1. Legal Nature of Attic Ancillary Spaces (Zoning Legislation)

Planned Areas Zoning Regulation Article 40/7: “Independent sections cannot be built in attic spaces. In these parts, only… ancillary spaces connected to the independent sections on the top floor can be built.” is the governing provision. Therefore, registration of the attic floor as an independent apartment separate from the floor below is not legally possible.

Article 4/ğ-1: If the independent section is located on more than one floor, including attic spaces, with internal connection, these areas are collectively evaluated within the “gross area of the independent section.”

2. Condominium Ownership and Violation of Project Plans

Condominium Law Article 4/c: Roofs, unless there is a contrary provision in the contract, are considered “common areas in any case.” However, attic ancillary spaces allocated to an independent section in the approved project are part of that section.

Condominium Law Article 19: Condominium owners are obliged to preserve the architectural state of the main real estate. Closing the connection of a duplex and opening a separate entrance constitutes a “violation of the project plan” and can always be subject to a lawsuit for restoration to its original state.

3. Right to Entitlement and Sharing in Urban Transformation (Law No. 6306)

Land Share Principle (Article 6/1): Decisions regarding the rebuilding of a structure, the sale of shares, and their distribution are made by at least a 1/2 majority of the owners, “in proportion to the land share.” Whatever the land share of the immovable property appearing as a single independent section (duplex) in the title deed, that is its voting right and distribution value in the transformation.

Impact of the Actual Situation: In practice, for properties actually used as two apartments, flexibility may be provided in the “Distribution Protocol” prepared with a 1/2 majority decision. However, the legal requirement is the number of independent sections and the land share as recorded in the title deed.

Status of Co-Owners: Those who own a duplex with a 1/2 share continue to be co-owners of the independent section allocated to them in the new project. The conversion of actual use into two separate apartments is only possible with the consent of all owners and the new project being designed accordingly (as two separate independent sections).

4. Points to Consider in Practice

Premium Value Assessment: The square meter and value difference of duplex apartments (with attic space) should be taken into consideration within the scope of “location and characteristics” (6306 Art. 6) in CMB-licensed valuation reports.

Letter of Consent: In de facto divided duplexes, drafting a notarized “sharing agreement” between the parties before urban transformation is critical to prevent future property disputes.

Administrative Sanction: Since the de facto division is contrary to zoning legislation, if detected by the municipality, there is a risk of demolition and a fine in accordance with Articles 32 and 42 of the Zoning Law No. 3194.

1. Legal Framework and Legal Nature of the Attic Part

According to Article 40/7 of the Regulation on Zoning for Planned Areas, it is forbidden to create independent sections in attics; these areas can only be built as parts (duplex) connected to the independent section on the lower floor. Pursuant to Article 4/ğ-1 of the Regulation, these areas are considered within the “gross area of the independent section”. According to Article 4/c of the Condominium Law (KMK), roofs, unless otherwise stipulated in the contract, are considered common areas, while attic parts specifically allocated to an independent section in the approved project are considered part of that section. According to Article 19 of the KMK, condominium owners are obliged to preserve the architectural condition; closing the connection of a duplex and opening a separate entrance constitutes “deviation from the project.”

Within the scope of Law No. 6306 (Urban Transformation), the rebuilding and sharing of a building, according to Article 6/1, is decided by at least a 1/2 majority of the owners “in proportion to their land share.” The land share of a property that appears as a single independent section (duplex) in the land registry, determines the voting right and legal sharing value in the transformation. The reflection of the de facto situation (use of two separate apartments) in the sharing protocol is only possible with the consent of a 1/2 majority; otherwise, the land registry record is paramount.

2. Deviation from the Architectural Project and Legal Consequences of De Facto Division

Court decisions link the conversion of attic units into independent apartments and interference with common areas to severe legal sanctions:

Characterization as a Tortious Act: In its decision (19.10.2017, E. 2016/3578, K. 2017/14217), the 3rd Civil Chamber of the Court of Cassation characterized the conversion of an attic unit into an independent apartment by opening a door from the common stairwell area as a modification “contrary to the approved project” and a “tortious act”.

Obligation to Restore to Original State: According to the 20th Civil Chamber of the Court of Cassation (27.09.2018, E. 2017/2337, K. 2018/6043), unanimous consent of the floor owners is required for the extension of the attic floor to a full floor and the opening of an entrance from the common staircase. If this consent is absent, the structure must be brought into conformity with the approved project. Similarly, the 5th Civil Chamber of the Court of Cassation (13.12.2023, E. 2023/5841, K. 2023/12418) stated that constructions contrary to the project constitute an infringement of property rights and that the decision to restore to the original state must be rendered in a way that leaves no doubt in its enforcement.

Administrative and Penal Risks: According to the decision of the 6th Chamber of the Council of State (11.01.2024, E. 2021/1079, K. 2024/196), permits granted for interventions on the roof without the unanimous consent of all owners constitute a “service fault” and are subject to a demolition order according to Article 32 of the Zoning Law No. 3194. In accordance with the legislation, there is also a risk of a fine under Article 42.

3. Issues of Sharing and Entitlement in Urban Transformation

In places that appear as a single independent section in the title deed but are actually used as two apartments (disconnected, with separate entrances), the principles of sharing are as follows:

Superiority of the Title Deed Registration: According to the 5th Civil Chamber of the Court of Cassation (21.05.2024, E. 2024/2457, K. 2024/6210), the boundaries of the independent section are determined not according to actual use, but according to the municipality-approved architectural project. Even if the new owner purchases the property seeing it as actually divided, they cannot claim rights over parts outside the boundaries specified in the project.

Actual Use and Fidelity to Agreements: In the decision of the 1st Civil Chamber of the Court of Cassation (22.01.2013, E. 2012/13011, K. 2013/514), for properties that appear as a single unit in the title deed but are actually divided, it stated that if an actual mode of use has been established among co-owners, it should be protected “until a zoning implementation is carried out.” However, since urban transformation is not a zoning implementation, title deed records and land share will be taken as basis during the transformation phase.

Status of Co-Owners (1/2 Share): According to the legislative note, those who own a duplex with a 1/2 share continue to be co-owners of the independent section to be allocated in the new project. The conversion of the actual division into two separate apartments in the new project is only possible with the consent of all owners and the drawing of the new project accordingly.

4. Actual Division and Dispute Resolution in Light of Secondary Sources

Court of Cassation decisions, considered as secondary sources, offer the following perspective on property disputes before and during urban transformation:

Limit of De Facto Partition: As emphasized in the decisions of the Supreme Court 7th Civil Chamber (04.07.2023, Appl. 2023/2790, Dec. 2023/3615 ) and the Supreme Court 1st Civil Chamber (21.12.2006, Appl. 2006/11045, Dec. 2006/12930 ); pursuant to Article 706 of the Turkish Civil Code (TMK) and Article 26 of the Land Registry Law, the ownership of shares cannot be separated from the main immovable property through de facto use without an official partition. De facto use is protected only “until zoning implementation” within the framework of the rule of good faith.

Definitive Solution: According to the decisions of the Supreme Court 7th Civil Chamber (08.06.2022, Appl. 2022/416, Dec. 2022/4185 ) and (25.10.2023, Appl. 2023/4185, Dec. 2023/5056 ); the issue of a co-owner who claims to have used less land than their share or to have been victimized due to de facto division should be resolved not with a lawsuit for “prevention of encroachment”, but with a lawsuit for “dissolution of co-ownership (izale-i şuyu)” or “partition”.

Determination of Entitlement in Urban Transformation: According to the Supreme Court 7th Civil Chamber (19.09.2023, Appl. 2023/3449, Dec. 2023/3923 ), if there is no written partition agreement covering all co-owners, the sharing ratios in urban transformation will be determined based on the land registry record. In cases where the person residing in the attic is not registered as an owner in the land registry, their de facto use does not directly grant them entitlement in urban transformation.

Conclusion: Actual division (separation of a duplex into two) in apartments with an attic floor is contrary to zoning regulations and the Condominium Law (KMK). During the urban transformation process, sharing is done not according to the actual situation, but according to the land share and the number of independent sections in the title deed. The preservation of the actual situation may only be possible with a sharing protocol adopted by a 1/2 majority or a notarized sharing agreement made before urban transformation; otherwise, disputes should be resolved through a lawsuit for the dissolution of partnership.

Frequently Asked Questions

1. In an apartment with an attic floor (duplex), is entitlement in urban transformation determined according to the land share or actual use?

In urban transformation, sharing and voting rights are determined not according to actual use, but according to the land share in the title deed. In accordance with Article 6/1 of Law No. 6306, decisions regarding the reconstruction of buildings and sharing are made by at least the absolute majority of owners, proportionate to their land share. Even if a property appearing as a single independent section (duplex) in the title deed is actually used as two apartments, the legal sharing value and voting rights are calculated based on the land share in the title deed. The reflection of the actual situation in sharing is only possible through a sharing protocol prepared with the consensus of the majority.

2. Is a duplex actually divided into two considered as two separate apartments in urban transformation?

As a rule, no. The conversion of a duplex registered as a single independent section in the title deed into two separate independent sections in a new project is only possible with the consent of all owners and if the new project is drawn accordingly (as two separate independent sections). Otherwise, the title deed record is taken as the basis. Furthermore, closing off the connection of the roof space and opening a separate entrance constitutes a violation of the project in light of the Planned Areas Zoning Regulation and Article 19 of the Condominium Law (KMK m. 19); if detected by the municipality, it gives rise to the risk of demolition and a fine in accordance with Articles 32 and 42 of Zoning Law No. 3194.

3. Does a person residing in the roof space but not appearing as an owner in the title deed become an eligible beneficiary in urban transformation?

No. Actual use, by itself, does not directly confer eligibility in urban transformation. In accordance with Article 706 of the Turkish Civil Code (TMK) and Article 26 of the Title Deed Law, the ownership of shares cannot be separated from the main immovable property by actual use without an official division. If there is no written division agreement covering all co-owners, the sharing ratios in the transformation are determined based on the title deed record. The remedy for the person claiming rights is not the prevention of encroachment; it is an action for division or dissolution of co-ownership (izale-i şuyu).

Why is Expert Lawyer Support Necessary?

In duplex apartments with attic floors, entitlement during the urban transformation process is one of the leading causes of disputes in practice due to the conflict between land share and actual use. The fact that a property appearing as a single independent unit in the title deed is actually divided into two apartments leads to a chain of legal consequences, ranging from the calculation of voting rights (Law No. 6306, Article 6/1, simple majority) to the sharing of goodwill and value, the position of co-owners in the new project, and the risks of demolition and fines arising from non-compliance with the project. This process should be managed holistically in light of SPK-licensed appraisal reports, approved architectural projects, and provisions of the Condominium Law (KMK); a small conceptual error (e.g., prioritizing actual use over land share) can lead to difficult-to-remedy loss of rights for the owner.

2M Hukuk Law Office, with its expert staff specializing in urban transformation and condominium law, provides legal consultancy to its clients in processes such as determining entitlement in duplex apartments with attic floors, preparing sharing protocols and consent forms, handling lawsuits related to project non-compliance and restoration to previous state, and drafting notarized sharing agreements before transformation. Independent unit owners in Tuzla, Pendik, Kartal, Maltepe, Istanbul’s Anatolian side, and the Kocaeli region who require Istanbul urban transformation lawyer support can contact our office for a professional evaluation of their rights and obligations before entering the risky building process.

To protect your rights on the right grounds during urban transformation and to prevent property disputes after transformation from the outset, you can receive professional legal support from the expert staff of 2M Hukuk Law Office.