May Domesticated Animals be Fed in Building Complexes?2019, Erdemir & Özmen Attorney Partnership
May Domesticated Animals be Fed in Building Complexes?
As per the Animal Protection Law numbered 5199 (“the Law”), domesticated animals have the freedom to live within the living conditions specific to their species. The necessary measures must be taken in order to protect, supervise and care for animals and shield them from maltreatment.
Pursuant to the article 3 of the same Law, the animals which have been cultivated and trained by humans are called as “domesticated animals”. A person, who participates in a general training program regarding the care of animals and takes ownership of or looks after an animal, is obliged to shelter the animal, meet its ethological needs in accordance with its species and reproductive methods, take care of its health and take all necessary precautions necessary with regard to the health and safety of people, animals and the environment. In other words, animal owners are obliged to take preventive measures with regard to environmental pollution caused by their animals or danger and disturbance to other persons. They have to compensate for any damage caused by their failure to take timely and sufficient precautions.
As is known, each apartment building/building complex has a management plan. Such management plan is in the force of a contract which regulates the general provisions pertaining to the main property and is binding for the condominium owners. The management plans may contain expressions such “Domesticated animals shall not be fed” or “Farm animals shall not be fed”, or the management plans do not contain a provision in this regard. It should be stated that, if there is a resolution taken previously in this direction, the condominium owners may modify or replace this resolution in case of achievement of the majority prescribed by the Condominium Law numbered 634; or if there is no arrangement in this regard, a new arrangement in this regard may be added into the management plan in case of achievement of the majority prescribed by the same Law.
If there is no resolution to the contrary in the management plan of the apartment building/building complex, it is possible to feed domesticated animals in the independent divisions provided that all the relevant responsibilities are taken and all the relevant obligations are fulfilled by their owners. Thus, pursuant to the article 18 of the Condominium Law numbered 634, condominium owners are mutually obliged to comply with the rules of equity and particularly, they are obliged not to disturb each other, not to violate the rights of each other and they are obliged to act in compliance with the provisions of the management plan, while using and occupying their independent divisions, the annexes and the common spaces. Accordingly, the building complex/apartment building occupants, who feed domesticated animals, are responsible to show sensitivity particularly with regards to use of the common spaces by their domesticated animals, in addition to their responsibility to ensure that their domesticated animals do not make noise in the independent division and that any possible occurrence of animal smell is prevented as well.
The text of the Supreme Court’s jurisprudence which sheds light on the matter is as follows:
“Case: A real estate’s management plan contains a provision stating that animals shall not be fed in the independent divisions and common spaces of the real estate. It has been requested that the animal, who is fed by one of the condominium owners in the real estate, be discharged.
Decision: The request has been rejected.
Justifications: Since an animal is a right holder creature pursuant to the Universal Declaration of Animal Rights, the Animal Protection Law and the European Convention for the Protection of Pet Animals; a management plan, which bears the characteristics of a contract binding on all the condominium owners as per the Condominium Law, shall not violate the rights of the animal.
In case the management plan contains articles violating the rights of the animal, these articles are void due to absolute nullity pursuant to the article 27 of the Obligations Code.
- In the concrete case, the removal of the animal from the house merely due to the management plan, although the animal does not disturb its environment, constitutes a breach of the animal’s rights.
- It may be said that the animal removed from the house will not be left to die and will be taken to the shelter. However, this statement is equivalent to the statement that the conditions of a person’s house and the conditions of a prison are the same as each other.
- The existence of such a provision in the management plan is immoral and in violation of the mandatory provisions of the Law, pursuant to the animal rights-related national regulations and international conventions.
- Since such a provision, contained in the management plan that is in the force of a contract binding on all the condominium owners, does not provide the balance between the condominium owners who do not want and the condominium owners who want animal feeding in the real estate’s independent divisions and common spaces; and since, regardless of whether the animal disturbs its environment, such a provision serves as an arbitrary driving force to lay an obstacle against the group that wants animal feeding; such provision is of a standardized term nature regulated by the Obligations Code and should therefore be deemed to be null and void.
The Condominium Law is of a general law nature in view of the European Convention for the Protection of Pet Animals, the Animal Protection Law and the Governing Regulation on the Protection of Pet Animals; and the general law shall not apply in cases where special laws are applicable.
The removal of an animal, not disturbing its environment, from the house merely due to the management plan constitutes abuse of the right.”
In the light of all above-mentioned, the court established the verdict that it would not be equitable to remove from the house a domesticated animal not disturbing its environment, even if the management plan contains a provision that prohibits the occupants to look after domesticated animals.
In conclusion, the removal of a domesticated animal from the house, merely due to the management plan containing a provision not allowing the occupants to feed and look after domesticated animals, will constitute abuse of the right. Therefore, the other occupants of the building complex may submit their complaints and request for discharge of the animal only for the reasons such as noise/animal smell/safety/environmental cleaning, in other words, only if the other occupants have a legal benefit in this regard, in order for a domesticated animal to be removed from the house.