Turkish Civil Code Article 683:
A person who owns a property has the authority to use, benefit from, and dispose of that property as they wish, within the limits of the legal order. The owner may file a claim for recovery (rei vindicatio) against someone who unlawfully possesses their property, as well as bring an action to prevent any kind of unlawful interference.
As understood from the relevant article of the law, the right of ownership is a full and unrestricted real right that grants the owner the authority to “use” the property, “benefit” from it, and “dispose” of it as they see fit. As also stated in the article, the owner can file two types of lawsuits against a person who unlawfully possesses their property. The first is a claim for recovery (rei vindicatio), and the second is an action for prevention of unlawful interference (trespass). While the claim for recovery is aimed at determining who holds ownership of the property, the action for prevention of interference is intended to stop unlawful encroachment.
Action for Prevention of Unlawful Interference
“The action for prevention of unlawful interference, also known as an injunction against interference, is a lawsuit filed to stop ongoing interferences that lack any legitimate justification and that prevent or restrict the owner from exercising the rights arising from their ownership.
The subject of such a lawsuit may include any kind of unlawful interference, such as a person constructing a building on another person’s immovable property without authorization, a neighbor using a field in a way that violates property boundaries, or a public authority carrying out construction above or below a property without a formal expropriation decision.”
The Conditions for Filing an Action for Prevention of Unlawful Interference
1- The Interference Must Be Unlawful:
The act of interference may be committed directly against a real or personal right, or it may occur indirectly through various means or individuals. The key point is that the interference with the real or personal right must be unlawful. For an act to be considered unlawful interference, it must lack any legal basis. If the interference stems from a legal provision or a contractual agreement, it cannot be regarded as unlawful.
2- The Unlawful Interference Must Be Ongoing:
The purpose of an action for the prevention of interference is to stop an existing unlawful interference. If the interference occurred in the past and has already ended, this type of lawsuit cannot be filed. There must be an ongoing and current interference.
3- The Plaintiff Must Hold a Real or Personal Right, Such as Ownership or Lease:
For immovable properties, individuals who are registered as holders of real rights in the land registry can file the lawsuit. For movable properties, those who can properly prove their real rights—since possession is presumed to indicate ownership—may bring the action. In cases of joint ownership or co-ownership, each co-owner or shareholder may file an action to prevent interference. Such lawsuits can be filed either against third parties or among the co-owners themselves. It should be noted that if one co-owner initiates the lawsuit, the court’s decision must pertain to the entire property, not just the share of the plaintiff.
Court of Cassation, 8th Civil Chamber, 2020/1664 E., 2021/5160 K., Dated 16.06.2021:
“…It must be stated at the outset that, pursuant to the final paragraph of Article 693 of the Turkish Civil Code (TMK), each co-owner may act on behalf of the others to protect the indivisible common interests. In other words, it is clear that one or more co-owners are authorized to represent the others in such lawsuits. According to the Unification of Judgments Decision dated 21.06.1994 and numbered 13/24, a lawsuit filed by a co-owner for the prevention of interference must be accepted not proportionally to the co-owner’s share, but absolutely, for the entirety of the immovable property, by recognizing the real right stemming from ownership.”
Court of Cassation, General Assembly of Civil Chambers, 2017/2113 E., 2019/965 K.
“Even in co-ownership, a co-owner who is unable to benefit from the immovable property may always request the prevention of interference by another co-owner or co-owners who are obstructing their share. In fact, even in joint ownership (without division of shares), one of the co-owners may file a lawsuit to prevent interference against the other co-owners who obstruct their use of the jointly owned immovable property, without obtaining their consent or appointing a representative for the inheritance partnership. However, if the co-owner is peacefully using a portion of the property corresponding to their share, they cannot file a lawsuit to prevent interference. According to established precedents of the Court of Cassation and consistent scholarly opinions, a co-owner who claims to use less than their share should resolve the issue not through an action for prevention of interference, but rather by filing a partition lawsuit or a lawsuit for the dissolution of the co-ownership through sale, which provides a definitive solution.”
The purpose of an action for the prevention of interference is to put an end to the unlawful interference. However, such interference may also have caused damage. The holder of a personal or real right may claim compensation for these damages.
Claims that the holder of a personal or real right may make for compensation of damages
- If there are improvements on the immovable property subjected to wrongful interference, the owner may request the demolition (removal) or removal of such improvements. Improvements refer to buildings, facilities on the land, as well as planted vegetation such as trees and vineyards.
- The holder of a personal or real right may request the restoration of damaged or deteriorated property due to wrongful interference.
- The holder of a personal or real right may also claim ecrimisil (compensation for wrongful occupation) for property subjected to unlawful occupation.
Ecrimisil (Compensation for Unlawful Occupation)
Compensation (Ecrimisil) is the payment owed to the rightful owner when their property is used by a bad-faith unlawful possessor without the owner’s approval or consent. To claim this compensation, an ecrimisil lawsuit must be filed. This lawsuit is brought by the property owner against the person unlawfully using the property. Certain conditions must be met for an ecrimisil lawsuit to be filed: the occupation must be unlawful, the rightful owner must not have consented to it, the occupier must act in bad faith, and the rightful owner must have suffered damage due to the unlawful occupation.
However, it should be noted that the owner of the real or personal right who seeks compensation for damages must state these claims separately in the lawsuit petition; otherwise, the court will not decide on them ex officio.
Unlawful Possession Without Expropriation
Administrations need many things to perform public services, among which the most important is the need for real estate. The legal method administrations must use to meet this real estate need is expropriation. However, administrations do not always choose to follow the legal path and sometimes take possession of real estate without expropriation. This is called unlawful possession without expropriation. In this case, unlawful possession without expropriation can be defined as one party being an administration and the administration interfering with land belonging to a private person without performing any expropriation or similar legal procedure.
However, it should be noted that for this to be classified as unlawful possession without expropriation, the administration must act with the intention of permanent possession on that land, such as by undertaking construction activities or establishing infrastructure. It is sufficient for the administration to act unlawfully; it does not need to be at fault.
Persons whose real estate has been taken without expropriation are protected before the law and can file a lawsuit in the judicial courts for the prevention of unlawful possession or a lawsuit for unlawful possession without expropriation and for ecrimisil (compensation for unlawful occupation) to have their damages remedied. (Court of Cassation Unified Precedent Decision dated 16.5.1956)
In this case, the lawsuit to prevent unlawful possession ensures the cessation of the unlawful intervention by the administration on the real estate taken without expropriation and the return of the real estate to the service of its true owner.
Court of Cassation Unified Precedent Decision dated 16.5.1956, File No. 1956/1, Decision No. 1956/6
It is possible to assume that a person whose real estate has been taken for public use without going through the formal expropriation procedure may file a lawsuit exclusively against the public legal entity that took possession of the real estate, either to prevent the intervention on the real estate or to claim compensation for the real estate. Moreover, between these two options, as an intermediate alternative, the owner can choose either option depending on the circumstances and may file a lawsuit to prevent intervention or a compensation claim.
The Competent and Authorized Court in Lawsuits for the Prevention of Unlawful Possession
“The competent court for the lawsuit to prevent unlawful possession is the Civil Court of First Instance. The authorized court is the court in the location where the immovable property is situated for immovables, and the court of the defendant’s place of residence for movables.
Supreme Court 1st Civil Chamber, Case No: 2013/19685, Decision No: 2014/6897.
It is clear that the plaintiff has filed the present lawsuit alleging that the defendant has unlawfully occupied the immovable property owned by the plaintiff, and that the lawsuit concerns the immovable property itself and the property rights associated with it. There is no doubt that the case will be heard by the Civil Court of First Instance.”
Statute of Limitations in the Lawsuit to Prevent Unlawful Possession
Since the lawsuit to prevent unlawful possession is based on a real right, it can be filed at any time and is not subject to any statute of limitations. As long as the unlawful interference continues, the lawsuit can be filed.
Supreme Court, 8th Civil Chamber, Case No: 2018/3804 E. and 2019/7229 K.
“It concerns the request for the evacuation of the immovable property and the collection of compensation for unauthorized use (ecrimisil). The right of ownership, which is a real right attached to the property, can be asserted against everyone, and in the case of interference with this right, protection can always be requested by the right holder at the time of assertion, regardless of when the interference occurred. It is beyond doubt that when such protection is requested, there is no legal possibility to claim misuse of rights. It is foreseen that the owner has the authority to use, dispose of, and benefit from the property within the limits of the legal order, and can file any lawsuit to prevent unlawful possession against the person who unlawfully holds his property.”
Finalization of the Decision in the Lawsuit to Prevent Unlawful Possession
If the court accepts the lawsuit to prevent unlawful possession and rules to stop the interference, it is possible to appeal the decision, and the defendant may take this decision to a higher court. If the case is taken to a higher court, the decision becomes final after the stages of appeal (istinaf) and cassation (temyiz) are completed.
Enforcement of the Decision in the Lawsuit for Prevention of Unlawful Possession
Whether it is necessary for the decision to become final for its enforcement depends on whether there is a dispute over the ownership of the property. If there is no dispute regarding who owns the property, it is not necessary for the decision to be finalized for enforcement. However, if there is a dispute about the ownership, the decision must be finalized before enforcement.
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