Financial Situation: Before becoming a guarantor, investigate the tenant’s financial situation and ensure their ability to fulfill their debt.
Contents of the Agreement: Carefully review the scope, limits, and duration of the suretyship. Be cautious not to make yourself overly responsible.
Joint and Several or Co-Suretyship: Know which type of suretyship applies in the agreement. Joint and several suretyship carries more risk, so decide accordingly.
Request Collateral: Before signing as a guarantor, request collateral (such as a rental deposit) from the landlord to secure the rent. This way, you can partially compensate for potential losses.

Sample Joint and Several Suretyship Agreement

This Joint and Several Suretyship Agreement is made on [Date], in [City], between the parties written below.

Parties:

Guarantor: [Guarantor’s Name Surname],
Turkish ID No: [Guarantor’s Turkish ID Number],
Address: [Guarantor’s Address] (hereinafter referred to as “Guarantor.”)

Creditor: [Creditor’s Name Surname],
Turkish ID No: [Creditor’s Turkish ID Number],
Address: [Creditor’s Address] (hereinafter referred to as “Creditor.”)

Debtor: [Debtor’s Name Surname], Turkish ID No: [Debtor’s Turkish ID Number], Address: [Debtor’s Address] (hereinafter referred to as “Debtor.”)

Article 1: Debt

The Debtor owes the Creditor [Amount of Debt] TL. This debt has arisen due to [Reason for Debt].

Article 2: Suretyship

The Guarantor is jointly and severally responsible for all debts of the Debtor to the Creditor. This means that if the Creditor cannot collect all or part of the debt, they have the right to demand it from the Guarantor.

Article 3: Terms of Suretyship

The Guarantor agrees to pay the entire or part of the debt to the Creditor in case the Debtor does not pay.
The Guarantor waives the right to make any objections to the Creditor.
The Guarantor accepts that the Creditor can resort to any means for debt collection.

Article 4: Cancellation of Suretyship

If the Debtor fully pays the debt, the Suretyship automatically ends.
The Creditor can cancel the Suretyship at any time by giving written notice to the Guarantor.
The Guarantor can terminate the Suretyship by giving written notice to the Creditor.

Article 5: Resolution of Disputes

All disputes arising from this Agreement are subject to the exclusive jurisdiction of the [Court] Courts.

Article 6: Effectiveness

This Agreement comes into effect on [Date] and is signed by the parties.

[Guarantor’s Signature]

[Creditor’s Signature]

[Debtor’s Signature]

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