What is the Occupation of the Building Common Area?

In a building, apart from the units owned by residents and annexes that belong to these units, there are common areas used by all residents, tenants, and those who have the right of residence. Although the definition and usage of these units are determined primarily as part of the Turkish Condominium Law (TCL), the Construction Law (CL), and other applicable legislation, in some cases, the residents can make changes without permission. Continue reading for detailed information about what to do in case of occupation of building common use areas.

What are Common Areas According to the Condominium Law?

The common areas of a given building have been determined as per the Article 4 of the Turkish Condominium Law No.634 In addition to this, the board of residents and the building management board elected by the board of residents can make decisions regarding the use of common areas. If the common areas are not determined in the management plan registered in the land registry of the main immovable, if the residents have not made a contract among themselves regarding common areas, or if a relevant decision has not been taken in the general assembly, the provisions in the "common areas" article of the Condominium Law must be taken as the basis. The places that are considered as common areas as per the Turkish Condominium Law (TCL) are as follows:
 
- Main walls and ground works, columns that form the load-bearing system, girders, shear walls and other elements that are parts of the load-bearing system, ceiling and floors, party walls between the units, building entrance, elevators, stairs, building doors, hallways, sinks and restrooms on the hallways, courtyards, switchboards, closed sections and slots where water and natural gas meters are located outside of the units, coal bunkers, housekeeper units, garages, utility rooms, water tanks, shelters, wells, sections for hanging and drying laundry, and wells and cisterns
 
- Chimney and roof, fire escape, common rooftop terraces, rain grooves
 
- Rubbish chutes outside the units that do not belong to the residents, water, electricity and natural gas facilities, cold and hot storage facilities, television, telephone, radio networks and antennas, sewage facilities
 
Apart from the ones that listed above, places, parts, things or belongings that are out of units but are jointly used by building residents and are essential for preservation and utilization are also considered as common areas.

Who can Use the Common Areas and How?

Article 16 of the Condominium Law outlines the persons allowed to use the common areas and what rights they have regarding such areas. Within the scope of the articles of the Condominium Law regarding the common use areas (common places), the residents become the co-owners of the common areas of the main immovable in proportion to their land shares. Therefore, every resident has the right to benefit from the determined common areas. This right of the residents is vested to tenants with the rental contract, and to third parties who reside in or utilize units within the scope of a different contract or reason. When using the common areas and annexes, residents must comply with the laws, the management plan registered in the land registry, the decisions taken by the board of residents, and the decisions taken by the building management board. Residents must not disturb others, violate anyone's rights, and must act in accordance with the management plan. The obligations of the residents are also valid for the tenants who live in the respective units, the third parties who have a right to reside in or utilize the units and permanent beneficiaries of the units. For any damage in consequence of non-compliance with the rules, the residents (with property owners) and those who have a right of habitation shall be held liable.
 
Those who have the right to use the common areas also have the right to make changes on these places or belongings, but for these changes, the respective unit owner must obtain the written approvals of four-fifths of all other unit residents. With this approval, construction works that do not change the approved architectural project of the main immovable, which is attached to the main immovable building permit, can be done in common areas. However, a unit owner must obtain approval and consent from all other unit owners about the changes and renovations concerning the architectural project of the main immovable, whether in their own unit or located in common areas. A unit owner must also obtain an approval from the relevant municipality for the architectural change to be made and also carry out the procedures regarding the changes in the building permit. Operations such as building a new facility, main and repair, and painting the exterior of the building can be implemented with the decision of the board of residents. Nevertheless, in some emergency cases, one of the residents can make changes in common areas without the permit of the other residents. Damage to any part of the common areas or facilities may cause damage in the main structure, or one or all of the units. In such cases, it may be necessary to urgently repair the mentioned part of the facility or area and strengthen the main immovable or units. At the end of the court's examination and approval of the necessity to make renovations in common areas of the building, the repair and reinforcement operations can be done in accordance with the project, and without the permit of the residents. Apart from these cases, the residents cannot make any repair work, build facilities, make changes, or carry out renovation that may damage the common areas of the main immovable.
 
In all common areas of the main immovable as well as in parts such as the garage, coal bunker, and laundry room, the residents become owners in proportion to their land shares and in accordance with the provisions of co-ownership.  The residents have the right to use the common areas. The measure of this right, in places like coal bunker, garage, terrace, laundry room, and laundry drying areas, is proportional to each resident's land share, unless there is a contract stating otherwise. Some expenditure items also arise because of the usage of these areas. The residents may have some disagreements especially about the sharing of these expenses.
 
In the eyes of the Law, residents who would not benefit from the change is not obliged to undertake the expense if the planned changes and annexes in the common area are too expensive or qualify as luxury or are not located in the areas or passages of the main immovable where it is absolutely necessary. In such cases, the residents who have decided to make such changes and annexes are obligated to cover the expenses. As per the Article 43 of the Condominium Law, not all residents are obliged to undertake the expenses of all changes and annexes to be added.

What is the Occupation of the Building Common Area?

The occupation of the common area refers to making changes such as repairs, painting, and renovations in the areas, parts, installments, or belongings included in the common area of the main immovable or used as a common facility without the consent of the other residents. Such occupation can be characterized by a great change or an annex, or it can be in the form of constantly keeping a belonging in a common area. Using the yard as a parking lot, building a gazebo in the garden without the approval of the other residents, storing old pieces of furniture in the garage, or leaving shoes outside of the unit doors are considered as the occupation of the common areas.

What to Do in the Occupation of the Building Common Area?

It is possible to file a suit against the residents or those who live in the units for the occupation of the common area. In order to stop the occupation of the common area, legal action can be requested by drawing up a complaint petition and filing a suit against the resident who occupies the common area with the Civil Court of Peace. Also, a warning can be sent to the resident who occupies in the common area before requesting legal action. In this warning, the resident is requested to stop occupying the common area within the prescribed time. If resident does not comply with the warning, a suit can be filed.

What to Do in the Occupation of the Building Parking Lot?

The usage of the parking lot can cause disagreement among many residents. The actions to be taken in cases of parking lot occupation are clearly outlined in Article 18 of the Condominium Law. The residents can benefit from the area that is used as a parking lot, just as other common areas, in proportion to their land shares, unless there is a contract stating otherwise. 
The number of vehicles owned by a given resident can be higher than the number of parking spaces allocated to each resident. In this case, the annexes recorded in the statements section of the property ownership file that is registered in the land registry of the main immovable is checked. If the parking lots are not identified as annexes, the number of parking lots that are assigned to each unit in the management plan that is registered in the land registry is checked. If no parking spaces were assigned to units in the management plan, the building management board should address the problem first. 
 
It would be beneficial to consult the Parking Lot Regulation of the year the building permit was obtained. For example, according to the change in the Parking Lot Regulation no. 30340 that effectuated on September 15, 2018 and published in the Official Gazette on February 22, 2018, for residences in buildings that received a building permit as of March 25, 2021, the allocation of the parking spaces should be as follows: At least 1 for each 3 units smaller than 80 square meters, at least 1 for each 2 units up to 120 square meters, including 80 square meters, at least 1 for each units up to 180 square meters, including 120 square meters, and 2 parking spaces for each unit of 180 square meters and above. Also, at least 1 parking lot for every 40 square meters of shop, store, and bank, and at least 1 parking lot for every 50 square meters of office should be allocated. Regardless of the date of the receipt of the building permit, these parking lots must be determined according to the Parking Lot Regulation of the relevant date.  Therefore, depending on the square meters of the units, the vehicles of the relevant units can be parked by turns in the parking lot, or depending on the need of parking space, the use of another paid parking lot can be covered from the building budget. For example, while three of the residential units (apartments) smaller than 80 square meters may use the parking lot by taking turns, the residential units (apartments) the size of which is between 120 and 179 square meters may have fixed parking spaces in the building.
 
In case of the continuation of the disagreement, a suit can be filed with the Civil Court of Peace. In case the number of parking spaces are more than the number of vehicles, the parking lot is used by the residents with consideration of the sizes of their respective units, in line with the Parking Lot Regulation of the date. Changes that are made without the consent of the other residents mean the occupation of the common areas. In a precedent case, one of the owners had installed an air conditioning unit in the shelter, which is considered as a common area, without obtaining the permission of four-fifths of the other residents. First, a warning was sent to the resident, who has made the change by the other residents (by management, if the management is authorized), demanding that the drastic change made in the common area should be reversed and the air conditioner be removed. If the warning notice would not be complied within the prescribed time, the external air conditioning unit would be removed and the compensation of the damage would be sought by requesting the intervention of the judge, as per the article 33 of the Condominium Law. As the warning notice was not complied with, a suit was filed with the Civil Court of Peace with "a demand for the prevention of the occupation of the common area". In the Supreme Court decision regarding the precedent case, it was stated that "the air conditioner, which is the matter in dispute, was not placed on the window or balcony of the relevant unit, but in the shelter, which is a common area of the main structure. This constitutes a violation of the Article 19/2 of the Condominium Law, and the decision to remove this equipment is justified.".
 
In some cases, no changes can be made in the common areas of the main structure, even with the approval of all residents. For example, a renovation that is not included in the architectural project of the main immovable cannot be done without the approval of the municipality, even with the approval of all residents. Therefore, without changing the architectural project, which is attached to the building license, a renovation cannot be made. In such a case, the renovation  must be reversed. In a relevant Supreme Court case, the building management had renovated a coal bunker and generated income by renting it out. The building management board had made this renovation without altering the architectural project. The Supreme Court ruled that since there was no change in the project, the coal bunker was still a common area, which necessitated the reversal of the renovation. As this constituted an occupation of the common area, the legal expenses and the attorney fees of the lawsuit filed by a resident were borne by the building management in question.

Examples of Court Decisions on the Occupation of Common Areas

Changes that are made without the consent of the other residents mean the occupation of the common areas. In a precedent case, one of the owners had installed an air conditioning unit in the shelter, which is considered as a common area, without obtaining the permission of four-fifths of the other residents. First, a warning was sent to the resident, who has made the change by the other residents (by management, if the management is authorized), demanding that the drastic change made in the common area should be reversed and the air conditioner be removed. If the warning notice would not be complied within the prescribed time, the external air conditioning unit would be removed and the compensation of the damage would be sought by requesting the intervention of the judge, as per the article 33 of the Condominium Law. As the warning notice was not complied with, a suit was filed with the Civil Court of Peace with "a demand for the prevention of the occupation of the common area". In the Supreme Court decision regarding the precedent case, it was stated that "the air conditioner, which is the matter in dispute, was not placed on the window or balcony of the relevant unit, but in the shelter, which is a common area of the main structure. This constitutes a violation of the Article 19/2 of the Condominium Law, and the decision to remove this equipment is justified.".
 
In some cases, no changes can be made in the common areas of the main structure, even with the approval of all residents. For example, a renovation that is not included in the architectural project of the main immovable cannot be done without the approval of the municipality, even with the approval of all residents. Therefore, without changing the architectural project, which is attached to the building license, a renovation cannot be made. In such a case, the renovation  must be reversed.
 
In a relevant Supreme Court case, the building management had renovated a coal bunker and generated income by renting it out. The building management board had made this renovation without altering the architectural project. The Supreme Court ruled that since there was no change in the project, the coal bunker was still a common area, which necessitated the reversal of the renovation. As this constituted an occupation of the common area, the legal expenses and the attorney fees of the lawsuit filed by a resident were borne by the building management in question. 

Renting Out the Common Areas

 As per the Article 45 of the Condominium Law, it is possible to rent out the common areas of the main immovable. Advertisements can be placed on the walls of the main immovable, the yard of the building can be rented as a parking lot, or the concierge's unit can be rented out. The right to use the building parking lot can be benefited with rent. It is possible to generate income by renting common areas; however, if the authority for the operation or renting the common areas has not been given to the manager or the board of management with the management plan registered in the land registry, written approval of all residents must be obtained. 
 
The income generated from these areas is considered as the income of all residents. It must be distributed according to the previsions of the management plan, if such provisions exist. If there is no special arrangement in the management plan, it must be distributed to the residents in proportion to their land shares. Residents are also taxed according to the Income Tax Law (ITL) for the income generated from the rented common area. For the residents, the generated income is considered as income from immovable property. In other words, each resident is considered to have generated rental income. If necessary, the income tax is calculated on behalf of each resident in line with the taxation regime of the income from the immovable property. The incomes of the residents, both from the common areas, and other incomes and revenues generated from the main immovable, must be evaluated on a per resident basis. For example, if certain residents need to submit a statement of income for any reason, they may have to also disclose the income they have generated from the common areas in their statement. Residents are recommended to consult with their financial advisors in this regard.