1. Legal Legislation Regarding Construction and Erection of Facilities in Common Areas
Subsequent Construction of a Pool in the Site: Is Unanimity Required, or Is a 4/5 Majority Sufficient? According to the second paragraph of Article 19 of Law No. 634 on Condominium Ownership (KMK), one of the condominium owners cannot carry out construction, repair, or erection of facilities in the common areas of the main property unless there is a (4/5) written consent from four-fifths of all condominium owners. As emphasized in the decisions of the 18th Civil Chamber and the 5th Civil Chamber of the Supreme Court, the construction of a pool in the garden, which is a common area, is evaluated within this scope and generally requires the written consent of a four-fifths majority. Furthermore, the first paragraph of Article 19 of the KMK imposes on condominium owners the obligation to meticulously protect the architectural condition, aesthetic appeal, and structural integrity of the main property.
2. Project Amendment for the Pool and the Requirement for Consent of All Condominium Owners
In Supreme Court decisions, it has been stated that consent rates may vary depending on the nature of the facility to be constructed. Especially for constructions and facilities that require project modification, may constitute a violation of zoning regulations, or aim to gain enclosed space, a mere 4/5 majority may not be sufficient; the consent of all unit owners (unanimity) and approval of the change by the municipality may be required. In the decisions of the Supreme Court 20th Civil Chamber (2019/3894 E.) and 18th Civil Chamber (2014/17211 E.K), it has been ruled that the approval of all unit owners is mandatory for the legalization of a pool or its licensing through project modification, and decisions taken with a 4/5 majority in such cases will be considered invalid.
3. Neighbor Law and Disturbing Activities
Pursuant to Article 18 of the Condominium Law (KMK), unit owners are obliged not to disturb each other while using their independent sections and common areas, and to exercise their rights in accordance with the rules of good faith. According to the decisions of the Supreme Court 18th Civil Chamber (2013/6217 E.) and 5th Civil Chamber (2022/4265 E.), even if a four-fifths majority has been achieved, the facility to be constructed must:
Not be contrary to zoning regulations,
Not hinder other unit owners from using their independent sections,
Not be of a disturbing nature to unit owners.
4. Legal Avenues That Can Be Pursued
In light of court decisions, the following avenues can be pursued against a pool construction that violates the project or disturbs peace:
Annulment of the Board of Proprietors’ Decision: If a board decision has been made regarding the construction of a pool, an annulment lawsuit can be filed in the Civil Court of Peace on the grounds that this decision does not have the qualified majority required by law (4/5 or unanimity, depending on the situation).
Lawsuit for Prevention of Intervention and Restoration to Former State: If there is an unauthorized intervention or an intervention contrary to the project in a common area, a lawsuit can be filed in the Civil Court of Peace requesting the cessation of construction, prevention of the intervention, and restoration of the area to its original state in accordance with the project.
Administrative Objection and Annulment Lawsuit: An objection can be made to the municipality during the project approval or licensing phase. If the modification projects approved by the municipality do not include the consent of all apartment owners, it is possible to file a lawsuit in the administrative court for the annulment of this administrative act.
Conclusion: The implementation of a project from 30 years ago today requires the current consent of the apartment owners and compliance with zoning regulations. Complaints such as visual deterioration, noise, and odor can be put forward as “nuisance” within the scope of Article 18 of the Condominium Law, requesting the cessation of the project or its restoration to its former state.
Why Is Expert Legal Support Necessary?
Disputes such as the construction of a pool in the complex or common areas are not simple administrative matters that can be resolved solely by a majority vote; they are multi-layered legal issues requiring the combined evaluation of the provisions of Condominium Law, zoning law, neighborhood law, and administrative law. A decision made with an incorrect procedure or insufficient consent can lead to difficult-to-compensate loss of rights in later stages.
In such disputes, expert legal support is particularly necessary for the following reasons:
Determining the Correct Consent Ratio: In the specific case, whether a 4/5 majority is sufficient, or if unanimity is required due to project modification, necessitates a technical evaluation in light of Supreme Court precedents. Decisions made with an incorrect majority carry the risk of absolute nullity.
Project and License Review: Whether the licenses or modification approvals obtained from the municipality include the consent of all property owners and comply with zoning regulations can only be determined through legal and technical examination.
Correct Determination of the Case Type and Competent Court: Deciding which of the following actions (or which combination) to initiate — annulment of the condominium owners’ board decision, injunction against interference, restoration to the previous state, administrative annulment lawsuit, or compensation claims — is of strategic importance. Incorrect choice of case type or competent court may lead to the procedural dismissal of the lawsuit.
Proof of Neighbor Law and Nuisance Claims: Whether issues such as noise, odor, visual degradation, and loss of value constitute a legal “nuisance” and how they can be proven requires mastery of the precedents of the Supreme Court and the Constitutional Court.
Prevention of Loss of Rights: Missing deadlines, submitting insufficient evidence, or following an incorrect legal path can lead to property owners completely losing their right to sue.
In conclusion; in disputes concerning common areas, such as the construction of a pool on the site, obtaining professional support from a lawyer experienced in Condominium Law is essential, both during the preventive legal consultancy phase and throughout the litigation process, to prevent loss of rights and effectively manage the process.
In such disputes, the legal assessment and representation to be provided by 2M Law Firm, experienced in cases arising from Condominium Ownership and site management, will ensure that the process is conducted in accordance with Supreme Court precedents and in a results-oriented manner.
