Court Of Cassation Decision On The Site Management’s Capacity Of Hostility
T.C. JUDGMENT
. General Assembly of Law
Esas No: 2008/3-531
Decision No: 2008/531
Date of Decision: 17.09.2008
CLAIM FOR RECEIVABLES – CLAIM FOR COMMON SITE EXPENSES
ARISING FROM – PASSIVE HOSTILITY OF THE HOUSING ESTATE COLLECTIVE BUILDING MANAGEMENT
WHETHER HE/SHE HAS THE CAPACITY – THE DUTY OF REPRESENTATION OF THE DIRECTOR
PASSIVE HOSTILITY CAPACITY WITHIN THE SCOPE OF
SUMMARY:
The lawsuit is related to the claim for receivable arising from the common expenses of the housing complex. Dispute; defendant housing complex
The dispute centres on whether the collective building management has the capacity of passive hostility.
All independent section owners within the scope of the collective building of the management plan are subject to the collective management board of the site.
a contract binding on the island board of representatives, parcel and block managers
Since; in terms of the management expenses claimed by the plaintiff, the defendant housing estate collective building management
acceptance of the existence of passive hostility capacity within the scope of the representation duty arising from the contract
are obligatory.
(634 S. K. art. 35, 38, 74) (YHGK. 09.11.2000 T. 2000/13-1314 E. 2000/1606 K.)
At the end of the judgement for the debt case between the parties; Antalya Fourth First Instance
The Civil Court dismissed the lawsuit due to hostility on 20.03.2007 dated 566-109
Upon the request of the plaintiff’s attorney for the review of the decision numbered
With the decision of the Chamber dated 29.11.2007 and numbered 19078-18095; (…The plaintiff S.S.A… Isl. Cooperative
The representative of the Presidency stated that, upon a complaint, the tax auditors were asked to review the records of the plaintiff co-operative
As a result of the examination, 30.572,78 YTL common expenses which should be invoiced to the defendant housing estate management
the receivable has not been invoiced and collected, and demanded the collection of this amount together with interest and
the defendant filed a lawsuit.
Defendant defended the dismissal of the lawsuit due to lack of hostility by declaring that there was no debtor,
the defendant management does not have the status of the court, the lawsuit should be filed against all condominium owners
the case was dismissed on the grounds of lack of hostility, the judgement was rejected by the plaintiff’s attorney
appealed.
The lawsuit was filed for the buildings located on more than one parcel of land within the same complex.
The claim is related to the request for the collection of the common expense receivable made by the plaintiff co-operative from the apartment complex management.
Since it is not legally possible to establish a condominium on separate parcels, the dispute is related to the condominium
The provisions of the Property Law are not applicable. General provisions of the dispute between the parties
should be analysed in this respect.
According to the title deed in the file, the immovable property under the management of the defendant is a condominium,
It is a complex consisting of 746 independent sections. The Claimant Co-operative also owns 46 independent units
is the owner. According to the tax inspection report; invoice to A… Site management by the taxpayer organisation
not invoicing some management expenses that should have been invoiced and understatement of revenue is irregular
it is seen that YTL 30.572,78 of general administrative expenses for the period 01.01.2001-31.12.2001 was incurred for the site.
management should be invoiced.
Since the site is built on more than one parcel, the condominium provisions cannot be applied in the case
However, with the economic and social development and population growth in our country, the workplace and housing
the use of collective buildings built by co-operatives in order to meet the needs of the population has begun
is a known fact. In collective constructions of this nature, facilities and facilities allocated for the common use of the owners
heating, lighting, cleaning and maintenance and repair of these places in a disciplined manner,
As a result, they need to be managed and management costs need to be covered. Such structures
condominium law in disputes related to the management of the condominium, the Civil Code on collective property
provisions or the Co-operatives Law cannot be applied.
Therefore, the legal gap, especially in terms of management and the capacity to be a party to the lawsuit
the failure to fill in the form, that all owners can sue together, or that the person who incurred the costs can sue the other
Acceptance of the right to bring a recourse action against the owners leaves disputes unresolved
result. In the face of this situation, it is necessary to consider the provisions foreseen in our laws for similar institutions and organisations.
in accordance with rights and justice, procedural and litigation economy by utilising the regulations by way of sampling,
There should be no hesitation in finding a solution to ensure social peace within the collective structure.
The contractual powers of the management thus constituted shall be exercised on behalf of the owners in the capacity of a representative
In order for them to be able to use it, it is not necessary to have a legal personality for the reasons explained.
As such, in terms of the management expenses claimed by the plaintiff, the defendant management is not entitled
the merits of the case by adopting that he has the capacity of a party in the case within the scope of the representation duty arising from the representation duty
and making a decision would be the most appropriate solution.
In this respect, without taking into account the above-mentioned principles, the judgement was rendered as written
is inaccurate…) and the file was returned to its place, and the retrial
In the end, the court resisted the previous judgement.
Appellant Counsel for the Claimant:
After it was examined by the General Assembly of Civil Chambers and it was understood that the decision to resist was appealed in due time and
After reading the papers in the file, it was discussed:
The lawsuit is related to the claim for receivable arising from the common expenses of the housing complex.
The plaintiff business co-operative presidency claimed that the defendant housing complex management should have paid 30.572,78 YTL of expenses.
that it was paid by them without any reason and that it was not invoiced to the defendant housing estate management by mistake
The defendant has claimed and sued for the collection of this money from the defendant together with interest.
The defendant housing estate collective building management stated that the lawsuit was time-barred and that they had passive
that the lawsuit should be addressed to all condominium owners, and that the lawsuit should be dismissed.
the defendant notified the court in response.
Dismissal decision rendered by the court on the grounds of hostility; for the reasons explained above by the Special Chamber, the defendant
the local court reversed on the grounds that the site management had the capacity for passive hostility.
the decision was resisted.
Dispute is whether the defendant housing estate collective building management has the capacity of passive hostility
the defendant’s property.
The defendant housing estate is built on more than one parcel and consists of 746 independent units. Plaintiff
The business co-operative is the owner of 46 independent sections in the complex.
In Article 1 of the A…. Site Management Plan submitted to the Land Registry Office, it is stated that
in Article 2; in cases where there is no provision in the Management Plan, the Condominium
Law, the Civil Code and other relevant laws shall be applied, Article 3 states that the Management Plan shall be applied to the A…
All condominium owners, condominium easement holders, their heirs and independent
will acquire the section or the land share to which the condominium servitude is attached by sale, donation or other means
shall be automatically binding on the persons, and these persons shall comply with all provisions of the management plan in full
they are obliged to take the decisions of the Board of Condominium Owners of the Collective Building, in Article 6/E; the decisions of the A… Collective Building Board are obliged to be taken by the A… Collective Building Board.
All independent section (flat) owners, easement right holders and
shall bind those who will take over the independent sections from them in any way, in article 7/c-b-e;
to the condominium owners who do not fulfil their debts and obligations related to condominium ownership and
to file a lawsuit on behalf of the condominium owners against third parties due to the works falling within the scope of
pursue the cancellation of the decisions of the board of condominium owners or in relation to the cancellation of the decisions of the board of condominium owners or in relation to the cancellation of the decisions of the board of condominium owners
In the lawsuits filed by the condominium owners or third parties due to the works within the scope of
shall represent the owners, and the judgement expenses and attorney’s fee in this matter shall be paid from the common expenses.
the condominium owner who fails to fulfil his/her obligations related to the condominium ownership shall be compensated, and in Article 8/c-b-e; the condominium owner who fails to fulfil his/her obligations related to the condominium ownership
representing the condominium owners against the owners and third parties due to the works it is authorised to perform
to file a lawsuit, regarding the cancellation of the decisions of the board of condominium owners of a collective building or authorised to do so
in the lawsuits filed by the flat owners or third parties due to the works carried out by the other flat owners
represent the owners, and the lawyers appointed for these lawsuits and proceedings will be assigned
It is accepted to be covered from the fees and judgement expenses.
In Article 35 of the Condominium Law No. 634, while the duties of the Administrator are listed, in subparagraph (i);
Litigation and execution proceedings against the condominium owners who do not fulfil their debts and obligations related to condominium ownership
There is also a duty to carry out the construction.
Law No. 634 on Condominium Ownership was amended by Law No. 5711 dated 14.11.2007 and
Some special provisions have been introduced in relation to collective buildings.
With the amendment made to Article 38; the board of condominium owners, the board of island representatives or the collective building
the lawsuits for the cancellation of the decisions of the board of representatives to the manager on behalf of the condominium owners, collective
in the case of buildings, the administrator elected by the island board of representatives or the collective building board of representatives
the administrator may file the lawsuit to all condominium owners and to the owners of the
the board of representatives, and in the event of cancellation of the decisions of the board of representatives, the common shareholder shall bear the costs of the proceedings in this regard.
Article 74 states that, without prejudice to the special provisions of this chapter
provided that all provisions of this Law shall be applied to collective buildings in the same manner or by analogy
will be applied.
With this amendment to the Condominium Law, the collective housing estates brought by modern urban life
It is intended to meet the needs arising in their construction.
With the management plan in the nature of a contract, the parties have agreed that the owners of the independent sections
To provide services in the best way, to carry out the works and transactions related to the site from one hand,
to each other for the fulfilment of services, for the realisation of common life goals
have undertaken obligations.
As such, the management plan shall be a collective agreement that obligates all independent section owners within the scope of the collective building
binding on the board of directors and managers, board of island representatives, parcel and block managers
since it is a contract; in terms of the management expenses claimed by the plaintiff, the defendant housing estate collective building
passive hostility capacity within the scope of the representation duty arising from the contract
It is obligatory to recognise that there is a case.
The consistent opinion of the Court of Cassation is also in this direction, and the General Assembly of the Court of Cassation dated 09.11.2000
and judgement numbered 2000/13-1314-1606; and in the judgement dated 08.11.2006 and numbered 2006/12-682-682, these principles
adopted exactly the same.
In this case; to comply with the reversal decision of the Special Chamber, which was also adopted by the General Assembly of Civil Chambers
However, resisting the previous decision is contrary to the procedure and the law. Therefore, the decision to resist
must be disrupted.
Conclusion
With the acceptance of the appellate objections of the plaintiff’s attorney, the decision of the Special Chamber should be reversed.
and for the reasons set out above, the request shall be annulled in accordance with Article 429 of the Code of Civil Procedure.
It was decided unanimously on 17.09.2008 to return the appeal fee in case of an appeal.
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