Common Places within the Scope of Condominium Law, Rights and Obligations of Condominium Owners on Common Places

The independent property rights established by the owner or co-owners of that real estate on the sections of a completed building such as floors, apartments, business offices, shops, shops, stores, cellars, warehouses, which are suitable for separate and independent use are called condominium ownership. The persons who own these independent property rights are also called condominium owners. The Condominium Law grants certain rights and imposes certain obligations on the condominium owners.  One of the most fundamental areas specific to condominium ownership, where the rights and obligations of the condominium owners are regulated, is the common areas. Common areas are defined in Article 2/b of the Condominium Law No. 634 as "places outside the independent sections of the main real estate, which are used for protection and common use or benefit". The right of use of the condominium owners over the common areas is also defined in the continuation of this provision. Accordingly, the condominium owners have the right to benefit from the common places in which they are shareholders in the capacity of co-owners.

Common Places

As mentioned above, although common places are briefly defined in Article 2 of the Law, the more comprehensive regulation that should be taken as a basis is included in the provisions of Article 4 of the Law. According to Article 4 of the Law, common places are divided into two groups; common places determined by law and common places determined by contract.

Common Places Determined by Law

"...The following places and things are deemed to be common places in all cases in accordance with this Law

a) Foundations and main walls, beams, columns and curtain walls forming the carrier system and other elements forming part of the carrier system, common walls separating independent sections, ceilings and floors, courtyards, general entrance doors, vestibules, entrances, stairs, elevators, landings, corridors and general toilets and sinks in these places, janitor's apartments or rooms, general laundry and laundry drying places, general coal cellars and common garages, nests and closed parts outside the independent section for the protection of electricity, water and gas clocks, heating rooms, wells and cisterns, general water tanks of the building, shelters,

b) Sewerage facilities and garbage channels, heating, water, gas and electricity facilities, common networks and antennas for telephone, radio and television, hot and cold air facilities outside the own section of each floor owner,

c) Roofs, chimneys, general roof terraces, rain gutters, fire safety ladders.

Other places and things other than those listed above, which are also necessary for common use, protection or benefit are also included in the subject of (common place)." Although common places are called "places", anything that provides protection, benefit and common use of the main real estate can be qualified as a common place.

Although a detailed definition is provided in Article 4 of the Condominium Law, the scope of common places is further expanded by Article 67. According to this provision;

"The parcels that are within the scope of the collective structure and allocated to the common use and benefit of the independent sections within this scope are registered in the land registry by showing the island, parcel, block and independent section numbers of the other parcels within the scope of the collective structure to which they are allocated, and thus become the common place of the independent sections in the parcels to which they are allocated.

The common social and infrastructural facilities of more than one building within the scope of a collective building shall be considered as the common place of the independent sections to which they are allocated, regardless of the parcel or structure they are located."

Common Places Determined by Contract

Pursuant to Article 4/1 of the Condominium Law, "The subject matter of the common areas may be specified by contract..." It is stipulated that the common areas are not determined only by listing them in the Law. As stated in Article 13/1 of the Law, the contract stipulating the determination of the common areas is in the nature of an official deed issued by the land registry officer during the establishment of a condominium easement or condominium ownership. With this contract, which is an official deed, the condominium owners may determine even the independent sections that are suitable for separate use as common areas.

However, the common areas determined by the contract must be clearly shown in the plan and project approved by the competent authorities, and must also be in harmony with the approved project.  Because in case of a conflict between the contract and the approved project, the approved project is taken as basis.

The main reason for such a detailed and comprehensive regulation on the concept of common areas is that most of the disputes between the condominium owners arise from the rights and obligations over the common areas. The main reasons are the monopolization of the common areas and disposing on the common areas without the common will of the condominium owners.

In other words, common areas may be the external elements of the main real estate such as parking lots, gardens, wells, common drying places, common coal cellars or common garages, as well as some internal elements such as foundations, bearing columns and beams, elevators, roofs, chimneys, which are essential for common use, protection or benefit. As a matter of fact, facilities such as pools and gymnasiums dedicated for common use are also common places.

Rights and Obligations of Floor Owners on Common Places

Rights

(1). Right to Use

The condominium owners own all common areas of the main real estate in proportion to their land shares according to the common property provisions. Pursuant to Article 16/2 of the Condominium Law, the condominium owners have the right to use the common areas.

The limit and form of the right to use the common areas may be determined by a regulation in the management plan or by a special agreement between the condominium owners. However, unless otherwise regulated or agreed upon, the limit of the right of use shall be proportional to the land share of each condominium owner.

(2). The Right to Request the Transfer of the Ownership Right on the Detached Section to the Floor Owner Who Fails to Fulfill His/her Obligations Arising from the Law

Pursuant to Article 25 of the Condominium Law No. 634, the condominium owners have the right to request the transfer of the ownership of the independent section owned by the condominium owner who does not fulfill his obligations and causes an insufferable situation by filing a lawsuit.

In this context, when a lawsuit is filed for the transfer of the ownership of the independent section to the other condominium owners by paying the value of the independent section to that condominium owner on the date closest to the judgment, a decision will be made based on the number and land share ratio of the other condominium owners.

The determination of insufferability is made by the court. In the following cases, it is accepted that there is a state of insufficiency:

1- Failure to pay his/her share of the common expenses and advances, causing enforcement or litigation proceedings to be initiated against him/her three times within two calendar years;

2- Persisting for one year in violating the rights of other condominium owners by failing to fulfill the debts and obligations written in this law despite the order given by the magistrate judge of the place where the main real estate is located in accordance with Article 33;

3- Acting against morality and decency by using his/her independent section as a rendezvous house or gambling house or similar places.

(3). Right to Request the Judge's Intervention

Article 33 of the Condominium Law grants the condominium owners the right to request the intervention of the judge by filing an action for annulment against the decisions of the board of condominium owners. In this context, the condominium owners who voted against the decision in the condominium owners' meeting may file an annulment action within one month from the date of the decision, and the condominium owners who did not attend the meeting may file an annulment action in the Civil Court of Peace where the main real estate is located within one month from the date of learning the decision, and in any case within six months from the date of the decision. If the decision of the board of condominium owners is invalid with absolute nullity or has no effect, there is no time requirement. The point to be taken into consideration here is that the mediation process, which is a condition of litigation, must be exhausted before filing a lawsuit.

Obligations

(1). Obligation not to Damage Common Places

Each condominium owner has the obligation not to damage the common areas. The condominium owners cannot make repairs and alterations that will damage the main structure and common areas, including their own independent sections.

Pursuant to Article 19 of the Law, "Each condominium owner is liable to the other condominium owners for any damage caused by his/her fault to the main building and other independent sections." Condominium owners will be liable for the damage they cause to the common areas.

(2). Obligation to bear the expenses arising from the use and repair of common areas

This obligation is regulated in Article 72 of the Law titled "participation in common expenses". Accordingly, all condominium owners are responsible for the expenses arising from the use, utilization and repair of common areas. It is possible to apply the following remedies against the condominium owner who does not pay the share of expenses and advances, that is, who does not fulfill his obligation to participate in common expenses:

1- Each of the other condominium owners and the building manager subject to condominium ownership may file a lawsuit and execution proceedings in accordance with the management plan, the Condominium Law and the Turkish Code of Obligations.

2- The landlord who fails to pay his/her share of expenses and advance payments may be charged a delay compensation of 5 percent per month for the days of delay.

3- If the landlord's debt is collected from the tenant, the payment made by the tenant will be deducted from the rent since the tenant is only responsible for the amount of rent he is obliged to pay. However, if the debt of the condominium owner regarding common expenses cannot be collected in this way; a legal mortgage right may be registered on the independent section of the condominium owner in favor of other condominium owners for the amount of this debt upon the written request of the manager, if any, or one of the condominium owners.

Renting of Common Places

It is possible to rent not only the independent parts of a real estate but also the common parts. In practice, it is observed that not only apartments and shops, but also the exterior facades of the buildings and common facilities such as coal cellars, terraces, terraces, gardens, roofs, pools and sports fields dedicated to common use are rented. A unanimous decision of all condominium owners is required in order to make a disposition transaction that will provide financial return to the main real estate in the form of renting or advertising in such common areas.

If the lease of these common places is unanimously decided by all condominium owners, a lease agreement will be concluded by the board of directors or the authorized manager. However, places such as stairs that are allocated for special use are not rentable even if there is unanimity of the condominium owners.

Transactions and Changes on Common Places

The immovables subject to condominium ownership are managed by the board of condominium owners determined or elected by the condominium owners. However, in order to facilitate the implementation, it is regulated that the condominium owners may delegate the management of the main immovable to a person or a board of three persons to be elected from among themselves or from outside. In this context, the manager and the board of directors will be responsible to the other condominium owners as a proxy. Changes to the common areas of a condominium real estate are sometimes realized through an amendment to the management plan, and sometimes as a result of the unanimous decision of all condominium owners.

If it is aimed to make changes to the common areas by amending the management plan, according to Article 28/3 of the Condominium Law, the vote of four-fifths of all condominium owners is required to amend the management plan.

On the other hand, if the amendment or operation to be made is for the repair, maintenance or improvement of the common area, it will be sufficient for the board to convene with more than half of the condominium owners in terms of number and land share and to decide by majority vote. If it is necessary to fulfill this change in a hurry or if it is not possible to wait for the decision of the board, the transaction may be established without obtaining the consent of the condominium owners.

Mediation as a Condition for Litigation

The disputes arising from the Condominium Law No. 634 are subject to the mandatory mediation process pursuant to Article 18/B of the Law on Mediation in Civil Disputes. In this respect, it is necessary to apply to mediation before filing a lawsuit in disputes arising from common areas. In the event that the mediation process ends negatively and no agreement is reached, a lawsuit may be filed or enforcement proceedings may be initiated in case of non-compliance with the agreement minutes. The minutes of the agreement are accepted as a court decree after applying to the civil court of peace and obtaining an enforceable annotation.  Pursuant to additional article 1 of the Condominium Law, the competent court in all disputes arising from this law is the Civil Courts of Peace.

Case Law on Common Areas

"The 85 m² common area allocated for a special purpose, which was not determined in the floor owners' meetings, was rented out with the decision of the board of directors dated 06.07. 2010 dated 06.07.2010 dated decision of the board of directors, and since it has been determined by the expert report that the tenant opened an entrance from the ceiling of this place contrary to the project and installed a staircase, built a kitchen and wc inside and created some rooms, it was not deemed correct to decide to dismiss the lawsuit on the grounds that the changes contrary to the project did not harm the statics of the building, while it should be decided to prevent the intervention of the defendants and to restore it." (Court of Cassation 20th HD, E. 2019/6403 K. 2020/2533 T. 07.07.2020)

"...it was requested to annul the general assembly decision dated 16/02/2014, stating that it was decided to authorize the board of directors to rent the common areas of the site, but the decision was not taken unanimously, and according to the law, the provisions regarding the renting of common areas cannot be taken without the condition of unanimity. ...since it is understood that the decisions requested to be annulled were taken without sufficient quorum, the objections of the appellants are rejected and the judgment, which is in accordance with the procedure and the law, is approved..." (Court of Cassation 20th HD, E. 2017/1947 K. 2017/6235 T. 05.07.2017)

"According to Article 45 of the Condominium Law No. 634, a unanimous decision must be taken by the board of condominium owners in order to rent out the common areas. However, as explained above, it is not possible to rent out the common areas allocated for a special purpose in the architectural project without removing these qualifications by project modification, even with a unanimous decision. At the meeting dated 25.3.2015, there was no decision taken to rent out the common areas. In this respect, it was not deemed correct that the court did not consider that it should decide to prevent the interference by renting out the common areas, considering that there was no unanimous decision to rent out the common areas." (Court of Cassation 5th HD., E. 2020/7809 K. 2020/10390 T. 25.11.2020)

 "Within the framework of these provisions explained, although it is accepted in the practices of the Court of Cassation that, as a rule, facilities and changes cannot be made in common areas unless the written approval of all condominium owners is obtained, it is concluded that it is an economical means of heating for all condominium owners as well as an important contribution to the country's economy, and under certain conditions, it is permitted to install a solar energy water heating system on the terrace, roof and similar common areas of the condominium building, even if it is not included in the project. Accordingly, the main conditions are that the area to be covered by the solar energy system to be installed on the roof or terrace should not exceed the area corresponding to the land share of the independent section of the floor owner, there should be enough space on the roof for all independent sections in the main building for this work, the main conditions are that the statics of the main building should not be damaged if all independent sections install this system, and the system should be installed in a suitable location on the roof by taking all technical measures to prevent damage to independent sections. " (Court of Cassation 18th HD, E. 2006/6943 K. 2006/9821 T. 28.11.2006)

"According to the provision of the second paragraph of Article 19 of the Condominium Law No. 634, one of the condominium owners cannot make construction, repair, installation and changes in the common parts of the main immovable without the consent of all condominium owners. It is understood from the information and documents in the file, especially from the content of the letter dated ... day and numbered ... of the ... Municipality, that in the approved project of the main immovable, the top of the main building is an open terrace without a roof. According to the provision of the first paragraph of Article 19 of the Condominium Law, each of the condominium owners is obliged to maintain the architectural condition of the main immovable meticulously, and according to the second paragraph mentioned above, the plaintiff cannot make changes in the common areas without the consent of all other condominium owners; the plaintiff has no right to claim the expenses of the roof built over the common terrace contrary to the mandatory provision of the aforementioned article of the law from the other condominium owners." (Court of Cassation 18th HD, E. 2005/3577 K. 2005/5583 T. 30.05.2005)

"According to subparagraph (B) of Article 4 of the Condominium Law No. 634, the facilities within each condominium owner's own section are not common facilities. Since the sewage and water facilities within the independent section, which do not qualify as common facilities, must be repaired by the owner of that independent section and the reasons written in the court decision are appropriate, it is understood that the judgment is correct." (Court of Cassation 5th HD, E. 1983/1646 K. 1983/1719 T. 28.02.1983)

Conclusion

Within the scope of the Condominium Law, the condominium owners have a number of rights and obligations over the common areas. In the event that the rights of the condominium owners are violated by another condominium owner or a condominium owner fails to fulfill his/her obligations, it is possible for the other condominium owners to first apply to mediation, and if no agreement is reached during the mediation process, it is possible to file a lawsuit at the Civil Court of Peace where the main real estate is located. The right to apply for the above-mentioned legal remedies is granted to both the condominium owners and the board of directors.

Cowriter: Nurullah ÖZÜN