One of the biggest problems in public housing and apartment buildings is that one or more of the owners do not pay their dues regularly. To overcome this problem, the Condominium Law provides for the possibility of legal mortgage (Article 22/II of the TCL). Consequently, a mortgage can be established in favor of other owners on the independent section of the owner who does not pay his/her debt. Here, the unpaid items can be expressed as advance payment, common insurance and expenses.
It is necessary for the court to determine that the expenses and advance payment debt has not been fulfilled. The request for registration of the mortgage must be made by the manager in cases where there is a manager, or by one or more of the condominium owners if there is not. On 14.11.2007, with the amendment made by Law No. 5711, it was stated that the last paragraph of Article 893 of the Turkish Civil Code No. 4721 will be applied to the legal mortgage. Due to this provision, it is not valid for the creditors of the condominium owner to waive this statutory mortgage right in advance. If there is a provision in the condominium agreement or management plan to waive the mortgage right, it will be invalid. Consequently, after the right arises, the creditors of the condominium owner may not use this right if they wish.
The order of the statutory mortgage right is according to the date of registration in accordance with the general principles (Art. 1022 of the TCC). On the other hand, according to Article 22 f. 3 of the TCL, “The receivables of the condominium owners from the other responsible persons who do not pay the expense debt shall have priority.” It should be understood from this provision that “the priority is only on the monetization value of the independent sections to which the common expenses are related”.
Turkish Condominium Law contains regulations that provide solutions to legal disputes and problems arising from collective living. One of these is the guarantee of common expenses regulated under Article 22 of the TCL. Various expenses arise in living spaces where condominium ownership exists. For example, security, cleaning, lighting and heating expenses, payments related to the apartment attendant, and expenses related to the common areas of public housing are some of them. From time to time, it is observed that the condominium owners do not pay the costs that arise as expenses or advance payments. This situation makes the already difficult condominium life even more difficult. For these reasons, the legal order has regulated the registration of legal mortgages subject to registration to guarantee the receivables in condominium ownership.
For a legal mortgage to be established in condominium ownership, certain conditions must be met. These conditions can be expressed as the conversion of the main immovable into condominium ownership, the existence of an expense and advance debt of the condominium owner, the inability to collect the expense and advance receivables from the relevant persons, the inability to obtain results from the lawsuit filed against the condominium owner or jointly liable persons, the determination of the debt by the court, and finally, the necessity of a request for the registration of the mortgage.
Pursuant to Article 22 f. 2 of the TCL, the main immovable must have been converted into condominium ownership for the legal mortgage to be applicable. However, legal mortgage may also be possible in the case of a condominium easement. Since expenses and advances may arise in Turkey even before the conversion to condominium ownership, the existence of a statutory mortgage must be accepted. For this purpose, the construction of the main immovable property where a condominium easement has been established must have been completed and at least 2/3 of it must have started to be used. Considering that a building has been used for ten years or more without being transferred to condominium ownership, it would be unfair not to allow the possibility of mortgage.
If a common expense is caused by the negligent behavior of one of the condominium owners, the participants of the expense may apply to the relevant condominium owner or the person who caused the expense for the payments they have made. Here, the other condominium owners should be able to benefit from the legal mortgage right set forth in Article 22 f. 2 of the TCL in proportion to the payments they have made against the condominium owner who caused the expense with his negligent behavior.
In condominium ownership, those who benefit from one of the independent sections on a continuous basis based on a lease agreement, right of residence or any other reason are also jointly and severally liable for the expenses and advance payments and delay compensation (Article 22/I of the TCL). However, the tenant’s liability is limited to the amount of rent he is obliged to pay, and the payment he makes is deducted from the rent debt. In addition, the tenant is not responsible for the expenses directly related to the main property and the manager cannot demand payment from the tenant in case of such expenses.
Mortgage is possible if the common expense and advance receivables of the condominium owners are demanded from the debtor and joint debtors, if any; if the receivable is not obtained, if the receivable cannot be obtained completely despite applying to the court or execution.
Another condition for the registration of the statutory mortgage right is that the lawsuit filed against the condominium owner should not yield any results. The same is also valid if no result is obtained from the proceedings initiated. For the registration of the legal mortgage in condominium ownership, the debt of the owner must be determined by the court. If the debtor accepts the debt, registration can be made without the need for a court decision. Here, the registration of the mortgage is requested by going to the title deed with the debtor’s declaration of acceptance. In case of acceptance, there is no need for a court decision.
The application for registration must be made by the administrator or, if there is no administrator, by the condominium owner (TCL 22/II). Consequently, if there is a manager, the condominium owner will not be able to apply for registration. For the registration of the legal mortgage, the consent of the debtor condominium owner is not required. However, the land registry officer must notify the landlord of this situation. Since the right to request registration is of a personal nature, the new owner is not liable for the debt when the independent section is transferred to a third party before the mortgage is registered.
The mortgage amount is registered for the benefit of the floor owners in proportion to the land share of each of them. One or more of the floor owners may have paid more than their share of the amount not paid by the debtor floor owner, according to their land share ratios. This situation is stated in the court decision and the mortgage amount is divided among the floor owners.
Statutory mortgage right, condominium ownership, independent sections, public housing, common expenses debt
