November 10, 2023

Authors: Görkem Çetin, Öyküm Koruca

Condominium Law  No. 634 (hereinafter referred to as “KMK”) imposes certain restrictions on the usage of independent sections registered as residentials in the land registry as workplaces, and these restrictions are examined in our legal brief.

All property owners constitute the Board of Property Owners and the main immovable is managed according to the decisions of this board. These decisions are binding for all property owners, their immediate and constructive successors, managers and supervisors provided that these decisions are not contrary to the mandatory regulations of the law and management plan. It is possible to file an annulment case within the period stipulated in the law against the decisions of the Board of Property Owners that are contrary to the law and management plan. However, in the event that the decisions of the Board of Property Owners are deemed invalid due to nonexistence or absolute nullity, the time requirement is not required.

The management plan is an agreement that regulates provisions regarding the management policy and purpose and type of usage of the main immovable. It is signed by the property owner or owners who established the property ownership and is binding for all of the property owners. Pursuant to the Law, the property owners are obliged to comply with the management plan and to avoid disturbing each other and violating each other’s rights while using their own independent sections.

There is an “attribute” section indicating the purpose and type of the usage of the immovables in the land registry. Furthermore, there are statements on this matter in the management plan. Thereby, the property owner is obliged to use his immovable in accordance with the binding clause written here, and he shall not use his immovable for the purposes prohibited here, nor shall he rent it out to be used for these purposes.

After listing the prohibited transactions to be done in the independent section registered as residence or workplace in the land registry and stating that the property owners shall not make a decision contrary to this provision in Article 24 of the KMK; it is regulated that in an independent section of the main immovable registered as residence in the land registry cinema, theater, coffee shop, night club, pavilion, bar, club, dance hall and equal entertainment and meeting places and bakery, diner, pastry, creamery and such places can only be opened  by the unanimous decision of the Board of Property Owners.

In that regard, nowadays, within apartment blocks, it is not possible to use the independent sections registered as residentials in the land registry as workplaces without the unanimous decision of the Board of Property Owners. However The Court of Cassation is of the opinion that the consent of property owners is not necessary for some professions where the intellectual work has a strong influence, the number of visitors is low, and the office is of an office nature. Nevertheless, if the management plan contains provisions preventing the opening of a workplace in independent sections that are residentials, this exception shall not be applicable, and unless the management plan is amended by meeting the quorum and requirements, it will be mandatory to comply with the prohibition imposed in the management plan. However, in the decision of the 18th Civil Chamber of the Court of Cassation numbered 2009/11066 E., 2010/4817 K. and dated March 29, 2010;

It is underlined that for doctor and dentist clinics,as well as workplaces like law offices, engineering, architecture and accounting offices the unanimous decision requirement is not necessary. It is enough that there is no prohibiton in the management plan in that regard by saying “In the practices of the Court of Cassation, the usage of residential independent sections as a workplace does not require the decision of the Board of Property Owners in the second paragraph of Article 24 of the KMK. It is accepted that an office can be opened in residential buildings unless there is a contrary provision in the management plan. However Article 28 of the same law states that the management plan will regulate the management style of the main immovable, the purpose and form of usage, the remuneration to be received by the managers and auditors and other issues related to the management. This  plan is an agreement binding all property owners, and prohibitions on the usage of independent sections can be introduced in the management plan."  In this regard, association halls, pharmacies, laboratories, polyclinics, and offices belonging to commercial companies are considered as a risk and a threat to the material and moral existence of the residents of the relevant apartment building, as they are considered to be accessible to a large number of visitors from various circles during the day. Thereby, it cannot be said that the decision of the Board of Property Owners is not required for the aforementioned workplaces, and even if there is no prohibition in the management plan, the decision of the Board of Property Owners will be required for the opening of these workplaces.

There are special provisions regarding some kind of profession on this matter. An additional provision was enacted to the Legal Profession Act with Law No. 6460 published in the Official Journal on April 30, 2013. This provision is as follows: “Lawyers' offices may operate in the independent sections that are registered as residences in the land registry without the permission of the property owners and similar conditions. Provisions of the management plan to the contrary shall not apply in this regard.” In addition to this, pursuant to Law No.3568 on Independent Accountant Financial Advisory and Certified Public Accounting, under KMK No. 634, the independent accountant financial advisory or certified public accounting transactions may also operated in the independent sections of the main immovable without the permission of the property owners and similar conditions. Again, provisions of the management plan to the contrary shall not apply in this regard.

CONCLUSION:

Ø  The Property Owners have the rights and authorities of the proprietorship on their independent sections and use these rights and authorities freely. However, they are obliged to comply with the restrictions accepted in the management plan, especially the provisions of the law.

Ø  If there is a provision prohibiting the usage of the immovable as a workplace in the management plan it is not possible to use this immovable as a workplace. If there is no provision prohibiting the usage of the immovable as a workplace in the management plan it is possible to use this immovable as a workplace with the decision made by property owners unanimously.

Ø  Furthermore, lawyers, independent accountant financial advisors and certified public accountants may open offices in the places registered as residences even if there is a provision to the contrary in the management plan. On the other hand, if there is a provision stating that independent sections can only be used as residences in the management plan, it is not possible to use this independent section as a doctor’s or dentist’s clinic.