Rights of Minority Co-owners Against Resolutions Adopted Following the Designation of a Risky Structure in Condominium Buildings

Introduction

In urban transformation processes, the validity of decisions taken by the condominium owners' assembly following the designation of a building as risky depends not only on compliance with procedural formalities, but also on the fair resolution of potential conflicts of interest among the owners, particularly in relation to property rights and freedom of contract.

This study examines the procedural requirements to be followed when adopting such decisions under urban transformation law, the legal remedies available to owners who do not participate in or consent to decisions taken in violation of these procedures, and the avenues of recourse available even in cases where procedurally valid decisions may result in infringements of ownership rights.

Keywords: Designation of Risky Structures, Resolution of the Condominium Owners’ Assembly on Risky Structures, Rights of the Minority Co-owners, Condominium Law, Law No. 6306.

I. The Concept and Designation of Risky Structures

1.1. The Concept and Elements of a Risky Structure

Pursuant to Article 2 of Law No. 6306 on the Transformation of Areas Under The Disaster Risk ("Law No. 6306") and Article 3(g) of its Implementing Regulation ("Implementing Regulation"), for a building to be designated as a risky structure, it must either have exceeded its economic lifespan or be under the threat of collapse or severe damage. In either case, the existence of such conditions must be established on the basis of scientific and technical data.[1]

There is no explicit provision under the legislation as to how and according to which criteria the economic lifespan of a building is to be determined. This uncertainty significantly broadens the scope of application of the concept and leaves it open to divergent interpretations. Indeed, the prevailing view in legal scholarship is that the fundamental criterion indicating the end of a building’s economic lifespan is its inability to fulfil the function for which it was originally intended.

1.2. Designation of a Risky Structure

Pursuant to Article 3/1 of Law No. 6306, the designation of a risky structure is, in principle, expected to be initiated by the property owners themselves. However, in practice, the right to request such a designation is not limited to property owners alone; rather, it is extended to a wide range of actors, including the Ministry, municipalities, provincial special administrations, licensed public institutions, universities, companies with public capital, non-governmental organisations operating in the field of earthquakes, laboratories, and institutions registered with relevant professional chambers.

In legal scholarship, some opinions criticize this broad entitlement on the grounds that granting such a right to actors other than the owners—thereby overriding the will of the ownership—constitutes a regulation that is incompatible with the very essence of the right to property. Nevertheless, in our view, considering that the designation of a risky structure constitutes the first step in a transformation process that prioritizes the protection of life and property, empowering such institutions to initiate the process is appropriate from a public interest perspective.

In buildings subject to condominium ownership, the designation of a risky structure may be initiated through the individual application of a co-owner. The legislator, without requiring any form of collective decision, has granted each co-owner the individual right to apply, thereby allowing the initiation of the risk assessment process based solely on the will of a single co-owner.

Although the legislator explicitly grants each co-owner the right to file an application individually, differing views exist in legal scholarship regarding this issue. According to one view, a unanimous resolution of all co-owners is required in order to apply for the designation of a risky structure[2]. A second view argues that, since Law No. 6306 does not contain a specific provision with regard to condominium ownership, reference should be made to Article 30 of the Condominium Law No. 634 (“Condominium Law”), which requires a meeting attended by more than half of the co-owners and the adoption of a decision by simple majority[3]. A third view, however, supports the position that no such meeting or similar formalities are necessary and that the application for a risk assessment may be filed by any single co-owner independently.[4]

II. Convening the Co-owners’ Meeting Following the Designation of a Risky Structure

Eliminating the risk is the ultimate aim upon the designation of a risky structure. In order to mitigate such risk, a decision for demolition, reconstruction, or structural strengthening may be taken regarding the designated risky structure. The Administration grants the co-owners a 90-day period to adopt a resolution accordingly. In the absence of a resolution within this period, the structure designated as risky shall be demolished ex officio by the Administration in accordance with Article 5(3) of Law No. 6306[5].

Given this legal framework, it is essential that the co-owners swiftly reach a decision within the 90-day period following the finalization of the risky structure designation. As a matter of fact, Law No. 6306 is fundamentally premised on the principle that the transformation process shall be initiated and conducted by the co-owners themselves.[6]

It is therefore necessary to examine the procedural aspects of decision-making by the co-owners following the designation of a risky structure under condominium ownership. In this context, the procedural requirements regarding the call for meeting, holding the meeting, and the decision-making process, as well as the potential content of the decision to be taken, must be clarified.

2.1. Necessity and Timing of the Meeting

In the event that a risky structure subject to condominium ownership is designated, Law No. 634 on Condominium Ownership ("Condominium Law") shall apply, unless otherwise specifically regulated under Law No. 6306. Accordingly, no decision regarding the fate of the risky structure can be made without convening the General Assembly of co-owners[7]. A decision must be taken during a duly convened meeting. In fact, even a unanimous decision even if it bears the signatures and explicit consents of all co-owners, shall be deemed invalid if it was made without holding a formal meeting[8].

The meeting to be held after the designation of a risky structure qualifies as an extraordinary meeting and is therefore subject to Article 29/2 of the Condominium Law. Even repairs requiring substantial expenses justify the convening of such an extraordinary meeting[9].

Whether this meeting can be held before the designation becomes final is another question that must be addressed. Neither Law No. 6306 nor its Implementation Regulation provides a clear answer[10]. Considering this, although awaiting the finalization of the risk designation may seem equitable, there is no legal barrier preventing the holding of a meeting and adoption of a decision beforehand[11].

Considering that Law No. 6306 aims to facilitate the rapid transformation of structures that may pose risks in the event of a disaster, requiring the finalization of the designation before allowing a decision to be taken would contradict the very purpose of the law.

2.2. Procedures for Call and Meeting

In matters involving properties under condominium ownership, the Condominium Law is applicable. However, in cases where a risky structure is designated, the special provisions of Law No. 6306 shall prevail as lex specialis and lex posterior[12].

Since Law No. 6306 does not provide a special rule regarding the procedure for calling[13] the meeting, the relevant provisions of the Condominium Law shall apply. Pursuant to Article 29/2[14] of the Condominium Law, a written notice of invitation must be served upon all co-owners at least 15 days prior to the meeting where a decision on the risky structure is to be made, clearly indicating the purpose of the meeting.

Regarding the quorum, Law No. 6306 does not contain a specific provision; thus, according to Article 30 of the Condominium Law[15], at least half of the co-owners in terms of both number and land share must be present. If the required quorum is not met at the first meeting, a second meeting must be held within 15 days.

2.3. Decision-Making Procedure

The decision quorum for determining the fate of a risky structure is specifically regulated in Law No. 6306. Article 6 of the Law stipulates that an absolute majority of all co-owners[16] (not just those attending the meeting) is required. This provision derogates from the stricter unanimity requirement stipulated under Article 45 of the Condominium Law, thereby enabling a faster urban transformation process[17].

It must be noted, however, that the quorum specified in Law No. 6306 applies only to decisions for demolition or demolition followed by reconstruction. The required quorum for decisions on structural strengthening remains controversial in doctrine. According to Article 8/7 of the Implementation Regulation[18], strengthening decisions are subject to Article 19 of the Condominium Law, which requires the written consent of four-fifths of all co-owners. However, the same provision also states that if a court determines that strengthening is mandatory, the consent of other co-owners shall not be required.

There is an ongoing doctrinal debate as to whether the reference to Article 19 of the Condominium Law in Article 8/7 of the Implementation Regulation was intended to set the quorum for strengthening decisions at four-fifths, or simply to indicate that a court order suffices in lieu of a decision.

Indeed, while a mere absolute majority is sufficient for a demolition decision, which entails much higher costs, a stricter four-fifths majority for a relatively less burdensome strengthening decision appears inconsistent. Furthermore, a situation where a single co-owner obtains a court order for strengthening could override or invalidate the decisions of the other co-owners[19].

From this perspective, Article 8/7 of the Implementation Regulation gives rise to legal ambiguity,[20]— and arguably, an inconsistent normative provision[21]—regarding strengthening decisions. Accordingly, several doctrinal opinions argue that the same absolute majority sufficient for a demolition decision should also suffice for a strengthening decision[22].

III. Legal Remedies Available to the Minority in Case of Procedural Irregularities

Under Law No. 6306, decisions regarding a risky structure must be taken in a duly convened meeting and must comply with procedural requirements. Any decision lacking these essential procedural elements must be deemed null and void[23].

If a meeting held and the decision made regarding the designation of a risky structure violate the rights of the minority, it is primarily important to determine whether the meeting and the decision were conducted in accordance with the proper procedure. If the decision is procedurally valid, annulment may be possible; however, in case of procedural irregularity, the decision may be deemed null and void[24].

In cases of nullity, no action is required to render the decision ineffective. However, a declaration of nullity may also be sought from the competent court[25].

According to an opposing view in doctrine, even if a decision is procedurally invalid and technically void, one should still file an annulment action rather than a nullity action, based on the general principles of procedural law[26].

In any case, resolutions of the General Assembly of co-owners may be contested before the Civil Court of Peace pursuant to Article 33 of the Condominium Law. Furthermore, Additional Article 1 of the Condominium Law clearly stipulates that all disputes arising from its implementation fall under the jurisdiction of the Civil Courts of Peace. Although decisions taken regarding a risky structure appear to be rooted in Law No. 6306, they are in fact decisions of the co-owners’ General Assembly from a procedural standpoint. Therefore, the competent court shall be the Civil Court of Peace located in the jurisdiction where the property is situated[27].

Accordingly, the minority opposing an improperly adopted decision may file a lawsuit for annulment before the competent Civil Court of Peace in the district where the property is located.

IV. Legal Remedies Available to a Landowner Suffering Loss as a Result of a Duly Adopted Resolution of the Condominium Owners’ Assembly

Pursuant to the Regulation Amending the Implementation Regulation of Law No. 6306, published in the Official Gazette dated 24 August 2023 and numbered 32289, decisions by condominium owners could be taken with a two-thirds majority. However, with the Regulation Amending the Implementation Regulation of Law No. 6306, published in the Official Gazette dated 21 May 2024 and numbered 32552,[28] this threshold has been amended. As of the aforementioned date, decisions following the identification of a building as a risky structure can now be taken by an absolute majority of the condominium owners, i.e., 50% + 1.

At this stage, it has become increasingly important for minority owners who disagree with the majority decision and do not wish to have their shares sold to be aware of their legal rights.

The procedural requirements for the adopting of resolutions by an absolute majority, and the legal remedies available to minority owners in the event of non-compliance with such procedures, are discussed in detail above. This section, however, addresses the rights of owners who believe that their property rights have been infringed despite the procedural correctness of a resolution.

4.1. Rights of a Landowner Whose Land Share Decreases Following Urban Transformation

When properties are designated as risky structures and reconstruction becomes the only viable option, landowners resort to new construction under the framework of Law No. 6306 on Urban Transformation.

Landowner may enter into a hybrid contract known as a "construction contract in return for land share" with a contractor of their choosing. These contracts typically involve the contractor constructing a building at their own expense and resources, in exchange for a transfer of a portion of the land share to the contractor, proportional to the agreement. This transfer process is often handled via a power of attorney granted by the landowner to the contractor.

During such transfers, various errors and disputes may arise. In cases where an owner’s land share is reduced, the owner may initiate a lawsuit seeking correction of the land share.

According to Article 3(2) of the Turkish Condominium Law, the allocation of land shares must be based on the proportional value of the independent unit within the overall building.[29] This value is calculated using objective criteria such as location and size— not merely based on declarations. Relevant factors include the unit's type, floor area, layout, floor level, heating system, frontage, architectural features, sunlight exposure, view, wind and noise exposure, and other external elements.[30]

A lawsuit for correction of land share can only be filed under certain conditions: if land shares were allocated disproportionately, if the condominium was not established by court order, or if the main property is still under construction or registered under condominium easement or ownership[31]. However, if the condominium regime has ended due to demolition, such a lawsuit is not permissible[32]. Therefore, the action must be brought before demolition, i.e., before the urban transformation process begins. Alternatively, it can be filed once the transformation has at least progressed to the establishment of condominium easement.

Following urban transformation, the new land share allocated to an owner should reflect the value of their independent unit. Factors such as the unit’s type, floor level, area, heating, lighting, architectural function, orientation, and view are considered in assessing fairness[33].

The right to file for land share correction belongs solely to the owner and is not subject to any statute of limitations[34]. Since the outcome of such cases affects the legal structure of the entire property, the claimant must first notify other landowners to determine whether they consent to filing the action. Those who do not consent must be named as defendants.

4.2. Rights of a Landowner Allocated a Smaller Independent Unit After Urban Transformation

According to Article 6 of Law No. 6306, in the event that an owner does not consent to a decision taken by the absolute majority of co-owners (in proportion to their shares), their land share may be sold through public auction to other consenting owners, provided that the price is not less than the market value determined by the Authority.

Ownership is an in rem right that grants the broadest form of legal control over property[35]. While Article 35 of the Constitution of the Republic of Türkiye guarantees the right to property, it also stipulates that such rights may be restricted by law[36].

Although the rights of a minority owner who refuses to consent to the majority decision and does not wish to sell their share are not specifically defined under Law No. 6306, individual legal remedies are available under general legal provisions. A dissenting owner may sign the resolution or the construction contract in return for land share with a reservation of rights (ihtirazi kayıt) to preserve their legal claims. If signed without such a reservation, the owner may serve a formal notice (ihtarname) to all other owners and the contractor, demanding correction of the unlawful decisions and reserving the right to initiate legal proceedings.

If the newly allocated independent unit is significantly smaller than the former unit or those of other owners, the aggrieved owner may bring a claim for unjust enrichment (sebepsiz zenginleşme) against the others. The Court of Cassation (Yargıtay) has ruled that where significant and unjustified differences in unit sizes exist in the reconstructed building, such differences may constitute a violation of property rights and may entitle the owner to compensation pursuant to the doctrine of unjust enrichment[37].

Pursuant to Article 82 of the Turkish Code of Obligations, the statute of limitations for claims based on unjust enrichment is two years from the date the claimant becomes aware of the unjust enrichment and in any case ten years from the date it occurred. Jurisdiction is vested in the Civil Courts of First Instance under Article 2 of the Code of Civil Procedure[38].

4.3. Rights of a Landowner Allocated a Unit With a Lower “Unit Value Ratio” After Urban Transformation

"Unit Value Ratio" (Şerefiye) refers to the value-added characteristics of an independent unit—such as apartment size, view, balcony area, proximity to fire exits, elevator noise, green spaces, entry accessibility, floor level, proximity to boiler rooms, orientation, and similar factors—that contribute to the unit’s monetary value. These values must be determined using objective criteria[39]. The unit's sale price does not influence this calculation.

If the newly allocated unit has a significantly lower unit value ratio than the previous one, the owner may file a lawsuit before the general courts to seek compensation for the resulting loss in value. The court will appoint qualified experts to evaluate the new unit based on the above-mentioned criteria. If it is established that the allocated unit has a lower unit value ratio, the court may order compensation to be awarded to the owner.

Conclusion

In cases where a building is designated as risky under Law No. 6306, decisions taken by the condominium owners' assembly with a simple majority may lead to severe consequences for the owners, such as demolition of the building, reconstruction, or forced evacuation through agreements. Given these potentially far-reaching outcomes, every procedural rule governing the decision-making process must be applied with precision to prevent the loss of rights.

Moreover, the legal avenues available to those owners who do not support the simple majority decision carry significant weight. In practice, owners who oppose such decisions or who do not consent to the sale of their shares through public auction are often subjected to unjust treatment. In this context, if land shares are determined in a manner inconsistent with objective criteria, or if owners’ rights following reconstruction are arranged in violation of the principle of equality, it is possible to seek redress through judicial remedies such as actions for the correction of land shares and claims based on unjust enrichment.

Our study concludes that in each specific case, a fair balance must be struck between the individual rights of the owners and the public objective of urban transformation, and that the process must be conducted in a transparent, participatory, and legally compliant manner.