General Situation and the Role of the Manager

First of all, apartment management does not have legal personality. This, as a rule, means that the apartment manager or the board of directors does not have the capacity to sue or be a party to a lawsuit independently. According to Article 38 of the Condominium Law, the manager is responsible to the flat owners exactly like an agent. The relationship between the manager and the flat owners is defined as an agency relationship. In this capacity, the manager can enter into contracts with third parties that will create debtor and creditor relationships, based on the powers arising from the law and the management plan, and can sue or be sued due to these contracts

Article 35 of the Condominium Law (KMK) lists the duties of the manager. These duties include implementing decisions made by the board of unit owners and taking necessary measures to protect the main property. Furthermore, in accordance with specific paragraphs of Article 35 of the KMK, the manager is also assigned the duty of filing lawsuits and initiating enforcement proceedings against unit owners who fail to fulfill their condominium-related debts and obligations.. 

Manager’s authority to file lawsuits and undertake legal actions 

Situations Requiring Special Authorization (Necessity of a Unit Owners’ Board Decision) : For lawsuits or legal actions beyond routine management duties, the manager must be authorized by a special decision of the board of unit owners.

For example, it has been stated that the authority to take action regarding a legal dispute concerning the caretaker’s apartment and to appoint a representative was granted by a decision of the board of unit owners, and based on this authority, it was accepted that the manager could be a party to the lawsuit. In this situation, for the power of attorney given by the manager to a lawyer to be valid, it is necessary for the manager to have been authorized by the board of unit owners to file the lawsuit.

For instance, in one case, it was stated that the board of apartment owners decided on the necessary legal actions to remove alterations on the terraces and, based on this decision, the management board decided to grant power of attorney to a lawyer. The court accepted that the manager had active standing to sue because the board of apartment owners authorized the management to file this lawsuit.

For instance, in one case, the court ruled to resist on the grounds that the apartment owners authorized the management to remedy defects in common areas, and there was no contradiction to the Condominium Law (KMK) in the manager granting power of attorney under KMK Article 35 (implementing KMK decisions) and KMK Article 40 (having the rights of an agent). This clearly indicates that the manager’s granting of power of attorney was based on the authority given by the KMK for the action.

For instance, in one case, it was accepted that the manager’s general authority was insufficient for certain lawsuits, such as compensation claims due to tort or lawsuits for the rectification of defective works, that these lawsuits were not within the duties and powers granted to the manager by the Condominium Law (KMK), and that the manager did not have active standing to sue. This indicates that a separate authorization is required for filing specific lawsuits.

On the other hand, in cases where a resolution by the board of apartment owners is required, merely authorizing the manager to grant power of attorney to a lawyer is not sufficient. There must be a positive or negative decision from the apartment owners regarding the filing of a lawsuit.

Situations Not Requiring Special Authorization (Manager’s Legal Representation Authority) The manager will be able to file lawsuits within the powers recognized by the Condominium Law (KMK). Arising from KMK Article 35, there is legal representation authority. This authority may include granting power of attorney to a lawyer to perform certain duties (especially such as tracking dues).

In matters arising from KMK Article 35 and constituting the manager’s legal duty (especially such as tracking due receivables), it is clear that the manager’s authority to grant power of attorney to a lawyer to perform this duty stems from their managerial capacity (which is acquired through the election by the board of condominium owners and arises from the legal representation authority), and a separate specific resolution for granting power of attorney may not always be required for such legal duties. However, even in these situations, it is important that the manager has been personally elected to that duty by a decision of the board of condominium owners.

For example, it has been stated that the duty to file lawsuits and enforcement proceedings against condominium owners pursuant to KMK Article 35 is assigned to the manager, that being a site manager is sufficient to perform this duty, and that they can also appoint a representative to file such lawsuits, and even officially issue a power of attorney to a lawyer. In other words, the authority granted by KMK Article 35 will be sufficient for a power of attorney to a lawyer.

For example, it has been stated that within the scope of the manager’s duties under Article 35 of the Condominium Law (KMK), based on the representation authority derived from the law, they can enter into various contracts and file lawsuits (or have lawsuits filed against them) in disputes arising from these contracts. The manager is not like an agent appointed by a power of attorney, but rather a legal representative authorized by law.

Scope of Authority and Exceptions: In some cases, the manager cannot be authorized even by a decision of the board of condominium owners. For example, in cases such as defective workmanship, it is not legally possible to grant the manager the authority to file a lawsuit, even if by a decision of the board of condominium owners. It has been stated that especially lawsuits for the collection of damages incurred due to defective workmanship against the contractor must be filed by the condominium owners themselves, and that such lawsuits are not among the actions that can be filed by the manager with a decision of the board of condominium owners.

However, the 3rd Civil Chamber of the Supreme Court, in its latest jurisprudence, reinterpreted the rule that only unit owners themselves can file a lawsuit, thereby making this strict rule more flexible. Specifically, in its relevant decisions, the 3rd Civil Chamber of the Supreme Court stated: “…The acceptance that due to the numerous unit owners in collective site developments or multi-story buildings brought about by modern life, and the expenses incurred for the disciplined maintenance, protection, and repair of facilities and areas designated for common use by unit owners, or in other words, for the management of common areas, only all unit owners together can file a lawsuit, or that a lawsuit must be filed against all unit owners, would lead to conflicts being left unresolved, would hinder the freedom to seek justice and access to justice, and would not be in line with the principle of procedural economy. Just as the site and apartment unit owners’ board can grant authority to the manager in accordance with Article 34 of the Condominium Law to remedy incomplete or defective works in the common areas of the building that endanger people’s life, property safety, and health, it should also be accepted that these matters fall within the scope of the manager’s duties, as per Article 35 of the same Law, which tasks the manager with taking necessary measures on behalf of the unit owners for their benefit concerning the protection and maintenance of the main property, and that the manager’s request to remedy incomplete and defective works in the common areas of the site and apartment would be a solution consistent with the principles of right, justice, equity, and procedural economy; therefore, in lawsuits that must be filed to remedy incomplete and defective works in the common areas of the building that endanger people’s life, property safety, and health, limited to the common parts of the building, just as in disputes arising from contracts the manager enters into with third parties within their scope of representation, it should be assumed that the manager has the capacity to file a lawsuit on behalf of the unit owners.” Accordingly, the manager will also be able to file a lawsuit on behalf of the unit owners to remedy incomplete or defective works.(see the decision of the 3rd Civil Chamber of the Supreme Court dated 15/03/2022, numbered 2021/7671 E. and 2022/2246 K.).

Consequently, it is understood that while the existence of a decision by the board of apartment owners is generally required for the apartment manager to grant power of attorney to a lawyer, whether this is an absolute necessity or the scope of its requirement may vary depending on the nature of the legal transaction carried out by the manager.

Why Should You Get an Expert Opinion?

Condominium law is an area frequently encountered in apartment and complex managements, especially in rapidly developing regions like Istanbul, Maltepe, Kartal, Pendik, and Tuzla, but whose details are often overlooked. Matters such as for which transactions a special decision by the board of apartment owners is required, in which situations the manager has direct authority, and the validity of the given power of attorney may vary according to the specific case. Therefore, **it is of great importance to obtain expert legal advice from a lawyer before** actions such as the apartment manager filing a lawsuit or granting power of attorney to a lawyer. Otherwise, lawsuits may be dismissed due to procedural errors, or the manager and apartment owners may face unnecessary legal liabilities.

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