Independent Unit, Rights of the Independent Unit Owner and Land Share, Correction of Land Share

Relationship between Independent Unit and Land Share

The most important element forming the basis of the Condominium Law is the inseparable link between the "independent unit" and the "land share" attached to it. To understand the legal nature of ownership, it is necessary to examine how these two concepts are intertwined.

What is an Independent Unit?

According to Article 2 of the Condominium Law, an independent unit is a part of the main real estate that is separately and independently usable and subject to independent ownership. An apartment, shop, office, or warehouse acquires the status of an "independent unit" if it is subject to condominium ownership. An independent unit has a separate page and number in the title deed. This type of ownership grants the individual full control over their own property, while also providing shared ownership rights with other owners over the common areas of the building.

What is Land Share and Why is it Vital?

Land share is the "ownership ratio" of the land on which the building is constructed, allocated to each independent unit. In a building, you own not only the apartment itself, but also its share of the land.

• Importance: Land share determines the owner's contribution rate to the building's common expenses.
• Voting Rights: Your voting power in the homeowners' association is determined by your share of the land.
• Reconstruction: When a building is demolished and rebuilt, or in cases of expropriation, the primary criterion determining the extent of your rights is your share of the land.

Unity of Land Share and Independent Unit

Land share cannot be transferred, seized, or subjected to any other right separately from the independent unit. This means that when you sell an apartment, the land share attached to that apartment automatically passes to the new buyer. The inseparability of these two elements is the most fundamental legal principle of condominium ownership. If the land share could be separated from the independent unit, the integrity and administrative functioning of the building would legally collapse.

Purpose of Use of the Independent Unit

The independent unit can only be used for the purpose for which it is registered in the land registry (residential, commercial, warehouse, etc.). For example, using a place registered as a "residential" in the land registry as a "commercial" (workshop or office) is contrary to both the Condominium Law and zoning regulations. This situation can lead to other owners requesting intervention from the court and the cessation of the use.

An independent unit is essentially a living space with legally defined boundaries. However, what governs this space are the land share recorded in the title deed and the restrictions in the management plan. For an investor, what determines the size of the property is not the square footage of the apartment, but the ratio of the land share recorded in the title deed to the total land area. This ratio is a hidden factor that determines the future value of the property.

Correction of Land Share: Cases Where the Allocated Share is Less Than the Actual Amount

One of the most technical and contentious areas of the Condominium Law is the disproportionate allocation of land shares to independent units compared to their actual value or size. If some apartments in a building are allocated less or more land shares than they are entitled to, this completely disrupts the financial balance of the property.

Why does land share disproportion occur?

Land shares are determined by the owners or contractor during the building's construction phase, specifically at the permit stage. However, due to errors during the construction process, changes to the architectural project, or the subsequent merging/division of some apartments, significant discrepancies can arise between the land shares indicated in the title deed and the actual value of the individual units. For example, if one of two 100-square-meter apartments has a land share equal to half that of the other, this is unfair.

Land Share Adjustment Lawsuit (Article 3 of the Condominium Law)

If the land shares are not proportionate to the value of the independent units, any homeowner who has been wronged or suffered a loss of rights a "Lawsuit for Correction of Land Shares" .

• Jurisdiction: This case will be heard in the Civil Court of Peace.
• Purpose: The court has the sizes, locations, facades, and values ​​of the independent units examined by expert appraisers. Then, it rules that any erroneous land shares should be annulled and re-registered with equitable ratios.
• Exception: There is no "statute of limitations" for this case; it can be filed at any time as long as the building exists. However, if a very long time has passed since the building's construction and the co-owners have knowingly accepted the situation (tacit acceptance) during this period, the courts may sometimes consider this situation within the framework of the "principle of good faith."

The Outcomes of This Case

When land share is adjusted, the land share of all other independent units in the building is indirectly changed as well; because the total share must be 1 (or 1000/1000). An increase in one owner's share means a decrease in the shares of others. Therefore, a land share adjustment lawsuit is a case that closely concerns all apartment owners in the building and fundamentally changes the ownership structure.

Risk for Foreign Investors: Pre-Acquisition Review

For foreign investors purchasing real estate in Türkiye, the most important "due diligence" step is checking whether the land share of the independent unit to be purchased is compatible with other similar units in the building. If the land share of the property you are purchasing is lower than it should be, your share will decrease and you will have less square footage if the building is demolished and rebuilt in the future.

Solution

If you determine that the land share calculation is incorrect, you should immediately consult a real estate lawyer to prepare a "comparative analysis of land share ratios." This report is also a powerful tool for reaching a settlement with the other party before filing a lawsuit. Remember, the land share is the "core value" of the property; an incorrect calculation directly impacts the property's true long-term market value.

 Transfer of Share by Independent Unit Owner and Restrictions

In a condominium building, the owner of an independent unit does not possess unlimited rights of "use, enjoyment, and disposal" granted by ownership rights. In particular, the right of disposal (transfer) is subject to certain legal and contractual limitations. This section addresses the legal obstacles and limitations that may be encountered in the transfer of ownership.

The Basic Limit of Savings Authority: The Management Plan

According to Article 28 of the Condominium Law, the "Management Plan" constitutes a "contract" for the condominium owners. Some management plans may contain specific restrictions regarding the transfer of an independent unit. For example, the management plan of a residence may include restrictions stating that "the independent unit can only be transferred as a residence or as a business operating in a specific sector." If these restrictions are recorded in the land registry, they are binding on all owners and new buyers.

Legal Right of Pre-emption (Right of First Instance)

In properties subject to co-ownership, if one co-owner sells their share to a third party, the other co-owners a legal right of pre-emption (right of first refusal) arising from the law. However, in properties that have been converted to condominium ownership, i.e., registered as "independent units" in the land registry, there is no legal right of pre-emption.

• Exception: If the property is still under a condominium ownership arrangement and registered as "shared ownership" in the land registry, the right of pre-emption may arise. However, once it is converted to a condominium ownership, the independent unit becomes a separate property, and the other apartment owners no longer have this right of pre-emption.

Administrative Obstacles During the Transfer Process: Termination of Employment

When transferring ownership of an independent property, there are mandatory documents that must be presented to the land registry office:

• DASK: Compulsory earthquake insurance must be obtained.
• Municipal Appraisal Certificate: A document certifying that property tax has been paid and that the appraisal certificate is up-to-date.
• Certificate of No Debt: Some management plans may stipulate that a certificate stating "there are no outstanding dues" must be obtained from the management before the transfer of ownership. While this is not a direct restriction on ownership, it is an administrative obstacle that could stall the transfer process.

Easements and Obligations

The person acquiring the independent unit also inherits all easements (right of way, right to water, etc.) and obligations arising from the management plan associated with that unit. For example, if there is a "restoration" lawsuit filed due to an intervention by the previous owner in a common area, this lawsuit will be directed against the new owner. In other words, debts and obligations are transferred "along with the unit.".

Tips for Foreign Investors

When purchasing a property, you should definitely have a lawyer review the "declarations" and "annotations" section in the title deed. Some sites may contain special annotations such as "prohibition of sale to foreigners" or "approval requirement due to management plan." The existence of these annotations during the transfer process can make the transfer of ownership impossible or significantly prolong the process.

Property rights gain value through their transferability. However, this transfer should not disrupt the overall architectural and administrative discipline of the site. While the law encourages the free transfer of property, it also incorporates "legal filters" into the transfer process to protect the peace of the site and the rights of other owners.

Differences Between Joint Ownership and Co-ownership

According to the Turkish Civil Code, there are two main types of ownership: Joint Ownership (Co-ownership) and Co-ownership (Ownership in Partnership). In condominium ownership systems, these concepts are sometimes confused or combined. Understanding this distinction is vital for understanding the power of disposition of property.

Joint Ownership (Co-ownership)

In co-ownership, each co-owner's (owner's) share in the property is clearly defined and mathematically described (e.g., 1/4 share).

• Right of disposal: Each shareholder is independent of their own share. They can sell their share, mortgage it, or bequeath it to their heirs.
• Administration: Shareholders make decisions regarding the management of the property by unanimous or majority vote. The death of a shareholder does not affect the rights of the other shareholders; the deceased's share passes to their heirs.

Joint Ownership (Co-ownership)

Joint ownership is a partnership relationship arising from law or contract (often seen in inheritance). Here, the shares are not defined; everyone has a right to the entire immovable property.

• Disposition of Property: In jointly owned property, individual sales of shares are not permitted. Unanimous consent of all co-owners is required for any transaction involving the property .
• Feature: This usually occurs when an inherited property has not yet been divided (shared).

The Relationship Between Condominium Ownership and Ownership Types

In a condominium building:

1. Independent Unit Ownership: Each apartment (independent unit) is generally under "independent ownership".
2. Shared Ownership in Common Areas: Apartment share ownership . This means everyone has a net share in the apartment building's common areas or garden in proportion to their land share.
3. Exception (Joint Ownership): If the owner of an apartment has died and the heirs have not yet completed the transfer of ownership in the land registry, a temporary "joint ownership" is created for that apartment. In this case, the heirs can only decide on the management or transfer of the apartment together.

Which one in which case?

• Inheritance Status: Unless a co-ownership agreement is made among the heirs, joint ownership is established according to inheritance law.
• Purchase: If you and a friend go to the land registry office and buy an apartment with a 50%-50% share, this is co-ownership.

Critical Warning for Foreign Investors

If you own property in a building and your neighbor has "joint ownership" (inherited through inheritance) of their apartment, you may encounter difficulties in making management decisions regarding that apartment. This is because the management will have to obtain the signatures of all heirs (or a representative appointed by the court). If you share a property through joint ownership (for example, through inheritance), you must complete the "transfer of ownership" procedures and clearly define the shares to gain the freedom to dispose of the property in order to convert it to "co-ownership".

Shared ownership provides flexibility, while joint ownership ensures integrity and control. The proper functioning of a condominium system depends on whether the ownership of the independent units is "shared" or "individual".

 Situations and Special Circumstances Under Which the Independent Unit Can Be Used

Under the Condominium Law, how an independent unit can be used is strictly dependent not only on the owner's personal decision but also on the building's "architectural project" and "management plan." The limits on the usability of an independent unit are one of the aspects that most restrict property rights but also most protect the peace and tranquility of the building.

Suitability for the Project: “Purpose of Allocation”

Whatever the nature of the independent unit is stated in the title deed (residential, shop, office, warehouse), its use must be in accordance with that purpose.

• Unauthorized Use: Using an independent unit registered as a residence as an office, clinic, or workplace is only possible with a unanimous decision of the "board of apartment owners." Changes made without this decision are penalized as "illegal use" by the municipality and can also be subject to legal action by the apartment owners.
• Special Cases: Some independent units (e.g., shops) may be registered in their project plans with technical equipment such as a "chimney system" or "ventilation." Converting these units to another business that does not require technical equipment (e.g., transforming a stationery shop into a noisy workshop) may be legally prohibited if it infringes on the rights of neighbors.

Add-ons and Usage Rights

According to Article 2/b of the Condominium Law, an "annex" is a space located outside the independent unit but directly allocated to that unit (such as a coal cellar, parking area, or storage room).

• Extensions may only be used by the owner of that specific unit. However, restrictions may be imposed, even if the extension is an extension, if its use damages common areas or disrupts the overall layout of the building.
• Transfer Restriction: Annexes cannot be transferred separately from the independent unit; they can only be transferred together with that independent unit.

Limitation of Usage Rights: "Prohibition Against Disturbing the Disturb"

When using your independent unit, the "principles of fairness" in Article 18 of the Condominium Law are the biggest limiting factors. Owning your unit does not mean you can engage in any activity you wish in that space.

• Violation of Morality and Public Order: If a private unit is used for a purpose that is contrary to general morality and public order (e.g., illegal activities), the manager or co-owners may immediately apply to the Civil Court of Peace to request that the use be prohibited.

Foreign Investors and Special Authorized Uses

The use of independent units by foreign owners or tenants through short-term rentals (Airbnb, etc.) is one of the most frequently debated issues in recent years. If the building's management plan or the homeowners' association resolution prohibits "daily/short-term rentals," compliance with this rule is mandatory. Otherwise, other homeowners may demand that this activity be stopped and file a lawsuit for damages.

Changing the Purpose of Use

If you wish to permanently change the intended use of a private unit:

1. Architectural Project Revision: An application must be submitted to the municipality to update the project.
2. Condominium Owners' Approval: According to the Condominium Law, unanimous consent of all condominium owners is required, especially when a residential property is converted into a business premises.

An independent unit is a property owner's "fortress," but this fortress is situated within the "main body" of the building. Where your right to use a unit conflicts with your neighbors' right to peace, the law always favors the side that protects the overall balance of the building. Understanding this boundary will allow you to use your property in the most efficient and trouble-free way.