TR
SUPREME COURT.
General Assembly Decision
No: 2008/3-531
Decision No: 2008/531
Decision Date: 09/17/2008
CLAIM FOR DEBT – DEBT ARISING FROM COMMON EXPENSES
PASSIVE ENEMY – PASSIVE ENEMY OF THE LICENSED COMMON CONSTRUCTION MANAGEMENT – WITHIN THE SCOPE OF THE ATTORNEY’S LICENSE
MANAGEMENT’S REPRESENTATIVE DUTIES SUMMARY: The case concerns a claim arising from common expenses. The dispute centers on whether the defendant site has the capacity for passive hostility within the common building management. All owners of independent units within the scope of the joint building management plan are determined by the site’s joint management board. And the managers, pursuant to a contract binding the parcel and block managers of the island; regarding the administrative expenses claimed by the plaintiff, the defendant site’s collective building management must accept passive hostility within the scope of the representative duty arising from the contract. (634 SK Article 35, 38, 74) (YHGK. 09.11.2000 T. 2000/13-1314 E. 2000/1606 K.)
At the end of the trial due to the lawsuit between the parties; The decision of the Antalya Fourth Criminal Court of First Instance dated 20.03.2007 and numbered 566-109, dismissing the case due to hostility, was overturned by the decision of the Public Health Directorate dated 29.11.2007 and numbered 19078-18095, upon the request of the plaintiff’s lawyer; (…Plaintiff SSA… Deputy Chairman of the Presidency Business Cooperative, following a complaint, the plaintiff’s cooperative records were examined by tax inspectors. As a result of the examination, it was determined that the common expense of 30,572.78 YTL to be invoiced to the defendant site management had not been collected with the invoice, and a lawsuit was filed requesting the collection of this amount with interest.
The defendant argued that the case should be dismissed on the grounds that there was no hostility, stating that they were not in debt, that the court did not have jurisdiction over the defendant management, and that the case should be filed against all apartment owners. Upon dismissal of the case on the grounds that there was no hostility, the plaintiff’s attorney appealed the decision. The case concerns buildings located on multiple parcels within the same site.
The plaintiff is concerned with the cooperative’s claim for the collection of common expenses from the site management.
Since there is no legal possibility to establish condominium ownership on separate parcels, the dispute has been resolved.
The provisions of the Property Law do not apply. The dispute between the parties must be resolved according to general provisions.
According to the title deeds in the file, a condominium consisting of 746 independent units has been established on the immovable property under the defendant’s management.
The plaintiff cooperative also has 46 independent units on the site. According to the tax audit report,
some administrative expenses that should be paid are listed on the invoice issued by the taxpayer institution to the site management. The plaintiff Cooperative also has 46 independent units in the site. According to the tax audit report, the failure to invoice certain administrative expenses that should have been paid and the understatement of income in the invoice issued by the tax-liable institution to the site management is unlawful.
For the period 01.01.2001-31.12.2001, the site incurred general administrative expenses totaling 30,572.78 YTL.
It was stated that management expenses should be invoiced. However,
since the site was built on multiple parcels, condominium ownership rules cannot be applied in this case;
workplaces and residences, which are the result of economic and social development and population growth in our country,
are collective buildings constructed by cooperatives to meet their needs
In such collective buildings, facilities and amenities allocated for the common use of the owners
(heating, lighting, cleaning, and the maintenance and repair of these areas) must be carried out in a disciplined manner.
Consequently, their management and the coverage of management expenses are required. In such buildings,
the provisions of the Condominium Law and the Civil Code on Collective Ownership
cannot be applied in disputes related to management.
Therefore, it is necessary to prevent the legal vacuum that arises, particularly in terms of management and the ability to be a party to a lawsuit.
Failure to comply with matters such as all property owners being able to file a lawsuit together or the person incurring the expense
accepting that they can file a compensation lawsuit against the property owners leads to disputes remaining unresolved.
In this situation, similar institutions and organizations In this situation, similar institutions and organizations should not hesitate to act in accordance with the principles of procedural and litigation economy,
in line with rights and justice,
to find a solution that will ensure social peace within a collective structure when necessary.
The powers arising from the contract of the management established in this way are exercised on behalf of the property owners in their capacity as representatives.
There is no need to establish a legal entity to exercise these powers for the reasons stated.
Therefore, the defendant’s administration has been excluded from the administrative costs requested by the plaintiff under the contract.
According to the merits of the case, it would be the most appropriate solution to assume the status of a party to the case and
enter into the case and make a decision within the framework of the obligation to do so.
In this context, a written decision was rendered without considering the principles explained above. (
This is incorrect…) and the file was returned to its previous place on the grounds that a retrial was conducted.
Ultimately, the court objected to this in its previous decision.
Appeal
: Plaintiff’s Attorney
After review by the General Assembly of the Court of Appeals, it was determined that the appeal decision was filed in a timely manner, and
after reviewing the documents in the file, the following was decided:
The case concerns a claim arising from the common expenses of the site.
The presidency of the plaintiff business cooperative filed a lawsuit against the defendant site management for the collection of the expense of 30,572.78 YTL, which was to be paid by the defendant site management,
claiming that it was paid without any justification and was mistakenly not invoiced to the defendant site management,
site collective structure management; it has objected to the decision that the case is time-barred, that there is no passive hostility or
license, that the case should be brought against all apartment owners, and that the case should be dismissed.
The court’s decision to dismiss the case on the grounds of hostility; For the reasons explained above, the defendant, accused of fraud on the grounds that the site management had a passive hostility license,
appealed the decision.
Inconsistency; the question of whether the defendant site collective structure manager had a passive hostility license
came to the fore.
The defendant site is built on multiple parcels and consists of 746 independent units. The plaintiff
business cooperative also owns 46 independent units in the site.
Article 1 of the Site Management Plan submitted to the Land Registry Directorate states that the site’s management plan
will be managed according to Article 2; in cases where there is no provision in the Management Plan, the Condominium
, the Civil Code, and other relevant laws shall apply; Article 3 states: A Management Plan…
All apartment owners, condominium right holders, their heirs, and independent persons within the scope of the site
shall acquire the land parcel to which the condominium right is attached through sale, donation, or other means.
Compliance with all provisions of the management plan by these persons shall automatically bind them.
As stated in Article 6/E; Collective Building Apartment Owners’ Council Decisions, A… Collective Building
All independent section (floor) owners, easement right holders, and
As per Article 7/cbe, those who will acquire independent sections in any way;
Floor ownership owners who fail to fulfill their obligations and liabilities related to floor ownership and
must file lawsuits against third parties on behalf of apartment owners due to works falling within the scope of application.
In lawsuits filed by apartment owners or third parties regarding the annulment of condominium management board decisions or
works within the jurisdiction of another floor, the duties of the manager representing the apartment owners are included in the common expenses.
The condominium that fails to fulfill the obligations specified in Article 8/cbe
represents the condominium owners against the condominium owners and third parties due to the work it is authorized to perform.
In lawsuits filed by other unit owners or third parties regarding the annulment of decisions made by the condominium management board or due to authorized work,
the unit owner shall be represented, and the attorneys appointed for these lawsuits and proceedings shall be paid
fees and litigation costs.
The duties of the manager are specified in Article 35(i) of the Condominium Law No. 634.
There are also lawsuits and enforcement proceedings against unit owners who fail to fulfill their debts and obligations related to condominium ownership.
The Condominium Law No. 634 was amended by Law No. 5711 dated 14.11.2007 and introduced some special provisions regarding collective buildings.
With the amendment made in Article 38; the condominium owners’ assembly, the site management board, or the collective building manager shall pay the fees and litigation costs to the attorney appointed to represent the unit owners in lawsuits filed by other unit owners or third parties regarding the annulment of the decisions of the representatives’ assembly or due to the works within their authority.
With the amendment made to Article 38, the condominium owners’ association, the site management board, or the collective building manager
may object to the manager representing the condominium owners regarding the annulment of the decisions of the representatives’ board.
In the event of hostility towards the manager elected by the site management board or collective building management board,
all condominium owners and the site management board may file a lawsuit
to request the annulment of the decisions of the representative board, and the legal costs in this regard shall be shared.
Article 74 specifies that the costs shall be covered.
Without prejudice to the special provisions envisaged in this section,
and provided that all provisions of this Law are applicable to collective buildings either verbatim or by analogy,
the amendments to be implemented have not yet been announced.
This amendment to the Condominium Law aims to meet the needs arising from the construction of collective housing areas brought about by modern urban life.
The parties shall submit the contractual management plan and the owners of the independent units as specified herein.
Steps have been taken to provide the best possible services, to carry out site-related work and transactions from a single source,
to ensure that services are performed, and to achieve the common living objectives.
In this regard, all independent unit owners within the collective structure of the management plan
have been brought together with the representatives of the management board and the executive board.
The block managers are binding under the contract;
with regard to the administrative expenses requested by the plaintiff, it is accepted that the defendant site collective structure
has passive hostility capacity within the scope of the contractual representation of the management. Your presence is mandatory.
The Supreme Court’s consistent opinion is in this direction, and there is a decision of the General Assembly of the High Court of Appeals dated 09.11.2000
and numbered 2000/13-1314-1606; These principles are also stated in the announcement dated 08.11.2006 and numbered 2006/12-682-682.
Therefore, the decision to overturn the decision of the Special Chamber, which was also accepted by the General Assembly of the Court of Appeals, must be complied with.
Although it is necessary, it is contrary to procedure and law to oppose the previous decision. Therefore, the decision to oppose must be overturned.
Although necessary, objecting to the previous decision is contrary to procedure and law. Therefore, the decision to object
must be overturned.
Result: The plaintiff’s attorney’s objections were accepted, and the Special Chamber’s decision to overturn the objection was
approved on the grounds stated above, in accordance with Article 429 of the Code of Civil Procedure.
The request for the refund of the advance payment in the event of an appeal was unanimously approved on September 17, 2008. (¤¤