Lawsuits for the Annulment of Apartment Decisions

Lawsuits for the Annulment of Apartment Decisions. The proliferation of collective living spaces, apartments, and residential sites during Turkey’s urbanization process has placed Condominium Law at the center of property law. At the heart of this legal ecosystem lies the decision-making mechanism that regulates the collective will of independent unit owners and the management of common areas. The Condominium Law No. 634 (KMK) meticulously regulates the processes of making, implementing, and supervising these decisions, aiming to protect both property rights and the order required for community living. However, decisions made by the “board of directors” or, more broadly, the “board of condominium owners” may not always comply with the law, equity, or the management plan. At this juncture, the “lawsuit for the annulment of decisions,” or the legal term “intervention of the judge,” serves a vital function in balancing unjust interventions against property rights and ensuring judicial oversight.

Fundamental Principles of Condominium Law and Decision-Making Mechanisms

Condominium ownership is a special type of property associated with land shares and common areas of the main property. In this system, exclusive rights over the independent unit and shared property rights over common areas are intertwined. This complex structure necessitates the formation of a collective will for the management of the property. Under the KMK, management authority primarily belongs to the board of condominium owners, which is the highest decision-making body of the property.

Legal Status and Jurisdictional Limits of the Board of Condominium Owners

The board of condominium owners is an organ that lacks legal personality but is granted specific procedural powers by the legislator. The primary duty of the board is to resolve disputes arising from the use, protection, maintenance, and management of the main property and to determine general management principles. Article 32 of the KMK confirms this authority by stating that the main property shall be managed according to the decisions made by the board of condominium owners. However, this power is not absolute; the board’s will is limited by the mandatory provisions of the KMK and the management plan, which serves as a “contract” between the parties.

Distinction Between Board of Directors and Board of Condominium Owners

A common error in legal terminology and practice is the interchangeable use of the “board of directors” and the “board of condominium owners.” The manager or a board of directors consisting of multiple persons is a sub-organ of the board of condominium owners and, as a rule, only possesses executive authority. Annulment lawsuits filed under Article 33 of the KMK typically target decisions of the board of condominium owners. Unilateral decisions made by the manager or board of directors (e.g., daily expenses or choice of repairman) cannot be directly subject to an annulment lawsuit in court. An owner whose interests are harmed must first bring the objection to the board of condominium owners. Depending on the board’s stance (rejection or silence), they may then apply to the court. This hierarchical structure acts as a filter to resolve disputes through “internal remedies” first.

Types of Invalidity: Legal Degrees of Decision Defects

The legal validity of board decisions depends on factors ranging from the procedure of adoption to the legality of the content. Legal doctrine and Supreme Court precedents categorize the invalidity of these decisions into three levels: “non-existence,” “absolute nullity,” and “annullability.” This distinction determines everything from the statute of limitations to the type of judicial review applied.

Mechanism of Non-existence (Yokluk)

A decision is considered “non-existent” if it was never legally born. This usually stems from fundamental deficiencies in the constitutive elements of the decision. According to the Supreme Court, a meeting that was never held or a decision made without a quorum (nisap) is considered non-existent. Specifically, cases where the call procedure was entirely ignored, preventing the convergence of the owners’ will, fall into this category. A non-existent decision cannot gain legal validity over time; therefore, lawsuits to determine non-existence are not subject to the statutes of limitations provided in KMK Article 33.

Absolute Nullity (Mutlak Butlan) and Public Policy

If the subject of a decision is contrary to mandatory legal rules, public policy, general morality, or the essence of property rights, it is void due to absolute nullity. In cases of absolute nullity, the decision is legally born but “stillborn” from the beginning. For example, assigning common areas to a single owner without unanimity or decisions violating mandatory unanimity requirements (such as converting a residence into a workplace) are void. The Supreme Court emphasizes that decisions directly restricting property rights (e.g., banning the leasing of a unit) can be annulled at any time, as they violate the constitutional essence of property.

Annullability (İptal Edilebilirlik) and Statutes of Limitation

The primary scope of KMK Article 33 is “annullable” decisions. These are decisions whose constitutive elements are complete and do not violate mandatory rules but contain defects in the adoption procedure (e.g., failure to meet notice periods, missing signatures) or in the review of discretion (e.g., contrary to equity). These decisions remain valid and binding until annulled by a court. The legislator has provided very short limitation periods for such disputes to protect legal stability. If an annulment lawsuit is not filed within the prescribed time, the decision is deemed finalized despite its illegality.

Parties to the Lawsuit: Active and Passive Standing

The most critical stage to ensure a case is not dismissed on procedural grounds is the correct identification of the parties. The KMK specifically regulates who can file the lawsuit (plaintiff) and against whom it should be filed (defendant).

Plaintiff Standing: Who Can Seek Justice?

The right to file an annulment lawsuit primarily belongs to each condominium owner. However, other individuals directly affected by the use of property rights also hold this right under limited conditions.

• Condominium Owners: Any owner who attended the meeting and voted against the decision or did not attend the meeting at all may file a lawsuit. Owners who attended and voted “yes” cannot later file an annulment lawsuit, as they are bound by their own expressed will (prohibition of venire contra factum proprium).
• Tenants and Limited Real Right Holders: Persons continuously benefiting from an independent unit based on a lease agreement, right of habitation, or usufruct can only file a lawsuit if the decision directly affects them and harms their interests (e.g., exorbitant increases in dues or restrictions on common area use).
• Managers: A manager may initiate this lawsuit both as a condominium owner and in matters concerning their own area of duty (e.g., if the annulment of the budget prevents them from functioning).

Defendant Standing: Against Whom Should the Lawsuit be Filed?

The issue of the defendant has undergone a major transformation with the 2007 amendment to the KMK. Previously, it was mandatory to sue all owners; currently, the plaintiff is granted an elective right.

1. Suing the Manager: Per Article 38 of the KMK, lawsuits for the annulment of board decisions can be filed against the manager as the representative of the owners. This saves the plaintiff from the burden of naming dozens of neighbors as defendants. In this case, the manager is obliged to notify all owners of the lawsuit.
2. Suing the Approving Owners: The plaintiff may choose to sue all owners who voted in favor of the decision. In this case, it is crucial not to leave out any approving owners; if some are excluded, the court provides time to complete the party formation.
3. Status of Representatives: If an owner was represented by a proxy at the meeting, the lawsuit must be directed at the owner, not the proxy, as the legal consequences of the proxy’s actions occur within the owner’s sphere of rights.

Statutes of Limitation and Their Nature

Article 33 of the KMK provides a three-tiered timeframe for annulment lawsuits. These periods only apply to “annullable” decisions and must be considered ex officio by the judge.

• 1-Month Period for Attendees: Starts from the date the decision was made. To use this period, the owner must have dissented and had this recorded in the minutes.
• 1-Month Period for Non-attendees: Starts from the date they “learned” of the decision. Learning can occur through posting on the door, notification by the manager, or verbal communication.
• 6-Month Maximum Period: Regardless of whether the decision was learned, the right to sue expires 6 months after the decision date. This serves as a “ceiling” to ensure legal certainty.

However, these time limits do not apply to claims of “non-existence” or “absolute nullity,” as such severe legal defects are not cured by the passage of time. Additionally, the Supreme Court does not seek a time limit for decisions taken before November 14, 2007, per older precedents.

Competent Court, Venue, and Trial Procedure

In all disputes arising from condominium law, the competent court is the Civil Court of Peace (Sulh Hukuk Mahkemesi), regardless of the value of the dispute. This is a special rule of jurisdiction introduced by KMK Annex Article 1.

Finality of the Venue Rule

The authorized venue is the court where the main property is located. This rule is of a mandatory nature; parties cannot move the dispute to another court via a “jurisdiction agreement.” If an apartment or site is built on multiple parcels and has not transitioned to collective structure management, jurisdiction and venue may shift to general rules (Civil Court of First Instance); thus, the “collective structure” status must be checked at the start.

Simple Trial Procedure and Scope of Review

Condominium cases are subject to the “simple trial procedure” under the CCP. The judge is not limited to the petitions; they conduct an “on-site discovery” at the property, obtain expert reports (architects, engineers, lawyers), and meticulously examine the management plan. When annulling a decision, the judge only “annuls” it; they cannot step into the board’s shoes to decide “what should have been decided.” However, under KMK 33, the judge has the authority to take “necessary measures” and provide time to the parties to resolve the dispute.

New Era: Mandatory Mediation Requirement (2023 Reform)

Effective September 1, 2023, Article 18/B added to Law No. 6325 mandates mediation before filing a lawsuit in condominium disputes.

Application Mechanism and Exceptions

A condominium owner can no longer directly file a petition for the annulment of a board decision. They must first apply to the mediation bureaus at the courthouses to meet with the opposing party (the manager or approving owners). The mediation process aims to resolve the dispute within 3-4 weeks.

• If Agreement is Reached: The prepared minutes have the force of a court decree and close the path to litigation.
• If No Agreement is Reached: A lawsuit can be filed together with the “final minutes” issued by the mediator. If these minutes are not attached to the petition, the court gives a one-week final period; if the minutes are still not submitted, the case is dismissed on procedural grounds.

In cases where a preliminary injunction is requested or the execution of the decision must be stopped urgently, the mediation process must still be initiated, although courts can evaluate injunction requests while mediation continues. In sites that have not transitioned to collective structure status, disputes may be subject to general provisions, and thus the mediation requirement may not apply.

Categorization of Annulment Grounds: Procedural and Substantive Errors

The court examines the annulment request along two axes: how the decision was made (procedural) and what was decided (substantive).

Procedural Grounds for Annulment

Errors regarding the conduct of the meeting are the most common grounds for annulment.

1. Notice Irregularities: Failure to properly notify owners of the meeting date, time, and agenda (via registered mail or signed receipt).
2. Insufficient Agenda: Deciding on a matter not specified in the meeting notice (especially in extraordinary meetings).
3. Quorum Defects: Failure to comply with the special decision quorums (4/5 majority, unanimity, etc.) mandated by the KMK.
4. Proxy Issues: Violations of proxy limits (e.g., a person representing more than 5% of the total units or more than two proxies in buildings with 2-40 units).

Substantive Grounds for Annulment

These involve the content of the decision being contrary to law or the rule of good faith (TMK Art. 2).

• Intervention in Property Rights: Decisions unjustly restricting an owner’s right to use their independent unit (e.g., “cannot be rented to students”).
• Violation of Equity: Unfair allocation of common expenses, imposing exorbitant burdens on certain owners beyond their land share ratios.
• Violation of Regulations: Decisions allowing construction contrary to the main project in the condominium registry.

Stay of Execution and Preliminary Injunction

Filing an annulment lawsuit does not automatically stay the execution of that decision. This rule is designed to prevent chaos in apartment management. However, if the implementation of the decision will cause irreparable harm (e.g., spending funds collected for painting or cutting down trees in the garden), the plaintiff should request a “preliminary injunction” under CCP Article 389.

If the judge is convinced of the case’s merits based on “approximate proof” and foresees that harm will occur, they can stay the execution of the decision until the end of the lawsuit. Injunction requests are usually accepted against a guarantee (security deposit), but can be granted without one depending on the urgency and merit of the case.

Retrospective Effect of Annulment and Consequences

When the court rules for the annulment of a board decision, the decision has “retrospective” (ex tunc) effects upon finalization.

After an annulment, the judge does not issue a new decision; they only eliminate the existing one. The board may reconvene on the same subject, considering the court’s reasoning, and make a legally compliant decision this time. This is a result of respect for the autonomy of the condominium owners’ will.

Special Cases: Increases in Dues and Encroachment on Common Areas

The two most common subjects of dispute in apartment management are the amount of dues (common expenses) and the use of common areas (roof, garden, parking).

Objections to Dues Decisions

Increases in dues are typically determined by the operation project. If the project was discussed and accepted by the board, it is a “board decision” and its annulment can be sought within 1-6 months. If the project was only prepared and notified by the manager, an objection must be filed within seven days; otherwise, it goes to the board. An owner facing execution for unpaid dues can initiate an annulment lawsuit to eliminate the legal basis of the claim if the decision was defective.

Annulment of Common Area Decisions

Assigning common areas to a single owner or changing them contrary to the project (e.g., turning a shelter into a warehouse) is a cause for “absolute nullity.” The Supreme Court states that in such cases, a lawsuit for “restoration to the original state” can be filed at any time without a statute of limitations, as it is based on the protection of property rights. If a common area is encroached upon, the owner should apply to management; if management remains silent, they can apply to the Civil Court of Peace to demand the prevention of the intervention.

Sanctions for Non-compliance with Court Decisions

The decisions rendered through the intervention of the judge are not merely suggestions. Per KMK Article 33/3, those who do not fulfill the judge’s decision within the specified time are fined between 250 TL and 2,000 TL by the same court. This fine is final and can be reapplied each time to force the execution of the decision.

More importantly, if an owner insists on not complying and this behavior becomes “unbearable” for the neighbors, the other owners can decide by a majority of number and land share to demand the “transfer of ownership of the independent unit to themselves” under KMK Article 25. This is the most severe sanction in condominium law, resulting in a change of ownership.

Balance Between Legal Stability and Individual Rights

The lawsuit for the annulment of board decisions is the most powerful shield provided by law against the “dictatorship of the majority” in the management of multi-story buildings and massive sites. The legislator, by granting the judge the status of “general auditor” through Article 33, has prevented property rights from being crushed under the requirements of collective living.

In modern legal practice, especially with the mandatory mediation process post-2023, these lawsuits are expected to transform from areas of conflict into platforms for negotiation where neighborly law is re-established. However, for a successful annulment process:

1. The nature of the decision (non-existence, nullity, annullability) must be correctly diagnosed,
2. Statutes of limitations (1 month – 6 months) must be strictly followed,
3. The defendant (manager or approving owners) must be correctly identified,
4. The mediation requirement must be fulfilled,
5. And most importantly, the decision’s non-compliance with the management plan and mandatory KMK provisions must be demonstrated with concrete evidence (expert examination, discovery, records).

Apartment and site management is not just an administrative process but a serious legal activity based on property law. Acting with the awareness that every decision is subject to judicial review will reduce the liability of managers and ensure lasting peace among condominium owners.