The former site manager’s failure to hand over the minutes book and other relevant documents to the new management constitutes a violation of the Condominium Law (KMK) and other relevant legal provisions. The former site manager’s failure to hand over the minutes book has legal and criminal consequences. In this situation, the legal remedies available to the new management and the responsibilities the former manager may face are summarized below.
1. Legal Remedies Available
Issuance of a Demand Letter: For the return of the books, a demand letter must first be sent to the former manager through a notary.
Lawsuit Requesting Judicial Intervention (KMK Art. 33): This is the most frequently used method. The new manager can apply to the Civil Court of Peace, requesting judicial intervention for the ‘handover of the undelivered operation and minutes books and other documents belonging to the site’ (Court of Appeals 20th Civil Chamber-2017/1054; Court of Appeals 20th Civil Chamber-2017/1795; Court of Appeals 18th Civil Chamber-2013/14190). In this way, if the former manager refrains from handing over the books, receipts, and other management-related documents to the newly appointed manager, the intervention of a judge can be requested in accordance with Article 33 of the Condominium Law, and the delivery of these documents can be ensured by a judge’s decision.
Filing a Criminal Complaint with the Public Prosecutor’s Office: Since the act of not delivering the ledgers can constitute a crime under the Turkish Penal Code (e.g., abuse of trust), a criminal complaint can be filed with the Public Prosecutor’s Office. In the decision numbered 2010/2913 of the 3rd Civil Chamber of the Supreme Court, it is stated that “the return of the documents and ledgers held in one’s possession should be resolved by a complaint made to the Public Prosecutor’s Office.”
2. Legal Responsibilities of the Former Site Manager
Obligation to Deliver Ledgers and Documents: The primary legal responsibility of the former manager is to deliver all ledgers, receipts, and documents related to the management to the new manager at the end of their term. These ledgers and documents are not the personal property of the managers and must be handed over to the new management at the end of the term.
Administrative Fine: The former manager is obliged to comply with the court’s decision regarding the delivery of the ledgers, issued as a result of the lawsuit concerning their delivery. If the former manager fails to deliver the ledgers despite the court’s decision, they may be subject to an administrative fine in accordance with Article 33 of the Condominium Law (KMK). In the decision numbered 2017/3307 of the 20th Civil Chamber of the Supreme Court, it was stated that the court’s judgment should include a warning “that if the given decision is not complied with, they will be subject to the monetary penalty stipulated in Article 33 of the KMK.”
Liability for Damages: If the site management has incurred damages due to the non-delivery or improper keeping of the ledgers, the former manager may be liable to compensate for these damages (Supreme Court 20th Civil Chamber-2017/1054; Supreme Court 18th Civil Chamber-2013/17938; Supreme Court 20th Civil Chamber-2018/203).
3. Criminal Liabilities of the Former Manager
Abuse of Trust (TCK Art. 155): If the former manager fails to deliver the books entrusted to them, denies the act of transfer, and benefits themselves or others from this situation, the crime of “abuse of trust” may arise. In the decision numbered 2013/10477 of the 15th Criminal Chamber of the Supreme Court, it was stated that “For the crime of abuse of trust to be constituted; the perpetrator must be in possession of an asset, the asset must be voluntarily entrusted and delivered to the perpetrator for return or for use in a specific manner, and the perpetrator must dispose of the asset given to them outside its intended purpose […] or deny the act of transfer, thereby benefiting themselves or others.” However, the burden of proof is important; if it is not proven that the accused committed the crime, it may result in acquittal. A similar definition is also found in the decision numbered 2012/2188 of the 15th Criminal Chamber of the Supreme Court.
Special Criminal Sanction in Cooperatives: For cooperative managers, Article 2 of the Law on Cooperatives No. 1163 contains a special regulation. According to this article, “those who fail to deliver […] the books […] under their responsibility as per the second paragraph of Article 62 […] shall be punished with imprisonment from three months to two years and a judicial fine from fifty days to five hundred days” (bam-Istanbul Regional Court of Justice 45th Civil Chamber-2024/1692).
4. Authority of the New Manager and Conformity of the Election to Procedure
For the lawsuit to be admissible, it is a condition that the new manager requesting the delivery of the ledgers be “a manager elected according to Article 34 of the Condominium Law” (Court of Cassation 18th Civil Chamber-2013/801). Otherwise, the lawsuit may be dismissed. The validity of the manager’s election and whether the decision to elect the previous manager has been annulled are also important matters (Court of Cassation 20th Civil Chamber-2018/4953; Court of Cassation 20th Civil Chamber-2017/4871). In its decision numbered 2017/1175, the 20th Civil Chamber of the Court of Cassation also emphasized the necessity of “clarifying whether the plaintiff has the authority to request the books and documents related to the main immovable property by obtaining the original documents for the file.”
Burden of Proof: The new manager initiating the lawsuit is obliged to prove with concrete evidence that the ledgers have not been delivered and that this situation has caused damage to the site (Court of Cassation 20th Civil Chamber-2017/1054). Insufficient evidence may lead to the dismissal of the lawsuit (Court of Cassation 20th Civil Chamber-2019/4569).
5. Content and Enforcement of the Court Decision: The court decision must clearly state what decision was made regarding which request, in a way that leaves no doubt or hesitation, and must be enforceable without creating problems (Court of Cassation 20th Civil Chamber-2017/3900). Furthermore, it is important that the decision grants a reasonable period for the delivery of the ledgers and warns that a fine will be imposed in accordance with Article 33 of the Condominium Law if not complied with (Court of Cassation 20th Civil Chamber-2017/2251). Conclusion The former site manager’s failure to hand over the decision book and other management-related documents to the new manager constitutes a breach of a legal obligation. In this situation, the new manager can pursue legal recourse by first issuing a warning notice, and then filing a lawsuit in the Civil Court of Peace (or, depending on the case, the Civil Court of First Instance) demanding “judicial intervention” or “delivery of the records.” Site management disputes, especially on technical issues such as document delivery, require the joint interpretation of both the Condominium Law and the Criminal Code. Incorrect assessment of matters such as the lawsuit to be filed against the former manager, application period, selection of the competent court, and burden of proof, can lead to the new management suffering a loss of rights. Especially in districts of Istanbul such as Tuzla, Pendik, Kartal, Maltepe, where mass housing projects are concentrated, it is important to act within a legal framework from the beginning of the process with the support of a site management lawyer. An expert lawyer plays an effective role in stages such as drafting a warning letter, filing a complaint with the public prosecutor’s office, and, if necessary, managing the court process before a lawsuit is filed, thereby accelerating the process and ensuring the protection of rights. An article suggestion on this topic.
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