Introduction

What happens if building maintenance fees are not paid? This study analyzes the legal consequences faced by apartment owners if maintenance fees are not paid, within the framework of presented court decisions and documents. The investigations reveal the legal avenues that can be pursued for the collection of maintenance fee debts, the financial sanctions to be applied, and the procedural details to be considered in these processes.

1. Building Maintenance Fee: Recourse to Legal Means, Enforcement Proceedings, and Right to Sue

The most fundamental finding, common in almost all judicial decisions, is that legal action can be taken against an apartment owner who fails to pay maintenance fees. This right is granted to both the building manager and other apartment owners. Article 20 of the Condominium Law (KMK), also referenced in a decision by the Constitutional Court, forms the legal basis for this right: “Regarding an apartment owner who does not pay their share of expenses or advance payments, a lawsuit may be filed, and enforcement proceedings may be initiated by any of the other apartment owners or by the building manager, in accordance with the management plan, this Law, and general provisions.” (Constitutional Court – 18/9/2014; Court of Cassation General Assembly of Civil Chambers – 2017/1995)

2. Delay Compensation and Interest Application

The most significant financial consequence of not paying the due fees on time is the application of a late payment penalty or interest. Decisions in this regard differentiate based on the source of the interest rate:

Statutory Rate: Article 20 of the Condominium Law (KMK) specifies the standard rate to be applied in the absence of any special arrangement: “The condominium owner who fails to pay the entirety of the expense and advance share is obliged to pay a late payment penalty calculated at five percent per month for the days they are delayed in payment.” (Supreme Court 20th Civil Chamber – 2018/4842).

Agreed Rates: Condominium owners can determine a late interest rate different from the statutory rate through the management plan or decisions of the board of condominium owners. The Supreme Court prioritizes such special arrangements. For example, in Decision No. 2017/1685 of the Supreme Court 20th Civil Chamber, it was emphasized that this rate should be applied because a 5% monthly interest rate was determined in the management plan and general assembly decisions. Similarly, rates such as 1.5% monthly (Bakırköy 7th Civil Court of Commerce – 2018/1235) or 3% monthly (Ankara 10th Civil Court of Commerce – 2021/228) can be determined by decisions taken at cooperative general assemblies, and these decisions are binding on members. Decision No. 2018/1021 of the Izmir Regional Court of Justice draws attention to the fact that these rates should not exceed the limit in Article 120/2 of the Turkish Code of Obligations (Law No. 6098).

3. Start Date of the Late Payment Penalty

Decisions of the Supreme Court have established a clear procedure regarding the date from which late payment compensation will be applied. This is critically important for determining the moment the debt became due and the debtor fell into default. In the consistent decisions of the 18th and 20th Civil Chambers of the Supreme Court, this matter has been explained as follows: “…if the defendants participated in the decisions of the board of apartment owners which form the basis of the common expense subject to the lawsuit, the date of the decision; if they did not participate in the meeting where the decision was made, the date on which this decision was notified to them or they learned of their debt in another way; and if neither of these applies, the date on which the payment order was served due to the enforcement proceeding initiated against them should be taken as the basis...” (Supreme Court 18th Civil Chamber – 2014/22486; Supreme Court 20th Civil Chamber – 2018/3877)

This sequence shows that for a fair application, the debtor’s awareness of the debt is taken as the basis.

4. Different Perspectives and Special Cases

Waiver of Interest: The board of apartment owners or the cooperative’s general assembly may also decide not to apply default interest. In the decision numbered 2022/112 of the Istanbul Anatolian 11th Commercial Court of First Instance, it is observed that the interest claim was rejected because “it was unanimously decided in the general assembly not to collect a late payment surcharge.”

Cases Where Liability Does Not Arise: For a membership fee (aidat) debt to arise, there must be utilization of the relevant service and the decisions that are the source of the debt must be in accordance with the procedure. In the decision numbered 2020/340 of the Ankara 13th Commercial Court of First Instance, it was ruled that the conditions for claiming membership fees (aidat) and general expenses had not been met, on the grounds that the dwelling subject to the lawsuit had not been delivered to the member.

Execution Denial Compensation: In cases where the contribution debt is liquid (certain and payable) and the debtor objects to the enforcement proceedings unjustly, execution denial compensation may be awarded in favor of the creditor, not less than 20% of the principal debt (Istanbul Anatolian 5th Civil Court of Commerce – 2024/97; Court of Cassation 23rd Civil Chamber – 2011/3860).

Conclusion

Violation of the contribution payment obligation is a situation that entails serious legal and financial consequences for condominium owners and cooperative members. Court decisions clearly demonstrate that in the face of such a violation, the creditor manager or other owners are granted the opportunity to collect their receivables through enforcement proceedings and lawsuits. In this process, it is standard practice to demand late payment compensation at rates determined by the Condominium Law (KMK), management plan, or general assembly resolutions, in addition to the debt. Court decisions have clarified the procedural details of the process, from determining the interest rate to the interest’s start date, and emphasize that each case should be evaluated within its own specific circumstances (notification of decisions, debtor’s status, etc.). An article suggestion.