Disabled Elevator News

Guide for Disabled Elevators in Old Buildings

Do only disabled people use the disabled elevator? Is it different when an elevator is built later in an old apartment building than when a disabled person has an elevator built for them? What should the disabled person do for this? In this case, who pays for the elevator? Does only the disabled owner who pays for the elevator use it or can other flat owners use it as well? Istanbul Bar Association lawyer and condominium law expert lawyer Mustafa Şeref Kısacık answered all these questions for us.

1- WHAT NUMERICAL MAJORITY SHOULD BE USED TO DECIDE FOR THE ELEVATOR?

– Flat Owner Asked: We live in a five-story apartment building in Ankara. Most of the flat owners are elderly and sick. The two owners on the ground floor do not want an elevator and are against it. What numerical majority should we use to decide to have an elevator built?

Lawyer: If we live in an old five-story building as in the reader's question, and the elderly and patients on the upper floor have trouble because there is no elevator, it is possible to have an elevator installed in the building later if certain conditions are met. The flat owners cannot make any changes in the common areas of the apartment building on their own. According to the Condominium Law (KMK), all beneficial innovations and additions to be made in the common area can be made upon the decision of the majority of the number and land share of all flat owners in the apartment building. The issue to be considered here is not the majority of the meeting attendees but the majority of all flat owners. LiftArt added: KMK Article 42 (Additional paragraph: 1/7/2005-5378/19 art.) In case it is deemed necessary for the life of the disabled, the project modification is discussed in a meeting of the flat owners to be held within three months at the latest and a decision is made by the majority of the number and land share. In case the meeting cannot be held within this period or the modification request is not accepted by the majority; Upon the request of the relevant flat owner, construction, repair and installation shall be carried out in accordance with the approved project change or sketch to be received from the relevant authorities based on the commission report stating that the building security is not endangered. The relevant authorities shall finalize the approved project change or sketch requests within six months at the latest. The establishment of the commission, its working method and the procedures and principles regarding the process after the disabled person's use shall be determined by the regulation to be prepared jointly by the Ministry of Public Works and Settlement and the Disabled People Administration. (1)

The expenses of these works shall be paid by those who benefit from the innovations according to the rate of benefit.

2- IF THERE IS NO ELEVATOR IN THE PROJECT

There is no elevator in our original project. Is it possible for us to have an elevator built by making a decision in the General Assembly?

In such a case, it will not be sufficient to obtain a majority of the number and land share to have an elevator built in the building later. If there is no elevator in the building's project, in this case, the owners must make a unanimous decision since the project requires renovation and the relevant municipality must also permit this renovation project. If the building is not suitable for elevator construction, if there is no space for an elevator or if the construction of an elevator will damage the building's statics; the municipality will not approve the renovation project and the elevator will not be built despite a unanimous decision.

3- IF THE ELEVATOR SHAFT IS CLOSED

According to the project, our building has an elevator and an elevator shaft, but it has been closed. I live on the top floor. I am 80 years old and sick. My other neighbors oppose it by saying "it is expensive and unnecessary". I want to have an elevator built on my own. What path can I follow?

If there is already an elevator in the building's project, if there is a space for an elevator; in this case, an elevator will be built. Since it is necessary to create a budget for the necessary expenses, a budget is created with the decision of the Flat Owners' Board. Even if the General Assembly decides "No elevators", even if one person wants to, an elevator can be built. Our flat owner reader who voted against this decision-remained in opposition and requested the construction of the elevator should file a lawsuit within one month from the date of the meeting, and the flat owner who did not attend the meeting should file a lawsuit within one month from the notification of the decision; and request the construction of the elevator, which already exists in the project, by filing a lawsuit in the civil court of peace where the real estate is located.

4- ELEVATOR BY JUDGE'S DECISION

How is an elevator constructed by a judge's decision?

If there is an elevator in the original architectural project and the building is suitable for elevator construction, the judge decides to construct an elevator provided that its statics are not damaged. By creating and collecting the necessary budget within the period given by the judge, a decision is made for the manager to construct the elevator and the elevator is constructed. If the manager does not start the construction of the elevator within the given period in the judge's decision; he authorizes the plaintiffs to collect the money for the elevator from the owners and construct it. The plaintiff fulfills the decision through enforcement and has the elevator constructed. All owners participate in the construction of the elevator in proportion to their land share. It is collected from those who do not pay through enforcement.

5- Later, an elevator is being installed in our building and I am asked to pay 130 thousand TL (December 2023). Since I live on the ground floor, I will almost never use this elevator. Do I have to pay the same amount as others?

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According to Article 20 of the KMK, each of the flat owners is obliged to contribute to the maintenance, protection, reinforcement and repair expenses of all common areas, other expenses such as the manager's salary, and the operating expenses of common facilities and the advance to be collected for the expenses in proportion to their land share, unless otherwise agreed between them. There is no special regulation in the KMK for the owners of independent sections on the ground floor. Unless there is a different regulation in the Management Plan (YP), the owners will contribute to the elevator construction and operating expenses in proportion to their land share. Our reader must also pay the elevator fee like other owners.

IF A DISABLED PROPERTY OWNER WANTS TO HAVE AN ELEVATOR BUILT

6- Is it different between having an elevator built later in an old apartment building and having an elevator built for a disabled person? What should the disabled owner do?

There are different regulations for the disabled. According to Article 42 of the Condominium Law, if it is necessary for the life of the disabled, unanimity is not required for a project amendment. Upon the request of the disabled person, the Apartment General Assembly must convene within three months at the latest and decide with a majority of the number and land share to build places such as elevators. If the other flat owners do not accept the request of their disabled neighbors; the commission established in accordance with the regulation on this issue is applied upon the request of the owner. The additional paragraph of Article 42 is explained in Article 1.

COMMISSION MEMBERS

The Regulation on the Working Principles and Procedures for the Establishment of Project Modification Commissions for the Use of the Disabled in Buildings, prepared based on Article 42 of the KMK, indicates who will form the commissions, their working principles and procedures. The commission includes the project author of the building, an architect or engineer member from the ministry, an architect or engineer member from the municipality or provincial special administration, a member from the Chamber of Architects or Agricultural Engineers, a doctor from the district health directorate, universities or the medical chamber who is suitable for the disabled group, and a representative of an association, federation or confederation that is a member of the disabled group requesting the renovation.

Upon application, the commission meets with at least five members within 15 days at the latest. Decisions regarding project changes are made by majority vote. In case of a tie, the decision of the chairman's vote is followed. The project change should not endanger the safety of the building. Based on the report to be given by the commission stating that the safety of the building is not endangered, the elevator is built according to the approved project change to be received from the municipality.

DOES THE DISABLED PAY THE ENTIRE MONEY?

The flat owner who will make the application must be disabled himself or one of the family members living in the building. In addition, the innovations and additions to be made in common areas and facilities for the disabled person to continue their life must necessitate renovations in the current project. Upon the report given by the commission, the project renovation that will make the disabled person's life easier is made without the need for the permission/approval of the other flat owners. In this respect, the regulation is positive. However, it is a great injustice that the entire construction cost of the elevator will be covered by the requester. That person is disabled today, we may be disabled tomorrow. We need to empathize.

7- ONLY THE DISABLED PERSON USES THE ELEVATOR

Does the elevator only use the disabled person who pays for it and has it built?

The disabled person who requests the disabled elevator according to the current legal regulation also pays for the expenses of the disabled elevator. Since the disabled person pays both the general cost of the elevator and its expenses, they keep the key of the elevator and use it only themselves. Or the flat owner who has contributed to all the expenses of the disabled elevator can also use the elevator by keeping the spare key.

DO DISABLED PERSONS ALSO HAVE THE GENERATOR BUILT?

8- What can a disabled person who uses a respiratory device do if they want a generator to be purchased/installed in their apartment later?

Within the scope of “Beneficial innovation and addition” in the KMK, a generator can be built in an old building later by a decision made by the majority of the owners and land share.

9- Does the cost of the generator only cover the cost of the generator?

Unless there is a different regulation in the management plan, the owners will contribute to the generator construction and operating expenses in proportion to their number and land share. Unlike a disabled elevator, not only disabled condominium owners but all condominium owners can use a generator built in this way.

REGULATION BY FLOOR IN HOUSING ESTATE

10- Can elevator arrangements be made according to the floor lived in?

Yes, the Condominium Owners Board allows this. For example, in a 30-40-story building, elevator fees can be imposed according to the floor lived in. Before the residence starts in the site, while the floor easement/condominium ownership is being established, the prepared YP should be prepared specific to the site. In the Management Plan, the sharing of the expenses of common areas and facilities such as parking lots, elevators, pools, tennis courts belonging to that site can be determined in the most fair and accurate way for the owners and tenants: ‘Those who use less pay less, those who use more pay more.’ In fact, those who do not benefit from some services do not pay anything for that matter. Thus, regarding the sharing of expenses, the site or apartment