Introduction

This study analyzes the legal consequences arising from a tenant’s failure to pay common expenses (dues/maintenance fees) undertaken within the scope of a lease agreement, in light of the decisions of the Court of Cassation, Regional Courts of Justice, and Courts of First Instance. The review focuses on fundamental issues such as the source of the tenant’s responsibility, the conditions under which the lessor can claim receivables, the sanctions for non-payment, and the relationship between the Condominium Law (KMK) and the Turkish Code of Obligations (TBK).

The Basis of Responsibility is the Lease Agreement: The tenant’s obligation to pay dues primarily arises from the special terms of the lease agreement concluded between the parties. The existence of an explicit provision to this effect in the contract is the primary basis of responsibility.

The Lessor’s Right of Recourse is Conditional: According to the established jurisprudence of the Court of Cassation, for the lessor (landlord) to be able to claim unpaid dues from the tenant, the lessor must first have paid this amount to the apartment or site management. Any enforcement proceedings or lawsuits initiated against the tenant without this payment are dismissed.

Penalties for Non-Payment are Severe: Non-payment of dues by the tenant is considered a breach of “ancillary expense” debt under the TCO (Turkish Code of Obligations) and may constitute grounds for eviction due to default. Furthermore, the lessor or management may initiate enforcement proceedings to collect the debt and claim late payment compensation.

Responsibility Arising from the Condominium Law: Pursuant to Article 22 of the Condominium Law, the tenant is jointly and severally liable with the flat owner for dues debt. However, this liability is limited to the rent amount the tenant is obliged to pay, and any payment made by the tenant is deducted from the rent debt.

“Dues” Concept Has Limits: The tenant’s liability is limited to expenses related to the ordinary use of the leased property. Costs related to major repairs of the building (e.g., transformer, elevator system renewal) cannot be imposed on the tenant unless otherwise specified in the contract.

1. Source and Scope of Tenant’s Liability

Court decisions base the tenant’s liability for dues on the lease agreement. In the special conditions section of the contract, stipulating that the dues will be paid by the tenant is sufficient for this obligation to arise. This situation was explicitly stated in the decision numbered 2022/752 E. of the Bakırköy 2nd Civil Court of Commerce as, “in Article 4 of the page where the special conditions of the lease agreement are regulated, ‘the responsibility for paying electricity, water, and dues expenses belonging to the property, as well as environmental cleaning tax, from the moment the property is leased until it is vacated, belongs to the defendant tenant …'” .

However, this responsibility is not unlimited. The decision numbered 2009/10720 K. of the 3rd Civil Chamber of the Court of Cassation introduces an important distinction: “According to the Condominium Law, it should not be assumed that all obligations of the owner regarding common expenses are transferred to the tenant.” According to the decision, while the tenant’s responsibility is limited to “expenses related to the ordinary use of the leased property and arising from its use”, “substantial repair expenses” belong to the lessor. Therefore, the content of the amount claimed under the name of dues must be examined, and major repair costs must be separated.

2. Lessor’s Right of Recourse: “Pay First, Then Claim” Principle

The most consistent and frequently emphasized principle in the examined decisions is that the lessor’s right of recourse is conditional. The fundamental rule reiterated in many decisions of the 6th Civil Chamber of the Court of Cassation (e.g., 2009/10087 E., 2014/4046 E., 2015/4067 E.) is as follows:

“The landlord can demand the maintenance fee owed by the tenant, provided that the landlord pays it first. The landlord cannot demand the maintenance fee from the tenant without first paying it to the management.”

This rule serves as a prerequisite for the lessor’s active capacity to sue and enforce. If the lessor cannot prove payment to the management with written evidence such as a receipt, their claims against the tenant are rejected by the court. In the decision of the 8th Civil Chamber of the Court of Cassation, numbered 2018/1320 K., it was stated that the decision rendered with insufficient examination should be overturned, as “no document was found in the file indicating that the maintenance fees were paid by the lessor.“ This situation demonstrates the critical importance of the burden of proof for lessors.

3. Legal Consequences of Non-Payment

Default and Eviction: The maintenance fee is considered an “ancillary expense” within the scope of Articles 315 and 341 of the Turkish Code of Obligations (TBK). Therefore, non-payment of the maintenance fee, just like non-payment of rent, constitutes default and can be a reason for eviction. In the decision of the 3rd Civil Chamber of the Court of Cassation, numbered 2018/2523 K., it was stated that “non-payment of the maintenance fee, which is an ancillary expense, also constitutes grounds for eviction due to default.” However, for eviction, procedural conditions such as specifying the debt in the notice to be sent to the tenant, providing a reasonable period for payment, and clearly stating that the contract will be terminated if not paid, must be fully met. It was also emphasized in the decision of the 6th Civil Chamber of the Court of Cassation, numbered 2015/6117 K., that the lessor cannot demand eviction based on a default notice sent without first paying the maintenance fee to the management.

Enforcement Proceedings and Compensation: The lessor or management can initiate enforcement proceedings against the tenant for unpaid dues. In case of an unwarranted objection by the tenant, an action for the annulment of the objection can be filed. As stated in the decision numbered 2021/927 K. of the Bakırköy 6th Civil Court of Commerce, if the tenant’s objection is found to be unwarranted and the receivable is liquid (specific and calculable), enforcement denial compensation of not less than 20% of the receivable amount may be awarded. Additionally, late payment compensation can also be claimed for the days of delay in payment, at the rate specified in the decision of the board of co-owners.

4. Responsibility and Limitation Arising from the Condominium Law

Independent of the lease agreement, Article 22 of the Condominium Law (KMK) allows the site/apartment management to directly apply to the tenant. This situation was explained as follows in the decision numbered 2014/2173 K. of the 18th Civil Chamber of the Supreme Court:

“The owner of the independent section, and those who base their right on a lease agreement… in one of the independent sections, are jointly and severally liable for the expenses and advance payments due to their share and for late payment compensation, in accordance with Article 20.”

However, the same article imposes an important limitation on this responsibility: “However, the tenant’s liability is limited to the amount of rent they are obliged to pay, and any payment made by them shall be deducted from their rent debt.” This provision ensures that the management cannot demand a due debt from the tenant that exceeds the monthly rent amount, and that the tenant can deduct any payment made to the management from their rent.

5. Procedural Matters: Competent Court

Disputes arising from common charge receivables between the tenant and the landlord or the management are considered cases stemming from the rental relationship. Therefore, in accordance with Article 4 of the Code of Civil Procedure No. 6100, the duty to hear such cases, regardless of the value of the case, belongs to the Civil Court of Peace (Istanbul 14th Commercial Court of First Instance 2020/321 E., Supreme Court 20th Civil Chamber 2016/6002 E.).

Conclusion

The tenant’s failure to pay common charges is a situation that leads to significant legal consequences for both the tenant and the landlord. When judicial decisions are examined holistically, the following conclusions are reached:

The tenant’s obligation to pay common charges is valid if explicitly stated in the lease agreement, and this obligation covers ordinary usage expenses.

The absolute condition for the landlord to be able to demand unpaid common charges from the tenant is for the landlord to first pay this amount to the management and document this payment. Demands made without fulfilling this condition of “recourse” remain legally ineffective.

A tenant who fails to pay common charges faces the risk of enforcement proceedings, late payment penalties, and most importantly, eviction from the property due to default.

Although site/apartment managements can directly apply to the tenant in accordance with the Condominium Law (KMK), this demand is limited to the tenant’s monthly rent.

Therefore, to prevent the parties from suffering a loss of rights, it is of great importance that lease agreements explicitly regulate the common charge obligation, that landlords fulfill the payment and proof condition before exercising their right of recourse, and that tenants see the common charge debt as a collateral obligation and pay it on time. A writing suggestion.

Why is Expert Legal Support Necessary?

Disputes regarding the tenant’s common expenses debt involve numerous technical details such as the interpretation of special provisions in the lease agreement, joint and several liability arising from the Condominium Law, the conditions of the right of recourse, and eviction processes. Performing incorrect or incomplete actions can lead to serious loss of rights for both the landlord and the tenant.

Therefore, obtaining professional support from an expert lawyer from the beginning of the process is of great importance. Lawyers operating particularly in the regions of Istanbul, Tuzla, Pendik, Kartal, Tepeören, Aydınlı, Orhanlı, Bayramoğlu, Çayırova, and Şifa Mahallesi can provide the most accurate legal solution by closely following local practices and court precedents.