The concept of Land Share comes to the fore frequently with the widespread use of the Urban Transformation process. Especially in the urban transformation process, within the scope of law no. 6306; "Re-evaluation of the building" and "voting on the decision to sell the land shares of the owners who do not comply with the majority" make the land share important by making decisions with at least a two-thirds majority of the stakeholders in proportion to the shares of the owners. Important issues such as whether the building will be rebuilt or which contractor will be chosen are generally determined by the choice of this majority.
What does the concept of land share mean?
So what does “land share” mean? According to the property law, which is the 4th Book of our Civil Code, the ownership of a real estate by more than one person is a state of joint ownership. Joint ownership; This is the case with shared ownership or joint ownership. There is a type of shared ownership in immovable properties where floor easement or condominium ownership has been established. In the real estate where condominium ownership is established, each of the stakeholders is a stakeholder in the land on which the main real estate is located and the common areas, as in shared ownership. The share ratio of each stakeholder in the real estate consisting of the land on which the condominium is established and the main building is the share of the land allocated to the independent section . Therefore, in Article 2/d of the Condominium Law No. 634, the land share is defined as "Common ownership shares of the land allocated to independent sections according to the principle written in this Law (Land share)".
How is the land share determined?
"Condominium ownership and floor easement" in Article 3/2 of the Condominium Law No. 634 means the land share allocated in the project in proportion to the values calculated according to the location and size of each of the independent sections of the main real estate subject to this ownership, in accordance with the principles of common ownership. It is established by clearly showing…” regulation reveals that there should be a ratio between the value of the independent section and the land share. Let's open a parenthesis here and underline that the size of the independent section is not the only factor in determining the land share. Especially in buildings that are on the agenda for reconstruction, some owners make the mistake of thinking that the land share is directly proportional to the square meter. Apart from the size of the independent section, such as the type of the independent section, the floor it is located on, its area, heating system, lighting, architectural use and location, facade and view, purpose of use (residence, workplace, etc.), attachments, benefit from the sun, being affected by wind and other external factors. These issues are taken into account in determining the share. Therefore, the fact that independent sections of the same size in a building have equal land shares indicates that the land share is determined incorrectly.
Why is land share important?
As explained above, land share regulates the stakeholder's ownership right on the real estate. According to the condominium law, land share gains importance in matters such as participation in management expenses (dues) and participation in management. On the other hand, as stated at the beginning of the article, important decisions such as deciding on the evaluation of the building within the scope of risky structure within the scope of Law No. 6306 and auctioning off the shares of flat owners who do not comply with the majority decision are taken by the 2/3 majority of the land shares. In this case, it is understood how important the land share is in terms of both management and decision-making. If the condominium is terminated for any reason, the property rights of the land owners are determined according to the ratio of their land shares, and the change in the land share brings with it the change in ownership rights.
What can be done if the land share is determined incorrectly?
Article 3/2 of the Condominium Law No. 634 states that "...In cases where the land shares are not allocated in proportion to the shares of the independent sections, each floor owner or floor easement owner may apply to the court for the reorganization of the land shares..." suggests that it can be corrected. Accordingly, if the land share and the values of the independent sections are disproportionate, it is possible to correct the land share later. Therefore, the owner who thinks that the value of the independent section and the land share allocated to this independent section is disproportionate can file a "Land Share Correction Case" to correct the land shares.
Things to consider when filing a lawsuit
First of all, it is necessary to investigate whether the owner who will file the lawsuit signed during the establishment of the floor easement or condominium. According to the decisions of the Supreme Court, it is essential for the court to investigate whether the flat owner or owners, whose land shares were arranged during the establishment of the floor easement or floor ownership, are in good faith in later requesting the correction of their land shares. On the other hand, another issue that should be taken into consideration is that in the examination to be carried out by an expert, the project on the date when the floor easement or condominium was established is taken into account. Therefore, the zoning status after this decree, changes in type and landscape, and increases and decreases due to any renovation or repair work are not taken into account in the re-evaluation of land shares.
As we explained in the article, it is possible for independent section owners to change their land shares, which they think have been determined incorrectly, through a lawsuit, resulting in a change in their property rights.
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