What are the legal avenues available for correcting allocated land shares, and what are the possible outcomes of such applications?

It is necessary to examine whether it is possible to correct the land share allocated to an independent unit in a building subject to condominium ownership, and if so, how this correction can be carried out.

Identification of Relevant Legal Rules:

Article 3/2 of the Condominium Law regulates this; independent units subject to condominium ownership are allocated a land share on the land on which the main building is located, in proportion to the value of the independent unit. If there is a disproportion between the value of the independent unit and the value of the land share allocated to that unit, or if no such land share has been allocated, the owner of the relevant unit may file a lawsuit for the correction of the land share. Indeed, according to Article 3/2 of the Condominium Law, "Condominium ownership and easement rights are established by clearly indicating the land share allocated in the project, in proportion to the values ​​of each independent unit of the main real estate subject to this ownership, calculated according to their location and size, in accordance with the principles of common ownership. In cases where the land shares are not allocated proportionally to the shares of the independent units, each condominium owner or easement holder may apply to the court for the rearrangement of the land shares. The land share allocated to each independent unit pursuant to this paragraph cannot be changed due to any subsequent increase or decrease in the value of those units. The provisions of Article 44 are reserved."    In practice, these cases are referred to as land share adjustment cases.

The land share allocated to an independent unit is often not of practical significance. However, in disputes concerning the management of the main building, the obligation to contribute to expenses, and the use of common areas, and especially in the context of applications carried out under Law No. 6306 on the Transformation of Areas Under Disaster Risk, the plaintiff seeking correction of the land share files this lawsuit against all other co-owners. In determining the land share allocated to an independent unit, factors such as the type of unit, its floor, area, heating system, lighting, architectural use and location, facade, and view are taken into consideration. This lawsuit, based on property rights, can be filed at any time, regardless of the statute of limitations or forfeiture of rights, as long as the building subject to condominium ownership retains this characteristic, and the plaintiff can file a lawsuit for correction of the land share against all co-owners. The competent court is the civil court of peace; the authorized court is the court of the place where the property is located.

Relevant Supreme Court Decisions:

Decision Text

(Closed) 20th Civil Chamber “Case Law Text”COURT: Peace Court 2020/1260 E., 2020/1487K.

The local court's judgment, dated and numbered as stated above, regarding the lawsuit for the adjustment of land shares between the parties, was appealed by the Court of Appeals on November 19, 2019, with decision number 2019/3412 E- 2019/6740 K., but the appeal was dismissed due to being time-barred. The plaintiff's attorney requested a correction of the decision. Therefore, after examining all the documents in the file, the following was considered:

DECISION

The plaintiff's attorney argued that their client, having purchased independent unit number 13 with a 12/216 land share in 1995, owned the property in the ... apartment building. They claimed that although their client's land share was higher than that of some other apartments in the same building based on numerous objective criteria such as usable area, location, view, number and size of terraces and balconies, position within the building, and floor level, it was shown as lower in the title deed. Therefore, considering all objective criteria, they requested and sued for the correction of their client's independent unit's land share by increasing it. The court accepted the lawsuit and ruled to cancel the land shares in the property located at "... province, ... district, ... neighborhood, 589 block, 99 parcel" and to correct the land shares to the determined ratios.

Upon appeal by the attorney for some of the defendants, our Chamber, in its decision dated 14/11/2017 and numbered 2017/858 E. – 2017/9430 K., stated: “The subject of the lawsuit concerns the request for correction of the land share. According to Article 3 of the Condominium Law, it is necessary to clearly determine whether the land shares allocated to independent units are proportionate to their values ​​at the time of establishment of the condominium easement or condominium ownership. In conducting this examination, any subsequent increase or decrease in the value of the independent units should not be taken into account; the type, location (facade, floor, etc.), and size of the independent units should be considered when determining the value of each independent unit and, consequently, the land shares to be allocated. Accordingly, if there is a disproportion between the land shares recorded in the title deed and the determined land shares of the independent units in question, the lawsuit should be accepted. From the case file; 14.11.1963 The court ruled to overturn the judgment on the grounds that "no concrete and justifiable reasons were presented that led to disproportionate land shares, which were not taken into account in determining the value of the independent units and consequently the land shares at the time of transition to the condominium ownership, nor was any objection raised against the land shares during the long period that has passed since the establishment of the condominium ownership. For the reasons explained, it was deemed incorrect to accept the land share correction lawsuit instead of rejecting it." The plaintiff's attorney's request for correction of the decision was also rejected. In the trial conducted by the court following the reversal order, the case was dismissed, and the judgment was appealed by the plaintiff's attorney. With its decision dated 19/11/2019 and numbered 2019/3412 E. - 2019/6740 K., our Chamber ruled that "The court decision was served to the plaintiff's attorney on 15.04.2019, the appeal fee was paid on 29.04.2019, and the appeal petition was submitted. In this case, since the 8-day appeal period stipulated in Article 437 of the Code of Civil Procedure has expired, the appeal request is rejected in accordance with the Supreme Court's Unification of Jurisprudence Decision dated 01.06.1990 and numbered 1989/3 E. – 1990/4 K." The plaintiff's attorney requested a correction of the decision.

Upon examination of the case file, it was understood that the first instance court, in its brief and reasoned decision, stated that the appeal period was 2 weeks, and the plaintiff's attorney submitted the appeal petition within this specified period. According to Article 3, paragraph 1 of the Provisional Articles of the Code of Civil Procedure No. 6100; until the commencement date of the regional courts of appeal, which will be announced in the Official Gazette pursuant to Article 2 of the Provisional Articles of the Law No. 5235 dated 26/9/2004 on the Establishment, Duties and Powers of First Instance Courts and Regional Courts of Appeal of the Judicial System, the current provisions of Law No. 1086 regarding appeals shall continue to be applied. According to paragraph 2; Regarding the decisions given before the commencement date of the regional courts of appeal, the provisions of Articles 427 to 454 of Law No. 1086, as they existed before the amendment made by Law No. 5236 dated 26/9/2004, shall continue to be applied until they become final. Files relating to these decisions cannot be sent to the regional courts of appeal. According to the third paragraph; in cases where the regional courts of appeal are given duties in this Law, the provisions of Law No. 1086 that are not contrary to this Law shall be applied until the commencement date of these courts. According to the second paragraph of the same article; Regarding decisions that were appealed before the commencement date of the regional courts of justice, the provisions of Articles 427 to 454 of Law No. 1086, as they existed prior to the amendments made by Law No. 5236 dated September 26, 2004, shall continue to be applied until the decisions become final. Furthermore, Article 437 of Law No. 1086 (Code of Civil Procedure) stipulates an 8-day appeal period against decisions of the peace court. The second paragraph of Article 40 of the Constitution states that the State is obliged to specify the legal remedies and authorities to which the relevant individuals may appeal and the time limits for such appeals in its proceedings. According to Article 297(ç) of Law No. 6100 (Code of Civil Procedure), indicating the legal remedies and their time limits in the judgment is also mandatory. The legislator aimed to ensure that individuals who are unsure or hesitant about which legal avenues to pursue in the face of scattered legislation can effectively and healthily exercise their right to seek justice by providing parties with accurate information regarding legal remedies available against actions taken by state organs, the relevant authorities to appeal to, and the appeal deadlines.

The Constitutional Court, in many of its decisions, has stated that while it is reasonable for applicants to rely on the time limit specified in the reasoned decision, considering the court's obligation to correctly inform the parties about the legal remedy and its time limit, the assessments that reject the petition by accepting the time limit specified in the law as the one specified in the court's decision cannot be considered within the framework of the provisions of the legislation and the limits of predictability. The Court concluded that the interpretation was obtained through an excessively formalistic approach that would make it impossible for the applicants to exercise their right to appeal, and that in this respect, the decision violated the applicants' right of access to court, thus ruling that the right to a fair trial guaranteed under Article 36 of the Constitution was violated. (Constitutional Court decision no. 2014/819 dated 09.06.2016 (published in the Official Gazette no. 29757 dated 29.06.2016)).

In the specific case; the first instance court stated in its brief and reasoned decision that the appeal period was 2 weeks from the date of notification of the decision. The reasoned decision was served to the plaintiff's attorney on April 15, 2019, and the plaintiff's attorney paid the appeal fee on April 29, 2019, within the 2-week period stated in the brief and reasoned decision, and filed an appeal. For this reason, considering the right to a fair trial and the right of access to justice, the plaintiff's attorney's request for correction of the decision is accepted, and it is decided that the appeal petition is filed within the time limit. In examining the plaintiff's grounds for appeal: According to the documents in the file, the evidence on which the decision is based, and the legal grounds; The lawsuit concerns a request for the rearrangement of land shares. Since no concrete and justifiable reasons were presented to justify the disproportionate distribution of land shares, which were not considered in the valuation of the independent units and consequently in the determination of land shares on the date of transition to condominium ownership (November 14, 1963), and since no objection was raised against the land shares during the long period since the establishment of the condominium ownership, and it is understood that subsequent developments and changes cannot be taken into account, the decision to dismiss the lawsuit is not incorrect.

CONCLUSION: For the reasons explained above, the request of the plaintiff's attorney for correction of the decision is accepted, and the decision of our Chamber dated 19/11/2019 and numbered 2019/3412 E.- 2019/6740 K., regarding the rejection of the appeal request due to expiration of the time limit, is OVERTURNED. The decision of the Anatolian 16th Civil Court of Peace dated 18/12/2018 and numbered 2018/605 E-2018/987 K., which was found to be in accordance with procedure and law in the appeal review, AFFIRMED by majority vote on 02/06/2020.

DISSENTING OPINION

Although decisions of the civil court of peace can be appealed within 8 days, the local court stated in its summary judgment that the appeal period was "two weeks." Therefore, whether the defendant's appeal, filed 13 days after the notification of the decision, should be accepted within the time limit must be evaluated in terms of current legislation and legal stability. In the judicial process that begins with the filing of a lawsuit, there are certain actions that the court and the parties must take to reach a decision, and each action must be performed within a specific time frame. These time intervals, which gain normative value through procedural rules, are called deadlines. Thus, the performance of procedural actions is not left to the wishes or initiative of the parties or the court in terms of time. Once a dispute has been brought before the court, it has been transferred to the public sphere, a platform that concerns the interests of society. Therefore, society benefits as much as the parties in concluding a lawsuit within a reasonable time. Thus, the aims sought to be achieved in civil procedural law with the adoption of norms regarding deadlines are: The purpose of time limits can be summarized as follows: ensuring justice as soon as possible, preventing arbitrariness, preventing the court from being preoccupied with the same case for a long time, in other words, preventing it from being unable to allocate sufficient time to other cases and matters; ensuring that the case is concluded within a reasonable time in accordance with mandatory norms of a supranational and national nature, ensuring that the trial is conducted in a certain order and with a predictable timeframe, in other words, ensuring that the trial is conducted fairly. A significant portion of the time limits are those set for the parties. The parties can or must perform certain actions within these time limits. Actions not performed within this period cannot be performed again and result in consequences for the party who missed the deadline. Time limits set for the parties are divided into two categories: those specified in the law and those specified by the judge. Time limits specified in the law are those foreseen by the law, such as the response period and the appeal period. These time limits are definitive, and whether an action has been performed within the legal time limit is considered ex officio by the court. Time limits determined by the judge, on the other hand, are generally not definitive. The judge may, after hearing both parties and based on justifiable reasons, shorten or lengthen the time limit he/she has set, in accordance with Article 90/2 of the Code of Civil Procedure (HMK) No. 6100. The judge may also decide that the time limit he/she has set is final (HMK m.94/2, HUMK m.163).

As mentioned above, while there are situations where the judge can determine the time limit, the judge does not have the authority to modify the time limits set by law. In other words, a time limit prescribed by law cannot be extended or shortened by the judge. The time limits for appeals are also definitive time limits regulated by law and must be observed ex officio.

The provision of the temporary article 3 (1) of the Code of Civil Procedure No. 6100 is as follows: “Until the date of commencement of duty of the regional courts of appeal, which will be announced in the Official Gazette in accordance with the temporary article 2 of the Law No. 5235 on the Establishment, Duties and Powers of the First Instance Courts of the Judicial System and the Regional Courts of Appeal, dated 26/9/2004, the current provisions of Law No. 1086 regarding appeals shall continue to be applied.” The version of Article 437 of the Code of Civil Procedure No. 1086 before Article 16 of Law No. 5236, which amended it, was as follows: “The appeal period against the decisions of the peace court is eight days. This period begins to run from the date of formal notification of the judgment to each of the parties…” For all these reasons, except for the exceptional cases specified in the law, the judge cannot increase or decrease the periods in the law. Although the appeal period against civil court decisions is 8 days according to the current law, I cannot agree with the majority opinion because the judge erroneously stated in the judgment that the decision could be appealed within 2 weeks, as this does not grant any rights to the appealing party.

Supreme Court Decision – 20th Civil Chamber, Case No. 2017/2569, Decision No. 2017/6174, Date: July 4, 2017

COURT: Civil Court of Peace

PLAINTIFFS: … and others,

DEFENDANTS: … and others - … and others.

Following the request by the plaintiffs, ... and others, represented by Attorney ..., for a hearing before the Court of Cassation to review the judgment dated 15/07/2015, which was rendered at the end of the trial between the parties, the hearing was scheduled for 04/07/2017. Upon notification, the appellants, ... and others, represented by Attorney ..., and the defendants, ... and others, represented by Attorney ..., and defendant ... appeared; no one else was present. The hearing commenced. After deciding to accept the appeal petitions, which were found to be filed within the prescribed time limit, the oral statements of those present were heard, and the hearing was declared closed. The case was adjourned for decision. Subsequently, all documents in the file were examined, and the necessary considerations were made:

DECISION

In the lawsuit petition, the plaintiffs' attorney stated that their clients and the defendants are co-owners of a building constructed on the land registered in the land registry as plot 105, block 397, parcel 65 in the district of …, neighborhood of …, and that the allocation of land shares to the independent units was not proportionate to their values. They argued that this could lead to problems in the future and that a correction of the land shares might be necessary. Therefore, they requested a fair and equitable arrangement of the land shares of the independent units on the property, proportionate to their current values. The court ruled to dismiss the lawsuit filed on behalf of …, …, …, … (new owner …), … because the management plan had been signed. The court accepted the plaintiffs' attorney's claim regarding the other plaintiffs, …, …, …, … and the heirs of …, … …, …, based on the final expert report dated September 23, 2014. It was decided to correct the land shares of the immovable property numbered 105 plot, 397 block, 65 parcel in ... district, ... province, and the judgment was appealed by the attorneys of some of the plaintiffs, Attorney ..., some of the defendants, Attorney ..., and the attorney of defendant ..., Attorney ...

The lawsuit concerns a request for the rearrangement of land shares allocated to independent units.

Article 3 of Law No. 634 on Condominium Ownership stipulates that condominium ownership or condominium easement shall be established by clearly indicating the land share allocated to each independent unit of the main building subject to this ownership, in proportion to its value at the time of establishment of the condominium easement, or, in the case of direct transition to condominium ownership, at that date, according to the principles of common ownership. It further states that in cases where the land shares are not allocated proportionally to the value of the independent units, each condominium owner or condominium easement holder may apply to the court for the adjustment of the land share. The first condition for the rearrangement of the land shares is that the land shares have been determined disproportionately to the values ​​of the independent units

In claims based on specific issues, the court must evaluate all evidence and compare the value of the independent unit with the land share allocated to that unit to ensure equivalence. When conducting this process, factors such as the type of independent unit, its floor, area, heating system, lighting, architectural use and location, facade, and view are taken into consideration; changes in zoning status, type, and view after the valuation date, as well as increases and decreases in value due to maintenance and repair work, are not taken into account.

In the specific case, no concrete and justifiable reasons were presented that were not taken into account in determining the value of the independent units and consequently the land shares on the date of the transition to condominium ownership on October 8, 1974, thus leading to a disproportionate distribution of land shares. Furthermore, the expert panel did not clearly identify any error requiring correction in the land shares registered in the land registry based on the elements explained above regarding the values ​​at the time the condominium ownership was established. Moreover, no objections were raised regarding the land shares during the long period since the establishment of the condominium ownership. For these reasons, it is deemed incorrect to accept the lawsuit for the correction of land shares based on an abstract and general expert report lacking any evaluation or justification, instead of rejecting it.

CONCLUSION: For the reasons explained above, the appeal of the plaintiffs' attorney is rejected, and the appeals of the defendants' attorneys, ... and others, and ... are accepted, and the judgment is REVERSED. It is unanimously decided on July 4, 2017, that 1480 TL in attorney's fees, in accordance with the Attorneys' Fee Tariff in effect on the date of the hearing at the Court of Cassation, shall be collected from the plaintiffs and given to the defendants, ... and others who were represented by counsel, and that the appeal fee shall be refunded upon request.