Introduction

This study was prepared in response to the question, “How are common expenses shared?” based on the decisions of the Supreme Court of Appeals, the Council of State, and the Regional Courts of Justice. Investigations show that the fundamental legal framework for sharing common expenses is the Condominium Law No. 634 (KMK), especially Article 20 of the Law. However, it has been determined that this general rule can show significant variations depending on the property’s management plan, the decisions of the board of condominium owners, and the nature of the structure (e.g., complex building, shopping mall, cooperative). The study elaborates on these different scenarios and the approach of judicial decisions on this matter.

In light of the examined judicial decisions, the fundamental principles regarding the sharing of common expenses can be summarized as follows:

General Rule (Condominium Law Article 20): Unless otherwise agreed upon by the condominium owners, there is a twofold distinction in the distribution of common expenses. While personnel expenses such as those for a doorman, stoker, gardener, and guard are shared equally among the condominium owners; all other expenses such as insurance premiums for the main property, maintenance, protection, and repair costs for common areas, and the manager’s salary are shared in proportion to their land share among the condominium owners.

Contractual Priority (Management Plan): The management plan is contractual in nature among condominium owners and may contain special provisions regarding expense sharing, provided they do not contravene the mandatory provisions of the Condominium Law. If there is a special provision concerning the sharing of expenses in the management plan, this provision shall apply instead of the general rule in Condominium Law Article 20. This situation was emphasized in the decision No. 2013/39753 of the 12th Civil Chamber of the Court of Cassation with the statement,  “unless there is another agreement among them, the manner in which each condominium owner participates in general expenses has been determined.” 

Different Regimes for Special Building Types:

Compound Structures: Common expenses are distributed according to the nature of the common area to which the expense relates. Expenses for common areas allocated for the sole use of a specific building are covered by the condominium owners in that building, while expenses for common areas open to the common use of all independent sections are covered by all condominium owners (Condominium Law Article 72).

Shopping Malls (AVM): Subject to special regulatory provisions. Expenses are primarily allocated according to the procedure determined by unanimous agreement of the parties; if this cannot be achieved, they are distributed in proportion to the ratio of the retail businesses’ sales areas to the total sales area.

Cooperatives: The fundamental principle, in accordance with Article 23 of the Cooperatives Law, is “equality” among members. General expenses are equally distributed among members, regardless of the nature of the residences.

Responsibility: The primary responsible party for common expenses is the flat owner. However, in accordance with KMK Article 22, those who continuously benefit from the independent section due to a rental agreement or another reason (e.g., tenants) are jointly and severally liable with the flat owner.

1. General Rule in Common Expenses: Condominium Law Article 20 and Land Share Ratio

The vast majority of court decisions point to Article 20 of the Condominium Law (KMK) as the main source for common expense sharing. This article sets out the default rules to be applied when there is no special agreement (usually a management plan) among the flat owners. This distinction is clearly stated in the decision numbered 2013/11645 E. of the 18th Civil Chamber of the Court of Cassation: “Unless otherwise agreed among them, each flat owner is obliged to contribute equally to the expenses of the doorman, stoker, gardener, and guard, and to the advance payment to be collected for them, and to contribute to the building’s insurance premiums, all common areas’ maintenance, protection, reinforcement, and repair expenses, and other expenses, as well as the operating expenses of common facilities and the advance payment to be collected for these expenses, in proportion to their land share.”

This dual distinction is consistently applied by the Court of Cassation. For example, it has been ruled that flat owners are equally responsible for the labor receivables of an apartment caretaker (Court of Cassation 22nd Civil Chamber, 2015/22846 K.), while all flat owners are responsible for the repair of the main building’s roof in proportion to their land shares (Court of Cassation 18th Civil Chamber, 2013/12320 K.).

2. Exceptional Situation in Common Expenses: The Effect of the Management Plan and Decisions of the Board of Flat Owners

The phrase “unless there is another agreement between them” in Article 20 of the Condominium Law (KMK) allows the management plan and decisions of the board of flat owners to regulate expense sharing differently. Since the management plan is a contract binding all flat owners, the sharing method stipulated therein takes precedence over the general rule in the law. In the decision of the 20th Civil Chamber of the Court of Cassation, numbered 2018/4859 K., it was accepted that, in accordance with the provision in the management plan stating “Each of the flat owners, regardless of their land shares, shall contribute equally to all expenses of the complex.” expenses should be distributed equally, not according to land shares. However, the authority of the decisions of the board of flat owners on this matter is limited. The decisions taken cannot contradict the imperative provisions of the law and the management plan. In the decision of the 20th Civil Chamber of the Court of Cassation, numbered 2018/352 K., it was stated that the decision of the board of flat owners for equal participation in fixture expenses was contrary to Article 20 of the Condominium Law (KMK), and such expenses should be collected in proportion to land shares.

3. Special Cases and Different Building Types

Mass Housing Projects: In the decision numbered 2019/15402 K. of the 6th Chamber of the Council of State, referring to Article 72 of the Condominium Law (KMK), the principle was adopted that “common expenses for common areas and facilities allocated for the common use and benefit of condominium owners in a specific building within a mass housing project, or in only a few of the buildings, shall be borne by the condominium owners in those buildings.” In this context, holding only the condominium owners in that block responsible for the expenses of social facilities and pools belonging solely to that block was found to be in accordance with the law.

Shopping Malls (AVM): As stated in the decision numbered 2020/3044 K. of the 10th Chamber of the Council of State, the Regulation on Shopping Malls contains special provisions. Accordingly, common expenses are primarily allocated according to a procedure determined by the parties unanimously, and if this is not possible, “they are distributed in proportion to the ratio of the sales areas of the retail businesses to the sales area of the shopping mall.”

Cooperatives: In the decision numbered 2012/5825 K. of the 23rd Civil Chamber of the Court of Cassation, in accordance with the principle in Article 23 of the Cooperatives Law, “partners are equal in rights and obligations within the principles accepted by this law,” it was emphasized that general expenses should be distributed equally among partners, even if there are differences in type and square meterage between the residences.

4. Scope of Liability and Proof

The condominium owner is primarily responsible for common expense debts. However, in the decision numbered 2017/9245 K. of the 20th Civil Chamber of the Court of Cassation, by drawing attention to Article 22 of the Condominium Law (KMK), the responsibility of the tenant was also emphasized:

“Those who continuously benefit from one of the independent sections based on a lease agreement, right of residence (usufruct), or another reason are also jointly and severally responsible for the expenses and advance debts falling to the flat owner’s share and for the late payment penalty, in accordance with Article 20.”

Furthermore, it has been stated in many decisions (e.g., Supreme Court 18th Civil Chamber, 2015/10055 K.) that the ledgers kept by the management, the operating plan, invoices, and resolutions of the assembly of flat owners serve as evidence for proving common expense receivables, and that an expert examination should be conducted based on these documents in case of a dispute.

Conclusion

The answer to the question of how common expenses are to be shared is too layered to be reduced to a single rule. Judicial decisions reveal that a hierarchical examination should be made on this matter:

Firstly, the nature of the structure (e.g., shopping mall, cooperative, collective building, etc.) should be examined to determine whether a special law or regulation provision applies.

If there is no specific regulation, the Management Plan of the main property should be examined. The sharing method in the management plan takes precedence over the general rule in the law.

If there is no provision in the management plan, the decisions made by the assembly of flat owners in accordance with the law are taken as a basis.

If none of the above special regulations exist, the general and dual rule in Article 20 of the Condominium Law (equal sharing for personnel expenses, sharing proportional to land share for other expenses) is applied.

Therefore, in each concrete case, the correct sharing ratio should be determined by evaluating together the type of expense, the legal status of the main immovable property, and the contractual arrangements among the co-owners. An article suggestion.

Why is Legal Support Necessary in Tuzla?

Rules regarding the distribution of common expenses may appear simple at first glance under Article 20 of the Condominium Law. However, in practice, special regulations in the management plan, decisions of the board of co-owners, and factors such as whether the structure is a collective building, a residential complex, a shopping mall, or a cooperative directly alter the distribution method. Furthermore, decisions by the Court of Appeals and the Council of State have developed detailed case law for different scenarios on this matter.

Therefore, it is of great importance to obtain professional legal support for the correct assessment of concrete disputes and to avoid loss of rights. Especially in rapidly urbanizing areas like Tuzla, the fact that residential complex and apartment managements have a large number of independent sections further complicates common expense sharing disputes.

A Tuzla lawyer can guide their client in light of both the Condominium Law and current court decisions by providing;

Interpretation of the management plan,

Validity of co-owners’ board decisions,

Collection of common expense receivables,

Tenant’s liability,

Legal support on appeal and litigation processes.

Therefore, obtaining legal support in regions such as Istanbul, Tuzla lawyer, Pendik lawyer, Kartal lawyer, Maltepe lawyer, Gebze lawyer, Aydınlı lawyer, Orhanlı lawyer, Tepeören lawyer, Darıca lawyer, Bayramoğlu lawyer, or Çayırova lawyer, plays a critical role for apartment and site managements not only in resolving existing disputes, but also in preventing future conflicts.