Condominium Disputes — Common Areas, Maintenance Fees and Management Issues

Condominium Ownership Disputes — Common Areas, Service Charges and Management Problems

Condominium ownership disputes (kat mülkiyeti uyuşmazlıkları) are among the most frequently encountered types of dispute in Turkish legal practice, as apartment and residential complex living has become widespread. Law No. 634 — the Condominium Ownership Act (Kat Mülkiyeti Kanunu — KMK) — regulates the rights and obligations of independent unit owners, the use of common areas, service charge (aidat) debts, and the functioning of management bodies. This article examines the principal areas of dispute arising under condominium ownership, the means of resolution, and current judicial practice.

What Is Condominium Ownership and How Is It Established?

Condominium ownership (kat mülkiyeti) is, under Art. 1 of Law No. 634 (Condominium Ownership Act — KMK), a special type of ownership established over each of the independent units — such as floors, apartments, offices, shops, and stores — of a completed building that are each suitable for separate and self-contained use. Condominium ownership is established in connection with the land share (arsa payı) and the common areas.

For condominium ownership to be established, the building must be completed and each independent unit must be suitable for separate use. Under KMK Art. 12, condominium ownership is established by registration at the land registry directorate. The application requires the occupancy permit (yapı kullanma izin belgesi — iskan), the architectural plan, the management plan (yönetim planı), and an application by the owner or owners.

The stage before condominium ownership is established is condominium easement (kat irtifakı). Under KMK Art. 3, a condominium easement may be established over a plot before the building is completed and is converted to condominium ownership upon completion of the building. Condominium easement holders are also subject to KMK provisions and are obligated to comply with the management plan.

What Are Common Areas and How Are They Used?

Common areas are areas listed in KMK Art. 4 that are set aside for the common use of independent unit owners. These include foundations, main walls, courtyards, gardens, stairwells, lifts, roofs, shelters, concierge units, car parks, and boiler rooms. The use of these areas is the common right of all condominium owners (kat malikleri).

Under KMK Art. 16, condominium owners hold the common areas as co-owners in proportion to their land shares, subject to the rules of co-ownership. However, in the use of common areas, the intended purpose and the management plan — rather than land share ratios — apply. The exclusive use of common areas by one condominium owner infringes the rights of other owners and may be made the subject of an action.

Using common areas contrary to their intended purpose is prohibited under KMK Art. 18. For example, using apartment stairways as a storage area, fencing off a garden as a private area by one apartment owner, or unlawfully closing off a car park constitute common area violations. In such cases, the other condominium owners or the manager may bring an action before the court of peace (sulh hukuk mahkemesi) against the infringing owner.

What Happens If Service Charge Debts Are Not Paid?

Against a condominium owner who does not pay service charge debts, other condominium owners or the manager may under KMK Art. 20 initiate enforcement proceedings. A monthly delay compensation (gecikme tazminatı) of five percent is applied to unpaid service charge debts. This rate differs from general interest rates, is a specific provision of the Condominium Ownership Act, and cannot be altered by agreement.

For the collection of service charge debts, the manager or a person appointed by the general assembly of condominium owners (kat malikleri kurulu) may apply to the enforcement directorate and initiate proceedings without a court judgment (ilamsız icra). A payment order is sent to the debtor condominium owner. If the debtor objects, the creditor may bring an action for removal or setting aside of the objection. Under KMK Art. 22, resolutions of the general assembly of condominium owners and operational plans constitute documents within the meaning of İİK Art. 68.

The monthly five percent delay compensation applied under KMK Art. 20/2 corresponds to a rate of sixty percent on an annual basis. This high rate is intended to encourage condominium owners to pay service charge debts on time. The delay compensation begins to run from the date the debt falls due and continues until the date of payment.

Under KMK Art. 25, transfer of the independent unit of a condominium owner who persistently fails to pay debts or meet other obligations may be requested. This is an extremely severe sanction and is subject to strict conditions in practice. A decision by a majority in terms of both number and land share of the other condominium owners and an application to the court are required.

How Is a Manager Elected and What Are the Manager's Duties?

A manager (yönetici) is elected by the general assembly of condominium owners under KMK Art. 34. The general assembly takes decisions by a majority in terms of both number and land share of the condominium owners. The manager may be chosen from among the condominium owners or from outside, and the term of office is one year unless the management plan specifies otherwise.

The principal duties of the manager are regulated in KMK Art. 35. Accordingly, the manager is required to implement the decisions of the general assembly of condominium owners, manage the main building, carry out maintenance and repairs to common areas, collect general expenses, prepare the budget, and render annual accounts. The manager is subject to a duty of care in performing duties.

If the manager abuses the position, fails to render accounts, or neglects duties, the general assembly may remove the manager at any time. Under KMK Art. 34/6, condominium owners may dismiss the manager by a majority in terms of both number and land share. In addition, any condominium owner may request the court to change the manager if there is a justified reason.

In buildings with three or fewer independent units, it is not mandatory to elect a manager. However, in buildings with eight or more independent units it is mandatory under KMK Art. 34 to elect a manager. Where a manager cannot be elected, the court of peace may appoint a manager upon the request of any condominium owner.

How Are General Assembly Resolutions Adopted and Challenged?

General assembly resolutions are adopted by a majority vote of the condominium owners present at the meeting under KMK Articles 30–33. The quorum for a meeting is more than half of the condominium owners in terms of both number and land share. If a quorum is not reached at the first meeting, a resolution may be adopted by a majority of those attending the second meeting.

A qualified majority is required for certain resolutions. Under KMK Art. 19, the written consent of four-fifths of all condominium owners is required for construction or alterations in common areas. For amendment of the management plan, under KMK Art. 28 a vote of four-fifths of all condominium owners is required. A resolution to completely demolish and rebuild the main building requires a unanimous vote.

Under KMK Art. 33, any condominium owner — provided that owner voted against or abstained from the resolution — may bring an action for annulment of a resolution adopted by the general assembly, within one month of learning of the resolution and in any event within six months of the date of the resolution. As a general rule, a condominium owner who attended the meeting and voted in favour cannot bring an action for annulment.

An action for annulment of a general assembly resolution is brought before the court of peace (sulh hukuk mahkemesi). The court assesses whether the resolution is contrary to the law, the management plan, or equity. Resolutions adopted without proper notice being given, resolutions adopted without meeting the required quorum, and resolutions that unjustifiably restrict the rights of condominium owners may be annulled.

Is Permission Required for Renovation Work in an Independent Unit?

For renovations to be carried out in an independent unit, the written consent of four-fifths of the other condominium owners is required under KMK Art. 19 if the renovations are of a nature that may damage the main structure or involve interference with common areas. No permission is required for cosmetic renovations within the independent unit that do not affect the building's load-bearing elements.

Under KMK Art. 19/2, condominium owners may, by agreement among themselves, lease their independent units and extensions, allow others to use them, and carry out all types of dispositions over the independent unit within the bounds of applicable law. However, alterations to independent units must not infringe the rights of other condominium owners or jeopardise the safety of the main structure.

Renovations involving structural elements such as load-bearing walls, columns, or beams are absolutely prohibited because they jeopardise the static structure of the building, and cannot be carried out even with the consent of the other condominium owners. Such renovations may result in a demolition order and an administrative fine under Arts. 32 and 42 of Law No. 3194 (Building Code — İmar Kanunu). In addition, the offence of creating a general danger under the Turkish Criminal Code (Türk Ceza Kanunu) may arise in respect of a condominium owner who endangers the building.

What Are the Legal Remedies for Nuisance Use and Noise Problems?

In cases of nuisance use and noise problems, condominium owners are required under KMK Art. 18 not to disturb each other and not to infringe each other's rights. Other condominium owners or the manager may bring an action before the court of peace against a condominium owner who violates this obligation and may even request the court's intervention under KMK Art. 33.

Nuisance use within the scope of KMK Art. 18 includes: excessive noise, odours, vibration, use of an independent unit for a purpose other than its designated use (such as using a residential unit as a workplace), and use contrary to general morality. The management plan may contain detailed provisions on these matters and its provisions are binding.

If the nuisance use continues, the severe sanction of an action for transfer of the independent unit under KMK Art. 25 may arise. This action may be brought following a decision adopted by a majority in terms of both number and land share of the other condominium owners. The court assesses the seriousness and duration of the violation and may order the transfer of the independent unit at its market value closest to the date of judgment to the other condominium owners.

Noise problems may also be assessed from the perspective of environmental legislation. Noise limit values in residential areas are established by the Environmental Noise Assessment and Management Regulation. Where these limits are exceeded, a complaint may be filed with the municipality or the provincial environment directorate and an administrative fine may be imposed [TO BE VERIFIED].

Which Court Has Jurisdiction and Venue in Condominium Ownership Disputes?

In condominium ownership disputes, the court with subject-matter jurisdiction is the court of peace (sulh hukuk mahkemesi) under KMK Art. 33. The court with territorial jurisdiction is the court of the location of the main building. This jurisdiction rule is of an exclusive nature and cannot be changed by the parties. This jurisdiction rule applies to all disputes arising from condominium ownership.

Under the mandatory mediation practice introduced by Law No. 7445 in condominium ownership disputes, applying to mediation before bringing an action has become mandatory for immovable property tenancy disputes. However, there is no mandatory mediation requirement for other disputes arising from condominium ownership (service charge debts, common area violations, management plan disputes) [TO BE VERIFIED].

An action for annulment of a general assembly resolution must be brought within one month of learning of the resolution and in any event within six months of the date of the resolution. These periods are right-extinguishing in nature and are taken into account by the court ex officio. If these periods lapse, the right to bring the action is lost and the resolution becomes final.

This content is for general informational purposes only and does not constitute legal advice. Professional legal advice from a qualified attorney is strongly recommended for specific disputes.