What Are Dues?

Literally, it means 'payment' or 'contribution'. The concept of dues exists in many areas beyond complexes, apartments, etc., which we will cover in this article. It may arise in the context of organizations, associations, clubs, etc., to which one is a member. Additionally, contributions may be levied periodically in exchange for a service received from an entity. For instance, credit card annual fees fall under this category.

From the perspective we are examining, we would like to introduce the matter by stating that it is mandatory to have a manager in apartments, complexes, etc., comprising 8 or more independent units. This manager is the authorized person to collect the dues. The relevant provision is regulated under Article 20 of the Condominium Law. Accordingly, unit owners are obliged to contribute equally to expenses with fixed salaries, such as those for doormen, stokers, gardeners, and security guards. Furthermore, unit owners are obliged to contribute to the insurance premiums of the main immovable property and to expenses such as the maintenance, protection, reinforcement, and repair of all common areas, in proportion to their land shares. For example, elevator maintenance expenses fall within this scope.

The payment obligation rests with the owner upon the establishment of condominium ownership. Whoever is the owner of the immovable property is also the person obligated to pay the dues. Even if the owner does not physically reside in that unit, they are obligated to pay this debt. However, if the occupancy permit has not yet been obtained, and the construction servitude (floor easement) has not been dissolved, then the contractor (developer) will be the person obligated to pay the debt. Should you encounter any issues in this regard, we recommend seeking legal advice from a specialized real estate lawyer.

Furthermore, the owner may have leased the immovable property to another person. In this case, will the person obligated to pay be the tenant, who holds possession, or the lessor? The primary responsibility lies with the owner. However, the tenant is also responsible for dues payments during the period of their tenancy. This responsibility is based on Article 22 of the Condominium Law. Therefore, joint and several liability can be discussed here. The owner is obliged to pay the dues debt that the tenant fails to pay. Pursuant to the same article, individuals holding a usufruct right over the immovable property will also be jointly and severally liable for the debt.

It is also necessary to address the situation of heirs. What will be the situation regarding the immovable properties left behind by the deceased? If the inheritance is not divided, the heirs will hold joint ownership (undivided co-ownership) over the property. Consequently, in this situation, the heirs will be jointly liable for the debt. If the heirs cannot agree on the management of the estate, we recommend contacting a specialized inheritance lawyer as soon as possible to initiate an action for termination of co-ownership (partition action) to prevent future problems.

As you would appreciate, dues are collected in communal living spaces to cover common expenses. The apartment or complex management has certain responsibilities. The expenses collected from unit owners are also expended for this purpose. If the management board fails to fulfill its responsibilities, you may refrain from paying dues.

Here, the tasks performed by the manager and the management board do not fall under unauthorized agency (negotiorum gestio). An agency relationship exists between them and the apartment or complex residents. Therefore, the management must act in accordance with the principal's instructions. They must exercise due diligence and act faithfully while performing their duties. The management must keep records of the transactions performed and preserve the relevant documents. Furthermore, the management has an accountability obligation. We can list the general management duties that the manager and the management board are obligated to perform under the Condominium Law as follows:

• They must implement the decisions made by the board of unit owners.
• They must take necessary protective measures in accordance with the intended use of the main immovable property.
• They must insure the main immovable property.
• They must collect advances, i.e., dues.
• They are obligated to make and accept payments arising from the management.
• They must accept notifications arising from the management.
• They must ensure periodic maintenance and general inspections of elevators are carried out.
• They must convene the board of unit owners when necessary.
• They must carry out all acts and transactions related to representing the main immovable property and take necessary measures in this regard.

How Are Apartment Dues Determined?

Regarding the amount of the dues, the crucial point for both apartment and complex units, as well as shops, is the operating budget (or management plan). In structures subject to the provisions of the Condominium Law, an operating budget will be prepared by calculating the approximate annual income and expenses of the complex or building in accordance with the management plan. Based on this prepared budget, the amount of the dues will be determined by the board of unit owners or the complex management.

Preparing the operating budget is the duty of the board of unit owners. However, if this duty is not fulfilled, the operating budget will be prepared by the management board. Operating budgets that are properly prepared and finalized constitute evidence as strong as notarized deeds. This situation will strengthen the hand of the complex management and facilitate its work, both in litigation processes and in enforcement proceedings initiated against unit owners.

When calculating the budget, it is important not to request a low advance payment from unit owners. Because it is necessary to consider that not all unit owners will pay their dues on time. Furthermore, unforeseen expenses may also arise. In such a case, preparing the budget again, explaining the situation to the unit owners, and dealing with their objections would be quite exhausting. For all these reasons, it would be beneficial to keep the amount of dues somewhat flexible upwards.

How Are Complex Dues Determined?

If the aforementioned operating budget (management plan) has been prepared by the board of unit owners, it will be deemed finalized directly. However, if the plan has been prepared by the management, it must be notified to the unit owners or the persons benefiting from the independent section. If no objection is raised against the plan within 7 days from the notification, the plan will become final.

In case of an objection, this objection will be evaluated by the board of unit owners. A decision will be made regarding this evaluation, and if necessary, a new plan will be prepared. At this point, an application may be made to the court for the annulment of the decision made by the unit owners. The benefit of a finalized operating budget is that it eliminates the chance for apartment or complex residents to object to their dues debt. From this point forward, the burden of proof that such a debt does not exist will rest with the dues debtor.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy