Tracking of Maintenance Fee Receivables

The maintenance fee is explained in Article 20 of the Condominium Law as follows:
“Unless otherwise agreed among themselves, each condominium owner is obliged to participate according to their share in the land in the expenses of the janitor, boiler operator, gardener, and security guard, as well as the advances to be collected for these; equally in the insurance premiums of the main property; and in all expenses for the maintenance, protection, strengthening, and repair of all common areas; and other expenses such as the manager’s salary and the operating expenses of the common facilities and the advances to be collected for these.
Condominium owners cannot avoid paying these expenses and advance shares by waiving their right to use the common areas or facilities, or by claiming that their independent unit’s condition does not require benefiting from them.
If a condominium owner does not pay the expense or advance share, any of the other condominium owners or the manager may file a lawsuit or initiate enforcement proceedings according to the management plan, this Law, and general provisions.
A condominium owner who does not pay the full amount of expenses and advances is obliged to pay a delay compensation calculated at 5% monthly for the days of delay.”

As explicitly stated in the legal article, a person cannot avoid paying maintenance fees by claiming that they do not want to use or do not need the common areas.
Maintenance fees can be paid in cash or by bank transfer to the account designated by the manager.

1.Obligation to Pay a Fixed Maintenance Fee

If condominium ownership is applicable, the payment obligation also belongs to the owner.
The owner’s failure to pay the maintenance fee does not depend on whether they use the property or not.
Even if the owner does not use the property, they are still obliged to pay the determined maintenance fee.
In the case that the property owner rents out the residence, the status of the maintenance fee payment obligation is regulated under Article 22 of the Condominium Law.

Article 22 of the Condominium Law:
“Those who continuously benefit from one of the independent units based on a lease agreement, right of residence (usufruct), or any other reason are jointly and severally liable for the expenses, advance payments, and delay compensation owed to the condominium owner according to Article 20. However, the tenant’s liability is limited to the rent amount they are obliged to pay, and any payment made by the tenant shall be deducted from the rent debt.

If the condominium owner’s debt cannot be collected by these means, a statutory lien in favor of the other condominium owners shall be registered on the independent unit of the condominium owner who fails to pay the debt determined by the court, upon written request of the manager or, if none, one of the condominium owners for the amount of the debt.

The last paragraph of Article 893 of the Turkish Civil Code No. 4721 also applies here.

The receivables of the condominium owners from the condominium owner who fails to pay the expense debt or other responsible parties shall have priority.”

The debt in the legal article arises from joint and several liability.
Joint and several liability means that more than one debtor is separately responsible for the entire debt.
In terms of maintenance fee payments, both the owner and the tenant are jointly and severally liable, and in case of non-payment, payment can be demanded from either party.

2.Determination of the Maintenance Fee

The determination of maintenance fees does not vary due to factors such as whether the property is a residence, workplace, or part of a site/apartment complex.
The key basis for determining these fees is the operating plan.

In a building subject to the provisions of the Condominium Law, the one-year income and expenses of the property are calculated within the scope of the operating plan, and a budget is prepared accordingly.
Based on the determined budget, the maintenance fee amount is set by the condominium owners’ assembly or the management.

This amount can be calculated on a monthly or yearly basis.
In monthly calculations, monthly expenses are listed.
In yearly calculations, the special expenses for each month are separately itemized and multiplied by 12.
The maintenance fee calculation is performed using one of these methods.

3.Non-Payment of the Maintenance Fee

Enforcement proceedings may be initiated or a lawsuit filed against the owner or tenant who fails to pay the maintenance fee.
The law states that a certain rate of increase (late fee) may be requested for unpaid maintenance debts.
Therefore, failure to pay maintenance fees on time may expose condominium owners to enforcement proceedings.
When initiating enforcement proceedings, the decision of the condominium owners’ board may be attached to the request for enforcement without a court order, but enforcement can also be initiated without attaching this decision.

Who Is Responsible for the Maintenance Fee Debt: The Owner or the Tenant?

Although it can be freely agreed between the tenant and the owner who will pay the maintenance fee debt, since the person responsible on behalf of the building management is the condominium owner, the owner is held liable for unpaid maintenance fee debts.
If there is an agreement between the owner and the tenant, the owner can seek recourse from the tenant.
This is because the management does not have a direct relationship with the tenant.
It should be noted that the primary party responsible for the maintenance fee debt is the condominium owner; however, if there is a tenant residing in the property, both the tenant and the owner are jointly and severally liable for the debt.

What Is the Interest or Late Fee Applied to the Maintenance Fee Debt?

For unpaid common expenses, a late fee of 5% per month is imposed. In addition, default interest may also be claimed.

Regarding tenants who fail to pay maintenance fees, Article 315 of the Turkish Code of Obligations provides that the lease agreement may be terminated in case of the tenant’s default. However, the tenant’s default is not only triggered by failure to pay rent but also includes failure to pay ancillary expenses. Article 315 of the Turkish Code of Obligations states:
“If the tenant fails to fulfill the obligation to pay the rent or ancillary expenses that become due after delivery of the leased property, the lessor may give the tenant a written notice of time, and if the tenant still fails to pay within this period, the lessor may notify the tenant of the intention to terminate the contract.
The notice period must be at least ten days, or at least thirty days for residential and roofed workplace leases. This period begins the day following the date the tenant receives the written notice.”

According to the Turkish Code of Obligations, maintenance fees are classified as ancillary expenses.
Within this scope, the landlord may file an eviction lawsuit against the tenant who refuses to pay the maintenance fee based on Article 15 of the Code.
However, for the landlord to proceed with eviction, all unpaid maintenance fees must be paid.

A relevant Supreme Court (Yargıtay) decision on this matter is provided below.

Supreme Court of Appeals, 20th Civil Chamber
Case No: 2017/8866
Decision No: 2018/421
Date: 23/01/2018

“…If the court concludes that the defendant is responsible for the maintenance fee, the defendant is liable for the principal amount of the debt; however, regarding the 5% late fee, the liability begins from the date of the condominium owners’ assembly decision that determined the fees, if the defendant was a participant in that decision. If the defendant was not a participant, the liability starts from the date of notification or the date of awareness of the decision; if the defendant never became aware, then from the date the enforcement notice was served.
Accordingly, a proper expert report should be obtained, and a decision should be made based on its outcome…”

Views: 0