Pursuant To The Contract Signed By The Administrator, The Apartment Management Can Be Prosecuted And Sued
General Assembly of Civil Chambers 2017/255 E. , 2019/83 K.
“Case Law Text”
COURT : Civil Court of First Instance
At the end of the trial held due to the “cancellation of the objection” case between the parties, the decision dated 20.02.2014 and numbered 2013/524 E., 2014/61 K., which was given by Konya 4th Civil Court of First Instance on the dismissal of the case due to lack of title, upon the appeal of the plaintiff’s attorney, with the decision of the 15th Civil Chamber of the Court of Cassation dated 03.11.2014 and numbered 2014/4882 E., 2014/6247 K;
“…The lawsuit is related to the cancellation of the objection to the execution proceeding without judgement initiated for the collection of the work price receivable arising from the work contract, the continuation of the proceeding and the claim for execution denial compensation.
In the lawsuit, the plaintiff contractor stated that he carried out and delivered the sheathing works of Nehir Apartment Building in accordance with the contract dated 28.06.2012, that he also carried out non-contractual works upon the requests of the apartment building manager and residents, that he had a total of 19.420,00 TL receivable, including 10.000,00 TL for the balance of the contractual works and 9.420,00 TL for the non-contractual works, and that when the receivables were not paid despite the notice, Konya 12. Execution Directorate’s file numbered 2013/4643, claiming that the defendant objected to the proceeding unfairly and maliciously, and requested a decision on the cancellation of the objection, the continuation of the proceeding and the execution denial compensation, and the court decided to dismiss the lawsuit procedurally by stating that the defendant did not have a passive litigation capacity, and the decision was appealed by the plaintiff’s attorney.
Party status, in other words, the capacity to sue, refers to the relationship between the right subject to the lawsuit and the persons. Adjective means determining whether the parties have a relationship with that right in a material law relationship. The title of plaintiff determines the owner of the right subject to the lawsuit, and the title of defendant determines the obligor of the right subject to the lawsuit. In practice, the title of plaintiff is evaluated in such a way as to fulfil active hostility and the title of defendant in such a way to fulfil passive hostility. Whoever or whoever has the right over the subject matter of the lawsuit, the lawsuit must be filed by such person or persons, and the lawsuit must be directed to such person or persons against whom legal protection is sought.
Whether a person has the title of plaintiff or defendant is determined according to the substantive law, just as in the determination of whether the right exists or not. The important feature of the title of party in this sense is that it can be asserted by the parties at any time, regardless of the time and stage of the case, since it is not a defence but an objection, and it is taken into consideration by the court ex officio, even if the parties have not asserted it.
From the scope of the file, in the concrete case; in the ordinary general assembly meeting of Nehir Site dated 20.05.2012, it was decided to carry out the external insulation and painting of the building, to change the gutters, sheet metal door and balcony bars, and to cover the main door entrance with aluminium, Dede Baysal, Yusuf Keleş and Basri Bayrakçı were authorised to have these works done and to sign the contract, and the authorised persons met on 06. 06.06.2012 and evaluated the offers submitted and decided to sign a contract with Emir Yapı (…) by finding the offer of Emir Yapı (…) appropriate, and it is understood that a contract was signed on 28.06.2012 between the manager Basri Bayrakçı and Emir Yapı (…) on behalf of the floor owners of Nehir Apartment. Since the contracts will create rights and obligations between the parties to the contract, it cannot be accepted that Basri Bayrakçı, who is a party to the contract based on the authority given by the floor owners, does not have the capacity for passive hostility. While the court should examine the merits of the case by accepting the existence of hostility and collect the evidence and make a decision according to the result, it was not correct to dismiss the case due to lack of capacity, ignoring the written contract between the parties, and the decision had to be reversed for this reason. …”
The case was reversed and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision of resisting was appealed in due time and the documents in the file were read, the necessity was discussed:
The lawsuit is related to the cancellation of the objection.
The plaintiff’s attorney stated that a contract dated 28.06.2012 with a price of 60.000,00TL was signed between his client and Nehir Apartment Management for the jacketing work, but one of the floor owners did not pay the price of 10.000,00TL for his share, and also due to the works done outside the contract, his client is 9. 420,00TL receivable, despite the notice sent to the defendant, an execution proceeding was initiated upon non-payment, claiming that the proceeding was unfairly objected, and demanded and sued for the cancellation of the objection and the collection of the execution denial compensation at the rate of 20% from the defendant.
The defendant did not respond to the lawsuit.
The court, both in the case file and in the execution proceeding file, decided to dismiss the lawsuit due to lack of capacity on the grounds that the plaintiff creditor directed the case against the apartment building management, which does not have the capacity of party and lawsuit, the defendant apartment building management is not a real person and does not have a legal entity, therefore, the case cannot be directed against the apartment building management.
Upon the appeal of the plaintiff’s attorney, the decision was reversed by the Special Chamber for the reasons explained in the title section above.
The Local Court ruled that the plaintiff signed the contract with Basri Bayrakçı on behalf of the Nehir Apartment Management, the works agreed in the contract were carried out on behalf of the apartment owners, in this case, the plaintiff creditor should initiate the claim in the enforcement proceeding against the manager on behalf of the Nehir Apartment Management, and in the cancellation of the objection case, the lawsuit should be directed to the manager Yusuf Keleş on behalf of the Nehir Apartment floor owners as the defendant in the petition, the apartment building management, which does not have real and legal personality, as the debtor and defendant of the proceedings, the apartment building management does not have legal personality, it is not possible to direct the request for proceedings and the lawsuit to the party that does not have the capacity to sue, and although the name Basri Bayrakçı was not used as the defendant in both the request for proceedings and the petition for lawsuit, in the decision of reversal “…. It cannot be accepted that Basri Bayrakçı does not have the capacity for passive hostility, …” was not understood.
The decision of resisting was appealed by the plaintiff’s attorney.
The dispute before the General Assembly of Civil Chambers by way of resistance; in the concrete case, the dispute centres on whether the plaintiff can claim his receivable from the apartment building management, which is a party to the contract, and whether the apartment building management has the title of defendant.
Dispute arises from the contract dated 28.06.2012 between the plaintiff and Nehir Apartment Management, and it is useful to explain the relevant provisions of the Condominium Ownership Law No. 634 (PFML) for the resolution of the dispute.
Article 32 of the Condominium Ownership Law No. 634 states that the main real estate shall be managed by the board of condominium owners according to the decisions to be made in accordance with the contract, management plan and the provisions of the law, and Article 34 states that the condominium owners may assign the management of the main real estate to a person (manager) or a board of three persons (board of directors) to be elected from among themselves or from outside.
The duties of the administrator elected in accordance with this article are separately listed in Article 35 of the CPC No. 634, and in subparagraph (a) of the article, “fulfilment of the decisions taken by the board of condominium owners” is listed among the duties of the administrator. Article 38 of the aforementioned Law also stipulates that the administrator is responsible to the condominium owners just like an attorney.
Since the apartment management does not have a legal personality, as a rule, the apartment manager or the board of directors does not have the capacity to sue and be a party. The administrator or the apartment building management may only exercise the right to file a lawsuit within the authorisations granted by the CPC No. 634. In the event that the administrator is authorised by the condominium owners’ board, it is evident that the administrator or the board of directors may file a lawsuit in disputes arising from the works that fall within the authority to represent the condominium owners.
In such a case, the administrator is not like an attorney appointed by a power of attorney. He is a representative who obtains his representation authority from the special legal article explained above (HGK. 01.06.2011 dated 2011/298 E., 2011/377 K.; 05.04.2017 dated 2017/1282 E., 2017/604 K., 27.09.2018 dated 2017-15/423 E., 2018/1364 K.).
In the light of all these explanations, when it comes to the concrete case, at the ordinary general assembly meeting of Nehir Apartment for the year 2012-2013 dated 20.05.2012, it was decided to carry out the external insulation and painting of the building, to change the gutters, roof door and balcony bars, and to cover the main door entrance with aluminium, and at the same meeting, Dede Baysal, Yusuf Keleş and Basri Bayrakçı were authorised to receive bids for the said works, to conduct market research and to sign the contract.
It is understood that these authorised persons evaluated the offers given with the minutes dated 06.06.2012 and decided to sign the contract by finding the plaintiff’s offer appropriate, the contract was signed on 28.06.2012 between the plaintiff and Basri Bayrakçı, the manager on behalf of the floor owners of Nehir Apartment, and the case at hand was filed against the apartment building management in accordance with the signed contract.
As mentioned above, the administrator may enter into agreements with third parties to create a debt and receivable relationship based on the authority arising from the law and the management plan. Since the administrator is the representative of the condominium owners, such contracts have legal consequences on their behalf and account. The administrator also has active and passive capacity to sue in accordance with the contract he signed.
On the other hand, although it is mentioned in the Special Chamber’s reversal decision that Basri Bayrakçı does not have the capacity for passive hostility, it is clear that this issue is based on a material error and that Basri Bayrakçı signed the contract on behalf of the Nehir Apartment Management since he was the manager of the Nehir Apartment at the time the contract was signed.
Hence, according to the mutual claims and defences of the parties, the minutes and evidence in the file, and the reasons explained in the reversal decision, it is contrary to the procedure and the law to resist the previous decision while the Special Chamber reversal decision adopted by the General Assembly of Civil Chambers should be complied with.
For the reasons explained, the decision to resist should be reversed.
CONCLUSION:
For the reasons explained above, the appeal objections of the plaintiff’s attorney are accepted and the decision to resist is reversed in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with the provisional Article 3 of the Code of Civil Procedure No. 6100, for the reasons shown in the Special Chamber’s reversal decision, and it was unanimously decided on 07.02.2019 to return the pre-appeal fee to the depositor if requested, with the decision to be closed for decision correction in accordance with Article 440-III/1 of the same Law.
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