Are the Condominium Owners Responsible for the Common Expenses Pertaining to the Main Property with No Occupancy Permit?
In modern societies, in apartments and building complexes where life continues in common, it is not possible to lead a regular life without paying common expenses. Cleaning expenses, heating expenses, maintenance expenses, repair expenses, door-keeper’s salary, etc., which are the most fundamental needs of a main property, represent the common expenses in general terms, and it is possible to indicate more examples. In case the amounts related to such needs are not borne by the condominium owners, it is obvious that the living spaces will become unusable. For these reasons, the lawmaker particularly regulates the common expense receivables in the Condominium Law numbered 634 and states that a delay compensation at the rate of 5% on a monthly basis, as prescribed by the Law, shall be paid in case of nonpayment and that a common expense receivable shall have a statutory priority over other receivables.
The article 20 of the Condominium Law numbered 634 regulates comprehensively the condominium owners’ obligation to participate in the common expenses. The relevant legislation provision is as follows:
“Each condominium owner is obliged to participate in the following unless otherwise agreed among the condominium owners:
a) Equally: For the door-keeper, central heating operator, gardener and watchman expenses, and the advance payment to be collected for these expenses;
b) In proportion to the condominium owner’s land share: The insurance premiums pertaining to the main property, and the maintenance, protection, reinforcement and repair expenses pertaining to all common premises, and other expenses e.g. the salary of the manager, and the operating expenses pertaining to the common installations, and the advance payment to be collected for the expenses.
c) The condominium owners shall not abstain from paying these expense and advance shares, by waiving of their right of usage on the common premises or installations or by arguing that there is no necessity and need to benefit from the same due to their independent division’s situation.
Against a condominium owner who does not pay his expense or advance share, legal actions may be taken and enforcement proceedings may be initiated and carried out by the manager or by each of the condominium owners pursuant to the management plan, this Law and the general provisions. A condominium owner, who does not pay all of his expense and advance share, is obliged to pay a delay compensation at the rate of five percent on a monthly basis, for the days the condominium owner delayed in the payment.”
However, the relevant legislation provision does not clarify the matter of when the condominium owners shall be held responsible for the common expense debts in case the main property does not have the required occupancy permit, in other words, in case the occupancy permit has not been obtained for the main property. This matter becomes clear in consequence of an interpretation on the article 17 of the same Law. The article 17/III of the Condominium Law numbered 634 shall apply, if the transition to condominium ownership has not taken place in the main property and if the occupancy permit has not presently been obtained for the main property. This is because; according to the relevant legislation provision, it is stated that the condominium ownership provisions shall apply if the 2/3 of the independent divisions in the main property have started to be occupied. Therefore, it is possible to hold the condominium owners responsible for the common expense and advance payment debts even if the transition to condominium ownership has not taken place in the main property and even if the occupancy permit has not presently been obtained for the main property.
This matter is also addressed in the decisions of the Supreme Court; and the opinion is established that, as regards the real estates on which construction servitude is established, in case the building has been completed actually and 2/3 of the independent divisions have started to be occupied actually, the condominium ownership provisions shall apply in the management of the main property even if the transition to condominium ownership has not taken place; in other words, within the framework of this provision in the Law, in case it is found that the building has been completed in general and that the 2/3 thereof is occupied actually, this will be sufficient to hold all the owners of the independent divisions in the building responsible for the common expense and advance payment debts. (The 18th Civil Chamber of the Supreme Court of Appeals, the decision numbered E. 2001/2212, K. 2001/2577 and dated 20.3.2001)
In conclusion, condominium owners are not entitled to abstain from paying their common expense debts on the ground that the condominium ownership is not established or that the occupancy permit has not been obtained for the main property in certain cases, which we have mentioned above.