Introduction
This study has been prepared to analyze the legal framework for conducting commercial activities in independent sections registered as “residential properties” in the land registry, within main immovables covered by the Condominium Law (KMK). The main question focuses on the necessity for the board of flat owners to make a unanimous decision to open “entertainment and meeting places such as cinemas, theaters, coffee houses, casinos, pavilions, bars, clubs, dance halls and similar establishments, and food and nutrition places such as bakeries, restaurants, patisseries, dairies, and workshops, dye houses, printing houses, shops, galleries and bazaars” as listed in Article 24 of the KMK. The study reveals the fundamental principles, important distinctions, exceptions, and practical implications of the subject in light of the presented decisions of the Constitutional Court, Court of Cassation, Council of State, and Regional Courts of Justice.
1. Basic Rule: Unanimity Requirement of Co-owners and its Constitutional Basis
The common point of reference for all judicial decisions is the second paragraph of Article 24 of the Condominium Law No. 634. According to this provision, the opening of workplaces explicitly listed in the law or of a similar nature, in an independent section registered as a dwelling in the cadastre, is, without exception, subject to the unanimous decision of the board of co-owners.
The Constitutional Court explained the constitutional basis of this rule in its decision dated 17/7/2014. According to the Court, although this regulation imposes a restriction on the right to property, this restriction is legitimate. The rationale is stated as “public interest in creating an environment suitable for citizens residing in properties intended for use as dwellings to maintain their private and family lives, rest, and for children’s lives.“ Therefore, the unanimity rule establishes a reasonable balance between individual commercial interests and the aim of protecting the peace and tranquility of society (other co-owners).
2. Priority of the Quality in the Land Registry (Distinction between Dwelling and Workplace)
If Registered as “Dwelling” in the Title Deed: The unanimity rule applies absolutely. The fact that the independent section has been de facto converted into a workplace, drawn as a shop in its architectural project, or its occupancy permit obtained as a shop from the municipality, does not change its “dwelling” status in the title deed and does not eliminate the unanimity requirement (Council of State 2nd Chamber, 2021/13956-2021/3593).
If Registered as “Shop” or “Workplace” in the Title Deed: The unanimity requirement in Article 24 of the Condominium Law (KMK) is not sought. As clearly stated in the decision of the 4th Chamber of the Council of State numbered 2023/7842-2023/6987, “there is no requirement for the board of floor owners to make a unanimous decision to open a patisserie in an independent section appearing as a ‘shop’ in the title deed record.” In this case, if there is no contrary provision in the management plan, a decision taken by a majority vote of the floor owners may be sufficient for businesses such as public rest and entertainment venues (Council of State 4th Chamber, 2023/7858-2023/6369).
3. Binding Nature and Limitations of the Management Plan
The management plan, as stated by the Supreme Court of Appeals, is “in the nature of a contract binding all floor owners” (Supreme Court 18th Civil Chamber, 2003/7447-2003/8909). The management plan can regulate the manner of use of independent sections, provided it does not contravene the mandatory provisions of the law.
The management plan may introduce more restrictive provisions than the law. For example, a provision stating that “independent sections cannot be used for purposes other than their registered nature in the title deed” can prevent all types of workplace use (Supreme Court 18th Civil Chamber, 2011/2633-2011/5549). However, the management plan cannot reduce the unanimity requirement sought by the law to a more flexible condition such as a majority vote. As stated in the decision of the Supreme Court 18th Civil Chamber numbered 2015/23219-2016/4071, “a change to be made in the management plan with a 4/5 majority cannot be of a nature that overrides matters requiring unanimity by law” and such a change has been deemed “null and void.”
Exceptions to Rule 4 and Areas Open to Interpretation
Although the general rule is strict, judicial decisions indicate that there are some exceptions and interpretation-based differences.
Specific Professional Groups: According to the decision numbered 2019/1283 of the 20th Civil Chamber of the Court of Cassation, and in accordance with the Lawyers’ Act No. 1136 and the Certified Public Accountants and Sworn Financial Advisors Act No. 3568, “law offices and activities of independent financial consultancy or sworn financial consultancy” do not require the consent of the floor owners for their establishment. These professions are subject to a special exception introduced by law.
Nature of the Workplace and Interpretation of “Similar Places”: The phrase “similar places” at the end of the list in the law indicates that workplaces of a similar nature will also be included in this scope. The Council of State emphasized that the purpose of this phrase is “to prevent people from being disturbed by being exposed to heavy pedestrian and vehicle traffic right next to their homes” (Council of State 8th Chamber, 2011/8063). However, not every activity falls within this scope. For example, the Council of State did not consider a “pilates studio” among the places on this list and did not require a unanimity condition (Council of State 4th Chamber, 2023/7375-2024/1368).
Conclusion
Basic Principle: For a workplace (such as entertainment venues, food establishments, workshops, shops, etc.) similar in nature to those listed in Article 24 of the Condominium Law (KMK) to be opened in an independent section registered as a “residence” in the registry, the unanimous decision of all floor owners is an absolute necessity. This rule pertains to public order and is considered constitutionally legitimate.
Consequently, it is essential for individuals wishing to conduct commercial activities in a property designated as residential to carefully examine the land registry record, the management plan, and the governing provisions of the Condominium Law (KMK), and to obtain the unanimous consent of all floor owners before commencing operations. This is crucial to prevent future legal disputes and sanctions (such as the closure of the workplace, restoration to its previous state, etc.). An article suggestion.
Why is Expert Tuzla Lawyer Support Necessary?
These types of disputes are quite common, especially in the dense residential areas of Tuzla, Pendik, Maltepe, Kartal, Ümraniye, and Istanbul. As condominium law encompasses both private law and public order aspects, expert legal support is necessary for the complete execution of processes.
An expert lawyer will: analyze land registry records and the management plan, correctly determine whether unanimity is required, provide legal opinions in accordance with judicial precedents, prevent disputes in the workplace opening process, and effectively defend their client in commenced lawsuits. It should be remembered that an investment made due to a legal error can lead to the closure of the property, significant financial losses, or years-long litigation processes with neighbors.
