“I enclosed a corner of the garden for myself”, “we converted the shelter into a storage room”, “the manager rented out the exterior facade to a base station”, “they turned the concierge apartment into a workplace”… Using common areas for purposes other than their intended use is one of the most common disputes in apartment and complex living. The law is clear on this matter: renting out common areas requires unanimity, shelters are inviolable, and even a single condominium owner can file a lawsuit against unlawful use. In this article, we examine the usage limits of common areas, the authority of the manager, and lawsuits for prevention of interference and restoration to the previous state, in light of Supreme Court decisions.

Brief Summary

Areas such as gardens, parking lots, shelters, roofs, and staircases are common areas (Condominium Law Art. 4); condominium owners have the right to use them proportional to their land shares (Art. 16).

Renting out a common area, according to Condominium Law Art. 45, requires the unanimity of all condominium owners. The manager cannot rent it out alone without board authorization.

Shelters cannot be used for purposes other than their intended use, rented, or transferred; even with unanimity. They cannot even be allocated to an independent section through the management plan.

Structural changes in a common area (such as enclosing, pouring concrete, etc.), according to Condominium Law Art. 19, require the written consent of 4/5 of the condominium owners; even this consent cannot alter the common nature of the area.

Every condominium owner, according to Condominium Law Art. 33, may request the prevention of interference and the restoration of the area to its original state in accordance with the project.

1. What is a Common Area, and How is it Used? (Condominium Law Arts. 4, 16, 18)

According to Article 4 of the Condominium Law (KMK), places such as gardens, car parks, shelters, roofs, stairs, corridors, and exterior facades are common areas. Condominium owners have the right to use these areas in proportion to their land shares (Article 16), unless there is a contrary agreement. In return, Article 18 stipulates that everyone is obliged to adhere to rules of fairness when using common areas and not infringe upon the rights of others.

The practical consequence of this is that a common area cannot be turned into a condominium owner’s personal storage unit, exhibition space, or private parking spot unless a proper decision (allocation/rental) has been made. Hanging a “This area is mine” sign, placing a cabinet/shoe rack in the corridor, or dedicating a part of the parking lot for personal use falls under unauthorized use in this context.

2. Rental of Common Areas: Unanimity Requirement (KMK Article 45)

KMK Article 45 stipulates that “important management matters” such as encumbering the main property with a right or renting out common areas can only be done with a decision taken by the unanimous vote of all condominium owners. In the practice of the Court of Cassation, this condition is required for the rental of common areas for any purpose whatsoever. Therefore:

The manager cannot rent out a common area (exterior facade, roof, garden, caretaker’s apartment, etc.) alone without authorization obtained by a unanimous vote from the board.

A lease agreement made without unanimous consent is invalid; even a single dissenting condominium owner can request the prevention of interference and demand their share of the rental income with interest.

In multi-block complexes, the unanimous consent of the condominium owners of all blocks, not just the relevant block, is required for the rental of a common area.

Court of Cassation 5th Civil Chamber, File No. 2023/5047, Decision No. 2023/10391, Date 06.11.2023 In a dispute concerning the unlawful rental of a place with the nature of a garage/common area; it was emphasized that since there was no unanimity, oral permission does not produce legal consequences and this type of use does not grant permanent rights to the tenant.

3. Shelters: Absolute Inviolability

Shelters have a special and imperative protection within common areas. In accordance with zoning legislation and the Shelter Regulation, shelters cannot be used for purposes other than refuge, cannot be rented, and cannot be transferred. Decisions to use these areas as warehouses, workshops, workplaces, or dwellings are contrary to mandatory law and are invalid.

The important point is this: A shelter cannot be rented even with unanimous consent; nor can it be allocated for the use of one or more independent sections, even by a management plan. Municipalities can seal shelters used for purposes other than their intended use; furthermore, converting a shelter/coal cellar into a dwelling is unlawful, and these structures must be demolished and restored to their original state in accordance with the project.

4. Structural Changes and Adherence to Architectural Project (Condominium Law Article 19)

Any structural/constructional alteration to common areas (such as enclosing, pouring concrete, opening a door on the facade, building a winter garden/enclosed balcony, etc.) requires the written consent of four-fifths of the condominium owners, in accordance with Condominium Law Article 19. There are two limits to be observed in this regard:

Even this 4/5 consent cannot alter the common nature of the area or change the purpose of places such as shelters.

The management/manager does not have the authority to permit changes that go beyond the project without 4/5 written consent.

5. Authority and Responsibility of the Manager (CCP art. 35)

The manager is responsible for preventing the unauthorized use of common areas (CCP art. 35). The manager’s power to dispose of common areas is limited by the duly made decisions of the board of co-owners; the manager cannot make allocations or leases on their own initiative. A lawsuit for damages can be filed against a manager who tolerates unauthorized use or makes unauthorized leases, and their appointment can be terminated for just cause.

Furthermore, provisions contrary to the mandatory provisions of the law (e.g., abolishing the unanimity requirement) cannot be included in the management plan; even if included, these provisions are invalid. In the hierarchy of condominium ownership, the mandatory rules of law prevail over the management plan and board decisions.

6. Remedy Against Unauthorized Use: Prevention of Trespass and Restoration to Previous State (CCP art. 33)

Each co-owner can request the prevention of unauthorized intervention (prevention of trespass / prohibition of encroachment) in the common area and the restoration of the area to its former state in accordance with the approved architectural project from the Civil Court of Peace where the main property is located (CCP art. 33). Additionally, ecrimisil (compensation for unlawful occupation) can be claimed for the period of unauthorized use.

Situation against third parties (tenants)

An action for prevention of interference (or injunction) can also be filed against third parties who unlawfully lease the common area. Unless there is a valid decision taken by unanimous consent, the existence of a lease agreement does not constitute a legitimate reason for occupation against condominium owners; nor does verbal permission create a permanent right. On the other hand, tenants can also resort to annulment/intervention actions against board decisions that directly harm their rights and interests.

7. Prominent Principles in Judicial Practice

Note: The principles reflect established Supreme Court practice; each specific case is evaluated according to the land registry, management plan, and approved project.

Attention regarding lawsuit/enforcement:

Expert examination: An examination should be conducted based on the land registry, management plan, and approved architectural project.

Clarity in the judgment: It must be written unambiguously which construction is contrary to the project and how (demolition/eviction) it will be restored to its original state; otherwise, a decision that cannot be enforced will result.

Adherence to time and request: A suitable period is given to the defendant for restoration to the original state; the judge cannot rule beyond the request or for someone else.

Correct adversary: The co-owner/third party who carried out the interference must be included in the lawsuit.

Frequently Asked Questions (FAQ)

Can the manager rent out the garden or the exterior facade on their own?

No. The rental of common areas requires the unanimous consent of all co-owners, in accordance with Article 45 of the Property Ownership Law (KMK). The manager cannot lease without a unanimous authorization from the board; any contract made is invalid, and even a single dissenting owner can request the prevention of interference.

Can a shelter be rented out unanimously or converted into a storage room?

No. Shelters cannot be used for purposes other than their intended use, nor can they be rented or transferred, even with unanimous consent. Converting them into a storage room, workplace, or residence is contrary to imperative law and requires demolition and restoration to their original state.

Can a co-owner reserve a part of the parking lot for themselves?

No, not without a properly enacted allocation decision. The parking lot is a common area, and the right of use is proportionate to the land share. Unauthorized occupation is subject to an action for prevention of interference and an action for unjust enrichment.

What kind of lawsuit is filed against someone occupying a common area, and where?

Every condominium owner can file a lawsuit for the prevention of interference and restoration to the original state in accordance with the project, at the Civil Court of Peace located where the main immovable property is situated (Condominium Law art. 33); compensation for unjust use (ecrimisil) can also be demanded.

Can a tenant who rented a common area stay by saying “I have a contract”?

No, unless there is a valid decision taken unanimously. A lease agreement based on an invalid rental does not constitute a legitimate reason for occupation against the condominium owners; a lawsuit for the prevention of interference can also be filed against a third party.

Resources and Our Related Articles

Official source:Law No. 634 on Condominium Ownership (mevzuat.gov.tr)

Amendment of the Management Plan: Procedure, Conditions and Issues in Practice

Legal Procedures to Follow for Changing the Site 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?

Common area disputes rely on accurately determining the legal status of the area (common place / annex / shelter), establishing the required majority (unanimous or 4/5), and structuring the request for cessation of interference and restoration to its original state in an enforceable manner. An ambiguous request may result in an unenforceable decision, while incorrect identification of the opposing party can lead to a waste of time. The process should be robustly established from the outset with the correct evidence (title deed, management plan, approved project) and the correct defendant.

2M Law Office provides support to apartment-site residents and managements in Tuzla, Pendik, Kartal, Maltepe, and Gebze/Kocaeli, concerning condominium law and site management law, unauthorized use of common areas, cessation of interference, restoration to original state, and compensation for unauthorized occupation (ecrimisil) cases. For an assessment 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.