Establishment and Conditions of Condominium Ownership in Turkish Law

ESTABLISHMENT OF CONDOMINIUM

The establishment of condominium ownership is very commonly applied in practical life. The Condominium Law No. 634 was specifically regulated to meet the housing shortage brought about by rapid population growth. This law meticulously examines the establishment, nature, management, rights and obligations of the unit owners, and the termination of condominium ownership. Although condominium law is a unique branch of law, it also holds significant importance within property law.

Condominium ownership is a special type of property ownership. It is defined as a special ownership associated with the land share and the common areas of the real estate. Condominium ownership can be established on a completed structure that is suitable for separate and independent use. It should be noted that it is legally mandatory for the completed structure to be made of stone or brick, in other words, it must be solid. Otherwise, condominium ownership cannot be established on that structure.

When condominium ownership is established, a shared ownership system connected to the property is also established with the common areas. Thus, the ownership of the independent property also includes the ownership of the land share and the ownership share in the common areas. Many elements such as foundations and main walls, courtyards, elevators, staircases, boiler rooms, sewage facilities, networks and antennas, roofs, chimneys, and rain gutters are considered common areas by law.

Which structures can have condominium ownership?

– Floor

– Apartment

– Shop

– Office

– Warehouse

– Store

CONDITIONS FOR THE ESTABLISHMENT OF CONDOMINIUM

1. The structure must be located on land.

This situation has brought the issue of collective structures into focus in daily life. Therefore, the legislator has allowed the establishment of condominium ownership in more than one building on a single plot of land.

2. The structure must be completely solid (made of stone or brick).

Condominium ownership cannot be established on structures that are wholly or partially made of wood. However, wooden extensions attached to a solid main structure are not taken into account.

3. The structure must be completed.

Condominium ownership cannot be established on an incomplete structure. Even if part of the structure is completed and suitable for use, condominium ownership cannot be established. The entire structure must be completed. However, if a collective structure is concerned, this may change. In this context, an independent section in a collective structure that is completed and suitable for use can be converted into condominium ownership.

4. The independent section in the structure must be suitable for use on its own.

The independent sections in structures where condominium ownership will be established must be suitable for separate and independent use. For example, a toilet must be present in a residence to make it suitable for use as a residence. However, the absence of a toilet in a place to be used as a warehouse does not impair its suitability.

HOW TO ESTABLISH CONDOMINIUM OWNERSHIP?

As a rule, condominium ownership is created by registration. In this context, an official document should be prepared at the land registry office and registered in the land registry. Condominium ownership cannot be established without the request of the owner or all co-owners. Co-owners can resolve their disputes through judicial intervention. If one of the co-owners does not consent, the other co-owners can apply to the court and request judicial intervention. It should be noted that the entire main property must be converted to condominium ownership. Condominium ownership cannot be established on only one or a few sections, leaving the other parts as common ownership. For example, condominium ownership cannot be established on some floors of an 8-story building while leaving other floors untouched; all 8 floors must be converted to condominium ownership. Otherwise, condominium ownership cannot be established.

WAYS TO ESTABLISH CONDOMINIUM OWNERSHIP

The legislator has regulated three different ways to establish condominium ownership. These ways are:

1. Establishment with an Official Document

The authorized land registry office official prepares an official document upon the request of the interested parties. As a rule, if the property is owned by a single person, the request of the owner is sufficient. If shared ownership is concerned, the request of all co-owners is necessary.

Documents to be submitted to the land registry office:

– Land shares

– Approved architectural project

– Building occupancy permit

– Management plan

These documents can be hand-delivered to the land registry office. Then, it is registered in the condominium register. The official document also counts as a registration request. A separate page is opened for each independent section in the register.

2. Establishment by Court Decision

In case of a partition lawsuit, it is possible for the heirs or co-owners to request the establishment of condominium ownership from the judge. We frequently encounter this request, especially in lawsuits for the dissolution of joint ownership. In this case, joint owners can perform the partition process by establishing condominium ownership and assigning the independent sections to themselves.

It should be noted that the judge must permit the establishment of condominium ownership. The most important condition for this permission is that each heir or co-owner must have an independent section. If converting to condominium ownership will not result in each co-owner receiving an independent section, the judge will not accept this request. Also, the values of the independent sections assigned to the individuals are often not equal. However, equality can be achieved by adding a balance and completing the process. We recommend seeking legal support from an Istanbul real estate lawyer for detailed information.

3. Establishment by Converting Condominium Easement to Condominium Ownership

As a rule, condominium easement can be converted to condominium ownership ex officio. By obtaining a building occupancy permit, the structure can be converted to condominium ownership ex officio. This issue is also regulated in the Condominium Law. The joint request of the owner or co-owners is primarily required. The building occupancy permit is sufficient for this process. Since the management plan and architectural project are also required documents when establishing condominium easement, they are not requested again.

TERMINATION OF CONDOMINIUM OWNERSHIP

Condominium ownership can be terminated in various ways under the Condominium Law.

1. Deletion of the Record from the Registry

We mentioned the necessity of registering condominium ownership. Condominium ownership is terminated by deleting the record in the register. All unit owners must make a written request for this. However, if there is an annotation in the register, it must also be deleted as a rule.

2. Complete Destruction of the Main Property

If the main property is completely destroyed along with the land, condominium ownership will automatically terminate. The pages in the register are automatically closed.

3. Expropriation of the Main Property

In the event of complete expropriation of the main property, the expropriation value of each independent section is determined separately and paid to the owner. At the end of this process, condominium ownership will terminate.

4. Destruction of the Main Structure

If the main structure is destroyed, condominium ownership will automatically terminate. However, if only one of the independent sections of the main structure is completely destroyed, the owner of that section is generally required to rebuild it within 2 years. Otherwise, the owners of the other sections can request the transfer of the destroyed section’s land share to them in proportion to their land shares and for its value within 1 year from the expiration of this period. This request can be made by applying to the court and requesting it from the judge. If more than one section is destroyed, and their construction is interdependent, the owners are obliged to state in writing within 6 months whether they will repair these structures. Otherwise, it is accepted that they do not want to rebuild, and the land shares can be transferred to the others for their value. These periods are of a peremptory nature, and to avoid possible loss of rights, we recommend acting together with a Real Estate Lawyer.

EXAMPLES OF DECISIONS ON THE ESTABLISHMENT OF CONDOMINIUM OWNERSHIP

“In articles 10 and 12 of the Condominium Law No. 634, it is stated that condominium ownership and condominium easement can be established by the land registry office upon the application of the owner or owners; according to the said Law, condominium ownership can only be established by a court decision through a partition lawsuit for a property suitable for condominium ownership; in the case, it was stated that the attic of the property was illegal, so condominium ownership could not be established by the land registry office due to this reason, and it was understood that the problem to be solved was the attic; therefore, the issue to be resolved was of an administrative nature and could only be resolved in an administrative court…” (6th Civil Court of Peace; 17.2.2003, Case No: 2002/851, Decision No: 2003/116)

 

The testator bequeathed a specific apartment to the plaintiffs in a property where condominium easement or condominium ownership had not yet been established. The fact that condominium ownership or condominium easement had not yet

been established on the said property cannot be considered an objective impossibility that leads to the extinction of the debt as stated in article 117/1 of the Code of Obligations. There is no provision in the Condominium Law that prevents requesting the establishment of condominium ownership through litigation if a structure suitable for condominium ownership has been built. In that case, the certified construction project of the structure built on the property should be obtained from the municipality, and it should be inspected by an expert to determine whether the structure complies with the project; if the structure complies with the project, the opinion of the expert should be obtained on whether it is suitable for condominium ownership and its independent sections in terms of land shares; if the structure does not comply with the project, it should be investigated whether it is possible to amend the project or the structure; the plaintiff should be given authority and time to prepare and submit the necessary documents for amendment and establishment of condominium ownership, and if the defendants have any objections to the submitted documents, they should be reviewed and corrected objectively, then condominium ownership should be established on the property, and the independent section subject to the bequest should be registered in the name of the plaintiff; if there is an objective impossibility, the request should be rejected…” (2nd Civil Chamber, Case No: 2001/3611, Decision No: 2001/7844)

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