The concept of land share is defined in Article 2, titled “Definitions,” of the Condominium Law No. 634, as a term expressing the shares of co-ownership allocated to independent units within the framework of the principles set forth in this Law.
On the basis of this definition, it is clear that the land share bears the nature of a co-ownership share established in connection with independent units. Therefore, in order to be able to refer to a land share, it is mandatory that a construction servitude (kat irtifakı) or condominium ownership (kat mülkiyeti) has been established on the relevant immovable property.
The issue of the principles according to which the land share shall be determined is regulated in the second paragraph of Article 3 of Law No. 634. Pursuant to the said provision, condominium ownership and construction servitude are established by explicitly indicating, in accordance with the principles of co-ownership, the land share allocated in the project for each independent unit, in proportion to the values determined by taking into account the location and surface area of each independent unit constituting the main immovable.
However, it must be emphasized that, in determining the land share, it is not sufficient to rely solely on the criteria of location and size explicitly set forth in the Law. As also adopted in the case law of the Court of Cassation, it is accepted that different factors affecting the value of independent units must also be included in the assessment. In this context, the specific characteristics of each independent unit and other factors affecting its value are also taken into consideration in determining the land share.
Court of Cassation 20th Civil Chamber, Merits No: 2017/2569, Decision No: 2017/6174;
“While carrying out the said procedure, factors such as the type of the independent units, the floor on which they are located, their area, heating system, illumination, architectural use and location, façade and view shall be taken as a basis for evaluation; zoning status after the date to be taken as the basis for evaluation, as well as changes in type and view, and increases or decreases in value arising from maintenance and repair works shall not be taken into account.”[1]
Another matter that should not be overlooked with regard to the land share is its close and inseparable connection with the independent unit. As explicitly stated in the first paragraph of Article 5 of Law No. 634, in the event of the transfer of condominium ownership or its transmission by way of inheritance, the land share attached thereto shall automatically pass to the new owner. In accordance with the same provision, the land share cannot be transferred independently of condominium ownership or construction servitude; it cannot pass by inheritance on its own, nor can it be made the subject of another real right separately. In this respect, the land share constitutes a complementary element that is subject to the legal fate of the independent unit.
The size and proportion of the land share play a decisive role in terms of the management of the main immovable, the use of common areas, and expropriation processes. As a matter of fact, in the fourth paragraph of Article 34 of the Condominium Law, it is regulated that the manager shall be appointed by the majority of both the number and the land shares of the condominium owners, thereby demonstrating the effect of the land share within the management mechanism. Similarly, in the first paragraph of Article 42 of the Law, it is stipulated that innovations and additions to be made in common areas may only be carried out in line with a decision to be taken by the majority of the condominium owners in terms of both number and land share. This regulation also clearly shows that the land share is a decisive criterion in dispositions concerning common areas.
On the other hand, in Article 16 of the Condominium Law, the rights of condominium owners to use common areas are regulated; it is stated that, unless otherwise agreed, the scope of this right shall be determined in proportion to the land share of each condominium owner. Accordingly, the use of common areas such as coal cellars, garages, terraces, laundries, and similar areas of common use is, as a rule, shaped in accordance with the proportion of the land share.
The importance of the land share also manifests itself in cases where the main immovable is completely destroyed or expropriated. Indeed, in the last paragraph of Article 46 of the Law, it is regulated that, in the event of the expropriation of the main immovable, the expropriation compensation to be determined for each independent unit shall be assessed separately by taking into account the land share and appurtenances of the relevant unit, and payment shall be made to the right holders accordingly.
When all these matters are evaluated together, it is clear that the land share gives rise to extremely important rights for condominium owners and holders of construction servitude. For this reason, utmost care must be exercised in the determination of land shares in terms of compliance with the law, objectivity, and the principles of equity. Otherwise, incorrectly determined land shares may lead to the inability of condominium owners and holders of construction servitude to duly exercise their rights and may give rise to various disputes.
The action for the correction of the land share is also regulated in Article 3 of the Condominium Law No. 634. According to the said provision, in the event that land shares have not been allocated in proportion to the values of the independent units, each condominium owner or holder of construction servitude may apply to judicial remedies for the purpose of re-determining these shares.
In practice, since more than one criterion must be taken into account in determining the land share, it is not always possible to reach accurate results. Particularly in cases where independent units are offered for sale based on projects in which land shares have been predetermined, land shares may be determined incorrectly due to a lack of due diligence.
In such cases, an action for the correction of the land share may be filed, requesting the rearrangement of shares that do not reflect reality. Such action may be brought by condominium owners or holders of construction servitude, as well as by their legal representatives and heirs. On the other hand, since the legislator has limited the right to bring an action, tenants do not have the capacity to file such a lawsuit.
No forfeiture period has been prescribed with regard to the action for the correction of the land share. In this respect, the action bears the nature of an action based on a real right and may be filed at any time, provided that the necessary conditions are met. However, in order for this action to be brought, the fundamental condition is that the land shares must have been determined incorrectly. In other words, it must be concretely demonstrated that the land shares allocated to the independent units are not proportionate to the actual values of these units.
Finally, in actions concerning the correction of the land share, the competent court is the Civil Court of Peace (Sulh Hukuk Mahkemesi) pursuant to Additional Article 1 of the Condominium Law No. 634, titled “Competent Court.” In terms of jurisdiction, in accordance with the first paragraph of Article 12 of the Code of Civil Procedure No. 6100, the court of the place where the immovable is located has exclusive jurisdiction. Accordingly, actions for the correction of the land share must be filed before the Civil Court of Peace at the place where the main immovable subject to the dispute is located.
Court of Cassation 5th Civil Chamber, Merits No: 2023/5293, Decision No: 2024/1926;
“The primary condition for the rearrangement of the land share is that the land shares have been determined disproportionately to the values of the independent units; in claims based on this matter, the court must evaluate all evidence, compare the value of the independent unit with the land share allocated thereto, and seek to ensure equivalence.”[2]
[1] Court of Cassation 20th Civil Chamber, Merits No: 2017/2569, Decision No: 2017/6174.
[2] Court of Cassation 5th Civil Chamber, Merits No: 2023/5293, Decision No: 2024/1926.