1. Introduction
Land share expresses the parts of single spaces that are assigned right of common ownership on a land. People have real estate as common ownership on a land by having single spaces as apartments or workplaces in the same building because especially commercial and tourism earning is high or land is few and precious in the big cities. Also, sometimes buildings are built on a land that brought jointly. In the latter case, the co-ownership is continued in form of land shares which assigned to single spaces.
The land share plays a crucial role especially for the decisions are taken by owners to calculate plurality of 2/3 of land share of the building in accordance with the Law on Transformation of Areas under the Risk of Catastrophe numbered 6306 which is commonly known as the Law on Urban Transformation. For this reason, it is important to determine and assign the exact and correct land shares for the single spaces. That is why the ratio of land share represents owner’s ratio of ownership on the land. The land share is in the scope of the right of ownership guaranteed under the Article 35 of the Constitution of Turkish Republic and paragraph 1 of Article 1 of the European Convention of Human Rights Additional Protocol. Therefore, correctly determination of land shares, which is a reflection of the right of ownership, has a vital importance for the owners.
One of the owners may reckon that determination of land shares are wrong and claim to reassess his land share. Such demand of reassessment of land share is based on the Article 3 and 44 of the Law on Common hold numbered 634 (Kat Mülkiyeti Kanunu, KMK).
2. Term of Land Share and Reassessment of the Land Share
In accordance with subparagraph of Article 2 of the KMK, the shares of single spaces that are assigned to the common ownership is called “land share”. Land share merely can be for single spaces. It is not possible to assign land shares for the common areas (1).
The land share is an integral part of common hold and construction servitude in the scope of the KMK. According to Tekinay, the term of land share is not accurate yet it is not the “land” but “ownership” is allocated into the shares.
Along with determination of land share, the right of ownership will be determined as single spaces in the apartments or workplaces in the buildings. Therefore the owners of the single spaces exercise the rights that arise from the common hold in the ratio of the land share. In the paragraph 1st of article 6th of the Law on Urban Transformation, the owners of the single spaces can decide reassessment of the building with the plurality of 2/3 of the land shares. Thus, owners have rights and obligations in the scope of the KMK and the Law on Urban Transformation in proportion with their land shares (2). Hence, determination of the land share is important. The importance of the allocation of the land share can also be understood from the relevant articles of the KMK.
In the article 3rd of the Law numbered 634, common hold is defined as a special ownership related to the land share and the common places on the mainland. In accordance with the same article’s second paragraph, the land shares should be constituted by way of explicitly indicating the land shares on base of property ownership in consideration of calculation of each single space’s value as per their position and space in the proportioned assignment as shown in the project. Thus, two basic principles are accepted for the determination of the land share. First one is, determination of land shares in accordance with the single space’s location and size, second one is, obligation of the showing of land shares in the project.
The second paragraph of the 3rd Article of the KMK had been amended by the Amending Law numbered 5711. Merely, after the amending, the approved (architectural) project of the main real estate and the value of the land share are calculated in accordance with each one of the single space’s location and size as the principle of determination of the land share (3). Therefore, the land shares have to be objectively determined in accordance with single space’s location and size (4). The land share will be determined by the architect of the project owner of the architectural project. In the process of the acquisition of apartment sharing or common hold, the land share will be calculated at this time by architect of the project owner of the architectural project. With this amendment, the purpose of the calculating the land share by an architect who is an expert on it can prevent the disproportional determination of the land share in accordance single spaces’ value (5).
3. The Lawsuit for Reassessment of the Land Share
In some cases, it can be necessary to determine the ratio of the shares because of the inequality between the land shares and single spaces or additional floors or extended floors. For all of these kinds of situations, the lawsuit for “equalisation” or “reassessment of the land shares” can be sued (6).
The lawsuit for the reassessment of the land share is a declaratory lawsuit. Thus, the existence of a right (the ratio of land share) is claimed in this lawsuit and the legal interest must be existed.
The ratio of the share determines the situation of shareholder’s right to manage the common hold (Civil Code Art. 689), the ratio of the expenses, tax and other obligations of the shareholder (Civil Code. Art. 688/2) and also the ratio of the property and money for each one of the shareholders after termination of the property right or sale of the property can be determined by it (7).
The compulsory condition for the lawsuit is the existence of the disproportioned determination of land shares’ value of the single spaces in accordance with the real value in the date of the acquisition of common hold or construction servitude (8).
The legal ground of the amendment for incorrectly determined land shares that determined at the time of construction is the Article 3rd and 44th of the KMK. Otherwise, if common hold is acquired by the court decision, due to the share of land cannot be sued because of mistake because it is res judicata in accordance with the article 303rd of the Civil Procedure Law numbered 6100 (9).
Although the amendment numbered 5711 some difficulties are eliminated for determination of the land shares. However, if the land shares were not determined in accordance with the article 3 of the KMK, considering the provisions of the Urban Transformation Law on the land share calculation it may cause to loss of rights. In order to prevent the said before, the property owner should be careful about the sharing of the land share when the acquisition of common hold and construction servitude. In addition, the buyer may be careful about the single space’s land share.
In conclusion, the owner of apartment or workplace can start a process for the lawsuit for reassessment of land share, if he reckon the ratio of the land share were calculate wrongly.
(1) Land share cannot be assigned for common areas. (The General Assembly of the Court of Appeals, 25.05.1968 T.1967/1-32 E., 1968/319 K.)
(2) “The organization and allocation of the land shares to the single spaces have importance because of the owner of apartment and apartment sharing’s legal rights and responsibilities over the single space and the main real estate are directly proportionate to them.” GERMEÇ, Mahir Ersin “Kat Mülkiyeti Hukuku”, Seçkin Yayıncılık, 4th Baskı, Ankara, 2011, p.69
(3) Germeç, ibid, p.69
(4) Alpöğünç, ibid, p.496
(5) PULAK T. Murat “Açıklamalı, İçtihatlı, Örnekli, Notlu Kat Mülkiyeti Kanunu”, Adalet Yayınevi, 6. Baskı, Ankara 2011, p.56
(6) Tekinay, Selahattin Sulhi, Kat Mülkiyeti ( Eşya Hukuku II/2) s. 98-99, Filiz Kitabevi
(7) Oğuzman, Seliçi, Oktay Özdemir; Eşya Hukuku, p,256
(8) 5 Şubat 2009 Tarihli 18. HD, 2008/10404 E., 2009/700 K., PULAK, a.g.e., s.54, 634 sayılı Kanun, m.3/2-1 The 18th Civil Chamber of the Court of Appeals, dated 5.02.2009, numbered 2008/10404 E., 2009/700 K., PULAK, ibid, p.54, The subparagraph 1 of paragraph 2 of article 3 of the Law numbered 634
(9) Alpöğünç, ibid, p.501
