That persons living in the same building, or in immovables standing side by side, should refrain from harming another’s space while using their own property is one of the fundamental balances upon which private law is built. The right of property confers a broad power; but carrying that power to a point at which it diminishes a neighbour’s assets is not protected in law. An action for damages arising from the neighbourly relationship comes into consideration precisely where that limit has been exceeded: where the owner of the immovable, or the person actually using it (such as a tenant), has caused a pecuniary or non-pecuniary loss in the adjoining immovable through culpable conduct, through a failure to take the requisite measures, or through an excessive use of his property, the making good of that loss may be sought.
In practice four typical sequences of events lie behind these actions: flooding caused by water leaking or overflowing from an upper floor, fires that begin in one independent unit and spread, structural interventions affecting the load-bearing system or the neighbouring building, and finally noise and vibration exceeding the threshold of what must be tolerated.
Below we address in turn which losses fall within the scope of compensation, whether liability rests with the owner, with the tenant or with the unit owners as a whole, how the loss is to be proved, and the legal avenues available to the injured party.
The Concept of Loss in Neighbourhood Law
For loss to be spoken of in terms of neighbourhood law, the person holding a right over the immovable — who may be the owner, but equally a tenant or the holder of a usufruct — must carry his power of use beyond the statutory limits, and that excess must give rise to a diminution in the neighbouring immovable. The diminution in question does not always manifest itself as visible damage; a narrowing of the benefit derived from the immovable (such as unceasing noise or a pervasive smell) falls within the concept of loss just as much as a reduction in assets does.
The Legal Framework of the Concept
The matter is regulated along two axes in the legislation: Art. 737 of the Turkish Civil Code No. 4721 addresses infringement of neighbourhood rights, while Art. 730 of the same Code corresponds to the liability of the owner of the immovable. The approach adopted by the legislature is clear: in using his property, the owner is bound to refrain from every form of excess that would adversely affect those around him.
Within this framework the definition may be constructed as follows: every unlawful interference arising from the use of an immovable which passes the threshold that neighbours are expected mutually to tolerate, which reduces the value of the immovable or renders its use more difficult. The distinguishing criterion is the limit of what is tolerable according to local custom.
The Link Between Fault and Liability
The regime of liability applied to claims for damages arising from neighbourhood departs from the general tort scheme at one significant point:
- Adequate causal link: An award of damages depends upon an adequate chain of cause and effect being established between the conduct or omission and the result that has arisen. In the example of a fire breaking out on an upper floor and causing the ceiling of the floor below to collapse, that chain is required to be demonstrated in concrete terms.
- The owner’s strict liability (Art. 730 of the Turkish Civil Code No. 4721): Scholarship and the practice of the Court of Cassation characterise the liability of the owner of an immovable as a strict liability approaching liability for danger. A defence in the form of “I played no part in the pipe bursting of its own accord” therefore does not save the owner; where the loss has arisen from the use of the property or from a defect in the structure, the obligation to make it good arises without any inquiry into fault.
- The user’s fault-based liability (Art. 49 of the Turkish Code of Obligations No. 6098): Where the person causing the loss is not the owner but a tenant, the tort regime of the Code of Obligations comes into play. Here, for liability to be established, intent or negligence — such as leaving a tap running, or a want of care capable of causing a fire — must be demonstrated; that is, fault must be present.
Fundamental Principles in Determining Liability
To whom liability is to be attributed in a neighbourly relationship varies according to the source from which the loss has arisen and the legal bond between the parties. Directing the action at the right person from the outset is decisive both for procedural economy and for avoiding an objection as to standing.
The Duty of Care and the General Fault Rule
The general rule is that everyone must make good the loss he has caused. In neighbourhood law, however, the duty of care that is required stands above the diligence expected of an average person. A person using his immovable is expected to take the whole of the technical and administrative measures that will protect his neighbour; a failure to take those measures at all, or taking them incompletely, constitutes fault. As regards the owner of the immovable, there is in addition a head of liability going beyond this rule and independent of fault.
The Scope of the Unit Owner’s Liability
Pursuant to Article 730 of the Turkish Civil Code No. 4721, the owner of an immovable is held liable for losses arising from his property even where he is not at fault.
To give an example, in an incident in which the main pipe in a flat has burst, an explanation from the owner in the form of “I was not at home at the time, I did not turn the tap on” produces no result. The person appearing as owner in the land registry record is bound to make good the losses caused by defects in the structure or by a want of maintenance.
The Liability of the Tenant
The liability of the tenant rests as a rule on the tort scheme in Art. 49 of the Turkish Code of Obligations No. 6098 and requires fault, in the form of negligence or intent, in the occurrence of the loss.
Where, for instance, water has passed to the floor below because the bathroom tap was left running or the bath was allowed to overflow, there is direct fault on the part of the tenant and the burden of compensation falls on him.
Joint Liability of Owner and Tenant
In some incidents the loss arises not from a single source but from a defect in the structure and the user’s negligence combined. In such cases the owner and the tenant are liable jointly and severally — that is, together and in a chain — as against the injured party.
For the whole of the compensation the injured party may proceed, as he chooses, against the owner alone, against the tenant alone, or against both together. How the burden is to be apportioned between them is resolved in the calculation of recourse in the internal relationship.
Who Bears Liability in Cases of Flooding?
Determining the person liable in cases of flooding depends on where the water came from. If the source is the installation or the areas of use inside the independent unit, the unit owner is as a rule liable; if the source is the user’s faulty conduct or negligence, the tenant is liable. In every incident the assessment is made by weighing together the point at which the loss originated and whether the maintenance obligation has been breached.
Cases in Which the Unit Owner Is Held Liable
Where the leak originates from private installations serving only the independent unit concerned, or from the areas of use of that unit, the person to be addressed is the unit owner. In practice three types of situation are gathered under this heading:
- Leaks and bursts occurring in clean-water or waste-water lines serving a single independent unit
- Ingress of water resulting from neglected maintenance, repair or waterproofing of structural elements such as balconies and windows
- Situations arising from the manner in which the immovable is used, or from its technical condition, and causing damage in neighbouring independent units
In the situations listed, pursuant to Article 730 of the Turkish Civil Code No. 4721 the owner may be obliged to make good the loss arising from his property even where he is without fault.
Cases in Which Liability Passes to the Tenant
Where what lies behind the flooding is not a structural defect but the tenant’s faulty use or want of care, liability passes as a rule to the tenant and the tort scheme of the Code of Obligations is applied to the incident.
Two situations come to the fore here. The first is errors of use and negligence: overflows arising from leaving a tap running, allowing a washbasin to overflow, or blocking the drains with foreign objects fall within this group. The second is breach of the obligation to give notice; the enlargement of the loss because a fault in the installation was not reported in time is likewise attributed to the tenant. Indeed, the tenant may be held liable not only for the loss arising from his own fault but also for the part that has grown because he was late in giving notice.
Liability for Losses Caused by Fire
In fires too the criterion is similar: where and how the fire broke out. Where a structural defect or a technical fault is in question, the owner is as a rule liable; where conduct or negligence on the part of the tenant or the user is in question, that person is liable.
The Owner’s Strict Liability (Art. 730 of the Turkish Civil Code No. 4721)
Where a fault in the installation or a defect in the structure has caused the fire to break out, the owner may be held liable for the loss that has arisen even where he bears no fault whatever. Underlying this is the obligation to keep the immovable in a safe condition and to take maintenance measures in good time.
The situations in which the owner’s liability typically comes into consideration are as follows:
- Structural and technical inadequacies: Fires arising because the technical condition of the building or its safety standards fall short.
- Faults originating in the electrical installation: Fires ignited by faults occurring in the flat’s consumer unit or in cabling laid within the walls.
- Neglect of maintenance and safety: Electrical installations that have outlived their service life or are of insufficient capacity, failure to have the requisite maintenance carried out, and the omission of basic measures that would limit the spread of flame.
In incidents of this kind the owner may find himself obliged to make good the loss arising from his immovable even where he did not foresee that a fire would break out.
The User’s Fault-Based Liability (Art. 49 of the Turkish Code of Obligations No. 6098)
Where the fire has broken out as a result of an act or omission of the person actually using the immovable (a tenant, a sub-tenant and the like), liability is as a rule attributed to that person. Since the provisions on tort are to be applied in this eventuality, the arising of liability depends upon the presence of fault.
The user’s liability becomes apparent in particular at three points:
- Want of care and want of precaution: Conduct such as food forgotten on the hob, a cigarette end not fully extinguished, or careless use of candles or electrical appliances.
- Use contrary to safety rules: Operating heaters that do not conform to standards, or neglecting the necessary safety measures.
- The burden of proof: The injured neighbour may claim compensation for the loss that has arisen to the extent that he is able to establish that the fire rests on culpable conduct of the tenant.
Losses Arising from Common Areas and Common Installations
Article 4 of the Condominium Ownership Act No. 634 recognises as common areas the foundations of the building, its main walls, its load-bearing system, its roof, its flues, its general entrance doors, the lifts and the main sewerage and water pipes. If the damage or the leak comes from these areas, the party to be addressed is not a single independent unit but, as a rule, the unit owners as a whole; the loss is assessed within the common liability of the owners.
Liability in Proportion to the Land Share
Where a fault or defect in a common area causes loss in one of the independent units or in the adjoining immovable, the unit owners are liable for that loss in proportion to their land shares.
This has two practical consequences. In terms of collective liability, the injured party may direct his claim for compensation to the building management, and equally may direct it to the unit owners directly. In terms of apportionment, the sum awarded is distributed among the owners in proportion to their land shares; where the injured party himself also holds the capacity of unit owner in that building, the share falling to him is deducted from the sum awarded.
The Management’s Duty of Maintenance and Care
The preservation and maintenance of the main immovable and the carrying out of the requisite repairs fall within the building management’s duty of care. Where a fault arising in the common areas has not been remedied in good time, negligence on the part of the management may be spoken of.
Where, for instance, a leak in the roof has been placed on the agenda of the general assembly of unit owners yet no repair has been carried out, and loss has arisen because of that delay, the conclusion may be reached that the maintenance obligation has not been discharged.
In addition, where the repair has been delayed because of a unit owner who avoids contributing to the common expenses and the delay has caused loss, the other owners who pay the compensation may have recourse against that owner in respect of the sum they have paid.
Does Insurance Cover These Losses?
In losses arising from neighbourhood, insurance serves as a financial buffer both for the party causing the loss and for the party suffering it. Not every policy covers every loss, however; what is decisive is the type of policy and the scope of the cover.
The Scope of Household Policies
Household insurance is for the most part optional in character and offers a broad list of cover.
- Third-party liability cover: Present in the great majority of household policies, this cover extends to losses caused to neighbours in incidents such as water leaking from the insured’s flat, fire and the like.
- Contents and fixtures cover: Where the party suffering the loss has his own household policy, the loss may be recovered directly from his own insurer. The company making the payment then has recourse, on the basis of the principle of subrogation, against the neighbour or the owner at fault.
Does a Policy Close Off the Route to Litigation?
The existence of cover does not remove the right to bring an action; it merely narrows the scope of the dispute or alters its character.
- Where the insurer’s payment does not meet the whole of the loss — because a deductible is applied or the limit of cover is exceeded — an action may be brought against the neighbour at fault for the outstanding part.
- Policies as a rule secure pecuniary losses only. Where a non-pecuniary loss has arisen from the incident, that claim must be directed not to the insurer but to the person at fault directly.
- Where the loss has been recovered from the insurer, payment cannot be sought from the neighbour a second time for the same item; the prohibition on enrichment stands in the way of this.
Notification of Loss and the Loss Adjuster Process
The sequence to be followed when a loss arises is as follows. First comes notification: as a rule the insurer must be informed within 5 business days beginning from the moment the damage becomes known. Then there is the stage of securing the evidence; until the loss adjuster arrives the damaged part should be photographed and, if possible, a record such as a fire brigade or plumber’s report obtained. At the third stage the loss adjuster appointed by the company sets out the cause and the amount of the damage in a report. Once the report is approved, the final step, payment, is made to the person entitled within the limits of the policy.
Where the neighbour holds a policy and the loss has arisen in the other independent unit, an application may be made to that company directly, seeking to benefit from the third-party liability cover. This route may afford a relatively swift solution without entering into litigation.
An Action for Damages Against a Neighbour Who Does Not Make Good the Loss
Where the dispute is not closed by settlement, recourse to the courts becomes unavoidable if the loss is to be made good. Since the process is strictly bound to rules of procedure, the following headings must be observed from the outset if dismissal of the action is not to be encountered.
The Court with Subject-Matter and Territorial Jurisdiction
Bringing the dispute before the right forum from the outset forestalls needless loss of time in the process.
As to subject-matter jurisdiction, claims for damages arising from neighbourhood law are heard in the Civil Court of First Instance. Whatever the amount claimed, the court with subject-matter jurisdiction does not change in claims of this kind, founded as they are on tort and on the right of property. Had the dispute been a purely administrative controversy arising from the application of the Condominium Ownership Act No. 634, the civil court of peace would have had subject-matter jurisdiction; but since the claim for damages is subject to the general provisions, it is examined in the civil court of first instance.
As to territorial jurisdiction, the court for the place where the immovable that has suffered the loss is situated has jurisdiction. The Code of Civil Procedure No. 6100 confers jurisdiction on the court for the place where the tort was committed and the court for the place where the loss arose.
The Statute of Limitations
The action must be brought within the statutory period if a loss of rights is not to be suffered.
Under the Turkish Code of Obligations No. 6098, a claim for damages becomes time-barred on the expiry of 2 years beginning from the date on which the injured party learned both of the loss and of the person liable and, in any event, of 10 years from the date on which the act was committed.
The moment at which time begins to run is not the moment the loss arose but the moment it became known. Even if a leak within a wall began six months ago, if the damp was noticed only today, the two-year period is calculated from today.
Evidence and Proof
In our law the burden of proof lies on the party making the assertion; for damages to be awarded, both the existence and the amount of the loss must be established by concrete evidence.
- Preservation of evidence: The preservation of evidence to be carried out through the civil court of peace, before the action is brought or together with it, is the most critical step in the process. A court-appointed expert conducting an on-site examination formally records the damage and the source of the leak; the position before the repair is thereby documented and, as it were, frozen.
- Expert report: The civil engineer, plumbing expert or electrical expert appointed during the proceedings establishes whether the loss arose from a structural cause or from an error of use, and calculates the cost of repair on the basis of market rates.
- Visual records: Photographs and videos taken at the time of the incident constitute strong supporting evidence serving to show the extent and the onset of the damage, particularly in rapidly changing events such as flooding and fire.
- Documents of expenditure: Where a necessary repair has been carried out before the proceedings, tradesmen’s fees, invoices for materials and bank receipts are documents that establish the amount of the loss directly.
- Witness statements: Statements by neighbours or by the building caretaker on such points as the hour at which the fire began or how long the water ran are of a nature to support the file.
Independent Legal Assessment
In files concerning damage arising from neighbourhood, the technical dimension of the dispute and its legal dimension are intertwined. The question of which line the leak came from, whether the installation served a common area or an independent unit, or whether the fire started at the consumer unit or from an appliance, determines directly against whom standing is to be asserted. For this reason, clarifying the source of the loss in technical terms before the statement of claim is drafted affects the soundness of every subsequent stage.
The second critical point is timing. Although having the repair carried out swiftly is a vital necessity, alterations effected before a determination has been made destroy the greater part of the evidence. In practice a significant proportion of actions are weakened not by a deficiency going to the merits but by a failure to secure the material of proof in good time.
In establishing a road map in a concrete case, the following headings should be given priority:
- Determining, from the architectural project and the installation schematic, whether the source of the loss is a common area or an independent unit
- Deciding at the outset whether standing is to be asserted against the owner, against the tenant, or against both together
- Requesting the preservation of evidence from the civil court of peace before the repair is begun
- Examining the scope of the policy and separating the part recoverable from the insurer from the balance to be made the subject of the action
- Supporting the moment at which the two-year period of knowledge began with documentary and witness evidence
- Calculating in advance the land share ratios and the relationship of recourse in losses originating in common areas
Independent Legal provides advisory services and litigation support in disputes concerning damage and compensation arising in buildings subject to condominium ownership, from the preservation of evidence through to the conclusion of the proceedings.