Introduction
What are the matters requiring the unanimous consent of co-owners in buildings or complexes? This study has been prepared to analyze, in light of Supreme Court decisions, the matters and transactions that, according to the Condominium Law (KMK), necessitate all co-owners acting with “unanimous consent” when making decisions regarding a main immovable property. These critical decisions, which directly affect the co-owners’ property rights, the common living arrangement, and the fundamental characteristics of the main immovable property, have been placed under special protection by the legislator. The study will reveal how the relevant articles of the KMK (especially Articles 19, 24, 44, and 45) are interpreted through judicial precedents. The study is structured around three main categories: Dispositive Transactions, Important Management Matters, and the Commencement of Commercial Activities in Independent Sections Registered as Residences in the Title Deed.
1. Unanimity is Required for Dispositive Acts.
Dispositive acts are transactions that most profoundly affect the right of ownership. Court decisions indicate that the unanimity rule cannot be relaxed for transactions in this category.
Division of the Plot: The 5th Civil Chamber of the Supreme Court (2021/10883 E. – 2021/13374 K.) ruled that the co-owners must unanimously decide on the division of a plot with condominium ownership, and “the court cannot substitute itself for the co-owners to make a decision” thus emphasizing the definitive nature of this principle.
Demolition and Reconstruction of the Main Building: The decision to demolish the main building is one of the most significant dispositive acts. The Grand Chamber of the Supreme Court (2018/654 E. – 2022/163 K.) stated that such a decision, even if within the scope of Law No. 6306, is possible pursuant to Article 45 of the Condominium Law (KMK) with “a decision made by the unanimous vote of all co-owners”. Decisions made without unanimity are considered “absolutely null and void”.
Structural Changes and Additional Floor: The 5th Civil Chamber of the Supreme Court (2020/10351 E. – 2021/2131 K.) ruled that “a unanimous decision by the board of co-owners is required to construct a full floor instead of a penthouse floor” . This aims to preserve the architectural integrity and conformity to the project of the main building.
2. Unanimity is Required for Important Management Affairs
The use of common areas for an income-generating activity is an important management task that concerns the rights and interests of all owners and requires unanimous consent.
Leasing of Common Areas: Supreme Court decisions are quite clear on this matter. Unanimous consent has been required for all operations such as leasing the outer wall of the main building for advertising (Supreme Court General Civil Assembly, 2017/976 E.), installing a base station on its roof (Supreme Court General Civil Assembly, 2017/1997 E.), placing an ATM in the common garden (Supreme Court 5th Civil Chamber, 2024/3238 E.), and renting out the caretaker’s apartment (Supreme Court 20th Civil Chamber, 2017/5338 E.). The Supreme Court 20th Civil Chamber (2018/6662 E. – 2019/3198 K.) emphasized the non-transferability of this authority, stating, “for common areas to be rented out, all floor owners must make a decision by unanimous vote according to Article 45 of the Law”.
Alteration of the Nature of Common Areas: The Supreme Court 5th Civil Chamber (2021/2974 E. – 2021/7722 K.) ruled that converting the common laundry room into an apartment and renting it out was unlawful, and by stating “Its use for another purpose without a modification project and without its nature being changed by a unanimous decision of the floor owners… is not possible”, emphasized the adherence of common areas to their designated purpose.
3. Unanimous Consent is Required for Opening Commercial Activities in Independent Sections Registered as Residences in the Title Deed
This category is one of the most contentious issues in practice. Court decisions tend to uphold the mandatory nature of Article 24 of the Condominium Law (KMK).
Basic Rule: The Supreme Court (Yargıtay) and the Council of State (Danıştay) have repeatedly confirmed that a unanimous decision by the board of condominium owners is required to open a business (such as a cinema, restaurant, shop, gallery, workshop, office, etc., as enumerated in the law) in a section appearing as “residence” in the land registry (e.g., Supreme Court 18th Civil Chamber, 2014/2934 E.; Council of State 4th Chamber, 2023/6989 E.).
Overriding the Management Plan: The rule is so strong that even the provisions of the management plan cannot alter it. As stated in the decision of the Supreme Court 18th Civil Chamber (2015/23219 E. – 2016/4071 K.), it has been accepted that “an amendment to the management plan made with a 4/5 majority cannot override matters for which the law requires unanimity, and accordingly, this amendment made contrary to Article 24/2 of the Law is null and void” .
Important Exception (Title Deed Classification): The key point of the rule is that the independent section is registered as “residence” in the title deed. If it is already registered as “shop” or “business premises” in the title deed, this rule does not apply. The Council of State 4th Chamber (2023/7842 E. – 2023/6987 K.) ruled that unanimity of condominium owners is not required to open a patisserie in a place registered as a shop in the title deed.
Conclusion
When the examined court decisions are evaluated as a whole, it is understood that the unanimity rule stipulated in the Condominium Law is a fundamental guarantee aimed at protecting the essence of the property rights of the unit owners, the integrity of the main real estate, and the nature of common living areas. The judiciary strictly adheres to the literal and spiritual purpose of this rule; it does not open the door to exceptions in matters such as dispositive actions, the use of common areas for purposes other than their designated use, and the conversion of residences into commercial establishments. Unit owners, managers, and relevant administrations are obliged to comply with these mandatory provisions and established precedents in their decision-making processes. It should not be forgotten that decisions made to the contrary may be deemed “absolutely null and void” and can be annulled without seeking a time limit.
Dispositive Actions and Transactions Fundamentally Altering the Main Structure: Court decisions, in accordance with Article 45 of the Condominium Law, confirm that transactions affecting the essence of ownership, such as the encumbrance of the main real estate with a right (mortgage, easement, etc.), the subdivision of the land, the demolition and reconstruction of the main building, or the conversion of a setback floor into a full floor, require the unanimous consent of all unit owners without exception. As emphasized by the Supreme Court, in this regard, the court cannot substitute its decision for the will of the unit owners.
Significant Management Matters and Use of Common Areas: Transactions such as leasing common areas like the main building’s exterior walls, roof, garden, or doorman’s apartment, or installing advertising billboards or base stations, are considered “significant management matters” and are subject to the unanimity requirement as per Article 45 of the Condominium Law. The Supreme Court has clearly stated that this authority belongs to the unit owners and cannot be delegated to the board of management.
Change of Use of Residential Independent Sections: Article 24 of the Condominium Law is one of the most frequently cited provisions in court decisions. It is an absolute necessity for the board of condominium owners to make a unanimous decision to open a commercial enterprise such as a shop, restaurant, office, or gallery, as listed in the law, in an independent section registered as “residential” in the title deed. The Supreme Court has reflected in its decisions that this rule cannot be overridden even by the management plan, and that a management plan amendment “of a nature that eliminates matters requiring unanimity by law” is “null and void.”
Distinction and Exceptions: The decisions also delineate the boundaries of the unanimity rule. The rule primarily applies to “residential” properties. In a section already registered as a “workplace” or “shop” in the title deed, if there is no specific prohibition in the management plan, unanimity is not required for commercial activities of the same nature. Similarly, in collective buildings, if a common area is exclusively allocated for the use of a specific block, it has been accepted that the decision of only the relevant block owners, not all site owners, may be sufficient for changes in that area. An article suggestion.
Why is Tuzla Lawyer Support Necessary?
According to the Condominium Law (KMK), decisions requiring unanimous consent in an apartment building often lead to serious legal consequences that are difficult to reverse and can result in loss of rights. Especially matters such as dispositions of property (subdivision of land, demolition and reconstruction of the building), important management matters (leasing of common areas, installation of advertising or base stations), and the conversion of independent sections with residential status into workplaces, have been explicitly tied to unanimous consent by Supreme Court decisions, and decisions contrary to procedure can always be annulled.
During such transactions, the opinion of experienced lawyers in the field of condominium law, such as a Tuzla lawyer, Pendik lawyer, Kartal lawyer, Maltepe lawyer, Gebze lawyer, Çayırova lawyer, or Orhanlı lawyer, is of great importance both for ensuring that decisions are based on legal grounds and for providing assurance against potential annulment or compensation lawsuits that may arise in the future.
If you are a manager, a co-owner, or planning to start a new commercial activity, undertaking transactions requiring unanimous consent without consulting an expert lawyer in the Tuzla region can lead to significant loss of rights and annulments. Therefore, it is recommended to seek professional legal support to ensure the validity of decisions on legal grounds.
