T.R.
SUPREME COURT
. General Assembly of Law
Base No: 2008/3-531
Decision No: 2008/531
Decision Date: 17.09.2008
ACTION FOR CREDIT – CLAIM FROM THE SITE COMMON EXPENSES
WELDING – PASSIVE ENEMY OF THE SITE COLLECTIVE CONSTRUCTION MANAGEMENT
IF YOU HAVE A LICENSE – THE REPRESENTATIVE DUTIES OF THE MANAGEMENT
WITHIN THE SCOPE OF LIABILITY ATTORNEY LICENSE
SUMMARY: The case is related to the claim for receivable arising from the common expense of the site. incompatibility; defendant site
It is gathered at the point of whether the collective structure management has the capacity to passively hostile.
All the independent section owners within the scope of the collective structure of the management plan are determined by the site collective board of directors.
and its managers, a contract that binds the parcel and block managers of the island representatives
because it is; In terms of the administrative expense requested by the plaintiff, the defendant site’s collective structure management
Acceptance of passive hostility within the scope of the representation duty arising from the contract
are mandatory.
(634 S. K. Art. 35, 38, 74) (YHGK. 09.11.2000 T. 2000/13-1314 E. 2000/1606 K.)
At the end of the proceedings due to the claim between the parties; Antalya Fourth Court of First Instance
566-109 dated 20.03.2007 and given by the Civil Court regarding the rejection of the case due to hostility.
Upon the request of the plaintiff’s attorney to examine the decision no.
With the decision of the Department of Public Health dated 29.11.2007 and numbered 19078-18095; (…Plaintiff S.S.A… Business Cooperative
Deputy of the Presidency, upon a complaint, the plaintiff’s cooperative records were examined by the tax inspectors.
As a result of the examination, 30,572.78 YTL common expense to be invoiced to the defendant site management
If it is determined that the receivable has not been collected by invoice, request the collection of this amount together with the interest and
has sued.
Defendant defended the dismissal of the case due to the absence of hostility, declaring that there is no debtor,
The court does not have the title of the defendant management, the case must be filed against all the flat owners.
on the grounds that the case was rejected due to the absence of hostility, the judgment was made by the plaintiff’s attorney.
has been appealed.
The case is for buildings located on more than one parcel, although they are located within the same site.
the claimant is related to the request for the collection of the common expense receivable made by the cooperative from the site management.
Since there is no legal opportunity to establish condominium on separate parcels, the dispute is resolved.
The provisions of the Property Law are not applicable. General provisions of the dispute between the parties
department needs to be resolved.
According to the title deed record in the file, the immovable under the management of the defendant, a condominium was established on it,
It is in the form of a site consisting of 746 independent sections. The Plaintiff Cooperative also has 46 independent sections on the site.
is the owner. According to the tax inspection report; A… Invoice to the site management by the taxpayer institution
It is illegal not to invoice some of the administrative expenses that should be paid and to leave the revenue incomplete.
It is seen that the general administrative expense of 30,572.78 YTL for the period 01.01.2001-31.12.2001 is on the site.
It was stated that the management should be billed.
Since the site is built on more than one parcel, condominium provisions cannot be applied in the case.
though; The workplace and housing, which is the result of the economic and social development in our country and the population increase.
Collective structures built by cooperatives in order to meet the needs of
It’s a known fact. In such mass constructions, the facilities and facilities reserved for the common use of the owners
Heating, lighting, cleaning in areas and maintaining and repairing these places in a discipline,
As a result, it must be managed and the management expenses must be met. Such structures
Condominium Ownership Law, Civil Law regarding collective property in disputes related to the management of
It is not possible to apply the provisions of the Law on Cooperatives or Cooperatives.
Therefore, the legal gap arising especially in terms of management and the ability to be a party in the case should be avoided.
failure to fill in, that all the owners can file a lawsuit together or that the person who made the expense
Accepting that you can file a recourse lawsuit against the owners, leaving the disputes unresolved
produces the result. In the face of this situation, for similar institutions and organizations,
by taking advantage of the regulations by way of example, in accordance with the right and justice, procedural and litigation economy,
should not hesitate when it is necessary to find a solution that provides social peace within the collective structure.
The powers of the management, which is formed in this way, arising from the contract, are carried out as a representative on behalf of the owners.
In order to be able to use them, it is not necessary to form a legal personality for the reasons explained.
As such, the defendant’s management is excluded from the contract in terms of the administrative expenses requested by the plaintiff.
Based on the merits of the case by adopting the capacity to be a party in the case within the representation duty arising from
entering and making a decision would be the most appropriate solution.
In this respect, without considering the principles explained above, a written judgment is made.
it is inaccurate…) and the file was turned back to its place on the grounds that the retrial was carried out.
in the end, it was resisted by the court in the previous decision.
Appeal
Eden: Attorney for the Plaintiff
After being examined by the General Assembly of Law, it was understood that the decision to resist was appealed in due time, and
After the papers in the file were read, it was considered necessary:
The case is related to the claim for receivable arising from the common expense of the site.
Presidency of the plaintiff business cooperative; 30,572.78 YTL expense to be paid by the defendant site management
claim that it was paid by them without any reason, and that it was not invoiced to the defendant site management by mistake.
and sued for the collection of this money, together with the interest, from the defendant.
Defendant site collective structure management; that the case has expired, their passive enmity
that he does not have a license, that the case should be opened to all flat owners, that the case is rejected.
responded to the decision.
The refusal decision given by the court in terms of hostility; The defendant, for the reasons explained above, by the Special Chamber
was corrupted on the grounds that the site administration had passive hostility license,
the decision was resisted.
incompatibility; whether the defendant site collective structure manager has a passive hostility license
collected at the point.
The defendant site is built on more than one parcel and consists of 746 independent sections. Plaintiff
The business cooperative is also the owner of 46 independent sections on the site.
In the 1st article of the Site Management Plan given to the Land Registry Directorate; the site’s management plan
shall be governed in accordance with Article 2; In cases where there is no provision in the Management Plan, Condominium Ownership
Law, Civil Law and other relevant laws will be applied, in article 3; A Management Plan…
All flat owners, flat servitude owners, their heirs and independents within the scope of the site
will acquire the portion of the land to which the floor servitude is attached, through sale, donation or other means.
To comply with all the provisions of the management plan of these persons, which will automatically bind the persons.
they have to, in article 6/E; Decisions of the Collective Building Flat Owners Board, A… Collective
All independent section (floor) owners, easement holders and
In the article 7/c-b-e, it will bind those who will inherit the independent sections from them in any way;
condominium owners who do not fulfill their debts and obligations regarding condominium ownership and
to file a lawsuit against third parties on behalf of the flat owners due to the works falling within the scope of the execution,
regarding the cancellation of the decisions of the floor owners board, or
In lawsuits filed by the flat owners or third parties due to the works within the scope of the other floor
will represent the owners, the litigation expenses and attorney fees in this regard are included in the common expenses.
to be met, in article 8/c-b-e; floor that does not fulfill its obligations regarding the condominium
Representing the flat owners against the owners and third parties due to the works they are authorized to do.
regarding the annulment of the decisions of the collective building floor owners board, or authorized to do so.
other floor in lawsuits filed by the floor owners or third parties due to the works
It will be given to the lawyers who will represent the owners and who are assigned for this lawsuit and proceedings.
It is accepted that the fees and litigation expenses will be covered.
While the duties of the Manager are counted in Article 35 of the Condominium Law No. 634, in subparagraph (i);
Lawsuits and enforcement proceedings against floor owners who do not fulfill their debts and obligations regarding the condominium
There is also the task of doing
The Law No. 634 on Condominium Ownership was amended with the Law No. 5711 dated 14.11.2007 and
Some special provisions regarding collective structures have been introduced.
With the amendment made in Article 38; floor owners board, island representatives board or collective structure
to the manager, representing the flat owners, about the cancellation of the decisions of the board of representatives,
In structures, there is hostility to the manager elected by the island representatives board or the collective building representatives board.
It can be opened by the management of the manager, the lawsuit filed by all the floor owners and the island or
In case of annulment of the decisions of the board of representatives to be announced to the board of representatives, the litigation expenses in this matter will be shared.
In article 74, it is stated that expenses will be covered; without prejudice to the special provisions envisaged in this section
provided that all the provisions in this Law are also applicable to the collective structures exactly or by analogy.
will be implemented has not been announced.
With this amendment made in the Condominium Ownership Law, the collective site brought by the modern city life
It is aimed to meet the needs that arise in their construction.
The parties shall submit the contractual management plan and the independent section owners as specified herein.
to provide the services in the best way, to carry out the works and transactions related to the site in one hand,
to provide the performance of services, to realize the common life purposes,
actions have been undertaken.
As such; All the independent section owners within the scope of the collective structure of the management plan,
parse the board of directors and executives island representatives
Binding l and block managers
because there is a contract; In terms of the administrative expense requested by the plaintiff, the defendant site collective structure
the capacity of passive hostility within the scope of the contractual representation of the management
Acknowledgment of your presence is mandatory.
The stable view of the Court of Cassation is in this direction, and the General Assembly of the Supreme Court of Appeals has a date of 09.11.2000.
and Decree 2000/13-1314-1606; These principles were also stated in the announcement dated 08.11.2006 and numbered 2006/12-682-682.
exactly adopted.
As such; To comply with the decision to overturn the Special Chamber, which was also adopted by the General Assembly of Law.
While it is necessary, it is against the procedure and the law to resist in the previous decision. Therefore, the decision to resist
must be broken.
Conclusion: With the acceptance of the plaintiff’s attorney’s appeals, the decision of the Special Chamber to overturn the resistance decision.
and for the reasons shown above, in accordance with Article 429 of the HUMK, the request
It was unanimously decided on 17.09.2008 to refund the down payment fee in case of appeal. (¤¤
