A new management has been elected; however, the former manager is not handing over the minute book, income-expense documents, and files. This is not just an annoying situation; it’s a serious legal problem that practically blocks the issuance of signature specimens, account audits, and the functioning of the management. The good news is that the Condominium Law provides a clear roadmap for this situation. In this article, we examine the manager’s obligation to keep and transfer books and documents, the legal remedies to follow if they are not handed over (judicial intervention, administrative fine, criminal complaint), and the rules of proof in light of Supreme Court decisions.
The minute book and documents are not the manager’s personal property; they must be handed over to the new management at the end of the term (Condominium Law articles 32, 36).
If delivery is evaded, the new management requests judicial intervention from the civil court of peace in accordance with Condominium Law article 33.
If they are not handed over despite the period given by the court, an administrative fine is imposed in accordance with Condominium Law article 33/final and enforcement proceedings can be initiated.
The manager who does not return the documents can also be reported for the crime of breach of trust (Turkish Penal Code article 155/2).
The burden of proving that the delivery was made is on the former manager; delivery must be made with a written record. There is no right of retention (hapis/alıkoyma) over the documents on the grounds of a receivable.
1. Manager’s Obligation Regarding Books and Documents (Condominium Law articles 32 and 36)
According to Article 36 of the Condominium Law (KMK), the manager is obliged to record the decisions of the board of condominium owners, protocols, summaries and dates of warnings and notifications made, and all expenses chronologically in the book mentioned in Article 32 (decision book), and to keep this book in a file along with the expense documents. The decision book is the fundamental document of apartment/site management and is kept notarized.
The critical point is this: These books and documents are not the personal property of the manager who holds them by virtue of their duty. When the term of office expires, their transfer to the new management is a legal obligation. If the transfer does not take place, management activities are disrupted, decisions made cannot be presented as evidence, and the common rights of the owners are damaged.
2. If Delivery is Avoided: Judicial Intervention (KMK Art. 33)
If the former manager avoids delivering the books and documents, the new management (or condominium owner), in accordance with Article 33 of the KMK, requests judicial intervention from the civil court of peace in the jurisdiction where the main immovable property is located. If the court determines that the former manager has not delivered the documents, it grants a period for him to deliver these documents in his possession to the new management, and warns that an administrative fine will be imposed if the deadline is not met.
Turkish Supreme Court, 18th Civil Chamber, E. 2009/946, K. 2009/1359, T. 19.02.2009 It has been accepted that in the event that the former manager avoids delivering the management-related books, receipts, and other documents to the newly appointed manager, judicial intervention can be requested in accordance with Article 33 of the KMK, and that the delivery of the documents can be ensured by court order.
3. If Not Delivered Despite the Decision: Administrative Fine (KMK Art. 33/last paragraph)
If the documents are still not submitted within the period given by the court, an administrative fine will be imposed on the former manager in accordance with the last paragraph of Article 33 of the CCP (Condominium Law) (the amount of the fine is updated annually with the revaluation rate). However, the imposition of this penalty is subject to a specific procedure: First, there must be a court decision, the requirements of this decision must not be fulfilled, and then the interested party must make a separate request.
The 18th Civil Chamber of the Court of Cassation, File No. 2012/5344, Decision No. 2012/6519 states that for the administrative fine in the last paragraph of Article 33 of the CCP to be applied, it is dependent on the existence of a court decision, the non-fulfillment of its requirements, and a subsequent separate request made by the interested party.
Furthermore, the delivery is an act to be performed by the former manager, acting as the debtor, by bringing it to the new manager, acting as the creditor; in other words, it is not for the new management to go and collect it, but for the old management to bring and deliver it.
4. Burden of Proof and the “No Right of Retention” Rule
In practice, two points determine most disputes:
The burden of proof lies with the former manager: The burden of proving that the books and documents have been delivered generally belongs to the former manager. Therefore, delivery must absolutely be made with a written record (by counting the delivered documents one by one). Allowing the new management to “inspect” the documents is not considered a proper delivery.
No right of detention (lien): The manager —or the financial advisor keeping the books— does not have the right to detain documents on the grounds that they have receivables from the management/cooperative. A dispute over fees or receivables cannot be a valid reason for not returning the documents.
5. Criminal Aspect: Abuse of Trust (TPC Art. 155/2)
The consequence of not delivering the documents is not limited solely to an administrative monetary fine. The manager who does not return the books and documents entrusted to them due to their duty/service relationship can be reported for the crime of abuse of trust in the course of service (TPC Art. 155/2). This is a separate and additional criminal liability from the administrative sanction; in practice, if delivery is requested with a notice and no result is obtained, a criminal complaint comes into question.
6. Brief Comparison: Housing Complex, Cooperative, and Company
The obligation to deliver exists for every type of entity; however, the duration and sanction differ. If you are in the management of a cooperative or company, it is important to know that you are subject to a different regime:
| Type of Structure | Delivery Method / Period | Primary Sanction |
|---|---|---|
| Gated Community / Apartment Building (Law no. 634, Condominium Law art. 32, 33, 36) | Storage and transfer of minute books and expense documents; delivery with judicial intervention | Judicial intervention + administrative fine according to Condominium Law art. 33/last paragraph |
| Cooperative (Law no. 1163, art. 62, Annex 2) | Delivery with a record within 3 business days from the date of the general assembly | Imprisonment from 3 months to 2 years and judicial fine |
| Inc. / Ltd. (Law no. 6102, Turkish Commercial Code art. 82, 375) | Bookkeeping is a non-transferable authority; documents are stored for 10 years | Compensation and criminal risks; certificate of loss only in case of disaster/theft |
Note: In companies and cooperatives, books remaining with the former manager are not considered “lost”; in this case, a delivery lawsuit, not a certificate of loss lawsuit, is filed. Furthermore, according to tax legislation, failure to present books that are subject to retention requirements to the authorities (VUK – Tax Procedure Law) may lead to a separate “concealment” offense.
Points to consider when filing a delivery lawsuit:
The requested documents must be specified clearly and individually; vague demands such as “all documents” should be avoided.
Concrete evidence must be presented that these documents are in the possession of the defendant; otherwise, the lawsuit may be dismissed as a decision that cannot be enforced (is impossible) cannot be rendered.
Upon delivery, a detailed delivery report must be prepared and mutually signed.
The former management’s failure to provide documents does not constitute an excuse for the new management’s failure to fulfill its own legal obligations (registration, notification, etc.); the new management is obliged to resort to legal remedies.
Frequently Asked Questions (FAQ)
The former manager is not handing over the minutes book, what can I do?
First, a written warning is issued. If no result is obtained, the new management ensures the delivery of the documents by requesting the judge’s intervention from the civil court of peace, in accordance with Article 33 of the Condominium Law. If the deadline given by the court is not complied with, an administrative fine is imposed pursuant to Article 33/final of the Condominium Law; furthermore, a criminal complaint can be filed under Article 155/2 of the Turkish Penal Code.
Were the books delivered, who has to prove it?
As a rule, the burden of proof lies with the former manager. Therefore, delivery must be made with a written report meticulously listing each document received. Merely “allowing inspection” is not considered proper delivery.
Can the former manager keep the books by claiming “I have receivables from the management”?
No. The manager or financial advisor does not have a right of lien (detention) over the books and documents on the grounds of being a creditor. The receivables dispute is a separate matter; the documents must be delivered in any case.
Is not delivering the documents a crime?
It can be. A manager who does not return the books and documents entrusted to them due to their duty can be prosecuted for the crime of breach of trust in connection with service (Turkish Penal Code Article 155/2). This is a criminal liability separate from the administrative fine.
Is the handover period different in cooperative management?
Yes. In cooperatives, board members whose term has ended must hand over the books and documents with a record within 3 business days from the date of the general assembly; non-compliance results in imprisonment and judicial fine according to Law No. 1163. In a complex/apartment building, the process involves judicial intervention and an administrative fine.
Resources and Our Related Articles
Official source:Condominium Law No. 634 (mevzuat.gov.tr)
Legal Procedures to Follow for Changing the Complex Manager and Appointing a New Manager
Condominium Law Article 34: Number and Land Share (Double) Majority in Manager Election
Why is Expert Lawyer Support Necessary?
Disputes regarding the delivery of books and documents rely on the correct claim (judicial intervention, administrative fine, or criminal complaint) being put forward in the correct order, on the requested documents being clearly specified, and on the delivery/proof being carried out in accordance with the procedure. An ambiguous lawsuit can result in a decision that cannot be enforced, while an erroneous warning can lead to a waste of time. To secure the functioning of the new management as soon as possible, it is important to correctly structure the process from the outset.
2M Law Office provides support to apartment and site managements along the Tuzla, Pendik, Kartal, Maltepe and Gebze/Kocaeli line in cases concerning condominium ownership and site management law, transfer of management, delivery of books and documents, and judicial intervention. For an evaluation regarding your specific case: 2mhukuk.com
This article is for general informational purposes; it does not constitute legal advice or attorney services. Each dispute should be evaluated under its specific conditions.
