Introduction
This study will address the Amendment of the Management Plan: Procedures, Conditions, and Problems in Practice in Light of Judicial Decisions. Under the Condominium Law (KMK), the fundamental document regulating the rights and obligations of condominium owners in a main immovable property, the use of common areas, and general management principles is the management plan. As explicitly stated in Article 28 of the KMK, “The management plan is a contractual provision binding all condominium owners.” With this characteristic, the management plan is considered virtually the constitution of the main immovable property and binds all condominium owners, their successors, managers, and auditors. The amendment of such a binding and fundamental document has been made subject to strict procedures and conditions by the legislator. However, in practice, management plan amendments frequently lead to legal disputes and lawsuits.
1. Procedures and Conditions for Amending the Management Plan
The fundamental condition for amending the management plan is the 4/5 majority vote, as clearly stated in Article 28 of the Condominium Law (KMK). The Court of Cassation strictly adheres to this rule. For example, in one of its decisions, the Court of Cassation stated that “the amendment to the management plan made with the votes of 59 flat owners in a main property with 208 independent sections was contrary to procedure and law” (Court of Cassation 5th Civil Chamber, 2022/4353), ruling that the failure to achieve the qualified majority alone constituted a reason for annulment.
It is also important how this majority is achieved. The Court of Cassation emphasizes that decisions must be made in the assembly of flat owners: “…registering changes to be made in the management plan as a new management plan in the title deed without discussion is erroneous….” (Court of Cassation 5th Civil Chamber, 2022/13565) This decision shows that the amendment must be decided in an assembly meeting where flat owners come together and discuss the matter, not just by collecting signatures manually. Furthermore, the mandatory provision of the law can even override more stringent conditions in the management plan. In a Court of Cassation decision, it was stated that even if the existing management plan required unanimity for an amendment, the 4/5 majority rule of the Condominium Law (KMK) would apply. (Court of Cassation 5th Civil Chamber, 2022/11838)
2. Limits of Management Plan Amendment and Judicial Review
Even with a 4/5 majority of apartment owners, changes made to the management plan are not limitless. The fundamental principle is that the court cannot interfere with the discretion of the apartment owners. “the judge cannot decide on a change to the management plan by substituting the will of the apartment owners.” (Supreme Court 20th Civil Chamber, 2017/10419) However, there is an important exception to this rule: The provisions of the management plan cannot contravene the mandatory rules of law. The Supreme Court explains this situation as follows: “contravention of mandatory provisions constitutes a case of nullity or absolute invalidity, and according to the Property Ownership Law (KMK), each apartment owner may request the annulment of provisions in the management plan that contravene the mandatory rules of law, without being bound by a specific time limit. It is also not necessary for the relevant articles to have been discussed in the assembly of apartment owners.” (Supreme Court 20th Civil Chamber, 2018/6697) This grants apartment owners an indefinite right to sue against a provision of the management plan that violates the law. For example, it is not possible to grant the right to construct and build facilities, which requires unanimous consent according to Articles 19 and 44 of the Property Ownership Law, by a 4/5 majority through a provision included in the management plan. Such a provision is considered invalid (Supreme Court 18th Civil Chamber, 2004/8944).
3. Disputes Encountered in Practice and Litigation Processes
Standing (Party Status): One of the most common errors in practice is filing lawsuits against the wrong parties. Since the management plan binds all flat owners, its annulment also concerns the legal rights of all flat owners. For this reason, the Supreme Court consistently emphasizes that lawsuits must be directed against all flat owners. “In lawsuits for the annulment of a management plan amendment, since the judgment to be rendered concerns the legal rights of all flat owners, it is mandatory that the passive standing be directed against all flat owners.” (Supreme Court 5th Civil Chamber, 2021/9801) Filing the lawsuit only against the manager or the Land Registry Directorate leads to the dismissal of the case due to lack of standing. (Supreme Court 5th Civil Chamber, 2022/11908)
Competent Court: Pursuant to Article 1 of Annex-1 of the Condominium Law (KMK), the competent forum for resolving all disputes arising from the implementation of this law is the Civil Courts of Peace. This rule also applies to lawsuits for the annulment of management plan amendments. (Supreme Court 5th Civil Chamber, 2021/1391)
Legal Nature of Invalid Amendments: Since an amendment made without securing the required 4/5 majority is deemed “absolutely null and void,” the forfeiture periods specified in Article 33 of the Condominium Law (KMK) do not apply to lawsuits filed for the annulment of such a decision. The Supreme Court clearly articulated this situation in a case involving the unlawful amendment of an article concerning fuel expense sharing in the management plan. (Supreme Court 18th Civil Chamber, 2015/7135)
Effect on Ongoing Cases: A duly made and land registry-registered amendment to the management plan affects even cases that have not yet been finalized. The Supreme Court ruled that a management plan amendment made during an ongoing case, which makes it difficult to open a practice in residences, should be applied in the case being heard. (Supreme Court 18th Civil Chamber, 2009/435)
Conclusion
Problems encountered in practice generally stem from non-compliance with these fundamental procedures and conditions. Errors such as failure to secure the qualified majority, decisions being made without discussion in the board, failure to register with the land registry, and incorrect establishment of parties in lawsuits lead to long and costly legal processes. Therefore, when an amendment to the management plan is desired, it is of great importance to meticulously adhere to the procedures and principles specified in the Condominium Law (KMK), and in case of a dispute, to conduct the legal process with correct steps.
The main rule for amending the management plan, in accordance with Article 28 of the Condominium Law (KMK), is to obtain “the votes of four-fifths (4/5) of all apartment owners.” Amendments made without securing this qualified majority are considered legally invalid.
A judge cannot amend the management plan by substituting the will of the apartment owners. Court intervention is only possible if a provision in the management plan is clearly contrary to the mandatory (imperative) rules of the law.
For the amendment to be valid, a mere 4/5 majority vote is not sufficient. The decision must be properly discussed and debated at the homeowners’ board meeting, and the adopted decision must be annotated in the “Declarations” section of the land registry. Such lawsuits must be filed against all homeowners whose rights will be directly affected, not against institutions like the management or the Land Registry Directorate.
Management plan amendment decisions made without achieving the 4/5 majority required by law are considered “absolutely null and void”. Therefore, lawsuits filed for the annulment of such decisions are not subject to any statute of limitations.
Why is Expert Tuzla Lawyer Support Necessary?
In residential areas such as Tuzla, Pendik, Kartal, Maltepe, Ümraniye, Gebze, Orhanlı lawyer, Aydınlı lawyer, and Tepeören lawyer, the irregular amendment of site management plans is a frequently encountered problem. During this process, many technical issues arise, such as violations of rights for or against homeowners, irregular title deed transactions, decisions contrary to Supreme Court precedents, and lawsuits being directed at the wrong parties.
Therefore, with the support of a Tuzla lawyer, both the amendment process of the management plan is managed in accordance with the procedure, and the litigation process is carried out without any loss of rights. An expert real estate lawyer both supervises the process before the lawsuit is filed and presents strong legal arguments supported by Supreme Court decisions to the court during the lawsuit. An invalid amendment due to a legal error can lead to lengthy lawsuits and high costs. For this reason, expert legal consultation is indispensable for sensitive documents such as the management plan. Also, an article suggestion.
