Introduction

This study was prepared based on a site resident’s question regarding the obligation to contribute to the salary of a seasonally hired pool attendant, which is not included in the operating budget. The site resident believes they have the right not to pay this expense, relying on Article 43 of the Condominium Law (KMK) and a Supreme Court decision referencing this article. The study analyzes the general principles of the obligation to contribute to common expenses, the scope of application of KMK Article 43, and other legal factors to be considered in such a dispute, in light of the presented summaries of court decisions.

1. Site Resident’s Obligation to Contribute to Common Expenses (General Rule – KMK Art. 20)

The fundamental principle of Condominium Law is the obligation of apartment owners to contribute to the expenses of common areas. The established jurisprudence of the Supreme Court is in this direction. Specifically, the claim of not benefiting from a service does not, by itself, eliminate the payment obligation. This principle was clearly stated in a decision by the Supreme Court’s 18th Civil Chamber: “…it has been stated that apartment owners cannot avoid paying their share of expenses and advances by claiming to waive their right to use common areas or facilities, or by asserting that they do not need or require to benefit from them due to the condition of their independent section. The decision emphasized that the defendant’s not having benefited from the services in question of their own volition does not eliminate their obligation to pay their share of the expenses incurred for these services.” (Supreme Court 18th Civil Chamber-2014/10598-2014/11446)

Within the framework of this general rule, if the pool is a common area and the employee’s salary is considered an operating expense of this common area, the apartment owner’s defense of “I am not using the pool” will not be sufficient on its own.

2. Very Costly and Luxury Additions (Exceptional Circumstance – Condominium Law Article 43)

KMK art. 43, which forms the basis of the resident’s question, introduces a significant exception to the general rule. However, the conditions for this exception are narrow. In a decision by the 20th Civil Chamber of the Court of Appeals, the scope of this article was outlined as follows: “If the desired innovations and additions are very costly, or if they are luxurious given the special condition of the building, or if they are not located in areas or passages absolutely necessary for use by all flat owners of the main real estate, then the flat owner who does not wish to benefit from them is not obliged to contribute to the expense…” (Court of Appeals 20th Civil Chamber-2017/4411-2018/7960)

The critical point here is whether the employment of a pool attendant constitutes an “innovation and addition”. The Court of Appeals made an important comment on this matter in the same decision: “…the pool attendant’s fee may not be considered within this scope, as it is not an innovation or addition, but an expense incurred for the continuity of an existing service.” (Court of Appeals 20th Civil Chamber-2017/4411-2018/7960)

This interpretation weakens the resident’s argument to avoid payment based on KMK art. 43. While the construction of the pool itself is an “addition” , employing an attendant for the safe and hygienic use of the existing pool tends to be considered an “operating expense”. The Court of Appeals’ decision, which did not deem expenses such as “installing a vitamin bar and music system in the pool area” mandatory (Court of Appeals 20th Civil Chamber-2017/6353-2019/771), indicates that the concept of “addition” refers to a physical attachment.

3. Importance of the Management Plan and Operating Budget

Many of the examined decisions refer to the management plan in resolving disputes. The management plan may contain special provisions that modify or detail the general provisions of the law. As stated by the 18th Civil Chamber of the Court of Cassation, “…it is emphasized that the management plan is in the nature of a contract binding all apartment owners, and apartment owners are responsible for the expenses included in the operating budget, as long as the general assembly decisions are not annulled.” (Yargıtay 18. HD-2015/12001-2016/4233)

In the user’s case, the absence of the pool attendant’s fee in the operating budget (project) is an important basis. For an expenditure outside the budget, the general assembly of apartment owners must take a separate and proper decision. It must be thoroughly examined whether there is a special article in the management plan regarding the sharing of pool expenses (for example, whether only users will pay, or how the expense will be shared).

4. Oversight of Decision-Making Processes

For an expense outside the operating budget to be claimed, a valid decision by the general assembly of apartment owners on this matter is required. The Court of Cassation attaches great importance to procedural deficiencies in decision-making processes. For example, in one decision, failure to issue a meeting invitation in accordance with legal deadlines was deemed sufficient for the annulment of the decision: “…since it was understood that the invitation did not comply with the aforementioned 15-day prior notification period, and thus the conditions stipulated by the law were not met, the court… should have decided to annul the meeting… instead of dismissing the case with an unjustified reason.” (Yargıtay 18. HD-2014/5650-2014/6793)

Therefore, even if a decision has been made regarding the hiring of a pool attendant, it must be checked whether the meeting where this decision was made was conducted in accordance with proper procedure (invitation, agenda, meeting and quorum for decisions). An expenditure made without a valid decision cannot be claimed from the flat owners.

Conclusion

The initial assessment by the site resident that “they have the right not to pay the pool attendant’s fee according to Article 43 of the Condominium Law (KMK) because they do not use the pool” is weak in the face of Supreme Court precedents. It is highly probable that the pool attendant’s fee will be considered an “operating expense” of an existing facility, rather than a “luxury addition.” In this case, the general obligation to contribute as per Article 20 of the Condominium Law (KMK) will come into play. However, this does not mean that the site resident is necessarily obliged to pay this fee. The user’s legal argument should focus on the following points rather than Article 43 of the Condominium Law (KMK):

Distinction Between General Rule and Exception: Court decisions reveal that, pursuant to Article 20 of the Condominium Law (KMK), it is a fundamental obligation for flat owners to contribute to the operating expenses of common areas and facilities. Not personally benefiting from a facility does not, as a general rule, eliminate the payment obligation. Article 43 of the Condominium Law (KMK), on which the user relies, is an exception to this general rule and applies to “very costly or luxury renovations and additions.”

“Difference Between Innovation and Addition” and “Operating Expense”: The Supreme Court indicates that an expenditure made for the continued operation of an existing facility (pool) (pool attendant’s fee) should be considered not as an “innovation or addition” within the scope of KMK Art. 43, but as an “operating expense” within the scope of KMK Art. 20. This distinction suggests that the legal basis relied upon by the user might be weak.

Binding Nature of the Management Plan: The reviewed decisions frequently emphasize that the site management plan constitutes a contract binding all condominium owners and may contain special provisions regarding expense sharing. Whether there is a provision in the management plan regarding how the expenses of special common areas such as a pool will be met plays a key role in resolving the dispute.

Validity of Decision-Making Processes: For an expense to be demanded from condominium owners, it must either be included in the operating budget or be based on a valid decision made at a condominium owners’ meeting convened in accordance with proper procedure. Irregularities in the meeting invitation or failure to meet quorum requirements can invalidate the decision made and, consequently, the obligation to contribute to the expense.

Absence or Invalidity of the Decision: The requested expense is not included in an approved operating budget. Is there a valid decision for this expenditure, made at a condominium owners’ meeting convened in accordance with proper procedure? If there is no decision or if the meeting was irregular, this expense cannot be demanded.

Provisions of the Management Plan: Are there any special provisions in the site’s management plan regarding the sharing of expenses for facilities like pools? The management plan might have introduced a regulation contrary to the general rule.

Ultimately, the answer to whether the user is mistaken or not; depends on the specifics of the concrete case, such as the site’s management plan and the existence and validity of the relevant board of condominium owners’ decision. The most robust legal approach is to question whether there is a legal basis for the expenditure (a valid operating budget or a board decision), rather than relying on the “luxury expense” argument in Article 43 of the Condominium Law (KMK). A paper suggestion.

Why is Tuzla Lawyer Support Necessary?

Site management, common area expenses, and fee disputes, require technical legal assessments based on the Condominium Law and Supreme Court precedents. Especially in regions with numerous gated communities like Tuzla: The details of management plans may vary. Improperly made decisions are a common subject of complaint. The rights and obligations of condominium owners must be examined specifically for each concrete case.

Therefore, in regions such as Istanbul, Tuzla, Pendik, Kartal, Maltepe, Gebze, Aydınlı, Orhanlı, Tepeören, Darıca, Bayramoğlu or Çayırova, Şekerpınar, and Güzelyalı, working with a Tuzla lawyer is important both to avoid loss of rights and to follow an effective path in lawsuit or appeal processes. With professional support, it can be clearly determined whether it is more advantageous to avoid payment or to accept payment.