Use of Common Areas Contrary to Their Intended Purpose and Unlawful Occupation

The condominium ownership relationship encompasses not only rights over independent units but also the rights and obligations concerning the use of common areas.

Common areas are:

• allocated for the joint use of all unit owners,
• areas that must be used collectively due to the structure of the building, and
• legally protected spaces.

The occupation of these areas for personal benefit or their use contrary to their intended purpose constitutes a serious violation under the Condominium Law.

What Constitutes Use of Common Areas Contrary to Their Intended Purpose?

Under Turkish law, the misuse of common areas is interpreted broadly.

In practice, such violations commonly arise in the following forms:

• constructing walls, pergolas, or storage areas in common spaces,
• extending balconies,
• enclosing gardens or parking areas with fences,
• occupying common areas for personal use,
• using shelters or janitor’s apartments for different purposes,
• leasing roofs, gardens, or parking areas to third parties.

Such uses violate the common usage rights of other unit owners.

Authorities and Decision-Making Bodies Concerning Common Areas

General Assembly of Unit Owners

The General Assembly of Unit Owners is the most competent body regarding the use of common areas.

The assembly:

• determines the principles of common use,
• evaluates violations,
• decides, where necessary, to initiate legal proceedings.

Pursuant to Article 28 of the Condominium Law, the decisions adopted are binding on all unit owners.

Manager

The manager:

• identifies violations relating to common areas,
• sends written notices,
• implements the decisions of the assembly,
• may file lawsuits or authorize a lawyer on behalf of the management if empowered by the General Assembly of Unit Owners.

First Stage in Cases of Occupation of Common Areas: The Notice Procedure

If it is determined that a common area is being used contrary to its intended purpose, the manager:

• sends a written notice to the relevant person,
• requests the removal of the violation.

If the violation continues, the matter is brought before the General Assembly of Unit Owners.

By majority decision, the assembly may adopt:

• a decision requiring correction,
• a decision to initiate legal proceedings,
• a sanction decision.

Action for Prevention of Interference and Restoration to the Original Condition

The most common legal remedy in cases of occupation of common areas is an action for:

• prevention of interference, and
• restoration to the original condition.

Through this action, the following may be requested:

• termination of the occupation,
• restoration of the common area in accordance with the approved project,
• removal of unlawful structures.

This lawsuit may be filed by:

• any unit owner, or
• the manager authorized by the assembly.

Claim for Ecrimisil (Compensation for Unlawful Occupation)

If, due to the unlawful occupation of a common area:

• other unit owners are deprived of their right of use, or
• income has been obtained,

a claim for ecrimisil (compensation for unlawful occupation) may be brought.

The General Assembly of Civil Chambers of the Court of Cassation has defined ecrimisil as:

“Compensation that a possessor in bad faith is obliged to pay for unlawfully retaining property that must be returned, including damages caused to the rightful owner and the products obtained or neglected to be obtained.”

(Court of Cassation General Assembly, 2017/1282 K.)

Criminal Liability and Compensation

If unlawful use of common areas results in damage to the building or the construction of unauthorized structures, the responsible persons may face:

• liability for damages,
• sanctions under zoning legislation,
• and in some cases, criminal liability.

Sale of the Independent Unit (Article 25 of the Condominium Law)

If a unit owner:

• seriously violates the rights of other unit owners, and
• makes such conduct continuous,

the other unit owners may request from the court the sale of the independent unit.

This sanction is one of the most severe measures provided under the Condominium Law.

Prevention of Occupation under Law No. 3091

Because judicial proceedings may take a long time, an important alternative remedy in practice is Law No. 3091 on the Prevention of Trespasses Against Possession of Immovable Property.

This mechanism provides rapid administrative protection and, where its conditions are met, constitutes one of the fastest legal remedies against the occupation of common areas.

Application Procedure under Law No. 3091

Time Limit for Application

The application must be made:

• within 60 days from learning of the occupation, and
• in any event within 1 year from the act itself.

Competent Authority

The application is submitted by petition to:

• the governor’s office, or
• the district governor’s office.

The petition may include:

• title deed records,
• photographs,
• official reports.

Examination Process

The administrative authority (governor or district governor):

• may conduct an investigation through the police or gendarmerie,
• may carry out an on-site inspection,
• may examine the existence of the occupation through any appropriate means.

Eviction and Enforcement

If the occupation is determined to be unlawful:

• a decision may be issued ordering the evacuation of the property, and
• preventing the continuation of the occupation.

The decision is enforced through the police or gendarmerie forces.

Judicial Review of Decisions under Law No. 3091

Interested parties may file:

• an annulment action before the administrative courts.

However, filing such an action does not automatically suspend the execution of the decision.

Assessment in Light of Court of Cassation Case Law

Judicial practice emphasizes the following principles:

• common areas belong to the joint use of all unit owners,
• personal occupation is unlawful,
• restoration to the original condition is the principal remedy,
• the required majority must be obtained for allocating common areas to third parties,
• ecrimisil may be claimed.

Conclusion

The misuse and occupation of common areas in condominium ownership constitute serious legal issues that directly affect not only neighbor relations but also property rights and communal living order.

Therefore:

• common areas must only be used in accordance with their intended purpose,
• the rights of other unit owners must be respected,
• necessary administrative and legal remedies should be pursued against unlawful occupations.

Frequently Asked Questions

What is occupation of a common area?

It is the closure or use of common areas for private purposes by an individual.

Can pergolas or storage areas be built in common areas?

No, unless the required majority decision of the unit owners is obtained.

What can be done against occupation of a common area?

A notice may be sent, an action for prevention of interference may be filed, or an application may be made under Law No. 3091.

Can ecrimisil be claimed?

Yes. If unlawful occupation results in loss of use, compensation for occupation may be claimed.

What is Law No. 3091?

It is a special law that provides rapid administrative protection against unlawful occupation of immovable property.

Legal Assistance in Condominium and Common Area Disputes

Disputes arising from the occupation or misuse of common areas require technical legal assessment, particularly regarding actions for prevention of interference, claims for ecrimisil, and administrative application procedures.

Therefore, conducting the process with the assistance of a lawyer specialized in condominium law is important to prevent potential loss of rights.