Guide to Disabled Elevators in Old Buildings

Does the disabled only use the elevator? Is it different for a disabled person to have an elevator built for them than for a disabled person to have an elevator built for them in an old building? What should the disabled person do for this? In this case, who pays for the elevator? Does the disabled person only use the disabled owner who paid for it, or can other property owners use it as well? Istanbul Bar Association lawyer and property ownership law expert lawyer Mustafa Şeref Kısacık answered all these questions for us.

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

– Property Owner Asked: We live in a five-story apartment building in Ankara. Most of the property owners are elderly and sick. The two owners on the ground floor do not want an elevator and are against it. With what numerical majority can we make a decision to have an elevator built?

Lawyer: If we live in an old five-story building as in the reader's question, if the elderly and sick people on the upper floor have trouble because there is no elevator, it is possible to have an elevator built in the building later if certain conditions are met. The flat owners cannot make any changes on their own in the common areas of the apartment building. According to the Flat Ownership 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 flat owners in the apartment building with the number and land share. The issue to be considered here is not the majority of the meeting participants 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 shall be discussed in a meeting to be held by the flat owners within three months at the latest and decided upon by the majority of the number and land share. If 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 according to 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 uses it are determined by the regulation to be prepared jointly by the Ministry of Public Works and Settlement and the Presidency of the Administration for the Disabled. (1)

The expenses of these works are 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 to have an elevator built by making a decision in the General Assembly?

In such a case, it is not enough to provide a majority of the number and land share to have an elevator built in the building later. If there is no elevator in the project of the building, 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 place to build an elevator and if the construction of an elevator will damage the statics of the building; the municipality will not approve the renovation project and the elevator will not be built despite the unanimous decision.

3- IF THE ELEVATOR SHAFT IS CLOSED

According to the project, our building has an elevator and the elevator shaft is also closed, 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 by the decision of the Flat Owners’ Board. Even if a decision is made in the General Assembly that “No elevators should be built”, even if only one person wants to have an elevator built, our flat owner reader who votes against this decision/opposes and wants the elevator built can file a lawsuit within one month from the date of the meeting, and the flat owner who did not attend the meeting can 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 built 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 build an elevator, provided that it does not damage its statics. By creating and collecting the necessary budget within the period given by the judge, a decision is made for the manager to build the elevator and the elevator is built. If the manager does not start building 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 build it. The plaintiff enforces the decision through enforcement and has the elevator built. 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 built 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 the others?

According to Article 20 of the KMK, the flat owners 

Unless otherwise agreed upon between them, each of them is obliged to contribute to the maintenance, protection, reinforcement and repair expenses of all common areas and other expenses such as manager’s salary and the operating expenses of common facilities and the advance to be collected for the expenses in proportion to their own land share. There is no special regulation in the KMK for the owners of independent sections located 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 is obliged to 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 keep the spare key and use the elevator.

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 introduced 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 at all. Thus, no problems will occur in the future regarding the sharing of expenses in the site or apartment building. For example 

If there is a sauna on the site, it can be written in the Management Plan that one hour of use per person is 100 TL and an application can be made in this way.

LiftArt Elevator

Quote: Hürriyet