Board of Condominium Owners and Administrator

Procedures and Principles of the Condominium Owners’ Assembly and the Responsibilities of the Manager

The procedures and principles of the Condominium Owners’ Assembly are regulated by the Condominium Law. In this context, the Condominium Law provides for the establishment of the Condominium Owners’ Assembly to enable condominium owners to participate effectively in management and protect their interests. According to the Condominium Law, condominium ownership is defined as the ownership right established by the property owner(s) in accordance with the provisions of the Condominium Law on separate and self-sufficient units such as floors, apartments, office spaces, shops, stores, basements, and warehouses in a completed building (Condominium Law Art. 1, Para. 1, Subpara. 2).

To fully exercise their property rights and minimize disputes among themselves, it is crucial that the Condominium Owners’ Assembly performs its duties in accordance with the law. The assembly is not only important for the condominium owners but also for the managers of the condominium. Therefore, the Condominium Owners’ Assembly can be seen as a framework for both the managers’ and the owners’ rights. In this context, understanding the formation, duties, and powers of the Condominium Owners’ Assembly is highly beneficial for both condominium owners and property managers.

A. Formation of the Condominium Owners’ Assembly

The Condominium Owners’ Assembly consists of the owners of independent sections and does not have a legal personality. Every independent section owner is obliged to participate in the assembly. In terms of membership, the type of independent section or the size of the land share is not relevant. In the Condominium Owners’ Assembly, each independent section is represented by its owner. If the independent section is co-owned by more than one person under collective ownership rules, these individuals must participate through a representative (Condominium Law Art. 31, Para. 3, Subpara. 1). Therefore, in accordance with this provision, if an independent section is co-owned by more than one person through joint or undivided ownership, all co-owners cannot participate in the assembly; only the representative they designate can participate. A key requirement for membership in the assembly is that the independent section owner must have legal capacity. Those who lack legal capacity cannot participate in the assembly as owners, nor can they take any actions related to condominium matters. If the independent section owner is under guardianship or custody, the assembly will be represented by the legal representative (Condominium Law Art. 31, Para. 3, Subpara. 2). When a legal entity owns an independent section, the assembly will be represented by the authorized representative of the legal entity. This representative can either be a member of the legal entity’s governing body or a representative appointed by that body. It should be noted that the representative does not hold the membership status of the assembly; this status belongs to the person registered as the owner of the independent section in the property registry.

The law links participation in the Condominium Owners’ Assembly directly to property ownership. Therefore, individuals who hold personal rights (e.g., lease agreements) or limited real rights (e.g., usufruct or habitation rights) in an independent section cannot participate in the assembly. These individuals may only make requests regarding the administration of the common property through the owner of the independent section. However, the owner is not obligated to bring these requests to the assembly’s agenda. Individuals using or benefiting from an independent section have no legal recourse against the condominium owner under the provisions of the Condominium Law. This is because the owner is not legally bound by the demands of these individuals. In such cases, the individuals can only make requests against the condominium owner based on their legal relationship with the owner.

B. Duties and Powers of the Condominium Owners’ Assembly

The Condominium Owners’ Assembly is the fundamental decision-making body that forms the backbone of the condominium system. All decisions regarding the administration of the common property are made by the Condominium Owners’ Assembly (Condominium Law Art. 27). These decisions may include matters such as changing the nature of independent sections, common areas, the selection of the management plan, manager and auditor, and other decisions regarding the disposition of the common property. The duties of the assembly are not limited to the management; disputes between condominium owners, managers, and auditors arising from the use or management of the property are also resolved by the assembly (Condominium Law Art. 32, Para. 3). It should be noted that even though disputes may be resolved by the assembly, condominium owners are not obliged to directly approach the assembly; they may always opt to take legal action.

The common property is managed by the Condominium Owners’ Assembly in accordance with the law and the management plan. Therefore, the assembly cannot make decisions that contradict the mandatory provisions of the law in any management-related decisions. Furthermore, all condominium owners must comply with the management plan, which is binding for them (Condominium Law Art. 32, Para. 1). Decisions made by the assembly regarding both management matters and disputes between condominium owners, managers, and auditors are binding for all condominium owners, their legal successors, managers, auditors, usufruct holders, and tenants (Condominium Law Art. 32, Para. 2). The law explicitly emphasizes that the decisions of the assembly are also binding for the successors of the owners, and no differentiation will be made in this regard. As seen, the binding nature of the assembly’s decisions is extensive. Therefore, it is essential for condominium owners to actively participate in the assembly.

C. Convening of the Condominium Owners’ Assembly and Voting in the Assembly

The Condominium Law divides the meetings of the Condominium Owners’ Assembly into ordinary and extraordinary meetings. Depending on the type of meeting, the persons who will call the meeting, the procedure for notifying the meeting, the meeting time, and the principles to be followed during the meeting are regulated by different provisions. It is crucial to comply with the procedures and principles specified for meetings, as failure to adhere to these procedures may lead to the annulment of the decisions made at the meeting, as requested by the condominium owners under Condominium Law Art. 33. Therefore, it is important to understand the procedures and principles for convening the assembly and the rules that must be followed.

1. Ordinary Meeting

An “ordinary meeting” refers to a meeting held at the times explicitly stated in the law or the management plan. According to Condominium Law Art. 29, Para. 1, the Condominium Owners’ Assembly must hold an ordinary meeting at least once a year at the times specified in the management plan. The critical point here is that the time and place for the ordinary meeting must be clearly indicated in the management plan. If the management plan only specifies the month but not the exact time and place, these details must be communicated to the owners in advance.

If the management plan does not specify when the assembly should meet, the assembly shall meet within the first month of each calendar year (Condominium Law Art. 29, Para. 1). In this case, the time and place of the meeting must also be communicated to the owners in advance. The provisions in the management plan regarding the time of the ordinary meeting are binding, and any decisions made outside the specified time will be invalid. For this reason, condominium owners may file a lawsuit to annul decisions made outside the designated time.

Another important issue is the procedure for calling the meeting. There is a distinction in this regard. The meeting can be called by the same procedure as for an extraordinary meeting, or it can be announced on the notice board. The meeting notice must specify the time and place of the second meeting if the quorum is not met at the first meeting (Condominium Law Art. 29, Para. 3). The time between the first and second meetings must not be less than seven days and not more than fifteen days (Condominium Law Art. 29, Para. 3, Art. 30, Para. 2).

2. Extraordinary Meeting

The Condominium Owners’ Assembly may convene for an extraordinary meeting in response to unforeseen and significant developments. Examples of such developments include the resignation of the manager, urgent repair work required for the property, or decisions needed due to legal matters affecting the condominium. The manager, auditor, or one-third of the condominium owners can request an extraordinary meeting (Condominium Law Art. 29, Para. 2). According to this provision, a single owner cannot request an extraordinary meeting, nor can they apply to the court for such a request. The responsibility for calling the meeting lies with the manager (Condominium Law Art. 35), so the auditor or one-third of the owners must communicate their request to the manager, who will then call the meeting. If the manager fails to call the meeting, the auditor or the one-third of the owners can take action to convene the meeting. An extraordinary meeting does not have a fixed time, so the reason, time, and place of the meeting must be communicated to the owners at least fifteen days in advance (Condominium Law Art. 29, Para. 2). The notice must be delivered to all condominium owners, and the procedure may involve obtaining signatures or sending a registered letter. If these procedures are not followed, condominium owners can file a lawsuit to annul the meeting.

3. Quorum for the Meeting

The Condominium Owners’ Assembly can convene for both ordinary and extraordinary meetings with the participation of more than half of the condominium owners, in terms of both number and land share (Condominium Law Art. 30, Para. 1). The law requires a majority in both terms: the majority of the owners and the majority of land shares (dual majority). This means that it is not sufficient for more than half of the owners to be present; they must also represent more than half of the total land share of the entire condominium. For example, if one owner holds more than half of the land share, they may outvote the others. Therefore, it is important to ensure the presence of the owners representing more than half of the total land share to achieve a quorum.

4. Voting in the Assembly

The will of the Condominium Owners’ Assembly is determined by the votes of the condominium owners. It is important to note that it is not possible to waive the right to vote or transfer the right to vote to someone else. According to Article 31 of the Condominium Law (KMK), everyone has the right to one vote; however, if an owner holds multiple independent sections, they have the right to vote separately for each independent section. Nevertheless, to prevent abuse of this situation, the law imposes a limitation: even if a person owns multiple independent sections, the number of votes they can cast cannot exceed one-third of all the votes, regardless of how many independent sections they own.

Voting can also be done through a representative in the Condominium Owners’ Assembly. However, there is a legal restriction on this as well. A person cannot appoint a representative to cast more than five percent of the total votes. This ensures that there is a limit to the number of independent sections a representative can represent. Another situation arises when it is legally required for an owner’s vote to be cast by a representative. This occurs when the owner of an independent section lacks the mental capacity (e.g., due to being a minor or under guardianship). If an independent section has multiple owners, all of them cannot attend the assembly in person; only the representative they designate can participate. This representative can be one of the owners or a third party who is not an owner (KMK Art. 31/2). The representative casts the vote on their behalf. The authorization for representation can be given verbally or in writing, but considering the potential risk of future disputes, it is advisable to grant representation in writing.

5. Quorum for the Condominium Owners’ Assembly Decisions

In the Condominium Owners’ Assembly, decisions are generally made by a majority of votes in terms of the number of attendees, regardless of the size of their land shares. However, the Condominium Law, taking into account the purpose of establishing the condominium system as a special type of shared property, has set special decision-making requirements for some decisions. These special requirements may include criteria such as land share majority, stakeholder majority (dual majority), three-fourths majority, and unanimity.

Decisions Requiring Land Share and Stakeholder Majority (Dual Majority)

For decisions that require a land share and stakeholder majority, it is not sufficient for more than half of the independent section owners to cast a positive vote. Additionally, the total land shares of the independent section owners who vote in favor must exceed half of the total land shares of the entire condominium.

According to the law, the decisions that the Condominium Owners’ Assembly can make with a land share and stakeholder majority include:

• Filing a lawsuit for the compulsory transfer of condominium ownership (KMK Art. 25)
• Appointment of the manager (KMK Art. 34/4)
• Supervision of the management (KMK Art. 41/3)
• Making useful improvements and additions in the common areas (KMK Art. 42/1)
• Modifying the project for the benefit of the disabled (KMK Art. 42/2)
• Installing heat insulation, converting the heating system’s fuel type, or changing the heating system (KMK Art. 42/3)

Decisions that Can Be Made with a 4/5 Majority of Condominium Owners

According to the law, decisions that the Condominium Owners’ Assembly can make with a four-fifths majority of the owners include:

• Certain work related to common areas (KMK Art. 19/2)
• Changing the management plan (KMK Art. 28/3)

Decisions that Require Unanimity

For decisions requiring unanimous approval, all independent section owners must cast a positive vote in order for the decision to be valid.

According to the law, decisions that the Condominium Owners’ Assembly can make by unanimous consent include:

• Changing the purpose of an independent section registered as a residential unit (KMK Art. 24/2)
• Transition to individual heating systems in buildings with a construction area of 2,000 square meters or more (KMK Art. 42/3)
• Adding a new independent section (KMK Art. 44)
• Making transactions related to the principal real estate (KMK Art. 45)
• Performing significant works (KMK Art. 45)

Cancellation of Condominium Owners’ Assembly Decisions

Condominium owners who believe that decisions made by the Condominium Owners’ Assembly violate the law, the management plan, or principles of fairness can file a lawsuit for annulment based on Article 33/1, c.1 of the Condominium Law (KMK). This annulment action gives minority condominium owners the opportunity to challenge the decisions of the assembly. Grounds for filing an annulment may include non-compliance with the legal or management plan procedures for convening the assembly, failure to achieve the required quorum, or the use of unauthorized representatives.

Additionally, the annulment can be based on the assembly’s decisions being contrary to mandatory rules or infringing on the interests of the condominium owners in an unfair manner. Violations of mandatory rules typically occur in cases where the assembly alters the prescribed meeting procedures or quorum requirements, while unfairness arises in decisions related to shared costs or the usage of common areas.

The court ruling annulling a decision does not allow the court to correct or amend the decision; it can only annul it. Once the decision is annulled, the Condominium Owners’ Assembly has the authority to make a new decision that complies with the management plan and legal requirements. The annulment decision means that the original decision is considered void, both for the condominium owners and for third parties, and it has no retrospective effect.

Responsibilities of the Manager

The responsibilities of the manager may be detailed in the registered management plan but are essentially outlined in Article 35 of the Condominium Law. Unless otherwise specified in the management plan, the manager is responsible for the following tasks:

a) Implementing the decisions made by the Condominium Owners’ Assembly;

b) Taking necessary measures for the proper use, protection, maintenance, and repair of the principal real estate;

c) Insuring the principal real estate;

d) Collecting advances from the condominium owners at the beginning of each calendar year for expenses related to maintenance, cleaning, heating, elevators, and other general management services, and ensuring that any remaining funds are used for additional expenses when the initial advance is exhausted;

e) Receiving all payments related to the management of the principal real estate and, if authorized, collecting rents from independent sections;

f) Accepting notices related to the principal real estate;

g) Taking necessary precautions to avoid any loss of rights or expiration of time related to the principal real estate;

h) Taking necessary measures for the benefit of the condominium owners, such as protection and maintenance of the real estate;

i) Filing lawsuits or initiating enforcement proceedings against condominium owners who fail to meet their obligations regarding condominium debt and obligations, and registering the legal mortgage on the condominium registry;

j) Opening a bank account in the manager’s name for depositing collected funds and advances, clearly indicating their role as the manager of the condominium.

Managers are responsible for protecting the interests of the condominium owners, making decisions in line with what a “prudent” manager would do, and applying those decisions during their term of management.

If managers fail to fulfill these duties, they are liable to compensate the condominium owners for any damages caused by their failure.

In addition to these duties, the manager has legal liability for specific issues as outlined in the law:

Record-Keeping and Document Storage (KMK Art. 36)

The manager must keep records of the Condominium Owners’ Assembly’s decisions, meeting protocols, notices, and all related financial documents. These records must be stored in an orderly fashion, and the manager is required to have them notarized annually.

Business Project (KMK Art. 37)

If no business plan has been approved by the Condominium Owners’ Assembly, the manager must create one without delay, outlining estimated income and expenses for the coming year, the share of costs for each condominium owner, and the advance payments required.

Why Us?

It is crucial that the Condominium Owners’ Assembly operates in accordance with the law and that the managers fulfill their responsibilities correctly. Failure to comply with the Condominium Law and related legal regulations can result in significant legal liability for both owners and managers. Seeking legal assistance plays a critical role in preventing potential disputes, ensuring compliance with the law, and protecting the rights of both parties.

At Güneş & Güneş Law Office, we provide legal consultancy services related to the operations of the Condominium Owners’ Assembly and manager responsibilities. Our expert team ensures that you adhere to legal requirements and protect yourself from potential legal risks while guiding you through your condominium processes.

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