The Relationship Between Independent Units and Land Shares

One of the most important elements forming the foundation of the Condominium Ownership Law (CPL) is the inseparable relationship between the “independent unit” and the “land share” attached to it. In order to understand the legal nature of ownership, it is necessary to examine how these two concepts are united.

What Is an Independent Unit?

Pursuant to Article 2 of the Condominium Ownership Law, an independent unit refers to those parts of the principal real estate that are suitable for separate and independent use and are subject to independent ownership. An apartment, shop, office, or storage unit acquires the status of an “independent unit” if it is subject to condominium ownership. An independent unit has its own separate page and number in the land registry. While this type of ownership grants the individual full authority of disposition within the boundaries of the unit, it also provides co-ownership rights over the common areas of the building together with the other owners.

What Is a Land Share and Why Is It Vital?

A land share is the “ownership proportion” of the land on which the building is constructed that is allocated to independent units. In a building, you own not only the apartment itself but also the share of the land corresponding to that apartment.

Importance: The land share determines the owner’s participation ratio in the common expenses of the building.

Voting Rights: Your voting power in the condominium owners’ assembly is determined according to the proportion of your land share.

Reconstruction: If the building is demolished and rebuilt or in cases of expropriation, the fundamental criterion determining the extent of your rights is your land share.

The Unity of the Land Share and the Independent Unit

A land share cannot be transferred, attached, or made subject to any other right separately from the independent unit. In other words, when you sell an apartment, the land share attached to that apartment automatically passes to the new purchaser. The inseparability of these two elements is the most fundamental legal rule of condominium ownership. If the land share could be separated from the independent unit, the integrity and administrative functioning of the building would legally collapse.

Intended Use of the Independent Unit

An independent unit may only be used for the purpose for which it is registered in the title deed (residential, commercial, storage, etc.). For example, using a place registered as a “residence” as a “workplace” (workshop or office) is contrary both to the Condominium Ownership Law and to zoning legislation. This may lead other owners to seek judicial intervention and the cessation of such use.

An independent unit is, in fact, a living space with legally defined boundaries. However, what governs that space are the land share recorded in the land registry and the restrictions contained in the management plan. For an investor, what determines the extent of ownership is not the square meterage of the apartment but the proportion of the land share recorded in the title deed relative to the whole parcel. This proportion is a hidden coefficient that determines the future value of the ownership.

Correction of Land Shares: When the Allocated Share Is Below Its Actual Value

One of the most technical and dispute-prone areas of the Condominium Ownership Law (CPL) concerns situations where the land shares allocated to independent units are disproportionate to the actual value or size of those units. In a building, assigning less or more land share to certain units than they deserve completely disrupts the financial balance of ownership.

Why Does Land Share Disproportionality Occur?

Land shares are determined by the owners or the developer during the licensing phase of the project. However, due to construction errors, changes in the architectural project, or the later merger or division of certain units, significant discrepancies may arise between the land shares recorded in the title deed and the actual values of the independent units. For example, if one of two 100-square-meter apartments has been assigned only half the land share of the other, this situation is contrary to equity.

Land Share Correction Lawsuit (Article 3 of the CPL)

If the land shares are not proportional to the values of the independent units, any condominium owner who has suffered loss or prejudice may file a Land Share Correction Lawsuit.

Jurisdiction: This lawsuit is heard before the Civil Court of Peace.

Purpose: The court examines the size, location, façade orientation, and value of the independent units through expert witnesses. It then cancels the erroneous land shares and orders their re-registration according to equitable proportions.

Exception: There is no statute of limitations for this lawsuit; it may be filed at any time as long as the building exists. However, if a very long period has passed since the construction of the building and the condominium owners have knowingly accepted the situation during that period (implied acceptance), courts may sometimes evaluate the matter within the framework of the principle of good faith.

Consequences of This Lawsuit

When a land share is corrected, the land shares of all other independent units in the building also change indirectly because the total share must equal 1 (or 1000/1000). An increase in one owner’s share means a decrease in the shares of others. Therefore, a land share correction lawsuit is a case that closely concerns all condominium owners in the building and fundamentally alters the ownership structure.

Risk for Foreign Investors: Pre-Purchase Due Diligence

For foreign investors purchasing real estate in Türkiye, one of the most important due diligence steps is to verify whether the land share of the independent unit to be purchased is consistent with those of other similar units in the building. If the land share of the property you purchase is lower than it should be, the share you receive if the building is demolished and rebuilt in the future will also be lower, resulting in ownership of fewer square meters.

Solution

If you determine that the land share is incorrect, you should immediately consult a real estate lawyer and obtain a comparative analysis report of the land share ratios. This report is also a powerful tool for reaching a settlement with the opposing party before filing a lawsuit. Remember, the land share is the “core value” of ownership; any error in this value directly suppresses the property’s true long-term market value.

Transfer of an Independent Unit Owner’s Share and Limitations

In a condominium building, an independent unit owner does not possess unlimited authority with respect to the rights of use, enjoyment, and disposition provided by ownership. In particular, the right of disposition (transfer) is subject to certain legal and contractual limitations. This section addresses the legal obstacles and restrictions that may be encountered in the transfer of ownership.

The Primary Limitation on the Right of Disposition: The Management Plan

According to Article 28 of the Condominium Ownership Law (CPL), the Management Plan has the legal character of a contract for condominium owners. Some management plans may contain special restrictions regarding the transfer of independent units. For example, the management plan of a residence complex may provide that an independent unit may only be transferred for residential purposes or as a workplace operating in a specific line of business. If such restrictions are recorded in the land registry, they bind all owners and new purchasers.

Statutory Right of First Refusal (Pre-emption Right)

In jointly owned real estate, if one co-owner sells their share to a third party, the other co-owners have a statutory right of first refusal (pre-emption right). However, there is no statutory pre-emption right for properties that have been converted into condominium ownership and are registered in the title deed as independent units.

Exception: If the property is still under construction servitude and is registered as jointly owned property, the right of first refusal may arise. However, once condominium ownership is established, the independent unit becomes a separate subject of ownership, and the other unit owners no longer have a right of first refusal.

Administrative Obstacles During the Transfer Process: Clearance Procedures

Certain mandatory documents must be considered before the land registry office during the transfer of an independent unit:

DASK: Mandatory Earthquake Insurance must be in place.

Municipal Assessed Value: A document showing that property taxes have been paid and that the assessed value is current.

Certificate of No Outstanding Debt: Some management plans may require obtaining a statement from the management confirming that there are no outstanding maintenance fee debts before the transfer. Although this is not a direct restriction on ownership, it may constitute an administrative obstacle capable of delaying the transfer process.

Easement Rights and Obligations

A person acquiring an independent unit also acquires all easement rights attached to that unit (right of way, water rights, etc.) and all obligations arising from the management plan. For example, if there is an ongoing restoration lawsuit due to an intervention made by the previous owner in a common area, that lawsuit will be directed against the new owner. In other words, debts and obligations are transferred together with the unit.

Tip for Foreign Investors

When purchasing an independent unit, you should always have a lawyer examine the “annotations” and “encumbrances” sections of the title deed record. Some residential complexes may contain special annotations such as a “prohibition on sales to foreigners” or an “approval requirement under the management plan.” The existence of such annotations may make the transfer of ownership impossible or significantly prolong the process.

Ownership gains value through its transferability. However, such transfers should not disrupt the general architectural and administrative discipline of the residential complex. While the law encourages the free transfer of ownership, it also places legal filters within the transfer process to protect the peace of the site and the rights of other owners.

Differences Between Joint Ownership and Ownership in Common

According to the Turkish Civil Code, there are two main types of ownership: Joint Ownership (Co-Ownership) and Ownership in Common (Collective Ownership). Within the condominium ownership regime, these concepts may sometimes be confused or intertwined. Understanding this distinction is vital for comprehending the scope of disposal rights over property.

Joint Ownership (Co-Ownership)

In joint ownership, each co-owner’s share in the property is known and mathematically defined (for example, a 1/4 share).

Disposition: Each co-owner is independent with respect to their own share. They may sell, pledge, or leave their share to their heirs.

Administration: Co-owners make decisions regarding the management of the property by unanimous or majority vote. The death of one co-owner does not affect the rights of the others; the deceased’s share passes to their heirs.

Ownership in Common (Collective Ownership)

Ownership in common arises from a legal or contractual partnership relationship (most commonly in inheritance matters). Here, shares are not specifically determined; everyone has rights over the property as a whole.

Disposition: Under ownership in common, an individual share cannot be sold separately. Any act of disposition concerning the property requires the unanimous consent of all co-owners.

Characteristic: It is generally encountered in inherited property that has not yet been partitioned among the heirs.

Relationship Between Condominium Ownership and Ownership Types

In a condominium building:

Ownership of Independent Units: Each apartment (independent unit) is generally under sole ownership.

Joint Ownership of Common Areas: Condominium owners hold joint ownership rights over common areas through the land shares attached to their independent units. In other words, everyone has a clearly defined interest in areas such as hallways or gardens in proportion to their land share.

Exception (Ownership in Common): If the owner of an apartment has died and the heirs have not yet completed the title transfer process, a temporary ownership in common arises over that apartment. In such a case, the heirs may only make decisions concerning the management or transfer of the apartment collectively.

When Does Each Apply?

Inheritance Situations: Unless the heirs enter into a co-ownership agreement, ownership in common arises under inheritance law.

Purchase: If you and a friend purchase an apartment together with a 50%-50% ownership ratio, this constitutes joint ownership.

Critical Warning for Foreign Investors

If you own property in a building and your neighbor’s apartment is subject to ownership in common (arising from inheritance), difficulties may arise in management decisions concerning that apartment. This is because the management must obtain the signatures of all heirs (or a court-appointed representative). If you share ownership of a property under ownership in common (for example, through inheritance), you should complete the inheritance transfer procedures and convert the ownership into joint ownership with defined shares in order to obtain freedom of disposition.

Joint ownership provides flexibility, whereas ownership in common provides unity and control. The proper functioning of condominium ownership is possible when ownership of independent units is held as either sole ownership or joint ownership.

Permitted Uses of Independent Units and Special Situations

Under the Condominium Ownership Law (CPL), how an independent unit may be used depends not only on the personal decision of the owner but also strictly on the building’s architectural project and management plan. The limits on the use of an independent unit represent one of the areas where ownership rights are most restricted, yet they are also among the most important mechanisms for preserving harmony within the building.

Compliance with the Project: “Allocated Purpose”

Whatever designation appears in the title deed for the independent unit (residence, shop, office, warehouse), the use of that unit must correspond to that purpose.

Unauthorized Use: The use of an independent unit registered as a residence as an office, clinic, or workplace may only be possible through a unanimous decision of the condominium owners’ assembly. Changes made without such approval may be penalized by the municipality as unauthorized use and may also become the subject of lawsuits by condominium owners.

Special Situations: Certain independent units (for example, commercial premises) may have been registered with technical facilities such as chimney systems or ventilation systems. Converting such units into another type of use that exceeds the intended technical design (for example, turning a stationery shop into a noisy workshop) may be legally prevented if it infringes upon the rights of neighbors.

Appurtenances and Rights of Use

Pursuant to Article 2/b of the Condominium Ownership Law, an appurtenance is a place located outside the independent unit but allocated exclusively to that unit (such as a coal storage room, parking space, or storage area).

Appurtenances may only be used by the owner of the independent unit to which they are allocated. However, even an appurtenance may be subject to restrictions if its use damages common areas or disrupts the general order of the building.

Restriction on Transfer: Appurtenances cannot be transferred separately to another person; they may only be transferred together with the independent unit.

Limitation on the Right of Use: “Prohibition Against Causing Disturbance”

When using your independent unit, the principle of “good faith and proper conduct” under Article 18 of the Condominium Ownership Law constitutes the greatest limitation. Owning the unit does not mean that you may carry out any activity whatsoever within it.

Contrary to Morality and Public Decency: If an independent unit is used for purposes contrary to morality and public decency (for example, unlawful activities), the manager or condominium owners may immediately apply to the Civil Court of Peace and request the prohibition of such use.

Foreign Investors and Special-Permit Uses

The use of independent units by foreign owners or tenants for short-term rentals (such as Airbnb) has become one of the most frequently debated issues in recent years. If the management plan or a decision of the condominium owners’ assembly prohibits daily or short-term rentals, compliance with that rule is mandatory. Otherwise, other condominium owners may request the cessation of the activity and file a compensation claim.

Changing the Purpose of Use

If you wish to permanently change the purpose of use of an independent unit:

Amendment of the Architectural Project: An application must be made to the municipality to update the project.

Approval of Condominium Owners: Under the Condominium Ownership Law, especially where a residence is to be converted into a workplace, unanimous approval of all condominium owners is required.

An independent unit is the owner’s “castle,” but that castle exists within the “main body” of the building. At the point where your right of use conflicts with your neighbors’ right to peaceful enjoyment, the law will always favor the preservation of the building’s overall balance. Understanding this boundary allows you to use your property in the most efficient and trouble-free manner possible.