First of all, I would like to start by stating this. Interim Administration is a term for Collective Structures. If a site is not a Collective Structure, there cannot be a temporary administration. Even if there are provisions regarding temporary management in the management plan, it is not valid as it is contrary to the mandatory provisions of the Law.
WHAT IS TEMPORARY MANAGEMENT?
With the addition made to the Condominium Ownership Law in 2007, regulations regarding collective buildings were made and a temporary management institution was introduced in Article 73. Based on the way the article was written and the facts at the beginning of life on the websites, it is understood that this article was born out of a need.
In many of the sites that have been annotated as a collective structure, the number of owners is quite high. Moreover, when life is just beginning, many people acquire the title of owner by purchasing them, and many people transfer the title deed they bought to someone else. In a temporary period when the flat owners and tenants change so intensely, but especially in an important process that constitutes the beginning of life on the site, the management of the site by the flat owners and by selection procedures may cause negativities for the site and for the residents of the site. To prevent this, the law has brought such a solution.
HOW IS INTERIM MANAGEMENT DETERMINED?
How the Interim Management will be determined is shown in the Management plan. While the management plan is being prepared, all the owners of that date make an alliance on how the temporary administration will be and write this subject to the Management Plan . contains the provision. In practice, the contractor companies generally keep the temporary management under their own responsibility. Sometimes, it is also seen that the land owners who are aware of the importance of the management plan and the temporary management are also involved here and have themselves authorized in the temporary management.
HOW LONG IS THE PROVISIONAL ADMINISTRATION AUTHORIZED?
In Article 73 of the Condominium Ownership Law, “… Temporary administration can continue until one year after the end of the collective building at the latest. In any case, this period expires after ten years have passed from the receipt of the first construction permit within the scope of collective construction.” It is called. As can be understood from this article, the term of office of the temporary administration is at most one year after the end of the collective structure. The real question here is, at what stage is the bulk building considered finished? In the Supreme Court applications, the date of receipt of the Building Occupancy Permit, that is, the document known as ISKÂN in practice, is accepted as the end of the collective building. The point to be considered in this regard is that sometimes the settlement certificate for the whole site is not received on the same date in collective buildings. Piece by piece, settlements are taken on several different dates. In this case, the date of occupancy of the last building within the scope of the collective structure will be accepted as the date when the collective structure was completed.
The law has set a second and maximum period. Let’s say that more than 10 years have passed without occupancy in the building due to deficiencies in occupancy qualifications or due to the negligence or deliberate actions of the contractor company. In this case, the law wanted to prevent the permanent deprivation of the management right of the owners by fraudulent means, saying that the duration of the temporary administration cannot be more than ten years, even if the resettlement is not taken.
In practice, these ten (10) years are sometimes misunderstood. It is assumed that the duration of the temporary administration can be written up to ten years, if desired, in the management plan, and the contractors think that this period is an absolute right granted to them. In fact, there have been times when contractors who wrote five (5) years made statements such that my right was ten years, but I restricted the right granted to myself out of goodwill. However, that is not what the Law means. Let’s say that on the day of the 1st year from the receipt of the license, the entire occupancy of the collective building has been taken. In this case, the term of office of the temporary administration is up to the day when 2 (two) years are completed with the addition of one year. In this case, the Provisional Administration has to organize the elections before the end of the second year and initiate the steps for the formation of the Collective Building Representatives Board and ensure that the elected administration takes office from the day one year has passed since the resettlement. In the same way, let’s say that the resettlement was taken in the second year, the temporary administration period will expire at the end of the third year. If the third year is taken, it will be completed at the end of the fourth year. Let’s say the resettlement was taken in the middle of Year 9. In this case, the duration of the temporary administration after the resettlement is not one year. Since it will be a maximum of ten years, the more time left until the end of the ten years after the resettlement, the longer the term of office of the temporary administration remained. In the same way, let’s say that the resettlement was taken in the second year, the temporary administration period will expire at the end of the third year. If the third year is taken, it will be completed at the end of the fourth year. Let’s say the resettlement was taken in the middle of Year 9. In this case, the duration of the temporary administration after the resettlement is not one year. Since it will be a maximum of ten years, the more time left until the end of the ten years after the resettlement, the longer the term of office of the temporary administration remained. In the same way, let’s say that the resettlement was taken in the second year, the temporary administration period will expire at the end of the third year. If the third year is taken, it will be completed at the end of the fourth year. Let’s say the resettlement was taken in the middle of Year 9. In this case, the duration of the temporary administration after the resettlement is not one year. Since it will be a maximum of ten years, the more time left until the end of the ten years after the resettlement, the longer the term of office of the temporary administration remained.
Can the Term of Office of the Temporary Administration be shortened by the Flat Owners?
As we explained above, the Interim Administration can only be formed if there is a provision in the Management Plan. If there is no provision for temporary administration in the Management Plan, then a temporary administration cannot be established. Although there is no such provision in the Management Plan, if a temporary administration has been formed and is working in a collective structure, it should be known that that administration is not legal. One of the Flat Owners has the right to apply to the court and request that he or someone else be appointed as a manager until the date of their livelihood.
If temporary management is foreseen in the Management Plan, then the flat owners cannot terminate the term of the temporary management until the term expires. Likewise, the courts cannot terminate the mandate of the interim administration before this period expires. However, in article 70/2 of the Condominium Ownership Law, “The provisions of the management plan regarding the temporary administration can be changed with the votes of four-fifths of the independent section owners in the collective building area.” This period may be shortened or terminated in case the Floor Owners change the Management Plan as per its provisions.
WHO HAS AUDIT AUTHORITY AT THE TIME OF PROVISIONAL ADMINISTRATION?
The law did not foresee a supervisory procedure for the temporary administration period. For this reason, there is no obligation to appoint or elect an auditor. In practice, it is sometimes seen that temporary supervisory boards are foreseen in the management plans. In my opinion, since the temporary administrations are equipped with the authority of the board of representatives and in a sense, the authority of the board of flat owners, only the first elected Board of Directors should audit.
WHAT ARE THE AUTHORITIES OF THE PROVISIONAL ADMINISTRATION?
Although it is called a temporary administration, this administration is actually more authoritative than the elected administration. Because, Article 73 of the law granted the powers of the Board of Representatives to the Temporary Administration.
69/3 of the Property Ownership Law. Article “Common buildings, places and facilities within the scope of the collective structure are managed by the collective building floor owners’ board, which consists of the independent section owners included in this scope, and the management style is decided by this board, without prejudice to the mandatory provisions of the laws. This authority may be given to the collective building representatives board in the management plan. By saying “, it has been stipulated that the authority of the Collective Building Flat Owners Board can be given to the Board of Representatives with the Management Plan.
When the above items are evaluated together, the Board of Representatives of the Temporary Administration has the authority. The Board of Representatives also has the authority of the Collective Building Flat Owners Board, so the Temporary Administration has the authority of the Collective Building Flat Owners Board during its term of office. However, elected governments do not have these powers. The Board of Representatives, which has these powers in the Elected Administration, maintains its existence as a body above the elected administration.
However, sometimes the temporary administrations, who realize that they are so authorized, try to take big decisions that change the architectural project and management plan, apart from the usual management services of the Site. In my opinion, the strength of the Temporary Administration at the level of the Flat Owners Board is limited only to the issues that the Condominium and Management Plan provides to the management. Based on this authority, the Temporary Administration is not authorized to make allocations that are not in the Management Plan, to tie the immovable with mortgages, etc., to determine who will own the floors to be added by adding floors, to change the way and purpose of use determined for the common areas in the architectural project or management plan. Again, I have the effect of the floor owners board, so he cannot say I want to change the management plan.
Since the Law gives the Temporary Administration the authority of the Flat Owners’ Board on management issues, it also gives the Temporary Administration the authority to make a finalized business project (budget) on its own. For this reason, the budget determined by a temporary administration established in accordance with the Law and the Management Plan and notified to the flat owners is the final budget, and in case of objection in the enforcement office, the estate management representative may follow a shorter route such as removing the objection rather than going the long way such as canceling the objection. Because 72/2 of the Property Ownership Law. Article “Block floor owners, collective building representatives and temporary board of directors decisions are counted among the documents specified in the first paragraph of Article 68 of the Execution and Bankruptcy Law No. 2004.” It includes the provision.
THE SITUATION OF THE PROVISIONAL ADMINISTRATION NOT TO GO TO THE ELECTION DESPITE THE TERM OF TERM EXPIRED
In the light of what we have explained above, in the event that the Temporary Administration does not fulfill the task given to it in order to ensure the formation of the Collective Building Representatives Board, that is, does not initiate the necessary process, despite the expiry of its term of office, the most practical step to be taken is to warn it with a notary public notice of the situation and to be given a period of time, and the negligence continues despite this period. If so, the intervention of the judge regarding the appointment of a manager to the Civil Court of Peace is requested.
Atty. Zinnur KAYA