ABSTRACT
Main real property management is the regular operation and management of independent sections and common areas in one or more buildings. While the main real estate is managed broadly in accordance with the Condominium Law and related legislation, the management plan prepared and implemented specifically for each building also holds an essential place for this purpose.
I. INTRODUCTION
Main real property management is the professional management of common areas, facilities, and general works of buildings such as apartments, sites, and business centers consisting of more than one independent section. This management involves carrying out necessary activities to protect the value of the structure, enhance the quality of life, and ensure the sustainability of the building while considering the common interests of the owners. Especially in today’s society where urbanization is accelerating and population density is increasing, the importance of main real property management has increased. The complexity of management has required the owners of independent sections to effectively manage their rights and responsibilities over common areas and facilities. In the past, condominium owners undertook management tasks by mutual agreement or voluntarily among themselves, but with the proliferation of multi-storey buildings and sites over time, delegating these tasks to professional management companies has become more functional.
The primary legislation regarding the management of main real property is the Condominium Law No. 6341 (“CL”), which came into force in 1965 and has been amended from time to time. In CL, many issues such as the establishment and management of condominiums, the sharing of common expenses, and the rights and responsibilities of condominium owners are covered in detail. The assembling of the condominium owners board, where decisions regarding the management of the main real property are made by the condominium owners, the procedures for decision-making and the like are regulated in the CL. Additionally, the Turkish Code of Obligations2 and the Turkish Civil Code3 also contain certain provisions that affect the management of main real property. For example, contracts made with management companies are subject to the Turkish Code of Obligations, while disputes arising from condominium ownership are governed by the provisions of the Turkish Civil Code. These legislations provide a legal framework for the management of main real property, clarifying the rights and responsibilities of condominium owners.
In terms of matters not regulated or mandatory in CL, one of the fundamental elements of main real property management is the management plan. The management plan determines the rights and responsibilities of the condominium owners, the method of sharing common expenses, management methods, and other important issues related to the needs of the building and the condominium owners. The management plan is binding on all condominium owners and is submitted to the land registry. The management plan is the fundamental document for the effective and smooth management of the main real property; the provisions specified in the management plan regulate the relationship between the condominium owners and the common living areas.
It is aimed to ensure the sustainability of the buildings and the preservation of the quality of life, in addition to securing the rights of the condominium owners and encouraging them to fulfill their obligations properly, through the effective management of the main real property within the framework of the CL, relevant other legislative provisions and the management plan, with the condominium owners’ assembly, board of directors, management companies and audit mechanism.
II. MANAGEMENT OF THE MAIN REAL PROPERTY
A. In General
The importance of main real property management becomes even more pronounced, especially with the increasing population density, complex constructions, and changing living standards in large cities. Effective management aims to preserve the value of the structure, enhance the quality of life in the main real property, ensure the sustainability of the structure, and regulate the relationships between the condominium owners and relevant third parties. In terms of activities related to the structure, the regular collection of dues, timely execution of maintenance and repair activities, and provision of services such as security and cleaning, ensure a more comfortable life for the condominium owners. In addition, the professional execution of management tasks strengthens communication among the building residents and prevents potential disputes.
Main real property management is not only about ensuring the maintenance and repair of buildings. Management encompasses many functions such as the maintenance of common areas, security services, administrative tasks, legal compliance, and financial management. The regular maintenance and repair of common areas include the operation of areas such as elevators, roofs, gardens, and swimming pools. Administrative tasks include management activities such as the collection of dues, accounting processes, and official correspondence. Additionally, legal compliance ensures the execution of management activities within the framework of the CL and other relevant legislation. Financial management involves financial processes such as budget preparation, expense control, and the creation of a reserve fund. The effective implementation of these elements contributes to the preservation of the main real property’s value and the enhancement of the quality of life for the building residents.
Types of main real property management: i. management by the condominium owners’ assembly, ii. management by the manager, iii. management by the board of management iv. management by professional management companies. The manager is a single person appointed by the condominium owners’ assembly and possesses the duties and authorities specified in Article 35 of the CL. The board of directors is an entity also elected by the condominium owners’ assembly and operates with a collective decision-making mechanism. The fundamental difference between the manager and the board of directors is in the decision-making process. While the manager makes decisions alone, decisions on the board of directors are made collectively. In small apartment buildings, a manager is usually appointed, whereas in large complexes, a board of directors is preferred. Additionally, in large complexes, professional management companies may be consulted. Management companies act on behalf of the condominium owners’ assembly and within the scope of the authorities granted by the board. Another management body that emerged with today’s developing and changing housing systems is “site management”. Although the expression “site management” is not included in the CL, it is an entity mentioned in local court and Supreme Court decisions, becoming a party and/ or subject to lawsuits with its increasing presence in daily life. In addition to managing by choosing one of these models, it is also possible to implement hybrid models. For example, there may be a board of directors, and this board can authorize a management company. The most appropriate management style is determined by considering the size of the main real property, the preferences of the condominium owners, and other special circumstances.
B. Appointment of the Manager
The manager of the main real property is appointed by the condominium owners in accordance with the regulations outlined in the CL. Regarding the appointment of the manager, Article 34/1 of the CL states: “Condominium owners may entrust the management of the main real property to a person chosen from among themselves or from outside or to a board of three people; this person is called the (Manager) and the board is called the (Board of Management)”. In the absence of a contrary provision in the management plan, it is at the discretion of the condominium owners to determine the management procedure. The exception to this is if there are eight or more independent sections in the main real property, according to CL Article 34/2. In this case, the law mandates the appointment of a manager. The manager (or management board) can be chosen from among the condominium owners or from outside. The choosing will be conducted by the majority of the condominium owners in terms of number and land share.
The CL does not mandate that the manager must be chosen from among the condominium owners. An external manager can be appointed to manage the main real property. Therefore, the condominium owners’ assembly can delegate the management of the main real property to an external person or a management company whom they trust for their expertise. In this case, the manager is responsible to the condominium owners’ assembly and must act in accordance with the assembly’s instructions. Appointing an external manager is a preferred method, especially in large complexes or situations requiring expertise.
The term of office for the manager is determined in the management plan. If no duration is specified in the management plan, the manager serves for one year4. When the manager’s term expires, they can be reappointed by the condominium owners’ assembly. There are no restrictions on reappointment.
Although it is necessary to elect a manager, if the condominium owners fail to elect one for any reason, a manager will be appointed by the civil court of peace where the main real property is located, upon the application of one of the condominium owners5.
C. Duties, Responsibilities, and Rights of the Manager
The duties of the manager (management board, professional management company, or the condominium owners’ assembly when their presence is not required) are specified in Article 35 and subsequent Articles of the CL. Examples of these duties include ensuring the main real property is used according to its purpose, taking necessary measures for its protection, maintenance, and repair, collecting the required advance from the condominium owners, and keeping it in a bank account opened in their name as a manager, making and accepting necessary payments, ensuring the main real property, calling the condominium owners’ assembly to a meeting and keeping and preserving the book containing the decisions of the condominium owners’ assembly.
The manager is obliged to act diligently while performing their duties and is responsible to the condominium owners and third parties for their actions. In case of negligence or misuse of their duties, they can be sued by those who suffer damages. The manager is responsible to the condominium owners like an agent6 and must account to the assembly7. If no specific time is determined in the management plan, the manager is required to provide an account of income and expenses up to that date every January. The condominium owners’ assembly can audit the manager’s accounts and if necessary, remove the manager from their position.
The rights of the manager are determined by Article 40 of the CL and the management plan. The manager has all the necessary authority to fulfill their duties. For example, they can collect common expenses, enter into contracts with service companies for the maintenance and repair of the main real property, and give instructions to workers. The manager may be paid a fee by the condominium owners’ assembly. The amount of this fee is determined by the condominium owners’ assembly and is included in the management plan. If the payment of the fee is decided but not made, the manager can claim the fee through the court.
D. Supervision of the Manager
The supervision of whether the manager complies with the obligations set out in Article 35 of the CL is carried out by the condominium owners’ assembly within the framework of Article 41 of the CL. If there is no provision in the management plan regarding the timing of the supervision, it is conducted every three months and at any time if there is a justified reason.
The supervision of the main real property manager is carried out by an auditor or a committee of three people selected by the condominium owners’ assembly within the framework of the CL. Unless otherwise stipulated in the management plan, the auditor or the audit committee prepares an audit report every January to inform the condominium owners of their evaluation. The reports are kept in a notary-certified book.
The supervision of the manager by the condominium owners’ assembly pertains to all duties assigned to the manager by Article 35 and subsequent Articles of the CL and the management plan. The audit process includes the examination of the manager’s income and expense accounts, bank accounts, received bids, and executed contracts. In this context, all documents related to the manager’s activities are reviewed in detail. As a result of the audit, the condominium owners’ assembly may approve the manager’s activities or decide to remove the manager from their position if deemed necessary.
Although Article 39 of the CL regulates that the manager must account for themselves spontaneously and at prescribed times, Article 41 of the CL stipulates that the condominium owners can terminate the manager’s duties without waiting for an account if a justified reason arises. For example, if the manager (whether a condominium owner or appointed from outside) engages in behaviors that endanger the common interests of the main real property and the condominium owners or if they become unable to perform their managerial duties (such as clearly embezzling collected advances or being detained for any reason), the condominium owners can convene, remove the manager from their position and appoint someone else8.
E. The Personality of the Main Real Property Management
As regulated in Article 34 of the CL, condominium owners can entrust the management of the main real property to a person (manager) or a board (management board) chosen from among themselves or from outside. The duties of the manager to be selected according to this article are listed in Article 35 and subsequent articles of the same law. These duties are related to the management of the main real property and are described as “the implementation of the decisions made by the condominium owners’ assembly.” Additionally, the manager has rights under Article 40 of the CL. The responsibilities and rights arising from the execution of these duties by the manager or management board (or increasingly common site management today) on behalf of the assembly should be subject to demand.
In Turkish law, the condominium owners’ assembly or the bodies authorized by the assembly do not have a legal personality. However, this does not mean that they cannot be parties to a lawsuit in terms of rights and responsibilities. Because in Article 20/2 of the CL, it is explicitly states that “A lawsuit can be filed or enforcement proceedings can be initiated against the condominium owner who does not pay the expense or advance share by any of the other condominium owners or the manager, according to the management plan, this Law and general provisions.” thereby clearly regulating that a lawsuit can be filed by the manager. Additionally, the second paragraph of Article 38, which regulates the manager’s responsibility, states; “Lawsuits for the annulment of decisions of the condominium owners’ assembly, block representatives’ assembly or collective structure representatives’ assembly can be filed by directing hostility to the manager representing the condominium owners or in collective structures, to the manager selected by the block representatives’ assembly or collective structure representatives’ assembly. The manager shall notify all condominium owners and the block or collective structure representatives’ assembly of the lawsuit filed. In the event of annulment of the assembly decision, the litigation costs shall be covered from the common expenses.”. As regulated in the provision, it is possible to file a lawsuit against the manager. The term “manager” used in the law encompasses the management board, professional management company and site management. Indeed, all these management models serve the purpose of performing the management duties regulated in the CL.
Lawsuits related to the responsibilities or rights of the main real property management have been instituted and, in these lawsuits, the manager (or management board, site management) has been a party. In this regard, the Supreme Court Assembly of the Civil Chambers, in its decision numbered F. 2011/3-588 D. 2011/678, stated; “Since the plaintiff site management has claimed and sued for the common expense amount (dues and fuel) falling on the defendant’s share, the dispute is of a nature that can be resolved within the provisions of unjust enrichment or unauthorized agency”9. In its decision numbered F. 2009/6851 D. 2009/12611, the 13th Civil Chamber of the Supreme Court ruled that in disputes arising from contracts made with third parties, hostility should be directed to the management that is a party to the contract; “Although the lawsuit was dismissed on the grounds that the site management does not have legal personality and due to passive hostility, it is consistently accepted by our Chamber that in disputes arising from these contracts, hostility can be directed to the management that is a party to the contract, given that the condominium owners in both apartments and sites come together to form the site management and authorize these managers to make purchases and service contracts with third parties and all condominium owners benefit from the contracts made by the management”10. As can be understood from the quoted decisions, the established jurisprudence of the Supreme Court is that the main real property management can be a party to lawsuits.
The individuals who can file a lawsuit against the manager or the management board and the reasons for the lawsuit can be listed as follows:
1. Condominium Owners
Audit of Accounts and Non-Discharge: Condominium owners can review the accounts of the manager or the management board and if they detect any irregularities, may choose not to discharge them. A lawsuit can be filed against the manager or the management board due to accounts that are not discharged.
Negligence or Abuse of Duty: If the manager or the management board neglects or abuses their duty, the condominium owners who suffer damages can file a lawsuit seeking compensation for their losses. For example, in cases where necessary maintenance is not performed or common expenses are spent improperly.
Violation of the Management Plan: If the manager or the management board acts contrary to the provisions of the management plan, condominium owners can file a lawsuit. For example, not adhering to the common area usage rules specified in the management plan.
Dismissal: Condominium owners can file a lawsuit for the dismissal of the manager or the management board if the duties specified in Article 35 and subsequent articles of the CL are not properly fulfilled by the manager. For example, if the manager consistently fails to implement the assembly’s decisions.
2. Third Parties
Contractual Disputes: The manager or the management board can enter into contracts with third parties on behalf of the condominium owners of the main real property. In disputes arising from these contracts, third parties can file a lawsuit against the manager or the management board. For example, if the management fails to fulfill its payment obligation in a renovation contract, the contractor company may file a lawsuit.
Tortious Acts: If third parties suffer damages due to the actions of the manager or the management board, they can file a lawsuit seeking compensation for damages arising from torts. For example, if a poorly maintained roof collapses and damages a vehicle, the vehicle owner may file a lawsuit. In addition to the lawsuits filed against the manager or the management board as exemplified above, it is also possible for the manager or the management board to file lawsuits on behalf of the condominium owners. Examples of this include lawsuits against a condominium owner who does not pay their advance share or does not comply with the management plan or against service companies for failing to properly fulfill their obligations.
F. Management of the Collective Structure
The legal regulations regarding the collective structure are found in Article 66 and subsequent articles of the CL. Accordingly, a collective structure refers to one or more buildings constructed or to be constructed on one or more zoning parcels according to a specific approved settlement plan, which is interconnected in terms of infrastructure facilities, common-use areas, social facilities, and services, and their management11. According to Article 66/2 of the CL, for a group of blocks to be qualified as a collective structure, the parcels on which the blocks are constructed must be adjacent or neighboring. In this context, each building that constitutes the collective structure is referred to as a separate block. The fundamental difference between a collective structure and classical condominium ownership is that the collective structure forms a larger building complex by combining multiple blocks. In classical condominium ownership, there is a single main real property and independent sections attached to it, whereas, in a collective structure, there are multiple blocks, independent sections attached to each, areas allocated for the common use of these sections, and areas available for the common use of the entire collective structure. For example, each block within a site is a separate main real property and all these blocks come together to form the collective structure. While each block within the site has its own common areas, there are also areas allocated for the common use of all blocks (such as a swimming pool, gym, security booth, etc.).
The CL provides special regulations for the management of collective structures. These regulations are found in Article 69 and establish the principles related to the management of collective structures. While each block has its own management plan and manager, a “collective structure condominium owners’ assembly” consisting of the condominium owners of all blocks forming the collective structure is also established. The collective structure condominium owners’ assembly makes decisions regarding the management of the collective structure and makes necessary arrangements for the maintenance and repair of common-use areas. Additionally, based on Article 74 and according to Article 20 of the CL, unless otherwise decided, expenses for the concierge, heating operator, gardener, and security personnel, as well as advances to be collected for them, are shared equally among the condominium owners of the collective structure; other expenses such as the maintenance, protection, strengthening and repair of all common areas and the manager’s salary, are distributed according to the land share.
III. MANAGEMENT PLAN
A. In General
Condominium ownership is a form of ownership that has become widespread, especially with the increase in urbanization. In this system, different sections of a building are used by individuals with separate ownerships; however, the use of common areas, sharing of expenses, and other managerial issues should be regulated in line with the common interests of all condominium owners. In this context, the concept of a “management plan” plays an important role in ensuring the proper functioning of condominium ownership. The management plan is a written document that determines the management principles of a main real property subject to condominium ownership, is binding on the residents of the main real property, and functions almost like a law. Thanks to the management plan, potential disputes are prevented and a peaceful residence in the main real property is ensured.
B. Definition and Function of the Management Plan
The management plan is defined in CL Article 28/1 as follows; “The management plan regulates the management style, purpose and manner of use, the fees to be received by the manager and auditors and other matters related to management. The management plan is in the nature of a contract binding on all condominium owners”. The management plan provides a legal framework among the residents of the main real property, the manager (condominium owners’ assembly, management board, or site management), and third parties while regulating the rights and obligations of the residents, the management of common areas, the sharing of expenses, the authorities of the manager (condominium owners’ assembly, management board or site management) and meeting procedures.
In the CL, it is possible to amend all regulations with the management plan, except for the mandatory provisions. Provided that they do not contradict mandatory provisions and other legislative provisions, specific obligations can be imposed on the owners, the manager, and relevant third parties in the management plan; rights can be granted; rules regarding the use of common areas of the main real property can be established; regulations regarding the usage of independent sections in the main real property can be made; and limits can be set. Everyone concerned is obliged to comply with the final version of the management plan, including all its regulations and amendments.
C. Preparation, Submission to the Land Registry, and Amendment of the Management Plan
The management plan is listed among the documents required to be submitted to the land registry for the establishment of condominium ownership according to the CL and its submission to the land registry is a prerequisite for the establishment of condominium ownership12. Before the management plan is submitted to the land registry, only a construction servitude can be established; after submission, the construction servitude can be converted into condominium ownership. The management plan is signed by all condominium owners at the time it is prepared. Since condominium ownership cannot be established without submitting the management plan to the land registry, it is not possible for the company (or contractor) constructing the main real property to transfer the ownership of independent sections to buyers without preparing a management plan. As no independent section sales have been made yet, the construction company will be the owner of all independent sections in the main real property. Therefore, especially for newly constructed buildings, the general practice is for the management plan to be prepared by the construction company and submitted to the land registry. Independent section buyers review the management plan at the time of the transfer of ownership of the independent sections to them at the land registry and by acquiring the ownership of the independent section, they also commit to complying with the management plan.
It is possible to amend the management plan after it has been submitted to the land registry. To make an amendment, the vote of four-fifths of all condominium owners is required13. The amendments made are attached to the management plan and kept among the establishment documents of the condominium ownership and the date of these amendments is indicated in the declarations section at the land registry. Every owner who voted against the decisions made in the condominium owners’ assembly has the right to apply to the judge according to CL Article 33 and the same right exists for an owner who voted against the management plan amendments. In such cases, the judge will decide according to the management plan if there is a regulation or according to the CL and other relevant legislation if there is not.
D. The Binding Nature of the Management Plan and the Consequences of Violating the Management Plan
The management plan binds all condominium owners, their total and partial successors, tenants in the independent sections, persons with limited real rights in the independent section, the manager (condominium owners’ assembly, management board, site management, or professional management company) and the auditor (audit board or professional audit company)14. Condominium owners, their total and partial successors, and those residing in the independent section as tenants or with limited real rights are responsible for ensuring that individuals residing with them, their guests, assistants, customers, and other similar persons also act in accordance with the management plan. This responsibility not only pertains to the independent section but also includes compliance with the regulations in the common areas of the main real property.
Those who are obliged to comply with the management plan but act contrary to it can be sued under general provisions by the condominium owners who suffer from the violation, the manager on behalf of the condominium owners, and other relevant parties. The subjects of the lawsuit may include compensation for damages caused to the common area of the main real property, failure to make advance payments in full and on time, or requests for the cessation of violations such as using the independent section for purposes other than residence, despite being prohibited by the management plan. If a third party, who is not a condominium owner, tenant, or holder of a limited real right but is under the responsibility of these individuals, causes damage in any way to a condominium owner (or right holder), the main real property, another independent section, a common area or an item in the common area, the party to be addressed by the injured party or the manager on behalf of the condominium owners will be the relevant condominium owner (tenant or holder of a limited real right).
The limit of the binding nature of the management plan is expressed in the doctrine as follows; “The general binding nature of the management plan must be limited to the matters specified in the first paragraph of Article 28 of the Condominium Law. If a matter not covered by the first paragraph is included in the management plan, it only binds the condominium owners who have signed the management plan, not their partial successors. This is because partial successors are bound by a contract to which they are not a party by law. In this case, the content of this contract must relate to matters limited by legal provisions”15. Article 28 of the CL states; “The management plan regulates the management style, purpose and manner of use, the fees to be received by the manager and auditors and other matters related to management”. Based on the expression in the doctrine, it can be said that the binding nature of the management plan is limited to regulations concerning the use and management of the main real property.
In conclusion, the management plan is an indispensable tool for the orderly, fair, and smooth functioning of condominium relationships. It protects the rights of condominium owners and regulates the use of common areas, contributing to the enhancement of quality of life. The correct creation, implementation, and amendment of the management plan when necessary are fundamental elements that ensure the healthy management of condominium ownership.
IV. CONCLUSION
The management of the main real property is a complex process that requires care from both legal and practical perspectives. Effective management of the main real property ensures the preservation of its value, sustainability, and the regulation of relationships among residents and relevant third parties, thereby ensuring a peaceful living environment. Main real property management not only ensures the maintenance and repair of the structure but also determines the conditions for the use of common areas, regulates the relationships among individuals in the main real property, and provides multidimensional compliance for the sustainability of the main real property and the enhancement of quality of life through the correct application of legal and financial regulations.
Compliance with the CL and relevant legislative provisions is of great importance for both the protection of the rights of condominium owners and the effective execution of management. The management plan is a fundamental document at the center of this process, binding all condominium owners. To ensure that the management of the main real property is conducted properly and in a manner conducive to achieving its purpose, the CL and the management plan of the relevant main real property (or collective structure) provide a legal framework by regulating the rights and obligations of condominium owners and managers, helping to prevent potential disputes and resolve issues. Therefore, it is necessary for the management plan to clearly define the duties and responsibilities of both the condominium owners (including their families, guests, assistants, tenants, and holders of real rights) and the manager (whether it be a management board, site management or professional management company, depending on the needs of the main real property) within the limits of legal compliance. This clarity is essential for transparency, the protection of condominium owners’ rights, and the creation of a secure living environment.
BIBLIOGRAPHY
ALİ RIZA İLGEZDİ, Step by Step Condominium Law, 3rd Edition, Ankara 2023.
MAHİR ERSİN GERMEÇ, Condominium Law, 11th Edition, Ankara 2024.
FOOTNOTE
1 Official Gazette (OG) dated 02.07.1965 and numbered 12038.
2 Official Gazette (OG) dated 04.02.2011 and numbered 27836.
3 Official Gazette (OG) dated 08.12.2001 and numbered 24607.
4 CL Article 34/5
5 CL Article 34/6.
6 CL Article 38.
7 CL Article 39.
8 Mahir Ersin Germeç, Condominium Law, 11th Edition, Ankara 2024, p. 1086.
9 Supreme Court ACC., D. 02.11.2011, F. 2011-3/588, D. 2011/678.
10 13th CC. of the Supreme Court, D. 04.11.2009, F. 2009/6851, D. 2009/12611.
11 CL Article 66/1.
12 CL Article 12.
13 CL Article 28/3. 14 CL Article 28/1.
15 Ali Rıza İlgezdi, Step by Step Condominium Law, 3rd Edition, Ankara 2023, p. 123.
