Illegal Use of Common Areas in Condominium Ownership

(Legal Framework, Supreme Court Principles and Practical Solutions)

ENTRANCE

The unauthorized use of common areas in condominiums is one of the most common types of disputes, disrupting the peace of apartment and site life and leading to serious legal conflicts. Specifically, the conversion of common areas such as parking lots, gardens, terraces, roofs, shelters, and stairwells into private storage, renting them out to third parties, using them for purposes other than their intended use, or their actual allocation to a single condominium owner are considered unauthorized use of common areas in condominiums and often become the subject of lawsuits filed in Civil Courts.

1. The Concept of Condominium Ownership and Common Areas

1.1. Basic Characteristics of the Condominium System

Condominium ownership is a special type of ownership established over independent units in a completed building. While the main property as a whole is subject to shared ownership, each independent unit has a separate ownership right. The fundamental law regulating condominium ownership is the Condominium Ownership Law No. 634 (KMK).

In this system:

Each apartment owner has exclusive ownership rights over their independent unit.
In contrast, co-ownership .
It is not possible to act unilaterally regarding common areas; actions must be taken within the framework of the law, the management plan, and the decisions of the homeowners' association.

1.2. Definition and Examples of Common Areas

Common areas or shared spacesare parts of the building, separate from individual units, that are essential for the building's preservation, use, safety, aesthetics, and continued function, and are reserved for the common use of all apartment owners. The main areas considered common areas under the Condominium Law and in practice are as follows:

Foundations, supporting columns and beams, exterior walls
Roof, terrace, chimneys
Stairs, stairwells, elevators, and elevator shafts
Entrance hall, corridors, landings
Shelter, caretaker's quarters, boiler room, utility rooms
Shared parking areas, garage, garden, courtyard
Shared social areas (pool, gym, children's playground, etc.)
Exterior of the main property, exterior surfaces of balconies, exterior window frames, exterior glass
Shared facilities (heating system, water tank, water pump, generator rooms, etc.)

All of these areas are, by their nature, allocated for the common use of all apartment owners . Therefore, an apartment owner using, altering, or occupying these areas alone and without the consent of the other owners, in most cases constitutes the Irregular Use of Common Areas in a Condominium Ownership

2. What is the Unauthorized Use of Common Areas?

2.1. General Description

Improper use of common areas, in short; the misuse of common areas by the property owner or tenant:

Contrary to the management plan,
Contrary to the majority or unanimous vote requirements stipulated by law,
It will change the nature and purpose of the common area,
It can be defined as using, altering, or actually occupying a property in a way that infringes on the rights of other property owners

This type of use often gives rise to lawsuits for injunctive relief (prevention of encroachment) , restoration of the common area to its original state , and compensation for unlawful use

2.2. The Most Common Types of Misuse in Practice

Examples of irregular use of common areas in condominium ownership, frequently encountered in practice and in Supreme Court decisions, are as follows:

Converting stairwells into storage areas/warehouses, placing cabinets, shoe racks, and other items in corridors.
the shelter area as a storage area, workshop, apartment, or workplace.
The actual allocation or rental of a caretaker's apartment or common area to a homeowner
Enclosing the roof or terrace and adding it to an independent section, transforming it into a room or balcony.
Designating a garden or parking area for the private use of a homeowner, placing "this area is mine" signs
Renting parking spaces to third parties from outside the shared parking lot
Unauthorized installation of air conditioning units, satellite antennas, advertising boards, signs, and awnings on the exterior of the main property
Renting out common areas to third parties for commercial purposes (e.g., renting out the roof for a GSM base station or advertising billboard) and non-lawful revenue sharing
Placing structures such as sheds, containers, and cabins in the communal garden
Noisy activities in common areas that disturb other residents (such as repair shops, storage areas, manufacturing facilities)

These examples can be multiplied. What is important is to assess whether the use is in accordance with the procedure, taking into account the nature of the common area, the management plan, and the legal provisions

3. Legal Framework: Provisions and Fundamental Principles of the Condominium Law

3.1. Obligations of Apartment Owners and Limitations on the Use of Common Areas

According to the Condominium Law:

Apartment owners cannot infringe upon the rights of other apartment owners.
When using common areas, individuals must act in accordance with the law, the management plan, and the principle of good faith

Using a common area for purposes other than its intended use and infringing upon the rights of other co-owners is clearly against the law. Therefore, the unauthorized use of common areas in a condominiumconstitutes a violation of both the law and contractual agreements.

3.2. Making Changes and Additions to Common Areas

As a rule, regarding changes, alterations, and additions to common areas:

Unanimity of the co-owners is required (especially in transactions that change the nature of a common area),
In some cases, a qualified majority (such as 4/5) is foreseeable.
The management plan may contain binding provisions on this matter, but it cannot contradict "mandatory legal provisions".

For example:

Enclosing the roof and adding it to an independent section,
Converting the shelter into an apartment or workplace,
The allocation of a portion of the garden to a single homeowner,
Numbering the parking area and using it effectively as private property

Such actions often the explicit consent of all property owners . Otherwise, it constitutes unauthorized use.

3.3. Binding Nature of the Management Plan and Decisions

In condominium ownership the management planserves as a kind of constitution for the co-owners. The management plan includes:

Specific provisions regarding the use of common areas,
How to allocate spaces such as gardens and parking lots,
Sharing of income from income-generating activities

Topics such as these can be addressed.

However, the management plan;

Mandatory legal provisions,
To public order,
specific regulations such as those related to zoning and shelters
. For example, converting a shelter area into an apartment, even through a management plan, is not legally acceptable.

4. Detection and Documentation of Unauthorized Use

4.1. Elements of Evidence

Before filing a lawsuit alleging improper use of common areas in a condominium , it is important to have the situation well-documented. The basic evidence used in practice includes:

Photos and videos showing the common area.
Records and notices that can show the date of unauthorized use.
Minutes and decisions of the homeowners' association meeting
Management plan, condominium registry records, architectural project
On-site inspection and expert examination to be conducted by the court if necessary.

These documents will be crucial, especially in injunction and reinstatement cases.

4.2. Notary Notice and Verification Procedures

Before filing a lawsuit, the following steps are often recommended:

A written warning should be given to the person engaging in improper use by the building manager or property owner .
If necessary, a notarized notice will be sent.
The current condition of the common area must be documented by a notary public

These actions both reveal the bad faith of the other party and serve as strong evidence in the legal process.

5. Legal Remedies Available to the Management and Property Owners

5.1. Warning and Settlement Procedure

In the first stage, written warnings within the building, meetings, and reconciliation efforts should be preferred:

The building manager may issue a written warning to a homeowner or tenant who is misusing the property.
The homeowners' association can convene and make a decision to stop the unauthorized use.
If the parties cannot reach a settlement, legal proceedings become inevitable.

Even at this stage, documenting every step taken (minutes, decision book, signed notification, etc.) is important for future lawsuits.

5.2. Action for Prevention of Interference (Prevention of Encroachment)

One of the most common types of lawsuits filed when dealing with the unauthorized use of common areas injunction lawsuit. The aim of this lawsuit is:

The unlawful interference with the common area must stop
Preventing a recurrence of the intervention,
If necessary, the common area will be restored to its original state.

This case:

usually the Civil Court of Peace in the location where the property is situated .
The plaintiff may be one or more property owners or managers.
The defendant may be the property owner, tenant, or third party engaging in the unauthorized use of the property.

5.3. Restoration to Original State (Demolition, Dismantling, Evacuation)

A homeowner in a common area:

He built a wall,
He covered it with glass,
Converted into a room or storage area,
If someone has placed a shed or container in the garden , the demand is not only for the intervention to stop, but also for the common area to be restored to its original state

The court, in line with the established precedents of the Court of Cassation:

If it decides that the unauthorized intervention was illegal,
The court may order the demolition, dismantling, or removal of the structure in question .
If necessary, enforcement proceedings are initiated through the enforcement office; the costs are generally borne by the losing party.

5.4. Claim for Unjust Enrichment (Compensation for Unlawful Use)

When a common area is used by a single homeowner for an extended period, preventing other homeowners from using it, a significant claim that arises unlawful use.

Ecrimisil is compensation for the cost of use lost due to unlawful occupation
Each property owner has the right to claim compensation for unauthorized use of property in proportion to their share.
Generally, a 5-year period is considered for statute of limitations purposes.

For example, if a portion of a shared parking area is used as a "personal parking space" by one homeowner for years, the other homeowners may claim compensation for that period.

5.5. The Role of the Manager and the Board of Apartment Owners

Executive:

They are responsible for protecting common areas and ensuring their appropriate use.
To prevent unauthorized use, the homeowners' association can take decisions to that effect.
They have the right to file lawsuits when necessary.

Apartment owners' association:

It makes essential decisions regarding common areas
The management plan can be changed (with the necessary majority),
It can authorize the administration to put an end to the unauthorized use.

However, even board decisions mandatory legal provisions and public order ; for example, a decision cannot be made to completely abolish a shelter and convert it into an apartment.

6. Management's Responsibility in Cases of Misuse

In some cases, managers and board members who condone or actively encourage the misuse of common areas may also be held liable

If the manager fails to perform their duties properly, does not prevent improper interference, or even facilitates it;
Damages incurred by other co-owners (e.g., inability to collect compensation for unauthorized use of property, court costs, etc.) can also be claimed from the building manager.

Therefore, the manager:

Unbiased,
Compliant with the law and management plan,
It is extremely important that they act in a documented and transparent manner.

7. Criminal Aspects and Administrative Sanctions

the unauthorized use of common areas in condominiums often presents itself as a private law dispute, some actions can also have consequences in terms of criminal law and administrative sanctions.

Unlicensed construction in a common area that deviates from the project plan may constitute a violation of zoning regulations; the municipality may order demolition and impose fines .
If damage is caused to the property of other co-owners during the use of a common area, of damaging property may arise.
Noise pollution, environmental pollution, and hygiene violations may result in administrative fines under the Law on Minor Offenses

Therefore, it should be remembered that there are risks not only in terms of civil law, but also in terms of administrative and criminal law.

8. Irregular Use of Common Areas in Supreme Court Jurisprudence

The fundamental principles derived from the established jurisprudence of the Supreme Court of Appeals serve as a guide regarding the irregular use of common areas in condominium ownership . In summary:

8.1. The Principle of Equality and Unanimity in Common Benefit

Every homeowner has an equal and fair right to use the common areas .
It is generally not acceptable for one homeowner to use a common area in a way that gives them a privileged or de facto superiority over others.
Actions that fundamentally alter the use of common areas the unanimous consent of all co-owners ; otherwise, the action is unlawful.

8.2. Roof, Terrace and Facade Interventions

In Supreme Court rulings:

Enclosing the roof or terrace and incorporating it into an independent unit,
Unauthorized installation of air conditioner outdoor units, awnings, advertising billboards, and satellite antennas on the building's exterior

In many cases, an unlawful interference with the common area ; decisions to prohibit the interference and restore the area to its original state have been upheld. Specifically:

Distorting the exterior appearance of the main property,
Can affect the static structure,
Actions that alter the nature of common areas
are subject to much stricter controls.

8.3. Misuse of Shelter, Caretaker's Quarters and Parking Lot

The Supreme Court, in particular:

Shelter areas must be protected according to legislation, and their conversion into apartments/workplaces/warehouses cannot be permitted even with a management plan and unanimous vote.
The caretaker's apartment and similar areas retain their common area status and cannot be allocated to a single apartment owner unless there is a different arrangement in the title deed.
It emphasizes that parking areas are common spaces; who will actually use them and in what order should be determined according to objective criteria .

9. Frequently Asked Questions in Practice

9.1. Is Placing a shoe rack or cabinet in the hallway considered improper use?

Stairwells, landings, and corridors common areas , and permanently occupying them with items such as cabinets, shoe racks, and chests can restrict the right of way for other residents and jeopardize fire safety.

While temporary and limited uses that do not obstruct passage are sometimes tolerated,

Permanent uses that actually occupy the space are in most cases unlawful use and may be subject to an injunction action.

9.2. Can a Shared Garden Be Allocated to an Apartment or Business Premises?

A communal garden, unless specifically regulated in the management plan, the common use of all owners . The actual allocation of a garden to an apartment:

Even if all owners initially gave their explicit consent,

Objections from the new homeowners could create a dispute.

Therefore, if the exclusive use of a section of the garden is to be considered:

The management plan must contain a clear provision
If possible, a note should be added to the land registry
Otherwise, it should be considered that a lawsuit may be filed in the future on the grounds of "unauthorized use of common areas".

9.3. Can the Shared Parking Lot Be Allocated to Specific Individuals by Management Decision?

In the shared parking lot:

There may be more or fewer parking spaces than the number of independent sections

In this case, a fair usage system (route, lottery, numbering, rotational use) can be established.

Management plan and decisions of the homeowners' association:

objective and equitable criteria.

Unfair privileges should not be granted to certain individuals.

Otherwise, the parking spaces that have been effectively allocated could, in the long run, of Irregular Use of Common Areas in Condominium Ownership and lead to claims for compensation for unauthorized use.

9.4. Can a solar energy system or base station be installed on the roof?

Since the roof is a shared area:

Installing a solar energy system

GSM base station installation,

Installing an advertising board or billboard

Such processes the consent of all property owners, technical projects in accordance with relevant legislation, and licensing procedures. Otherwise:

Both the improper use of the common area,
Furthermore, administrative and legal liability may arise due to violations of zoning and permit regulations.

10. Mediation and Litigation in Dispute Resolution

In disputes arising from condominium ownership:

Especially since this is a structure involving people who will be living together for a long time,
Mediation and conciliation methods can often provide faster and more practical solutions.

Although mediation is not a mandatory requirement for many injunction and restoration cases;

The parties, by resorting to voluntary mediation,
They can reach an agreement on issues such as sharing common areas, usage, partial allocation, compensation for unauthorized use, and expense sharing.

When legal action is taken:

Strongly prepared evidence,
Careful evaluation of the management plan, projects, photographs, minutes, and expert reports,
It is important to strategically formulate demands for preventing interference, restoring the property to its original state, and claiming compensation for unlawful use.

11. Conclusion and Practical Recommendations

The unauthorized use of common areas in condominiumsis one of the most sensitive and frequently litigated aspects of apartment and housing complex living. It can both reduce the quality of life and lead to serious financial and legal consequences.

In summary:

Common areas should be used in accordance with the law, the management plan, and the decisions of the homeowners' association, the principles of fairness and equality .
A homeowner's occupation of common areas based on the assumption of "de facto power" will inevitably lead to disputes and litigation in the long run.
The manager should be active and impartial in protecting common areas and should intervene promptly in cases of unauthorized use.
When unauthorized use is detected, written warnings, settlement, and mediation should be attempted first. If these methods fail, then for injunction, restoration to the original state, and compensation for unlawful use should be considered.
Each specific case should be evaluated on its own merits; the legal strategy should be determined by considering the management plan, architectural project, land registry records, municipal files, and Supreme Court precedents together.

In this context, for condominium owners or managers facing issues of unauthorized use of common areas , seeking timely professional legal assistance will often be the most rational and economical solution, both to prevent the dispute from escalating and to avoid loss of rights

Lawyer, law, condominium ownership, common areas, real estate.

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Illegal Use of Common Areas in Condominium Ownership