Water is leaking from the roof, there is a collapse in the floor of the enclosed parking lot, the exterior facade remains wet… In common area defects of this kind, the idea of “the management should collectively sue the contractor” is very common. However, in practice, a significant portion of lawsuits are dismissed procedurally, without even entering into the merits, on the grounds that the manager lacks the legal capacity to sue (active standing). In this article, we examine the limits of the manager’s representation authority, the Supreme Court’s two different approaches on the matter, actual precedent decisions, and a practical roadmap to follow to avoid loss of rights.

Brief Summary

Apartment/site management does not have legal personality (Turkish Civil Code art. 47). The manager acts like an agent on behalf of the flat owners (Condominium Property Law art. 38, 40).

The manager’s legal capacity to sue is limited to the “general management affairs” in Condominium Property Law art. 35.

In lawsuits concerning defective workmanship in common areas, the Supreme Court is divided: one view considers this a property/consumer right and does not grant authority to the manager; the other view accepts legal capacity to sue in cases of special authorization on the grounds of life and property safety and procedural economy.

If the manager is also a flat owner, they can only claim proportionate to their own land share.

The legal capacity to sue is a condition for litigation (Civil Procedure Law art. 115). The safest way is for the lawsuit to be filed either personally by the owners or for the manager to be given a specific authorization recorded in the decision book.

1. Legal Status of Management: Lack of Legal Personality and Agency Relationship

The root of the problem lies in the legal nature of apartment and complex managements. Within the framework of Article 47 of the Turkish Civil Code No. 4721, the board of condominium owners and the management do not have independent legal personality. This means that, as a rule, the management cannot acquire rights or incur debts in its own name; however, it can act on behalf of the condominium owners in areas specifically permitted by law.

The Condominium Law No. 634 (KMK) establishes this representation relationship as follows: The manager is responsible to the condominium owners “just like an agent” (Art. 38) and “as a rule, has the rights of an agent” (Art. 40). This means the manager’s authority is equivalent to that of an agent; whatever the scope of the power of attorney is, so is the authority to file a lawsuit. A lawsuit filed on a matter outside this scope becomes invalid due to lack of representation authority.

2. Legal Duties and Authority Limits of the Manager (KMK Art. 35)

The manager’s authority to file lawsuits and pursue enforcement actions, which arises directly from law, is framed by the “general management affairs” listed in KMK Art. 35. The main ones are:

Protection, maintenance, and repair (Art. 35/b): Taking necessary measures for the proper use, protection, and maintenance of the main real estate.

Lawsuits and enforcement proceedings (Art. 35/i): Lawsuits and enforcement proceedings against condominium owners who fail to fulfill their debts and obligations (dues, etc.) related to the condominium ownership.

Acceptance of notifications (Art. 35/f): Receiving notifications concerning the entire main real estate.

It should be noted that this list primarily focuses on the internal functioning of the management and administrative receivables such as dues. A defect/compensation lawsuit to be filed against the contractor is not explicitly included in this list. This is precisely where the discussion begins.

3. Critical Distinction: “Management Act” or “Right of Ownership”?

The decisive question in the Supreme Court’s assessment is: Is the claim subject to the lawsuit a management act, or is it essentially based on the right of ownership (or a consumer contract)?

If the claim is an administrative matter such as the collection of dues, common expenses, receivables arising from a contract made by the management with a third party, or recourse related to these expenses: the manager’s authority is generally accepted.

If the claim is directly based on the right of ownership / sales contract such as the contractor’s defective workmanship, hidden defect, prevention of interference, or correction of project non-compliance: as a rule, this right is the personal right of each floor owner, and the manager cannot exercise it independently.

4. The Supreme Court’s Two Approaches in Cases of Defective Workmanship in Common Areas

A. Narrow Interpretation: Ownership/Consumer Right Approach

According to this view, the claim of defective manufacturing is a personal right of the apartment owner, arising from the sales contract and the right of ownership. The “management affairs” in Article 35 of the Property Ownership Law (KMK) do not cover such compensation/defect lawsuits; even if the board of apartment owners grants authorization, the manager does not acquire active legal standing. It is accepted that such lawsuits must be filed personally by the apartment owners, and party formation cannot be ensured by subsequently giving consent to a filed lawsuit.

In the decision of the Grand General Assembly of Law of the Court of Cassation dated 13.12.2017, numbered E. 2017/689, K. 2017/1686, it was emphasized that the board of apartment owners cannot be deemed to represent the owners in disputes based on property or consumer rights. In another Grand General Assembly of Law decision in the same vein (E. 2017/663, K. 2020/873), it was stated that if the manager is not an apartment owner, they cannot file a lawsuit on behalf of the owners for all common area defects; however, if they are also an owner, they can only claim the portion corresponding to their own land share. Similarly, in the decision of the 18th Civil Chamber of the Court of Cassation dated 23.03.2015, numbered E. 2014/15795, K. 2015/4137, it was expressed that the manager has no authority in lawsuits based on property rights, such as the prevention of interference and the restoration of conformity to the project.

B. Flexible Interpretation: Procedural Economy and Life/Property Safety Approach

Especially in sites with many independent sections, the fact that it is practically almost impossible for each owner to file a separate lawsuit, and that some defects directly endanger life and property safety or health, has directed the Court of Cassation towards a more flexible approach. According to this view, the rectification of such deficient/defective works in common areas can be considered within the scope of the “protection” duty in Article 35/b of the Condominium Law (KMK), and when the board of condominium owners grants special authority to the manager in accordance with Article 34 of the Condominium Law (KMK), the manager’s capacity to sue can be accepted.

The decision of the 20th Civil Chamber of the Court of Cassation, numbered E. 2017/2161, K. 2018/6955, reflects this flexible approach: It has been stated that if permission and authority have been granted by the board of condominium owners to file a lawsuit against the contractor regarding a defect, the court should proceed to examine the merits of the case; and that deciding to dismiss the case on procedural grounds solely due to lack of legal capacity is incorrect. The same logic extends the management’s capacity to sue in disputes arising from contracts made by the management with third parties and recourse claims related to common area expenses.

5. Table of Precedent Decisions

The decisions below illustrate two approaches and their limits. It is recommended to verify each entry with its current text before publication and litigation.

6. What Happens If the Manager Is Also an Apartment Owner?

A detail often overlooked in practice: If the manager is also an independent section owner in the building, the situation is not considered entirely closed. In this case, the manager, not on behalf of the entire complex, but in proportion to the land share allocated to their independent section, can claim the cost of defective workmanship/incomplete work in their own apartment and in common areas. Therefore, even if the lawsuit is rejected, a decision of rejection given without investigating the manager’s capacity as owner often constitutes an incomplete examination.

7. Consumer Aspect and Competent Court

When defective workmanship is based on a sales/works contract relationship between the contractor and the apartment owner, it often constitutes a consumer transaction and the dispute may fall within the jurisdiction of the Consumer Court. Some common area problems are considered “hidden defects”; that is, flaws that are not visible at the time of delivery but emerge over time (such as roof/floor insulation, water leakage). The correct determination of the competent court (consumer, civil court of first instance, or civil court of peace) and the legal grounds to be relied upon (KMK, TBK provisions on defects, TKHK) affects the outcome of the lawsuit.

8. Critical Importance of Legal Capacity and Time Limit as a Condition of Action (HMK art. 115)

Active locus standi is a prerequisite for a lawsuit in the sense of Article 115 of the HMK numbered 6100. If the court determines this deficiency and it is curable, it should give a deadline to the parties; if it is not remedied despite the deadline, the court must dismiss the case on procedural grounds without entering into the merits. This often creates the risk of statute of limitations/forfeiture periods: a procedurally dismissed case must be refiled with the correct plaintiffs, and during this time, the periods continue to run. Therefore, the issue of locus standi is a matter that needs to be resolved at the very beginning of the lawsuit.

9. Practical Roadmap: How to Manage Risk?

Since the divergence of opinion continues, the steps to minimize risk before filing a lawsuit are as follows:

Priority and safest way: The defective manufacturing/compensation lawsuit to be filed personally by the homeowners (if necessary, jointly, with active co-plaintiffship).

If proceeding through the building manager: Obtaining a concrete, clear, and specific authorization decision from the board of homeowners, in accordance with Article 34 of the Condominium Law, and its entry into the minutes book. A general statement like “authority has been granted to the management” is often not considered sufficient.

Emphasis on life/property safety: It must be concretely demonstrated that the defect in the common area threatens the safety/health of individuals; this increases the likelihood of a flexible approach being applied.

Evidence preparation: The minutes book, signature circular/attendance list, discovery report, and expert witness evidence discovery, if any, should be added to the file.

Sample authorization clause to be entered in the resolution book:
“For the purpose of remedying the missing/defective constructions found in the common areas of the main property (roof insulation and covered parking floor) that endanger the life, property safety, and health of the flat owners, and collecting the resulting damages from the contractor; it has been unanimously/by majority decided to grant special authorization to the manager … to file lawsuits, pursue them, and appoint a lawyer on behalf of the flat owners, in accordance with Article 34 of the Condominium Law (KMK).”

In summary: The manager’s power of representation is limited to “management actions”. The capacity to sue in defect cases based on property rights is debatable. To avoid loss of rights, it is recommended that either the owners file the lawsuit themselves or that the manager acts by explicitly using the title “representing the flat owners” with a very specific board authorization.

Frequently Asked Questions (FAQ)

Can the apartment management file a lawsuit against the contractor for defective workmanship?

As a rule, since these lawsuits are based on the property and contractual rights of the flat owners, the manager cannot initiate them on their own. While some chambers of the Court of Cassation accept the manager’s capacity to sue with special authorization from the general assembly of flat owners, especially when life/property safety is at stake, others reject the manager’s capacity even with a board resolution. The safest way is for the lawsuit to be filed by the owners.

If the general assembly of flat owners grants authorization, can the manager file every lawsuit?

No. Authority is generally sufficient in management matters such as dues/common expenses. However, in defect/compensation lawsuits based on property rights or consumer contracts, some Supreme Court chambers do not even consider a board decision sufficient. Therefore, it is important that the authority is specific and subject-matter oriented, and recorded in the decision book.

Can the manager file a lawsuit if they are also the apartment owner?

In this case, even if not on behalf of the entire site, the manager can claim the cost of defective workmanship/incomplete work in proportion to the land share allocated to their independent section. If the court rejects the case outright without investigating this capacity, it may be considered an insufficient examination.

What happens if the lawsuit is rejected due to lack of legal standing?

Active legal standing is a condition precedent for a lawsuit (Code of Civil Procedure Art. 115). If it cannot be remedied, the lawsuit is dismissed on procedural grounds without entering into the merits, and must be refiled with the correct plaintiffs. Since the statute of limitations/peremptory period continues to run during this time, the issue of legal standing must be resolved at the beginning of the lawsuit.

In which court are these lawsuits filed?

It varies depending on the nature of the dispute. When the contractor-owner relationship is considered a consumer transaction, the Consumer Court may have jurisdiction; in some claims arising from condominium ownership, the Civil Court of Peace comes into play. The competent court and legal grounds should be determined according to the specific case.

Why is Expert Lawyer Support Necessary?

The biggest risk in lawsuits concerning defective construction in common areas is the dismissal of the case due to lack of standing without even delving into the merits, and missing deadlines in the process. Determining the correct plaintiff (is it the owners or the manager?), properly obtaining board authorization, and correctly choosing the competent court and legal grounds require a technical assessment. In this environment of evolving jurisprudence, structuring the file correctly from the outset determines the fate of the lawsuit.

2M Law Firm provides support on condominium disputes, common area defect/compensation lawsuits, and issues of manager’s representation authority; supports apartment and complex residents and administrations along the Tuzla, Pendik, Kartal, Maltepe and Gebze/Kocaeli line with lawsuit strategies, preparation of board authorization texts, and petition processes. For an evaluation regarding your specific case: 2mhukuk.com

This article is for general informational purposes only; it does not constitute legal advice or attorney services. Each dispute should be evaluated under its unique circumstances.