The legal framework that enables each section of a building to belong to a separate owner and the common areas attached to those sections to be used in an orderly manner is called condominium ownership. Founded on the provisions of the Condominium Ownership Act No. 634, this arrangement is a special system of ownership that makes it possible for a single immovable to be divided into sections and used independently by several persons.
The areas in which disputes concentrate in practice are generally well known: who may use the common areas and to what extent, by what criterion service charges and expenses are to be apportioned, how the management plan is to be applied, and whether decisions taken in the assembly of condominium owners are to be regarded as valid. Each of these headings requires a correct understanding of the fundamental concepts of the regime.
In this briefing note we address in general outline the legal character of condominium ownership, the conditions under which it may be created, the building blocks of the regime, the rights and obligations of the owners, the management and decision-making structure, the circumstances in which it comes to an end, and the points on which it differs from the construction servitude.
Legal Character of Condominium Ownership
Condominium ownership, regulated in Act No. 634, is a right in rem of a special character established over the independent sections of a building. This right has more than one layer: the right of ownership over the independent section exists together with the right of co-ownership in shares over the common areas in proportion to the land share. In this respect what is in issue is an ownership arrangement of a mixed structure.
Article 1 of the Act defines the regime in the following terms:
Condominium Ownership Act No. 634 Art. 1
“The right of ownership established separately for each of the independent sections of a completed building that are suitable for independent ownership — such as its floors, flats, offices, shops, stores, cellars and depots — is called condominium ownership.”
As is apparent from the provision, condominium ownership is a special manifestation of immovable ownership. While it confers on the owner a right of ownership over his or her own independent section, it provides in respect of the common areas a right of common ownership proportionate to the land share. What we have before us is therefore not a right of ownership standing alone in the classical sense, but a special regime that regulates the relationship between the independent section and the common areas together.
By virtue of this character, condominium ownership presents itself as a special right in rem, regulated in detail in the Act, which frames the individual power of ownership together with the arrangements for communal life.
Creation of Condominium Ownership
This regime is a right in rem that gives rise to a right of ownership over the independent sections of a completed building and that acquires its existence upon registration in the land registry. Actual independent use is therefore not sufficient on its own; the conditions required by the Act must be satisfied and the registration transaction completed.
Conditions Required
The creation of the regime depends first of all on the building having been completed and on each independent section being of a character suitable for separate ownership. In addition, the immovable must be recorded in the land registry and there must be no legal circumstance constituting an obstacle to its creation.
The principal conditions may be listed as follows:
- The construction of the building having been completed
- The occupancy permit (building use permit) having been obtained
- The independent sections being suitable for use on their own and of a permanent character
- The immovable being recorded in the land registry
- A request by the owner or owners for the creation of condominium ownership
The Registration Transaction in the Land Registry
The regime is created by registration to be effected at the land registry directorate to which the immovable belongs. Once the necessary documents have been submitted and it is seen that the statutory conditions have been satisfied, the land registry directorate registers each independent section separately and thereby constitutes the regime.
As a result of this transaction, each independent section acquires its own entry in the land registry and the owners obtain a right of ownership over their own sections. In law, the creation is regarded as completed upon registration in the land registry.
Documents to Be Submitted to the Land Registry Directorate
When the request for creation is made, certain documents must be delivered to the land registry directorate. These documents are official records establishing that the building has been lawfully completed and that the independent sections are suitable for ownership.
The documents required are as follows:
- The architectural project
- The occupancy permit (building use permit)
- Identity documents of the owner or owners
- The list of independent sections
- A document showing the distribution of the land shares
- The management plan
- The title deed
Effect Produced by Registration
Condominium ownership is deemed to have been created in law at the moment it is registered in the land registry, and a right of ownership arises over the independent sections. No regime can be said to exist before registration has taken place; condominium ownership is a right in rem acquired through registration.
Upon registration, each of the independent sections acquires the character of a separate immovable, the owners obtain the right of ownership in law, and the provisions on condominium ownership begin to apply in respect of that immovable.
Building Blocks of the Regime
The regime rests on four elements: independent sections, common areas, the land share and appurtenances. Regulated in Act No. 634, these elements form the legal skeleton of the regime, and both the creation and the maintenance of condominium ownership depend on their existing together.
The Independent Section
The Act describes the independent section as a dwelling, workplace, shop, store or similar place in the principal immovable that can be used on its own and separately and that can be the subject of separate ownership within the framework of its provisions. This is the fundamental element of the regime; the owner’s right of ownership is established directly over that section.
Under Act No. 634, an independent section may be made the subject of disposition like a separate immovable. It may accordingly be let, sold, made the subject of a pledge and change hands by way of inheritance.
The existence of an independent section is an indispensable condition for the creation of condominium ownership.
Common Areas
Common areas are the areas in the principal immovable falling outside the independent sections that serve for protection, joint use or joint benefit and that are set aside for the common use of the owners. It is not possible for such areas to be left to the exclusive use of a single owner.
Article 4 of the Act enumerates the common areas by way of example. Within this scope, the foundations and main walls, roofs and chimneys, staircases and lifts, corridors and entrances, and garden and car-parking areas are in particular regarded as common areas. The owners’ ownership of these areas takes the form of co-ownership in shares in proportion to the land share.
The Land Share
The land share indicates the share of ownership in the plot of land on which the building subject to condominium ownership stands. A specific share is allocated to each independent section, having regard to its size, its location and its value.
This element performs a decisive function for the regime, since the right to vote, the ratio of contribution to common expenses, the rights arising in the event of demolition or reconstruction, and the apportionment on the termination of the regime are all determined on the basis of the land share. For this reason the correct determination of the land share is of great importance for the sound operation of the system.
Appurtenances
Appurtenances are places that, although situated outside the independent section, are allocated to the use of one particular independent section alone and are attached to it. Since they are in the nature of inseparable parts of the independent section, they cannot be transferred independently of it.
For the purposes of the Act, examples of appurtenances include a coal store, a garage, a store, a basement section and a garden-use area. Appurtenances are shown in the land register through the independent section to which they are attached and share that section’s legal fate.
Rights of Condominium Owners
The rights accorded to owners are a natural extension of ownership; those rights must, however, be exercised so as not to harm the legal sphere of the other owners.
Using and Disposing of the Independent Section
As a consequence of ownership, an owner may use, let, transfer and dispose of his or her independent section. This power, one of the fundamental elements of immovable ownership, affords the owner a wide field of action.
At the same time, in using his or her section the owner may neither harm the other owners nor engage in a use contrary to the character of the immovable or to the management plan. The conversion of an independent section allocated as a dwelling into a workplace contrary to the management plan is an example of such a breach.
Benefiting from the Common Areas
Although the owners have a right of ownership over the common areas connected with the land share, the measure of actual benefit from those areas is determined not by the land share but by the nature of the common area concerned.
Indeed, while all owners benefit equally from areas such as the entrance, the staircase and the lift, the use of places such as the garden, the car park or the swimming pool may be made subject to different principles according to the particular circumstances and to the management plan.
This right, one of the fundamental principles of the Act, means that the common areas are to be kept open to the use of all owners.
That power may not be exercised so as to curtail the rights of the other owners or to change the purpose for which the common area is allocated. The exclusive occupation of common areas by one owner, or their being set aside for personal use, is therefore regarded as unlawful.
Participating in the Assembly
Every owner may be present at the assembly meeting, express his or her view and cast a vote. This right, one of the cornerstones of the management system, enables owners to take a direct part in the management of the immovable.
The power to attend meetings enables the owner to be involved in the management process and to have a say in the formation of the common decisions. As a rule, that power cannot be made the subject of a transfer; there is, by contrast, no obstacle to the owner being represented at the meeting by a proxy.
Electing and Supervising the Manager
The owners have the power to designate the manager who will conduct the management of the immovable and to supervise his or her activities. This power has been accorded with a view to guaranteeing that the management operates transparently and in an orderly manner.
Where the manager fails to discharge the duty properly, or acts unlawfully in the management activity, the owners may remove the manager from office through the assembly or set the supervision and accountability mechanisms in motion.
Obligations of Condominium Owners
Owners retain the power to benefit from the immovable; they also assume, however, certain obligations for the sake of preserving the arrangements for communal life. These obligations, regulated in Act No. 634, require owners to have regard to the rights of others both when using their own sections and when benefiting from the common areas.
Those obligations are mandatory in character for the sound operation of the system; conduct contrary to them may give rise to legal liability.
Contributing to Common Expenses
Contributing to the expenditure required for the management, maintenance and preservation of the principal immovable and for the use of the common areas is among the owners’ fundamental obligations. The source of this obligation is Article 20 of the Condominium Ownership Act No. 634.
The Act has not adopted a single criterion for contribution but has laid down different principles according to the nature of the expense. Accordingly, contribution to some expenditure is made in proportion to the land share, to some in equal parts, and to some according to the ratio of benefit (use).
Indeed, while the maintenance and repair costs of the main building are for the most part apportioned according to the land share, the cost of services such as the caretaker, security or cleaning may be apportioned in equal parts or on the basis of the extent of use.
The fact that an owner makes no use at all of the independent section, has let it, or asserts that he or she does not benefit from the common areas does not extinguish this obligation. It is therefore not possible to avoid the obligation to contribute to common expenses, and where no payment is made, enforcement proceedings may be commenced against the owner.
Complying with the Management Plan
Owners must comply with the management plan, which determines the manner in which the immovable is to be managed. The management plan is in the nature of the founding instrument of condominium ownership and contains the fundamental rules binding the owners.
The restrictions laid down in that plan must be observed when the independent sections are used. Where there is conduct contrary to the plan, the other owners or the manager may have recourse to legal remedies.
Not Damaging the Common Areas
In using the common areas, owners are obliged not to damage those areas and not to change the purposes for which they are allocated. Since the common areas are set aside for the use of all owners, allocating them to the personal use of a single owner or causing damage to them is unlawful.
Where damage occurs in the common areas, the owner who caused it is obliged to make it good; the other owners may bring an action for the prevention of interference or for compensation.
Acting in Accordance with the Law of Neighbourly Relations
In using their independent sections, owners must refrain from conduct that would disturb the peace of others and must act in accordance with the requirements of the law of neighbourly relations. This obligation appears both in the Condominium Ownership Act No. 634 and in the provisions of the Turkish Civil Code No. 4721 on neighbourly relations.
Examples of conduct that may be regarded as contrary to the law of neighbourly relations include the following:
- Soiling the common areas
- Making noise exceeding the ordinary limit
- Carrying on activities contrary to the purpose for which the immovable is allocated
- Engaging in acts that impair the rights of the other owners
Where conduct of this nature continues, the other owners may bring an action for the prevention of interference or request the application of the necessary legal sanctions.
Management Structure and Decision-Making
The management and decision-making process is conducted within the framework of the provisions of Act No. 634; the validity of the decisions taken depends on particular procedural and majority conditions being satisfied.
The Assembly of Condominium Owners
The assembly is the highest organ holding the power to take decisions on the management of the principal immovable. It is composed of all the owners and the fundamental choices concerning the management are determined there.
The assembly designates the manager, fixes the amounts of the common expenses, puts the management plan into effect, decides how the common areas are to be used, and resolves upon the transactions relating to the maintenance and repair of the principal immovable.
Where the majority laid down in the Act is attained, the assembly’s decisions bind all owners.
The Manager
The manager is the person charged with conducting the management of the principal immovable. Elected by the assembly, the manager discharges that duty within the limits drawn by the Act, the management plan and the assembly’s decisions.
The principal duties include ensuring the management of the principal immovable, collecting the common expenses and effecting the expenditure, convening the assembly, keeping accounts of the management activity, and conducting the transactions required for the preservation and maintenance of the immovable.
In discharging the duty the manager is answerable to the owners and may, where necessary, be removed from office by a decision of the assembly.
The Management Plan
This instrument determines the procedure by which the management is to be conducted in an immovable subject to condominium ownership and binds the owners. It is prepared when the regime is created and is then registered in the land registry.
The plan regulates in particular the following matters:
- The manner in which the management is to be conducted
- The rights and obligations of the owners
- The manner in which the common expenses are to be apportioned
- The rules governing the use of the common areas
- The election and duties of the manager
The provisions of the plan are binding on all owners without exception; conduct contrary to them may give rise to legal liability.
Decision Quorums
For decisions to be taken in the assembly to acquire validity, the meeting and decision quorums must be attained. Those numbers vary according to the subject matter of the decision.
The principal decision quorums in condominium ownership are as follows:
| Subject matter of the decision | Quorum required |
|---|---|
| Designation of the manager | A majority in number and in land share |
| Ordinary day-to-day management business | A majority in number and in land share |
| Works directed at the maintenance and preservation of the principal immovable | A majority in number and in land share |
| Thermal insulation of the principal immovable, conversion of the fuel of the heating system, and conversion of the heating system from a central system to an individual system or from an individual system to a central system | A majority in number and in land share |
| Amendment of the management plan | The written consent of four-fifths (4/5) of the owners |
| Making a change of a significant nature in the principal immovable | Unanimity |
| Allocating a common area to another purpose | Unanimity |
Assembly decisions that have not been taken in due form may be made the subject of an action for annulment by any of the owners.
Termination of Condominium Ownership
Condominium ownership may come to an end upon the occurrence of certain legal or factual causes. Termination means the disappearance of the special ownership arrangement established over the independent sections and the common areas. In respect of the circumstances regulated in Act No. 634, termination as a rule produces legal effects upon registration in the land registry.
In practice the regime comes to an end in particular where the building disappears, where all the independent sections are gathered in a single pair of hands, or where the immovable is expropriated.
Complete Disappearance of the Building
Where the main building is entirely destroyed, condominium ownership comes to an end of its own accord. When the building disappears through causes such as earthquake, fire or flood, the independent sections forming the subject matter of the regime will also cease to exist in fact, and the continuation of condominium ownership cannot be spoken of.
Although the regime is in that case regarded as having come to an end in law, the necessary corrections must be made in the land registry. If the building is reconstructed, condominium ownership may be created afresh.
All Independent Sections Gathered in a Single Owner
Where all the independent sections in the principal immovable pass into the ownership of a single person, condominium ownership may come to an end. Since the relationship of multiple ownership between the sections disappears, the regime’s reason for existing also falls away.
The gathering of the sections in a single pair of hands is not, however, sufficient on its own; that situation must be placed on record by the necessary transactions in the land registry.
Expropriation
Where the principal immovable is expropriated in its entirety, condominium ownership comes to an end. Upon expropriation, private ownership of the immovable passes to the administration and the ownership relationship founded on condominium ownership disappears.
The compensation to be paid to the owners is calculated having regard to the value of the independent section and to the land share. The termination of the regime becomes final upon registration of the expropriation in the land registry.
Termination by Court Judgment
In certain circumstances the termination of condominium ownership is ordered by the court. Foremost among those circumstances are the principal immovable becoming unusable, sustaining serious damage, or the maintenance of the regime becoming impossible in law or in fact.
Where termination occurs by court judgment, condominium ownership is regarded as having come to an end in law upon registration of the judgment in the land registry.
Comparison of Condominium Ownership and the Construction Servitude
Condominium ownership and the construction servitude are two distinct types of right in rem created in connection with the independent sections of an immovable. Although both are regulated in Act No. 634, there are significant differences between them as regards their legal character and the conditions of their application.
A construction servitude is a limited right in rem established in respect of a building whose construction has not yet been completed, with a view to enabling the transition to condominium ownership in the future. Condominium ownership, by contrast, denotes the full right of ownership established over the independent sections of a completed building. A correct grasp of this distinction is decisive as regards the legal position of the immovable, the land registry transactions to be carried out and the powers of use.
Condominium Ownership and the Construction Servitude: Fundamental Differences
| Criterion | Construction Servitude | Condominium Ownership |
|---|---|---|
| State of the building | The building has not yet been completed | The building has been completed |
| Character of the right | A limited right in rem | A full right of ownership over the independent section |
| Purpose | To secure the future transition to condominium ownership | To establish a separate ownership arrangement over each independent section |
| Occupancy permit | Not required | Must have been obtained for registration |
| Order in practice | Created at the first stage in new buildings | The stage moved to after the building has been completed |
Transition to Condominium Ownership
In an immovable subject to a construction servitude, the necessary documents are prepared once the construction has been completed; the regime is then converted into condominium ownership by a transaction to be carried out at the land registry. This transition has two foundations: obtaining the occupancy permit (building use permit) and registering the regime in the land registry.
Once the process is complete, a separate condominium ownership title deed is issued for each section; the immovable is thereafter subject in law to that regime.
In practice, a construction servitude is first created in newly constructed buildings and the transition to condominium ownership is made once the building has been completed. For this reason it is important, when an immovable is purchased, to verify whether the land registry record rests on condominium ownership or on a construction servitude.
Independent Legal Assessment
The point that the parties most often overlook in condominium ownership disputes is the two-layered structure of the regime. However strong the ownership over the independent section may be, in respect of the common areas the owner is not in a position to decide alone. The great majority of the disagreements that arise under the headings of service charges, use of common areas and alterations spring from an insufficient grasp of this distinction.
The land share, for its part, is the silent but decisive variable of the system. Since it directly affects many outcomes — from the apportionment of common expenses to voting weight, from the rights arising on reconstruction to the apportionment on termination of the regime — a land share determined erroneously at the creation stage may become the source of disputes emerging years later.
In a concrete matter we recommend that the following headings in particular be observed:
- Verifying before the transaction whether the land registry record rests on condominium ownership or on a construction servitude
- Examining the management plan in order to identify any special restrictions concerning the purpose of use and the common areas
- Assessing whether the distribution of the land shares is consistent with the size, location and value of the independent section
- Checking whether places used as appurtenances are shown in the land register as attached to the independent section
- Determining the quorum required according to the subject matter of the decision before the vote and reflecting it in the minutes
- In respect of common expense claims, choosing an apportionment criterion appropriate to the nature of the expense
Independent Legal provides advisory and litigation services throughout the whole process in disputes arising from condominium ownership, from the creation of the regime to the rectification of land shares, and from the review of assembly decisions to the conduct of common area actions.