Adding a New Apartment or Rooftop Floor in Turkey: Article 44 Guide for Foreign Owners

When does Article 44 apply?

Article 44 governs the addition of a new independent unit in specific forms. The text covers adding a floor above the main property, converting an existing setback floor into a full floor, and later constructing or adding the types of premises referred to in Article 24(2) on the ground floor, basement or vacant part of the land.

This is legally different from changing the interior layout of an existing apartment. The defining feature is that the project creates an additional independent unit and changes the condominium’s registered structure and land-share allocation.

For foreign investors, this distinction is essential. A seller may describe an unregistered rooftop room, basement area or extra floor as “part of the apartment,” but title law follows the land-registry and approved project status. Physical existence does not make a space a legally registered independent unit.

Before investing in a conversion project, review the title record, approved architectural project, condominium establishment documents, management plan and current independent-unit list.

Article 44 requires unanimous approval of the condominium owners

The first condition in Article 44 is explicit: the condominium owners’ assembly must decide on the addition unanimously.

This is not the simple majority used for many ordinary management matters, the number-and-land-share majority used for useful improvements under Article 42, or the four-fifths rule applicable to certain individual common-area alterations under Article 19. A new independent unit changes the ownership structure and therefore triggers the higher Article 44 threshold.

“Unanimous” means approval by all condominium owners whose consent is legally required—not merely all owners who happen to attend the meeting. If one required owner withholds consent, the Article 44 condition is not satisfied.

A proxy can represent an owner in an owners’ meeting if the representation complies with Article 31. Where the transaction proceeds to official land-registry acts, however, the representative must also have the authority required for those formal acts. A general meeting proxy is not automatically sufficient for every title transaction.

All land shares must be recalculated unanimously

Article 44 does not stop at approval of construction. The second condition requires the land shares allocated to all independent units, including the new addition, to be recalculated according to the situation the property will have after construction and to be determined unanimously in the legally required manner.

Land share (arsa payı) is a core element of Turkish condominium ownership. It is linked to the independent unit and affects common-property rights and many financial/voting calculations under the Condominium Law.

Adding a new unit necessarily changes the total allocation. The new apartment cannot simply be given an arbitrary land share while every existing unit’s registration remains untouched if that would not reflect the required post-construction structure.

For existing owners, this means the project affects property rights even if the new floor is paid for entirely by one investor. The owners should review the proposed new land-share table before signing the unanimous resolution or official deed.

Official deed and land-registry steps for the new independent unit

The third Article 44 condition requires establishment of condominium servitude on the land share allocated to the new independent unit by official deed before the land-registry officer, under Article 14. That servitude must be registered in the encumbrances section of all existing condominium pages and linked to the former registry pages under the statutory system.

The addition is therefore not completed as a condominium-law matter merely because construction finishes. The title structure must be formally amended and the new independent unit brought into the registration system.

When the statutory and public-law requirements are satisfied, the newly constructed unit can ultimately be converted into condominium ownership and registered on a separate page in the name of the owner or owners who financed it, under the final paragraph of Article 44.

Foreign investors should insist on seeing the completed title registration rather than accepting only a building permit, contractor agreement or owners’ resolution.

What happens to owners who consent but do not participate financially?

Article 44 expressly contemplates owners who consent to the addition but do not want to participate in its construction.

The official deed must state that these owners accept allocation to the independent unit(s) of the persons financing the addition of the portion of their land shares that decreases because of the new construction.

The statute then requires payment to those non-participating owners for the part of their land shares reduced by the new allocation. Subject to that payment, the new independent unit is converted into condominium ownership under the existing official deed structure and registered in the name of the person or persons who built it.

This compensation structure should be calculated transparently before execution. The parties should know the existing land shares, proposed new shares, the reduction applicable to each non-participating owner and the agreed/legal payment mechanics.

Unanimous owner consent does not replace zoning and building permits

Article 44 is a private-law condominium rule. It does not override zoning plans, building codes, earthquake safety requirements, municipal permit procedures, fire rules or the approved architectural project.

A building cannot lawfully acquire an extra floor simply because every owner signs a unanimous condominium resolution. The proposed construction must also be legally permitted under the public-law rules applicable to the parcel and building.

For rooftop additions, key technical issues can include permitted building height, floor-area ratio, structural capacity, earthquake performance, fire access, lift and stair requirements, roof geometry, mechanical systems and amendments to the approved project.

Before negotiating the owners’ economic shares, obtain an architect/engineer review confirming whether the proposed additional unit is legally and technically possible. A unanimous Article 44 decision has limited value if the municipality cannot approve the project.

Can the top-floor owner turn the roof into a new apartment?

Not unilaterally. Article 4 lists roofs and general roof terraces among statutory common areas. Ownership of the top-floor apartment does not by itself create title to the common roof.

If the project creates a new independent unit by adding a floor or expanding a setback floor into a full floor, Article 44’s unanimity, land-share recalculation and land-registry requirements apply.

A different analysis applies where an owner is merely changing an existing registered independent unit without creating a new unit, but common-area, façade, structural and project rules still restrict unilateral work. Our guide on unauthorized common-area and façade alterations explains the Article 19 framework.

A buyer should be cautious of advertisements for “private roof rights” unless those rights are supported by the title documents and condominium plan. Exclusive practical use does not automatically convert a common roof into independent ownership.

Can a basement, ground-floor area or vacant land be converted into a new unit?

Article 44 expressly reaches certain later constructions or additions on the ground floor, in the basement or on the vacant part of the land, referring to the types of premises in Article 24(2).

The same three-part legal structure applies: unanimous owners’ approval, unanimous recalculation of land shares and formal establishment/registration of condominium servitude for the new independent unit.

The public-law status may be even more important in basement conversions because approved use, ventilation, access, fire safety, natural-light requirements and municipal conditions can differ by intended use. A physically enclosed basement room is not necessarily a lawful independent residence or commercial unit.

What if management approved a new unit without unanimous consent?

An owners’ resolution that attempts to authorize an Article 44 addition without the statutory unanimity is legally defective. The consequence and procedural route should be assessed promptly under the Condominium Law, including Article 33 where an owners’ assembly decision is challenged.

An attending dissenting owner ordinarily has one month from the resolution date for an Article 33 annulment action, while an absent owner has one month from learning of the decision and ordinarily no more than six months from the decision date. Non-existent or absolutely void decisions are treated separately under Article 33.

Our guide on challenging condominium meeting decisions explains those periods and mandatory mediation.

Construction should also be checked against municipal permits and the approved architectural project. A private-law voting defect and a public-law construction violation can exist at the same time and require different remedies.

Due diligence for a foreign buyer purchasing a “new” rooftop or basement unit

The key question is not whether the space has a separate door, kitchen or utility meter. The key question is whether it legally exists as the independent unit represented to the buyer.

Before paying a deposit, obtain:

• the current title deed and land-registry record;
• the independent-unit number and land share;
• the approved architectural project;
• the building permit and occupancy documents relevant to the addition;
• the Article 44 unanimous owners’ decision;
• the unanimous land-share recalculation documents;
• the official deed/servitude registration documents;
• the updated management plan where necessary;
• proof of final condominium registration of the new unit.

If the seller cannot produce those documents, the legal risk is not solved by adding a clause that “the buyer accepts the current physical condition.” Title and permit defects require substantive verification.

Article 44 project checklist

1. Confirm that the project creates a new independent unit. If not, a different Condominium Law provision may govern.
2. Check public-law feasibility first. Obtain architectural, structural and zoning review.
3. Obtain unanimous owner approval. A majority vote is insufficient.
4. Prepare the post-addition land-share table. All units must be included.
5. Obtain unanimous agreement on the new land shares.
6. Identify participating and non-participating owners. Calculate reductions and compensation.
7. Prepare formal land-registry documentation. Article 44 requires an official deed and condominium-servitude registration.
8. Do not build before permits are in place. Private consent is not a building permit.
9. Register the completed new unit properly. Physical completion alone is not enough.
10. For a purchase, verify the final title page before payment.

Official legal sources

• Condominium Law No. 634 — especially Articles 4, 14, 19, 24, 33 and 44.
• Turkish legislation database — current zoning and building legislation should be checked for the specific parcel and project.

Frequently Asked Questions

Can a condominium add another floor in Turkey?

Only if both the condominium-law and public-law requirements are satisfied. Article 44 requires unanimous owner approval, unanimous land-share recalculation and formal registration steps.

Does the top-floor owner own the roof?

Not merely because the apartment is on the top floor. Article 4 lists roofs and general roof terraces as common areas unless the legal documents establish a different relevant right within the law.

Can the owners approve a new penthouse by majority vote?

No. An Article 44 addition requires unanimous approval.

Do land shares have to change after the addition?

Yes. Article 44 requires all independent units’ land shares to be redetermined for the post-construction situation and approved unanimously.

Can an owner consent to the project without paying for construction?

Yes. Article 44 specifically regulates consenting owners who do not participate, including the reallocation of the reduced portion of their land shares and payment to them.

Does unanimous consent make an illegal extra floor legal?

No. Zoning, building-permit, structural and other public-law requirements remain mandatory.

Can a basement storage area become a separate apartment?

Only if the project is legally capable of becoming an independent unit and both Article 44 and the applicable public-law requirements are satisfied.

Can the new unit be sold before it is registered?

A buyer should not treat an unregistered physical space as equivalent to a registered independent unit. The exact transaction form depends on the stage, but final title status should be verified before purchase.

Can a foreign owner vote on the addition from abroad?

Yes, through a properly authorized representative where the proxy and subsequent formal title acts are covered by the required authority.

What if one owner refuses?

Article 44’s first condition is unanimity. Without the required consent, the Article 44 addition cannot proceed on the basis of a majority vote.

Can an unlawful Article 44 decision be challenged?

Yes. The voting defect, Article 33 remedy, mandatory mediation and any parallel municipal-law violations should be reviewed immediately.

Conclusion

Adding a new apartment, rooftop floor or qualifying basement/ground-floor unit changes the registered ownership structure of a Turkish condominium. Article 44 therefore requires more than construction approval: every owner must consent, every unit’s land share must be recalculated unanimously, and the new unit must enter the land-registry system through the required official deed and condominium-servitude process.

For foreign owners and investors, the safe order is legal feasibility first, unanimous condominium approvals second, permits and construction third, and final title registration before treating the addition as a marketable independent unit.