Introduction
This article analyzes the question, “Can an external manager be prohibited from being elected for an apartment building?”, in light of various judicial decisions presented. The examined decisions reveal the relationship between the Condominium Law No. 634 (KMK), which is the fundamental legal basis of the subject, and the management plans, which serve as the constitution of apartment buildings. The article aims to clarify this legal framework through sections on main findings, a detailed examination, and conclusions, thereby revealing under which conditions the answer to the question may vary.
1. Freedom Granted by the Condominium Law for the Election of an External Manager
In almost all decisions examined, the main point of reference is Article 34 of the Condominium Law (KMK). This article grants apartment owners discretionary power in the selection of a manager. The legislator, foreseeing situations where apartment management might become professionalized and where apartment owners might not wish or be able to elect one of their own, has allowed for the appointment of an external manager (a natural or legal person). Various chambers of the Supreme Court and first instance courts have consistently interpreted this provision, stating that the election of an external manager stands on a legal basis.
2. The Limiting Power of the Management Plan on the Election of an External Manager
However, the most critical and decisive point is the content of the management plan. The decision numbered 2012/13818 E. of the 18th Civil Chamber of the Supreme Court clearly demonstrates this situation. In the decision, it was emphasized that the management plan is “in the nature of a contract binding all apartment owners and their universal and particular successors…”. According to this decision, if there is a provision in the management plan that prevents the election of an external manager, this provision is mandatory, and the board of apartment owners cannot make a decision contrary to it. The Supreme Court summarized this situation as follows: “...if there is a provision in the apartment’s management plan stating that ‘apartment owners can entrust the management of the main real estate to a manager they will elect from among themselves,’ it will not be possible to elect an external manager.” Similarly, in the decision numbered 2017/4845 E. of the 20th Civil Chamber of the Supreme Court, the court’s ruling to annul the decision of the board of apartment owners regarding the election of a non-owner as an assistant manager, contrary to the management plan, was upheld. This is important in terms of demonstrating the actual consequence of the restriction in the management plan.
When these two main axes are combined, it is understood that the Condominium Law (KMK) outlines a general area of freedom, but apartment owners can restrict this freedom through their own will, via the management plan, which is the constitution of the apartment.
Conclusion
In conclusion, the answer to the question “Can the election of an external manager for an apartment building be prohibited?” is as follows:
As a rule, according to the Condominium Law, the selection of an external manager for an apartment building cannot be prohibited. The law explicitly grants condominium owners the right to choose a manager from among themselves or from an external professional individual or company. However, if the apartment building’s management plan contains a clear, imperative, and restrictive provision stating that the manager must be selected from among the condominium owners, then the selection of an external manager is prohibited. Since the management plan is a contract binding on all condominium owners, a decision by the board of condominium owners taken contrary to this provision is invalid.
The Most Important Exception: The Management Plan. Judicial decisions emphasize that the management plan is a binding contract and has the force of law for condominium owners, provided it does not contravene the mandatory provisions of the Condominium Law (KMK). If an apartment building’s management plan contains a clear and restrictive provision stating that the manager can only be selected from among the condominium owners, then an external manager cannot be selected. In this case, the management plan’s provision takes precedence over a decision by the board of condominium owners.
The Role of the Board of Condominium Owners’ Decision: The board of condominium owners, as long as there is no restriction in the management plan, can select an external manager by a majority of votes and land shares, within the freedom granted by law. Courts do not supervise the appropriateness of such decisions, provided they are properly made and do not contravene the management plan. In a decision by the 20th Civil Chamber of the Court of Cassation, this situation was expressed as, “…all condominium owners must comply with the decision made by the board of condominium owners, and this matter cannot be reviewed by the court” .
Therefore, to definitively determine whether an external manager can be appointed to an apartment building, the first thing to do is to carefully examine the management plan registered in the land registry of that building. If there is no prohibition in the management plan, the board of condominium owners has the right to elect an external manager by securing the legal majority. An article suggestion.
Why is Legal Support from an Expert Tuzla Lawyer Necessary for Appointing an External Manager?
The Condominium Law generally allows for the appointment of an external manager in apartment buildings or complexes. However, this freedom can be directly limited by the management plan of that specific apartment building. If there is a clear and binding provision in the management plan registered in the land registry stating ‘the manager is chosen only from among the condominium owners,’ the board of condominium owners cannot elect an external person as manager despite this provision. At this point, the validity of every action to be taken depends on the careful interpretation of the management plan. To ensure this interpretation is done correctly, the support of experienced lawyers specializing in condominium law, such as a Tuzla lawyer, Pendik lawyer, Kartal lawyer, Gebze lawyer, Orhanlı lawyer, Tepeören lawyer, Aydınlı lawyer, is of great importance.
In the opposite case, even if it appears to be procedurally correct, an election process contrary to the management plan becomes open to cancellation. Especially in recent years, lawsuits filed on the grounds of the illegality of contracts made with professional site management companies are increasing. Supreme Court decisions made in such cancellation lawsuits reveal the binding nature of the management plan and the necessity of meticulously applying procedural rules. Regardless of the majority with which a decision of the board of apartment owners is taken, if it is contrary to the management plan, it can be deemed invalid by the court. This can lead to significant losses in terms of both time and cost. Therefore, consulting experts such as a Maltepe lawyer, an Aydınlı lawyer, or a Çayırova lawyer at the beginning of the process ensures that potential disputes are prevented and helps secure the entire process on legal grounds.
