Arranging as one wishes a flat registered in one’s own name in the land registry appears at first sight to be an unquestionable power of the owner. In a building subject to condominium ownership, however, that freedom is not exercised in isolation: every blow of the hammer struck in the flat also concerns the safety of the other independent units in the same building, the load-bearing scheme of the main property and the neighbours’ right of ordinary use.
In order to strike that balance, the legislation has drawn a particular framework around changes made within an independent unit. Where interference with the load-bearing system, intrusion upon the use of the common areas or impairment of the rights of the other owners comes onto the agenda, renovation is at times prohibited outright and at times made subject to the approval of a specified majority.
Below we address, from the perspective of practice, which works a condominium owner may carry out on its own initiative, for which changes a decision of the assembly is required, and which legal routes are open against renovations carried out without consent.
The Source and Framework of the Power to Make Changes in an Independent Unit
The owner’s ability to dispose of the unit appearing in the land registry record as belonging to it is a natural extension of the right of ownership guaranteed by the Constitution. In buildings with multiple owners, such as apartment blocks and estates, however, that power cannot be exercised in absolute terms. Since the regime of condominium ownership organises individual ownership together with common ownership, the framework of the owner’s interventions in its own flat is determined by Art. 19 of the Condominium Ownership Act No. 634.
The Scope of the Power of Use
Provided that it does not harm the other owners, does not depart from the approved architectural project and does not place the main structure at risk, the owner may carry out every kind of repair and arrangement within the interior of its independent unit. Renewing the flooring, replacing kitchen and bathroom units or painting the interior are typical works falling within the scope of that power.
Three Fundamental Restrictions Arising from Neighbour Law
Art. 19 of the Condominium Ownership Act No. 634 imposes on condominium owners the obligation to ensure the maintenance of the main property and to preserve its architectural condition and its beauty. That obligation restricts the freedom to renovate at three points.
The first is the preservation of the main structure: the work carried out must not impair the static balance of the building or weaken its earthquake resistance. The second is fidelity to the project: the intervention must not conflict with the architectural project on which the building permit is based. The third is regard for the neighbours’ right of use: noise, water leakage or pollution must not reach a level that prevents the other independent units from being used.
The Criterion Distinguishing Works Requiring Consent from Those That Do Not
The threshold between free renovation and renovation subject to approval is determined by the following question: is the intervention confined to the internal arrangement of the flat, or does it touch upon common elements such as the external façade, a column, a beam or a shared installation pipe? For works concerning only the interior aesthetics, the consent of the other owners is not required. From the moment the intervention spills beyond that circle, however, what is present is not the ordinary exercise of the right of ownership but an act directed at the common areas.
Works That May Be Carried Out Without a Decision of the Assembly
By virtue of being the owner of the independent unit, the condominium owner carries out on its own initiative, as a rule, renovations that concern only its own area of use and that do not harm the main structure, the common areas or the neighbouring units. Works of that character are directed at the internal arrangement and manner of use of the flat and do not affect the structural integrity of the main property.
The fundamental criterion required by Article 19 of the Act is that the change to be made must not harm the main structure and must not infringe the rights of the other owners. Approval from the assembly of condominium owners is therefore not required for works that remain within the boundaries of the independent unit and do not touch the common installations or the load-bearing elements of the building.
The interventions regarded as free in practice are gathered predominantly under three headings: alterations directed at appearance, renewals of installations specific to the flat, and works relating to partition walls that are not load-bearing.
Alterations Directed at Appearance and Comfort
Works aimed at enhancing the aesthetics or the comfort of use of the independent unit are free so long as they do not touch the rights of the other owners. Since interventions of that kind do not concern the static safety of the building or the common areas, they require no separate consent.
- Works relating to wall surfaces: painting the internal walls, hanging wallpaper or applying decorative cladding.
- Ceiling arrangements and lighting: the construction of a suspended ceiling, the renewal of fittings or the installation of decorative lighting.
- Renewal of flooring: the replacement of parquet, laminate, ceramic and similar coverings.
- Joinery and furniture within the flat: the renewal of room doors, fitted wardrobes or fixed furniture.
- Renewal of wet areas: the replacement of countertops, units, washbasins and sanitary ware.
That said, where such works give rise to excessive noise, vibration or a danger of harm in the neighbouring independent units, the owner’s obligation to take the measures necessary to prevent this comes into play.
Installation Works Serving the Flat Alone
The maintenance and renewal of installation elements that remain within the independent unit and serve that unit alone likewise fall within the owner’s sphere of authority. The condition for such works to be regarded as free is that the main installations of the building or the common systems are not touched.
- Electrical infrastructure: changing the positions of switches and sockets, renewing the cabling, updating the flat’s distribution board.
- Water lines within the flat: repairing or replacing pipes that branch off the main riser and serve that unit alone.
- Heating elements: replacing radiators, fitting thermostatic valves or renewing the existing heating arrangement.
- Communication lines: laying a fibre connection, renewing the modem and connection equipment.
- Installation of air conditioning and similar devices: fitting devices used within the flat, provided that this does not conflict with the management plan and does not spoil the appearance of the common areas.
The decisive point here is that the work carried out must not harm the main installations, the common areas or the use of the other independent units.
Partition Walls That Are Not Load-Bearing
The removal or repositioning of walls that are not shown in the structural project as a column, beam or shear wall, and whose function is merely to separate spaces, is as a rule possible. Since such walls are not part of the load-bearing system, they may be freely arranged within the independent unit. Among the examples frequently encountered in practice are the removal of the partition between the living room and a bedroom, the division of a room in two by a plasterboard wall, and the removal of a non-load-bearing wall in order to combine the kitchen with the living room.
Whether a wall is load-bearing is, however, a matter of technical determination. An erroneous intervention may endanger the static safety of the building and also gives rise to the owner’s legal liability. For that reason it is appropriate, before works involving demolition or repositioning are begun, to examine the architectural and structural projects and, where necessary, to obtain a technical report.
Types of Renovation Subject to Consent
In the case of changes touching the common areas, the external appearance or the architectural project of the building, the owner may not act alone; it may need the approval of the other condominium owners. Art. 19 of the Condominium Ownership Act No. 634 requires consent by the majority laid down in the Act in respect of innovations and additions that concern the main structure or bear the character of an intervention in the common areas. That proportion is in practice for the most part implemented as 4/5, that is to say four-fifths of the owners.
Changes Reflected on the External Façade
The appearance and integrity of the façade are a common value shared among the owners. For that reason every change perceptible from the outside requires approval as a rule. The creation of a new window, vent or opening in the façade; interventions in the colour, model or dimensions of the existing joinery; and the mounting on the façade of roller shutters, blinds and awning systems not included in the project are typical examples of this group. These works, which alter the common appearance, are in most cases subject to a decision of the assembly of condominium owners.
The Enclosure of Balconies
The enclosure of balconies is foremost among the types of renovation generating the most disputes in practice. Since balconies are regarded in the architectural project as an element of the façade, interventions in this area are generally subject to consent.
- Complete enclosure of the balcony: enclosing the balcony with PVC, aluminium and similar materials and incorporating it into a room requires, as a rule, an amendment of the project as well as the consent of four-fifths (4/5) of the condominium owners.
- Folding glass systems: although in some applications these systems are treated more flexibly, on the ground that they place no additional load on the structure and do not markedly spoil the appearance of the façade, as a rule the management plan must be examined and the requisite majority decision obtained.
Connections Directed at the Common Installations
Installation works carried out within the flat but concerning the building as a whole may also fall within the scope of approval. Opening a new connection to the main flue or moving an existing connection to another point, changing the direction of ventilation outlets, and switching from central heating to an individual system or from an individual system to a central arrangement are works of that character. In conversions concerning the central system, the special decision quorums regulated in Article 42 of the Condominium Ownership Act No. 634 find their field of application.
Cases in Which Consent Arises for Non-Load-Bearing Walls
The removal of partition walls is not in every case a work subject to consent. Where the intervention conflicts with the approved architectural project, however, or affects the general scheme of use of the building, it may be necessary to inform the other owners and to obtain the requisite approvals. The principal situations in which the approval process comes into play are: altering the layout of the rooms in the project, creating a new area that did not previously exist or converting the purpose of use, and the amendment of the project before the municipality or the relevant administration becoming obligatory.
For that reason, even when walls that are not load-bearing are being touched, reviewing the architectural project and, if considered necessary, obtaining a technical opinion is important for legal security.
Liabilities Arising from Unauthorised Renovation
Changes carried out without obtaining the necessary approvals, or by exceeding legal limits such as the load-bearing system and the approved project, do not merely impair the relationship of neighbourliness; they may produce consequences in administrative and criminal law as much as in private law.
Art. 19 of the Condominium Ownership Act No. 634 imposes a restriction on the owner in two respects. Within its own unit it may not embark upon any repair, installation or change of a nature likely to harm the main structure. In the common areas, its ability to have construction, repairs and changes carried out is as a rule dependent on the written consent of 4/5 of the owners. A renovation contrary to the project, the management plan or the safety of the building therefore opens the door, beyond a private law dispute, to administrative sanctions and in some cases to criminal liability.
Prevention of Interference, Restitution to the Former State and Damages
Other owners faced with a renovation that runs counter to the Act, the approved project or the safety of the building may have recourse to the courts for the breach to be remedied. The claims most frequently used in this field are those for the prevention of interference and for restitution to the former state.
If, following an examination by a court-appointed expert and a technical assessment, the court establishes a breach of the project or of the safety of the building, it may order that the breach be removed and, if necessary, that the property be restored to its former state in conformity with the project. The cost of giving effect to such judgments falls as a rule on the owner who created the breach. Those expenses may be collected through enforcement proceedings.
Where an unlawful renovation has caused loss in the neighbouring independent units or in the common areas, the owner who caused the loss may also be held liable in damages within the framework of the general provisions. Where cracks appear in a wall, water leakage occurs, the insulation is impaired or the common installations are damaged, the making good of the pecuniary loss thereby arising may be sought.
Non-pecuniary damages, on the other hand, are not a consequence that arises automatically in every dispute; they are a claim that must be assessed separately, having regard to the particular features of the concrete case.
Sealing, Administrative Fines and Demolition
If the renovation constitutes a breach in terms of the zoning legislation, the imposition of a sanction by the municipality or the competent administrative authorities comes onto the agenda.
Within the framework of the Zoning Act No. 3194, where works without a permit or contrary to the permit and its annexes are established, the building is sealed and construction activity is immediately halted. The administration grants the owner of the building a specified period in which to remedy the breach or to obtain the necessary permit.
If, when the period granted expires, the breach has still not been remedied or the building has not been brought into conformity with the permit, the demolition of the unpermitted part, or of the part contrary to the permit, may be ordered.
Under the same Act an administrative fine is additionally imposed, according to the nature and extent of the breach. In calculating the fine, criteria such as the surface area and type of the breach, the purpose of use of the building and the risk it creates in terms of safety are taken as the basis.
Cases in Which Criminal Liability Arises
Renovation carried out without consent or contrary to the project brings criminal liability with it in certain cases.
The offence of causing zoning pollution, laid down in Article 184 of the Turkish Penal Code No. 5237, may be applied where a building is constructed, or caused to be constructed, without a building permit or contrary to the permit. The sanction prescribed for that offence is imprisonment of from one to five years.
That said, not every breach of the project is regarded as falling directly within the scope of that offence. Whether the offence has been committed is determined separately in each case, having regard to the nature of the intervention, whether it is subject to a permit in terms of zoning law and the extent the breach has reached.
Moreover, where the safety of the building has been endangered by reason of interventions directed at load-bearing columns or beams, liability may also arise, according to the circumstances of the concrete case, in respect of the offences of intentionally endangering public safety, negligent injury or negligent homicide.
Independent Legal’s Assessment
What is decisive in disputes over renovation within a flat is not the scale of the work but the relationship the intervention establishes with the common areas and the load-bearing system. Whereas the removal of a wall, seemingly a relatively minor operation, may become the subject both of an action for restitution to the former state and of an administrative sanction the moment it concerns the structural project, a comprehensive renewal of the interior is subject to no approval process at all so long as it does not touch the common elements.
For that reason the legal and technical preliminary examination to be carried out before work begins remains far below the cost that would otherwise have to be borne afterwards. Where a dispute does arise, supporting the evidence with records relating to the position before the renovation directly affects the course of the proceedings.
In a concrete file we recommend that the following headings in particular be addressed in advance:
- Obtaining the approved architectural and structural projects and determining whether the element to be interfered with is load-bearing
- Checking whether the management plan contains any special provision concerning renovation, the façade and the use of balconies
- Documenting the requisite majority for works subject to approval by a decision of the assembly and in writing
- Clarifying, before any application to the administration, whether a permit or an amendment of the project is required in terms of the zoning legislation
- Placing on record the position before and after the renovation by means of photographs, technical reports and formal records
- Where there is a risk of harm in the neighbouring units, planning from the outset the measures relating to noise, vibration and waterproofing
Independent Legal provides advisory and litigation services throughout the entire process in disputes arising from condominium ownership, from the legal review of the renovation process to the conduct of actions for the prevention of interference and for restitution to the former state.