INTRODUCTION
Maintenance Charges are one of the basic elements of condominium law, which are collected from the condominium owners for the maintenance of order in collective living areas, maintenance, repair and management of common areas. In this article, the legal nature of the Maintenance Charges, the way of determination and the problems encountered in practice will be analyzed within the scope of the Condominium Law numbered 634 (“CL”).
A. THE CONCEPT OF “MAINTENANCE CHARGE” WITHIN THE SCOPE OF LEGAL REGULATIONS
Article 20 of the Condominium Law No. 634 regulates how common expenses (Maintenance Charges) are determined and who is responsible for such dues. According to the said article, each condominium owner is obliged to participate in the common expenses of the main real estate such as maintenance, repair, cleaning and insurance. This obligation is strictly connected to the property right of the condominium owner and is inalienable. Maintenance Charge is the amount collected from the owners in order to meet these common expenses, and its legal basis is directly derived from the Condominium Law.
At this point, it should be noted that, according to Article 20/1-c. of the CL; “The condominium owners cannot avoid paying these expenses and advance share by giving up the right to use the common places or facilities or by claiming that there is no need or necessity to benefit from them due to the condition of their own independent section.” Each condominium owner is obliged to participate in the common expenses of the apartment or complex. However, the condominium owners may decide that some condominium owners will not participate in certain common expenses. For example, it may be possible to exempt ground floor owners who do not use the elevator from elevator expenses in line with a unanimous decision of the condominium owners.
B. CRITERIA FOR THE DETERMINATION OF MAINTENANCE CHARGES
As a rule, Maintenance Charges are determined by the Board of Condominium Owners. In this context, in order to determine and change the amount of Maintenance Charges, the Board of Condominium Owners must convene at least once a year. The agenda of the meeting must include the issue of determining/changing the Maintenance Charges. The amount of Maintenance Charge is determined by the decision of the Board of Condominium Owners by majority vote. Maintenance Charges calculations are primarily based on the operation project. Within the scope of the aforementioned operation project, the 1 (one) year income and expenditure table of the immovable is prepared and the determined budget is decided by the Board of Condominium Owners. If unforeseen major expenses arise during the year, for example, elevator replacement, the Board of Condominium Owners may convene and create an additional budget and/or additional Maintenance Charge. In practice, it is generally seen that Maintenance Charges are calculated according to square meters or land share.
On the other hand, a different picture emerges in the case of residential compound management. Namely, in parallel with the operation project prepared with the approval of all condominium owners in the condominium organization and the management project, the condominium owners may determine special rules regarding the dues by adding articles on how much the Maintenance Charges will be, when they will be paid and at what rate the Maintenance Charges will be increased. In this case, the provisions regarding the dues will be applied without the need for the condominium owners to determine the Maintenance Charges every year.
However, if there is a clear arbitrariness or violation of the law in the determination of the Maintenance Charges, the owners have the right to take judicial action against this. If the condominium owners believe that the Maintenance Charges have been determined unlawfully, they may file an action for annulment before the Civil Court of Peace. In addition, if there has been an unjustified collection of fees, it is also possible to file a lawsuit for the refund of the amount paid.
C. LEGAL REMEDIES IN CASE OF NON-PAYMENT OF THE MAINTENANCE CHARGE
In case of non-payment of the Maintenance Charges, since the Maintenance Charges debt is a money debt, enforcement proceedings can be initiated directly without writ of execution. Pursuant to the CL, the landlord who fails to pay the Maintenance Charges on time is obliged to pay 5% monthly late payment compensation. However, in some cases that have been the subject of judicial proceedings, the courts have applied equitable deductions from this late payment compensation rate and ruled for the payment of a lower rate of late payment compensation.
The management may file a lawsuit directly in the civil court of peace against the landlord who does not pay the Maintenance Charges. In this case, the Court may order the payment of the Maintenance Charges debt as a result of the lawsuit. In the event that the dispute proceeds to the litigation stage, there must be sufficient evidence in the file for the Court to order the payment of the dues Maintenance Charges, and it will be healthy to attach the decision of the board of condominium owners and/or the income-expenditure list and information/documents that no payment has been made by the condominium owner.
Finally, it should be noted that, within the scope of Article 25 of the Condominium Law, expulsion from the partnership (termination of ownership) is one of the most severe sanctions that can be applied in the event that one of the condominium owners severely and continuously violates his/her obligations to the other owners, including the dues debt. In accordance with Article 25 of the CL, an action for ejectment from the condominium may be filed against a condominium owner who fails to pay his/her Maintenance Charges for a long period of time, thereby increasing the burden of the other owners and making the common life unbearable. First of all, for this heavy sanction it is required that;
- Continuous non-payment of Maintenance Charges and common expenses,
- Behaving in a way that makes the common life of other owners difficult,
Afterwards, The landlord must be notified twice in writing through a notary public regarding the violation and the consequences of the violation.
If there is no change in the acts and behaviors of the floor owner after two warnings;
- The Board of Condominium Owners takes the decision of removal with a majority of 4/5 and notifies the decision and the relevant owner,
- Applying to the Civil Court of Peace based on this decision,
is required. If the court finds that the conditions are met, it may order the sale of the relevant apartment.
D. TENANT’S OBLIGATION TO PAY MAINTENANCE CHARGES
Another problem frequently encountered in practice is the issue of who pays the Maintenance Charges within the framework of the tenant-owner relationship. At this point, although the owner is the payer of the Maintenance Charges according to the CL, this obligation can be transferred to the tenant through lease agreements. However, if the tenant fails to pay the Maintenance Charges, the management may initiate enforcement proceedings directly against the owner. However, it should be noted that the owner may later recourse this debt to the tenant based on the contract between them.
It should also be noted that the landlord may initiate enforcement proceedings against the tenant due to the tenant’s failure to fulfill the Maintenance Charge payment obligation. In addition, within the scope of the Turkish Code of Obligations numbered 6098 (“TCO”), Maintenance Charges are an ancillary expense. In this respect; “If the lessee does not fulfill the obligation to pay the rent or ancillary expense due after the delivery of the leased property, the lessor may give the lessee a period of time in writing and notify the lessor that he will terminate the contract in case of non-performance within this period.” Under Article 315, there is the possibility to evict the tenant who does not pay the Maintenance Charges. Accordingly, the tenant is given at least 30 days to fulfill the debt in question. After the expiration of the period, an eviction lawsuit can be filed against the tenant who does not pay the Maintenance Charge before the Civil Court of Peace in the place where the rented house is located and the house can be evacuated.
CONCLUSION
Maintenance Charges are one of the basic elements of Condominium Law, which are collected from the condominium owners for the maintenance of order in collective living areas, maintenance, repair and management of common areas, and the Condominium Law contains clear and binding provisions in determining the amount of Maintenance Charges. Although the land share is the basis, the management plan and the decisions of the board of condominium owners may be determinative.
Non-payment of Maintenance Charge is a situation that may disrupt both the financial and social balance in the condominium system. For this reason, the CL grants the management both administrative and judicial powers. In particular, while enforcement proceedings and interest claims are effective ways to collect the receivables, the sanction of eviction under Article 25 is the most severe and exceptional tool of the legal process. It is of great importance that the decisions are taken in accordance with the procedure and the documents are collected in full in order to ensure that the legal process is carried out in a healthy manner.
