HAVING A PET IN AN INDEPENDENT SECTION
Due to the rise of condominiums and vertical urbanization that came about with the Republican Period, people started living together. This brought together many legal problems. One of these, having pets in independent sections has not been resolved for many years. Making a legal assessment of this situation, which often leads to conflict between residents.
Examining the Supreme Court's case-law, will help resolve this problem.
When other residents are disturbed by the pet's behaviours and voice, conflict may arise between the neighbours. In this case, the text to be examined is the management plan of the block, site or independent apartment where the relevant independent section is located. Since the management plan is a "contract" between independent section owners in accordance with the Law of Property Ownership, it should be sought whether there is a provision for pets in the management plan. According to this, there are 3 possibilities:
1. Allowing of pets with the management plan
2. Prohibition of pets by the management plan
3. No provision about pets in the management plan
Allowing of pets with the management plan
In this case, provided that other residents are not disturbed, having a pet in the independent sections is allowed. Here, whether other residents are disturbed is assessed differently for each concrete case by the courts. Therefore, pet owners should pay attention to Article 737 of the Civil Code in this regard:
"Every person, is obliged to avoid from excessiveness which may adversely affect his or her neighbours while exercising his or her powers arising from immovable ownership and especially while business operation. Particularly, it is prohibited to disturb by leaving smoke, vapour, fly ash, dust, or making noise or causing tremor exceeding the extent that may be excused among neighbours according to the condition and quality of immovable, and local customs. Rights concerning offsetting arising from excessiveness in accordance to local customs and that are inevitable are reserved."
Prohibition of pets by the management plan
In this case, it is decided that the pet should be removed from the independent section regardless of whether the residents are disturbed by the pet, because of the binding of the management plan according to the judicial application.
In this case, the judge may be required to intervene in accordance with the Law of Property Ownership by neighbours and independent section owners who are uncomfortable due to the noise or other activities of the pet. The decision to suspend the pet from the building such as the site and estate can be made if having a pet is prohibited by the management plan.
No provision about pets in the management plan
Here too, the movements of the pet will be evaluated whether other residents are disturbed by the pet in the event of possible litigation.
For all of these three cases, where the incident is brought to the court in order to evaluate the disturbance, if discomfort is reported due to noise, etc., a noise measurement is conducted in the presence of an expert. When there are other specific reasons, these will be examined too.
If, as a result of the case, it is decided that the pet shall be removed from the property, yet the pet owner does not act accordingly – in breach of the decision, then, depending on the decision of the other independent section owners, the independent section owners may ask the judge, in accordance with the Law of Property Ownership, to transfer the ownership of the property on the independent section which is occupied by the pet owner who disturbs the other residents .
Although the legal situation is as described, the justifications of the first instance court given in the decision of the 18th Civil Chamber of the Supreme Court contain significant remarks, especially in terms of animal rights. To summarise this case briefly, the petitioner requested to remove the animal from the site, on the grounds that the petitioner and also the administrator had made various warnings to the resident who looked after the pet and all residents were obliged to comply with the management plan. According to the decision given by the first instance court, the pet was considered as a being with rights creature and ruled that the pet should not be removed because of the pet ban in the management plan. The grounds and content of the decision have been drafted in consideration of both national and international law, and have included significant arguments.
We are of the opinion that a pet should not be removed purely because it is forbidden in the management plan. When there are complaints about the pet or when such complaints are baseless, in other words if a pet does not disturb the environment, it should not be removed.
Article by MGC Legal
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