Lawsuit for Correction of Land Share in Apartments Not Proportional to Their Value
What is Land Share and Why is it Important?
Land share refers to the ownership share of each apartment in an apartment building on the main plot. According to the Law on Condominium Ownership, when condominium ownership is established in a building, each independent section (apartment) is given a land share proportional to the value of that apartment. In other words, the floor where the apartment is located, its size, and its view determine the value of that apartment, and the land share should be calculated fairly according to this value. The Supreme Court has also emphasized that many criteria such as the area of the apartment, its location, the floor it is located on, its façade, and its view should be evaluated together when determining the land share.
Land share plays an important role in the rights and obligations of the apartment owners. For example, issues such as the right to vote in the apartment management, the share of participation in common expenses, and the price to be paid to the owners in the event of urban transformation or expropriation are determined according to the land share. Therefore, determining the land share correctly is of critical importance for ensuring a fair sharing among the apartment owners.
The Problem of Wrong Determination of Land Share
In practice, land shares can sometimes be determined incorrectly in a way that does not reflect the real values of the flats. For example, dividing by the number of flats in the building and giving equal land shares to each flat or distributing land shares in an unjust manner that is not proportional to their values is a common but wrong and unfair practice. In such a case, a small flat on the basement floor and a large flat with a sea view on the top floor will have the same land share, which is clearly against equity. Determining the land share disproportionately to the value will cause the owners who are given a lower share to suffer in matters such as common expenses and the right to speak in the management. Especially during the reconstruction (urban transformation) process of the building, wrong land share distributions may also unfairly affect the amount of new flats or compensation that the owners will receive.
Land Share Proportioned to Its Value
Article 3/2 of the Condominium Law stipulates that the land share of each independent section must be proportional to the value of that section. The law requires that land shares be shown in the project in proportion to the values calculated according to the location and size of the independent sections. This rule ensures that the common land in the building is divided in proportion to the contribution and value of the apartments. In fact, various decisions of the Supreme Court of Appeals support this principle in the law and state that if the land shares are not given in proportion to the apartment values, the relevant apartment owner may request correction. In other words, the law and the high court take equity as the basic criterion in the distribution of land shares.
What is a Land Share Correction Case?
If a flat owner thinks that the land share given to his/her flat is disproportionately low or high compared to the value of his/her flat (i.e. unfair), the legal system provides the opportunity to correct this. This opportunity is used through a case called “land share correction case”. The legal basis for the land share correction request is this proportionality rule in Article 3 of the Condominium Law and is interpreted in practice together with Article 44 of the KMK. The Court of Cassation has also clearly expressed this right by stating that “in cases where the land shares are not allocated in proportion to the values of the independent sections… the relevant flat owner has the right to apply to the court for the correction of the land shares”.
How to File a Lawsuit? What are the Conditions?
The basic points to know when filing a land share correction lawsuit are as follows:
Right to File a Lawsuit: Only the flat owners (or the flat owners if the flat ownership has not yet been transferred) or their legal heirs can file this lawsuit. Persons who are not independent section owners, such as tenants or apartment managers, do not have the right to file such a lawsuit.
Defendant Parties: The lawsuit must be directed against all other flat owners. According to the established precedents of the Court of Cassation, since the correction decision will affect the land shares of all independent sections in the building, the other flat owners must be shown as parties (defendants) in the lawsuit. Otherwise, problems may arise in the implementation of the decision.
Good Faith Condition: The owner filing the lawsuit must be in good faith. The Court of Cassation finds it incompatible with good faith for the first owners or contractors who personally determined and registered their land shares to file a lawsuit based on the incorrectness of these shares. In other words, a person who knowingly makes a mistake in the distribution of the land share cannot later request correction.
Statute of Limitations / Duration: There is no limitation period or statute of limitations for the lawsuit for the correction of the land share. This lawsuit can be filed at any time as long as the building maintains its condominium (or floor easement) status, that is, before the structure is demolished. However, since it will not be possible to determine the land share after the building is demolished (condominium ends), if there is such a request during the urban transformation process, it is necessary to file a lawsuit before the demolition of the building.
Competent Court: According to the Condominium Law, the lawsuit for the correction of the land share is heard in the Civil Court of Peace where the immovable is located. The petition should explain that the land shares were determined in a manner that is disproportionate to the value in violation of the Law and that there is a need for fair distribution.
The Case Process and Results
A land share correction case is a determination case in terms of its legal nature. While examining the plaintiff owner's claim, the court usually has the values of all independent sections determined on the date the condominium was established through an expert. According to the Supreme Court, whether the land shares were distributed fairly at the beginning should be determined in this way; factors such as subsequent zoning changes, landscape improvements or renovations made to the apartments should not be taken into account in this calculation. The aim is to determine whether the apartment's land share was determined correctly from the first day.
If the court determines as a result of the examination that the land shares were indeed distributed inconsistently with the values, it decides to correct the land shares in the land registry. With this decision, the land share of each flat owner in the building is brought to a fair level in proportion to the value of their flat compared to the others. When the correction decision is finalized, the land shares in the land registry are updated according to the newly determined rates. Thus, the grievance arising from the unfair distribution is eliminated and all flat owners have a land share in proportion to the investment value they made in the building.
The principle stipulated by the Law on Condominium Ownership is that “the land share of each apartment must be proportional to the value of that apartment.” In practice, when situations that contradict this principle arise, a lawsuit for the correction of the land share provides the apartment owners with the opportunity to remedy the injustice. The Court of Cassation decisions also accept this lawsuit as an important right of the apartment owners. If a flat owner thinks that the land share of his/her apartment has been determined incorrectly according to its real value – especially if this mistake may lead to financial loss in the future – he/she can have his/her land share corrected through the court. In this way, all the owners in the apartment will have a fair partnership share. This lawsuit is an important tool for the protection of property rights for the apartment owners and ensures that the principle of proportionality with the value stipulated by the law is implemented.
Important Supreme Court (Yargıtay) Decisions Regarding Land Share Correction Lawsuits
Decision 1: Supreme Court 20th Civil Chamber – 2020/2231 Decision (Application of Condominium Law Article 3/2)
Summary: According to Article 3 (especially paragraph 2) of the Condominium Law, the land share of each independent unit must be proportional to its value at the time the condominium servitude (kat irtifakı) was established. In this decision, the Supreme Court emphasized that if land shares were not determined proportionally to the initial values of the independent units, every apartment owner has the right to file a correction lawsuit.
The primary condition for readjusting the land shares is the proof that the current shares are disproportionate to the values of the independent units. Once this condition is met, the relevant apartment owner can apply to the court to have the shares revalued and corrected. The law grants this right to all apartment owners; therefore, every owner of an independent unit whose land share was incorrectly determined has the right to file a lawsuit.
Decision 2: Court of Cassation 5th Civil Chamber – 30.03.2022 (E.2022/2285, K.2022/5803)
Summary: This decision aims to evaluate the good faith and legal interest of the plaintiff in land share correction cases. The Court of Cassation 5th Civil Chamber stated that if the land shares were determined by the plaintiff himself during the establishment of the condominium, requesting correction later may be against the rule of honesty. Therefore, the owner whose signature was on the initial registration of the land share is not protected as a rule if he requests a share correction later.
Main Emphasis: Owners who participated in the process when the land shares were first determined and whose signatures were on the official deed are not considered to be in good faith when they file a lawsuit claiming that their distribution was wrong. In such cases, the court must carefully evaluate whether the plaintiff has a legal interest worthy of protection.
Decision 3: Court of Cassation 20th Civil Chamber – 02.12.2019 (E.2019/5696, K.2019/7038)
Summary: In this decision, the Court of Cassation once again confirmed that land shares should be distributed proportionally according to the value of each independent section. In a case claiming that the distribution of shares was made incorrectly, the Court examined the characteristics, size and location of each independent section; and emphasized that goodwill criteria such as differences between different types of units such as apartments and shops or lower and upper floors, facade and view advantages should be taken into account.
Main Emphasis: Objective criteria should be observed when determining the land share. The Court of Cassation decision clearly states that the type (purpose of use), size, floor, facade and view of the independent sections should be taken as basis in determining the share. If these criteria were not applied properly and the shares were disproportionate to the real values of the apartments, the rectification case should be accepted.
Decision 4: Court of Cassation 20th Civil Chamber – 10.06.2019 (E.2019/2005, K.2019/3843)
Summary: This decision has set forth the values on which date the land share adjustment review should be conducted. The Court of Cassation has stated that subsequent changes in the values of independent sections will not affect the land share, and that the adjustment assessment must be based on the conditions at the time the floor easement or condominium was established. In the specific case, the Court of Cassation has primarily requested that the date of establishment of the floor easement in the main real estate (or this date if the condominium was directly transferred to the condominium) be determined.
Main Emphasis: When determining whether the land shares are distributed fairly, the value of each independent section at the time of initial registration should be considered. Factors such as subsequent zoning changes, blocking of the view or maintenance-repair are not taken into account in the share adjustment case; the valuation is made according to the conditions at the time the building received a occupancy permit and became a condominium.
Decision 5: Court of Cassation 20th Civil Chamber – 07.11.2018 (E.2017/2387, K.2018/7153)
Summary: This decision is important in terms of the scope of expert examination and evidence evaluation in land share correction cases. The first instance court corrected the shares based on the expert report; however, the Court of Cassation overturned the decision stating that the report contained abstract expressions and that incomplete research was conducted. The Court of Cassation particularly requested that the land share distribution list prepared during the establishment of the condominium be investigated and whether the plaintiffs’ approval was included in this list, and if the condominium was directly transferred, the relevant documents be obtained from the land registry and the municipality and examined.
Main Emphasis: The courts must conduct a detailed examination as to whether the land share was determined incorrectly. In the specific case, the Court of Cassation emphasized that the expert report was insufficient and stated that it was essential to evaluate whether the owner requesting correction had consented to the initial share allocation and all objective value elements one by one. The first instance decision made without doing this was overturned due to insufficient examination.
Decision 6: Court of Cassation 18th Civil Chamber – 03.03.2008 (E.2007/9977, K.2008/2372)
Summary: The Court of Cassation has clearly stated with this decision that there is no time limit in land share correction cases. The 18th Civil Chamber has stated that lawsuits regarding the redetermination of land shares can be filed at any time as long as the main immovable property remains in the status of condominium or floor easement; and that no statute of limitations or limitation period is foreseen in the law for such lawsuits.
Main Emphasis: As long as the condominium continues, if the land share is erroneous, it can always be corrected through litigation. In the relevant decision, the Court of Cassation has particularly emphasized that land share correction cases are not subject to time and stated that these lawsuits can be filed “as long as the main structure maintains its floor easement or floor ownership status.”
Decision 7: Court of Cassation 20th Civil Chamber – 14.11.2017 (E.2017/858, K.2017/9430)
Summary: This decision shows the consequences of taking action after a very long time in requests for land share correction. In a building where a floor easement was established in 1963, the plaintiff requested a share correction by stating that the land share of the apartment he purchased in 1995 was determined low, whereas his apartment was more valuable in terms of criteria such as terrace, view, and location. Although the first instance court accepted the case, the Court of Cassation overturned the decision, considering that no concrete error or deficiency affecting the values of the independent sections could be shown in the file, and that no objection had been made to the shares for decades since the date of establishment.
Main Emphasis: The request for land share correction must be supported by concrete evidence that the values were distributed unfairly. The Court of Cassation did not find the lawsuit filed long after the date the building's floor easement was established and without any justified reason. This decision reveals that if the distribution of shares has not been objected to for years and no clear disproportionality has been proven, the request for correction can be considered to have been filed in bad faith.