Common Areas within the Framework of Condominium Law

I. INTRODUCTION

Nowadays, with the effect of urban construction, population increase, renewed settlement order due to internal and external migration, it can be said that condominium buildings are in demand especially in city centres. With condominium ownership; it is ensured that independent sections such as apartments, floors, workplaces, cellars, stores and warehouses on a main real estate whose construction has been completed can be separated by the real estate owner(s) and registered separately as independent properties in the land registry. The right of ownership regarding the structure formed by these independent sections together is briefly referred to as “condominium ownership” and the regulations regarding them are legally evaluated within the scope of the “condominium ownership law” numbered 634. This arrangement, which is highly preferred in terms of investment due to the acquisition of separate ownership rights of all these independent sections with the construction of a single main real estate, and which is considered to be the most suitable for today’s conditions in terms of settlement, is essentially a complicated form of structure; It has its own unique situations and facts and rules specific to them.

II. THE CONCEPT OF COMMON AREA IN CONDOMINIUM OWNERSHIP

One of the important issues in such disposals for the structures subject to condominium ownership is the concept of “common area”. In subparagraph b of Article 2 titled “Definitions” of the Condominium Law, it is stated that the common areas are places “outside the independent sections of the main real estate, which are used for protection and common use or benefit” and in the following sentence, it is stated that the condominium owners have the right to benefit and use these places where they are shareholders as co-owners. In Article 4 of the same law, under the title of “common places”, it is stated that the subject of common places can be specified in the contract and it is ruled that the places and things regulated in three subparagraphs shall be considered common places in any case according to the Condominium Law.

According to this;

“a) Foundations and main walls, beams, columns and curtain walls forming the load-bearing system and other elements forming part of the load-bearing system, common walls separating independent sections, ceilings and floors, courtyards, general entrance doors, vestibules, entrances, stairs, lifts, landings, corridors and general toilets and washbasins in these areas, janitor’s flats 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,

1. 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,
2. c) Roofs, chimneys, general roof terraces, rain gutters, fire safety ladders”

It is considered as a common place in accordance with the law. In the last paragraph of the provision; “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)”, and it is regulated that the places other than those listed in the text of the article, which are specialised for this purpose, will also constitute a common area.

It is also adopted by the Court of Cassation that the common places can be determined by the contract, and if there is no such provision in the contract, the places written in Article 4 of the PFD No. 634 will be considered as common places.(Y.5th HD,T: 27.06.1978,E:1978/3210, K:1978/5663.)

However, in Article 67 of the PFK, with the title of “common places”;

“The parcels that are within the scope of the collective building and allocated to the common use and benefit of the independent sections within this scope shall be 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 building 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 infrastructure 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 where they are located.”

The statement in the form of a broader statement is included.

If it is necessary to concretise the expression of Article 67 of the CPC with examples; the common places covered within the collective building are the foundations, bearing columns and beams, elevators, roofs, chimneys, etc., which are essential for common use, protection or benefit, while the common places covered outside the collective building can be shown as car parks, gardens, wells, cisterns, general laundry and drying areas, general coal cellars or common garages, as well as facilities such as pools, gyms, etc., which are also dedicated to common use.

Finally; in order to avoid any doubt about the common places, it is useful to elaborate in the light of the decisions of the Court of Cassation. According to this;

• Places that are not independent sections and annexes in the main building are common areas.(Y.5.HD..13.09.1973.E.1973/14418.K.1973/13411.)
• Water facilities are common areas.(Y.5th HD. , 02.03.1970, E:1970/758, K:1970/1081.),
• The roof is a common area (Y.5.HD., 18.05.1992.E: 1992/2299, K:1992/4090.),
• The attic is a common area (Y.5.HD.1970, E: 1970/3868. K: 1970/5395)
• (Y.5th HD.23.10.1989, E:1989/2902, K 1989/20831)
• Car park is a common area. (Y.5th HD..12.10.1987.E.1987/13124.K.1987/15320)
• The garden is a common area. (Y.5th HD. (10.12.1979.E.1979/8198.K.1979/9210)
• The shelter is a common area. (Y.5.HD..08.06.1987.E.1987/6879.K1987/10434)
• Heating installation is a common area. (Y.5.HD..18.01.1988.E.1988/29035.K. 1988/201.)
• Whether the terrace is a common place or not is determined according to the approved Zoning Plan. (Y.5th HD..10.12.1979.E.1979/8100.K.1979/9214)
• If the coal house is not an annex, it is a common place. (Y.5th HD. T: 28.01.1980 E:1980/482, K:1980/522)
• The landings where the independent sections are located are common places. (Y.5th HD, T: 04.02.1980, E:1980/536, K:1980/807)
• Landings, ceilings and roofs are common areas. (Y.5th HD. T: 30.03.1981, E:1981/1099 K:1981/3156)
• Sığınak ortak yerlerdendir.(Y.5.HD..08.06.1987.E.1987/6879.K1987/10434.)
• Whether the terrace is a common place or not is determined according to the approved zoning plan (Y.5th HD., T: 10.12.1979, E:1979/8100, K:1979/9214)
• The spaces and gardens outside the buildings are common areas. (Y.5th HD, E:1988/19310, K:1988/1299)

In the light of both the applicable legislation and the decisions of the Court of Cassation, the common areas are more or less shaped. However, if the parties are in doubt as to whether an area will be considered as a common area or not, it will be beneficial to file a case for determination and act in accordance with the determination decision to be made by the court in line with the expert report.

III. RIGHTS AND OBLIGATIONS OF CONDOMINIUM OWNERS OVER THE COMMON AREA

Article 16 of the Condominium Law regulating the rights of condominium owners on common places;

“The condominium owners shall own all common areas of the main real estate in proportion to their land shares, according to the provisions of co-ownership.

The condominium owners have the right to use the common areas; the measure of this right in places such as general coal cellars, garages, terraces, laundry and laundry drying areas is proportional to the land share of each condominium owner, unless otherwise agreed.”

It is expressed as follows. However, the limit and form of the right to benefit from the common areas may be determined by agreement between the condominium owners. If there is no contrary arrangement in the management plan and there is no special agreement between the condominium owners; it should be accepted that all condominium owners own and have the right to use the common areas in proportion to their land shares.

Although the text of the law refers to the “flat owner”, as a natural consequence of the right of use in the lease relationship, tenants may also benefit from these areas by attributing them to the owner. .(Y.5.HD.29.06.1987.E. 1987/1540.K.1987/12739.)

Regarding the obligation; each owner has the obligation not to damage the common areas. They cannot make repairs and changes that will damage the main structure and common areas, including their own independent sections. Apart from these; the condominium owners have the obligation to bear the expenses arising from the use and repair of the places subject to common use. This issue is regulated in Article 72 of the PFCC under the title of “participation in common expenses” as follows.

“Article 72 – (Additional: 14/11/2007-5711/22 Art.) Common expenses related to common places and facilities allocated for the common use and benefit of the condominium owners in a certain building or only a few of the buildings within the scope of a collective building shall be borne by the condominium owners in those buildings, and common expenses related to facilities and places allocated for the common use and benefit of all independent sections shall be borne by all condominium owners.

Decisions of block condominium owners, collective building representatives and temporary board of directors shall be deemed to be among the documents specified in the first paragraph of Article 68 of the Execution and Bankruptcy Law No. 2004.

The condominium owners cannot avoid paying the common expense share of the collective building and the advance to be collected by giving up the right to use the common structures, places and facilities within the scope of the collective building or by claiming that they are located in another parcel or public areas or that there is no need or necessity to benefit from them due to the condition of their independent sections or themselves.”

In this direction;

• Each of the other condominium owners and the building manager subject to condominium ownership may file a lawsuit and execution proceedings against the condominium owners who do not pay the expense or advance share in accordance with the management plan, the Condominium Law and the Turkish Code of Obligations.
• The condominium owner who fails to pay the full amount of the expense and advance payment shall be liable to pay delay compensation for the days of delay at the rate of 5 per cent per month.
• Establishing a mortgage on the independent section of the condominium owner who does not pay the expense and advance share; Those who benefit from one of the independent sections on a continuous basis due to a lease agreement, right of residence or etc. are also jointly and severally liable for the expense and advance debt and delay compensation of the condominium owner. If the debt of the condominium owner cannot be collected in this way, the independent section of the condominium owner who has not paid the debt determined by the court shall be registered as a legal mortgage right in favour of the other condominium owners for the amount of the existing debt upon the written request of the manager or one of the condominium owners.

Apart from these; in the first paragraph of Article 25 of the Condominium Law, it is stipulated that if one of the condominium owners violates the rights of the other condominium owners to such an extent that it becomes unbearable for them by not fulfilling the debts and obligations that fall to him according to this law, they may request the judge to transfer the ownership right over the independent section of that condominium owner to them.

In the continuation of the same article, this state of intolerability;

1. a) Causing enforcement or litigation proceedings to be initiated against him/her three times within two calendar years for not paying his/her share of the common expenses and advances;
2. b) Persisting for one year in violating the rights of other condominium owners by failing to fulfil the obligations and liabilities 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. c) Acting against morality and decency by using his/her own independent section as a rendezvous house or gambling house or similar places.

expressed in the form.

In a decision of the Court of Cassation, in the third paragraph of the same article, it is considered as an insufferable behaviour to have been subjected to enforcement or litigation proceedings three times within two calendar years for not paying his/her share of the common expenses and advances, or to have persisted for one year in violating the rights of other condominium owners by not fulfilling 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. (Y.18.HD. T:22.12.2003, E:2003/8423 K:2003/10272)

IV. MODIFICATION OF COMMON AREAS

First of all, it should be explained that a building subject to condominium ownership is managed by the board of condominium owners as a rule pursuant to Article 32 of the CML. However, taking into account the possible difficulties in practice of the execution of the management works by all the condominium owners personally; the legislator has regulated in Article 34 of the same Law that the condominium owners may assign the management of the main immovable to a person or a board of three persons to be elected from among themselves or from outside. The person who takes over the management is called “manager” and the board is called “board of directors”. Pursuant to Articles 38 and 40 of the same law, these persons are liable to the condominium owners just like a proxy and have the rights of the proxy as a rule. If the changes to be made by the board of directors are considered to be procedurally unlawful, a lawsuit may be filed by the other condominium owners without the need to specify the name of a real person, in such a way that the board of directors will be the party of hostility. (Y.18 HD. E. 2004/4688 K. 2004/5394 T. 28.6.2004)

In the common areas of a building subject to condominium ownership, there may be a need for some changes that may or may not be foreseen in the management plan.

So how are the changes to be made on the common area decided?

If the transactions and changes to be made in the common areas are made for the purpose of maintenance/repair/improvement of the common area, in this case, the decision to be taken by the majority vote of the floor owners will be sufficient for the allocation of the transaction. However, if such transactions need to be carried out in a hurry without waiting for the board meeting and quorum, the consent of the owners will not be sought in this case. This situation is regulated in Article 19 of the PDA as follows;

“Unless the written consent of four-fifths of all condominium owners is obtained, one of the condominium owners may not carry out construction, repair and installations in the common areas of the main real estate, and may not paint or whitewash the exterior in a different colour. However, if it is determined by the court that a defect in the common places and facilities damages the main structure or an independent section or sections and needs to be repaired urgently or that the main structure must be strengthened, the consent of the floor owners is not required for the repair and strengthening to be carried out in accordance with the project and technique.”

For the transactions other than the repair works listed in Article 19 of the PFCC; it is stipulated as follows that transactions such as realisation of saving transactions in common areas, placing advertisements, renting, etc. shall be carried out unanimously by all condominium owners in accordance with Article 45 of the PFCC.

“Assignments such as registration of the main real estate with a right or division of the land and transfer of the ownership of the divided part to someone else, or important management works such as renting the outer walls, roof or roof of the main building for advertising purposes can only be made upon the unanimous decision of all condominium owners.”

Due to the fact that the changes to be made on the common areas are not listed in detail in the text of the law, the majority and unanimity of these decisions may sometimes be confused in practice. Since it is almost impossible to obtain the consent of all condominium owners for common areas, especially in multi-structured areas such as housing estates, this situation is sometimes criticised and it is thought that the authority to dispose of common areas is restricted. Due to the nature of the subject, it will be useful to examine some issues regarding the common areas in the light of the decisions of the Court of Cassation.

• Construction, repair and installation in the common areas of the main real estate is prohibited without the consent of all condominium owners, and the managers as well as the condominium owners are obliged to comply with this mandatory provision of the law. ( Court of Cassation HD. T:28.06.2004, E: 2004/4688, K: 2004/5394)
• “Roof construction requires a project change and can be done with the unanimous decision of the condominium owners. There is no unanimous decision of the condominium owners on this matter. Unless the project of the main immovable is changed with the consent of all floor owners and approved by the municipality, the form in the project must be preserved and the repair must be carried out in accordance with the project and technique.”( Court of Cassation 20th HD., T: 10.06.2019 and E: 2019/1742 , K: 2019/3845)
• “According to paragraph 2 of Article 19 of the Condominium Law No. 634, the approval of 4/5 of all condominium owners is required for the facilities and changes to be made in the common areas of the main immovable in violation of the project. The board consisting of representatives and deputies of 25 blocks can only take decisions related to management. This board does not have the authority to take any decision on matters related to the property, which are required to be taken by the general assembly consisting of all condominium owners in accordance with the Condominium Law. Accordingly, since the decision requested to be cancelled is null and void, and since it is determined in the expert report prepared as a result of the on-site discovery that the slide made without the approval of the 4/5 majority of the condominium owners does not exist in the project of the site, it is not correct to decide to dismiss the case on grounds that are not appropriate, while it should be decided to determine that the general assembly decision requested to be cancelled is null and void and to decide to restore the pool in accordance with the project by removing the slide.”( Court of Cassation 18th HD., T: 13.01.2014, E: 2013/12506, K: 2014/136)
• “In the event that the architectural condition of a six-storey building, which does not have an elevator in its project, is suitable, the installation of an elevator in accordance with a project to be prepared by the majority of the shares and stakeholders of the main real estate and approved by the competent authorities may be considered within the scope of Articles 42 and 43 of the Condominium Law, however, since it is understood that such an examination could not be made by the board of condominium owners and the project was not made and approved in the file, the decision is correct.” Court of Cassation 18th HD, T:06.02.1995, E:1995/668, K:1995/1412)
• “Since it has been determined by the expert report that the defendant, who rented an independent section on the ground floor of a condominium apartment building as a gymnasium, wrote the advertisement lettering of the gymnasium on the façade wall, which is one of the common parts of the main building, without obtaining the consent of all floor owners, it was found correct by the court to decide to remove these advertisements written by the defendant and to give the defendant 15 days for this.” (Court of Cassation 5th HD, T:14.10.1985, E:1985/009953, K: 1985/011143)
• “…in order to make changes, constructions, repairs and installations in the common areas of the main immovable, it is necessary to obtain a project amendment and a licence (…in accordance with the zoning legislation) with the consent of all the floor owners. Only a project change realised in this way can be legally valid and binding for all condominium owners.” (Court of Cassation HGK, T:28.01.2004, E:2004/18-3, K:2004/41)

As can be seen, the general tendency of the Court of Cassation is based on the unanimous decision to be taken by all condominium owners for such transactions. However, there are also resolutions stipulating that for the transactions to be carried out in accordance with the management plan (such as the construction of an elevator), it will be sufficient to decide by majority of votes instead of unanimity.

Finally, it is worth mentioning that; the condominium owners do not have the right to request the termination of the shared ownership in the common area, i.e. the sharing of the common areas. If a floor owner prevents other floor owner(s) from using the common areas, he/she may file a lawsuit against that person in the civil court of peace for the prevention of seizure, and if there is a damage caused by this prevention, he/she may demand compensation for this damage.

V. DISPOSITION OF COMMON AREAS

Saving on common areas (renting, advertising on the facade, etc.) is a highly preferred process in practice, especially because it provides benefits in terms of return to the building. So how will such savings be realised?

Article 45 of the CML No. 634 reads as follows: “Assignments such as registration of the main real estate with a right or division of the land and transfer of the ownership of the divided part to someone else, or important management works such as renting the outer walls, roof or roof of the main building for advertising purposes can only be made upon the unanimous decision of all condominium owners.”

As can be understood from the text of the Law, unlike other transactions, a clearer expression has been made for such disposals and the consent of all condominium owners has been sought. The decisions of the Court of Cassation are also consistent in this regard in such a way that there is no contradiction.

• “Since it was determined by the expert report that the defendant, who rented an independent section on the ground floor of a condominium apartment building as a gymnasium, wrote the advertisement lettering of the gymnasium on the façade wall, which is one of the common parts of the main building, without obtaining the consent of all floor owners, it was found correct by the court to decide to remove these advertisements written by the defendant and to give the defendant 15 days to do so. “(Court of Cassation 5th HD, T:10.1985, E: 1985/009953, K: 1985/011143)
• “In the concrete case, there are four blocks named A-B-C and D in the main property with condominium ownership. Since the place where the base station is installed in Block A, which is the subject of the lawsuit, is a common place of the main immovable, in order to rent this place for the installation of a base station, not only the floor owner in that block, but all block floor owners in the main immovable must have decided unanimously. Since there is no such a decision of the condominium owners’ board, there is no inconsistency in the court’s acceptance of the case.” ( 18th Court of Cassation, E: 2005/666 , K: 2005/1889)
• “…it was decided to authorise the board of directors to lease the common areas of the site, but the decision was not taken unanimously, according to the law, it was stated that the provisions regarding the leasing of common areas cannot be taken without the condition of unanimity, and the cancellation of the general assembly decision dated 16/02/2014 was requested. The court decided to annul the decisions and the judgement was appealed by the defendant’s attorney. …since it is understood that the decisions requested to be annulled were taken without a quorum, it was decided to reject the objections of appeal, which were not deemed appropriate, and to approve the judgement, which is in accordance with the procedure and the law.” (Court of Cassation 20th HD, T: 05.07.2017, E: 2017/1947, K: 2017/6235)

Therefore, independent sections, exterior walls (for advertisement) belonging to a building subject to condominium ownership and not requiring the exclusive use of all condominium owners can only be rented with the unanimous decision of the condominium owners. The renting of other places (car parks, shops, etc.) can also be carried out with a unanimous decision. It should be noted that the places allocated for special use purposes (stairs, shelters, etc.) cannot be subject to a disposition transaction such as rent despite the unanimous decision taken by all condominium owners.

For the common areas that can be leased; if the condominium owners have unanimously decided and the manager or the board of directors is authorised in this decision, a lease agreement can be signed by them (the board of directors). Therefore, while one party to the contract is the lessee, the other party will be the board of directors as the lessor.

When the lessee rents the independent section, he shall be deemed to have rented the common places, facilities and annexes subject to the condominium. However, in a condominium relationship, the tenant may use the right of utilisation on the independent section, common places and annexes within the limits specified in the Condominium Law. In other words, the tenant may benefit from the common places as a result of the lease relationship, by attribution to the owner.