With the increasing prevalence of site living, “secure site” the concept has become a primary reason for preference for property owners and tenants. However, in theft incidents that occur despite the measures taken, the legal responsibility of site management is an issue that needs to be meticulously examined in light of court decisions. This study analyzes the material and moral compensation liability of site managements, discussions regarding the competent court, and the distribution of fault in concrete cases.
1. Legal Basis and Management’s Duties
The responsibility of site management is based on Law No. 634 on Condominium Ownership (KMK). As emphasized in the decision of the Bakırköy 2nd Civil Court of Commerce dated 30.10.2025, numbered 2025/940 E. 2025/1016 K., in accordance with Article 35/b of the KMK, taking the necessary measures for the protection, maintenance, and repair of the main real estate is among the primary duties of the manager. Article 38 of the same Law stipulates that the manager is liable to the unit owners exactly like an “agent”.
2. Material Compensation Liability and Determination of Fault
Court decisions state that for site management to be held liable for material compensation in theft incidents, there must be “service fault” or “supervision deficiency”.
Security Vulnerability and Staff Shortage: In the decision dated 10.04.2019, numbered 2018/464 E., 2019/381 K. of the Istanbul 5th Civil Court of Commerce, the site management, which employed 6 personnel instead of the 15 security personnel allocated by the Governorship and did not conduct a risk analysis, was found to be 45% at fault. Similarly, in the judgment dated 11.12.2023, numbered 2023/1488 E., 2023/3615 K. of the 3rd Civil Chamber of the Court of Cassation, the joint and several liability of the management due to insufficient personnel and failure to keep vehicle records was upheld.
Supervisory Obligation: Even if the site management procures security services from an external company, it is obligated to supervise the company’s activities. In the decision dated 24.05.2022, numbered 2019/10 E. 2022/544 K. of the Bakırköy 4th Civil Court of Commerce, the site management, which did not sufficiently supervise the security company, was found 20% secondarily at fault and ordered to pay material compensation.
Effect of the Management Plan: In some decisions, the absence of a special provision in the management plan may limit liability. In the decision dated 01.10.2015, numbered 2015/12877 E., 2015/13450 K. of the 18th Civil Chamber of the Court of Cassation, the local court’s compensation decision was overturned on the grounds that liability against theft was not stipulated in the management plan.
3. Moral Compensation Liability: Personal Rights vs. Property Damage
In claims for non-pecuniary damages, judicial practice exhibits two different approaches:
View in Favor of Acceptance: In the decision of the 13th Civil Chamber of the Supreme Court of Appeals, dated 30.01.2020, numbered 2016/29373 E., 2020/706 K., it was stated, on the grounds that “the mental integrity of the person whose house was burgled was disrupted and their private life was interfered with“, that the conditions for non-pecuniary damages could arise. The affirmation decree of the 3rd Civil Chamber of the Supreme Court of Appeals, dated 10.02.2022, numbered 2022/207 E., 2022/881 K., also supports the site management’s liability for non-pecuniary damages.
View Against Acceptance: In contrast, in the decision of the 3rd Civil Chamber of the Supreme Court of Appeals, dated 11.12.2023, numbered 2023/1488 E., 2023/3615 K., claims in this regard were rejected, emphasizing that theft is a property damage and that mere property damages do not necessitate non-pecuniary compensation.
4. Issue of Competent Court
The court competent to hear the dispute varies according to the parties to the lawsuit and the nature of the claim:
Civil Court of Peace: The Civil Court of Peace is competent in lawsuits for pecuniary damages arising from the application of the Condominium Law (KMK) between the flat owner and the site management (Supreme Court of Appeals, 20th Civil Chamber, 13.05.2019, 2019/2225 E., 2019/3377 K.).
Civil Court of First Instance: (Secondary Source) In the decision of the 5th Civil Chamber of the Court of Cassation dated 07.02.2022, numbered 2021/13573 E. and 2022/1424 K.; it was stated that lawsuits filed alleging negligence in site management’s security, specifically for non-pecuniary damages, do not arise from the implementation of the Condominium Law (KMK), and therefore the Civil Court of First Instance is competent. Furthermore, in sites that have not transitioned to collective building management, the Civil Court of First Instance is authorized according to general provisions (Court of Cassation 20th Civil Chamber, 17.04.2017, 2017/3285 E. ).
Consumer Court: Consumer Courts can also be responsible in cases filed on the grounds that the service was “defective” (Court of Cassation 3rd Civil Chamber, 26.11.2024, 2024/3361 E. ).
5. Concrete Examples and Contributory Negligence
Open Door/Window: In the decision of the 3rd Civil Chamber of the Court of Cassation dated 26.11.2024, 10% contributory negligence was attributed to the apartment resident who did not lock their door during a theft incident.
Storage of Jewelry: In the judgment of the General Assembly of Civil Chambers of the Court of Cassation dated 01.07.2015, numbered 2014/18 E., 2015/1754 K., it was ruled that storing jewelry at home (under the bed base) in a site promising high security cannot be attributed as fault to the plaintiff, and this would not constitute “contributory negligence”.
Parking Lot Theft: In the decision of the 4th Civil Chamber of the Supreme Court dated 03.07.2013, numbered 2013/8847 E. 2013/12812 K., the site management that failed to fix the barrier malfunction and did not perform entry-exit control was held responsible for the vehicle stolen from the parking lot.
6. Secondary Sources and Additional Context
Decisions categorized as secondary sources shed light on the procedural dimension of disputes:
20th Civil Chamber of the Supreme Court (2015/10354 E.): In cases of theft occurring in the site’s parking lot, if there is no direct consumer transaction between the parties, it indicates that the dispute should be heard in the Civil Court of First Instance according to the provisions of tort law.
Istanbul 12th Commercial Court of First Instance (2023/852 E.): confirms that the site management’s failure to take “protective measures” such as the maintenance of fire extinguishing systems falls within the jurisdiction of the Civil Court of Peace under Article 35/b of the Condominium Law (KMK).
4th Civil Chamber of the Supreme Court (2019/120 E.): discusses that the liability of the security company arises from the contract, but special conditions, such as the “memorial value” of stolen items, may be sought for moral compensationr.
In conclusion; the site management is obligated to ensure the site’s security and supervise security services in accordance with the provisions of the Condominium Law (KMK) and agency rules. In case of a breach of this obligation, while material compensation liability is largely accepted; moral compensation liability can be evaluated differently by courts depending on the nature of the event and whether personal rights have been violated. In determining the competent court, it may be necessary to separate the claims for material and moral compensation.
Frequently Asked Questions
Sitemde Hırsızlık Oldu, Yönetimden Tazminat Alabilir miyim?
Evet, site yönetiminin “hizmet kusuru” veya “denetim eksikliği” nedeniyle maddi tazminat talebinde bulunabilirsiniz. Kat Mülkiyeti Kanunu’nun 35/b ve 38. maddelerin saklanması yönetici, kat maliklerine karşı vekil gibi sorumludur ve sitenin harcanmasını sağlamakla sağlanır. Güvenlik personelinin yetersiz olması, kameraların çalışmaması, giriş-çıkış kayıtlarının tutulmaması veya bariyer arızalarının giderilmemesi gibi yönetim kusurlu sayılır. Yargıtay kararlarında site yönetimleri %20 ile %45 arasında kusur oranlarıyla tazminata mahkûm edilmiştir. Ancak kapısını kilitleyen daire sakininin %10 oranında müterafik kusurun yüklenebileceği de unutulmamalıdır.
Hırsızlık Sonrası Manevi Tazminat Davası Açabilir miyim?
Manevi tazminat konusunda yargılama pratiği ikiye bölünür.
Kabil tarafındaki görüşe göre (Yargıtay 13. Hukuk Dairesi, 2020/706 K.), evde hırsız giren kişinin ruhsal bütünlüğü bozulduğu ve özel hayata müdahale edilmediği için manevi tazminat koşulları oluşabilir.
Kırmızı taraftaki görüşe göre (Yargıtay 3. Hukuk Dairesi, 2023/3615 K.), yazılan tuzun bir malvarlığı zararından manevi tazminat alabilir. Manevi tazminatın arttırılması için kişilik haklarının ihlal edilmesinin somut delillerle (psikolojik rapor, yaşanan travmanın etkileri vb.) ortaya çıkarılması büyük önem taşır.
Site Yönetimine Karşılık Verilecek Tazminat Davası Hangi Mahkemede Görülür?
Görevli mahkeme, talebin onaylandığına göre üç ayrı ayrıdır. Kat maliki ile site yönetimi arasındaki KMK’nin doğan
maddi tazminat davaları Sulh Hukuk Mahkemesi’nde görülür. Güvenlik ihlali iddiasıyla açılan
manevi tazminat davaları ile toplu yapı yönetimine geçilmeyen sitelerdeki davalar Asliye Hukuk Mahkemesi’nde , hizmetin ayıplı olduğu iddiasıyla açılan davalar ise
Tüketici Mahkemesi’nde görülebiliyor. Yanlış mahkemeye yapılan başvuru, davanın görev tazminatı ve ciddi hak kayıplarına yol açabileceği için davanın açılmasından önce mutlaka uzman bir avukattan görüş alınması tavsiye edilir.
Why is Expert Legal Support Necessary?
Compensation lawsuits arising from on-site management incidents involve complex details requiring the joint consideration of the Condominium Law, the Law of Obligations, the Law on Consumer Protection, and Supreme Court precedents. Establishing the correct fault of the defendant, determining the degree of fault, providing evidence against a defense of contributory negligence, and properly constructing the legal grounds for claims of moral compensation are critical elements that directly influence the course of the lawsuit.
2M Law Firm, with many years of experience in condominium law and site management disputes, provides legal support to aggrieved condominium owners and property holders. Our office; with its team of Istanbul condominium lawyers, offers professional services at all stages, from damage assessment to lawsuit options, following an initial consultation/fee agreement. As Tuzla lawyers, Kurtköy lawyers, Pendik lawyers, and Kartal lawyers, we provide effective representation services in disputes experienced in secured residential complexes on the Anatolian Side.
Additionally, within the scope of site investment; services such as the preparation of management plans for site managements, auditing of security companies’ contracts, evaluation of risk analysis reports, and legal consultancy services in potential disputes are provided. Ensuring that site residents’ rights are protected and managements fully comply with legal regulations by working with an expert lawyer; prevents both loss of time and rights.
If there is a theft penalty or if you want to minimize your responsibility as the site management, you can create a specific legal strategy for the concrete case by applying to 2M Hukuk Law Office.
