What is the Crime of Encroachment on Property Without Right?
Encroachment on property without right is when a person interferes with immovable property belonging to someone else, despite having no legal right to do so.
Elements of the Crime of Encroachment on Property Without Right
The crime of encroachment on property without right is regulated under Article 154 of the Turkish Penal Code No. 5237. Accordingly, this crime can be committed in the following ways:
- Occupying, wholly or partially, immovable property or its attachments belonging to another person as if one were the owner, without any legal right, or altering its boundaries, damaging it, or preventing the rightful owner from benefiting from it, even partially;
- Seizing, wholly or partially, immovable properties such as pastures, threshing grounds, roads, and wetlands, knowing that they belong to the legal entity of the village or have been traditionally left for the shared use of villagers, or exercising control over them, or plowing and cultivating them;
- Altering the course of waters belonging to the public or private individuals.
Penalty for the Crime of Encroachment on Property Without Right
The penalty for the crime of encroachment on property without right, according to Article 154 of the Turkish Penal Code, is imprisonment for a term of six months to three years and a judicial fine of up to one thousand days.
Is the Crime of Encroachment on Property Without Right Subject to a Complaint?
Certain cases of the crime of encroachment on property without right, as regulated by law, are subject to a complaint. Upon the complaint of the person harmed by the crime, an investigation and/or prosecution is initiated against the perpetrator. The cases that are not subject to a complaint are as follows:
- Wholly or partially occupying immovable properties such as pastures, threshing areas, roads, and wetlands, knowing that they belong to the village’s legal entity or have been historically allocated for communal use by villagers, or exercising control over them, or cultivating them;
- Changing the course of waters owned by public authorities or private individuals.
Is the Crime of Encroachment on Property Without Right Subject to Mediation?
The crime of encroachment on property without right is regulated under Article 154 of the Turkish Penal Code. Only paragraph 1 of Article 154 is subject to mediation. Accordingly, the cases in which the crime is not subject to mediation are as follows:
- Seizing, wholly or partially, immovable properties such as pastures, threshing grounds, roads, and wetlands, knowing that they belong to the legal entity of the village or have been traditionally left for the communal use of villagers, or exercising control over them, or plowing and cultivating them;
- Altering the course of waters belonging to public or private individuals.
Personal Grounds for Exemption from Punishment in the Crime of Encroachment on Property Without Right
In some cases, the crime of encroachment on property without right may constitute grounds for exemption from punishment. Accordingly;
- If the offense is committed to the detriment of one of the spouses who have not been legally separated,
- or to the detriment of one of their ascendants, descendants, or relatives of the same degree, or an adoptive parent or adopted child,
- or to the detriment of one of the siblings living together in the same residence, no punishment shall be imposed on the relevant relative.
Personal Grounds Warranting a Reduction of Penalty in the Crime of Encroachment on Property Without Right
In the crime of encroachment on property without right, there may be personal circumstances in the specific case that warrant a reduction of the penalty. Accordingly,
- If the offense is committed to the detriment of one of the spouses who have been legally separated,
- or to the detriment of one of the siblings who do not live together in the same residence,
- or to the detriment of an uncle, maternal/paternal aunt, nephew/niece, or second-degree in-laws living together in the same residence; the penalty imposed on the relevant relative upon complaint shall be reduced by half.
Can the Crime of Encroachment on Property Without Right Occur in the Case of Co-Ownership?
In immovable properties subject to co-ownership where no actual division has been made between the parties, the crime of encroachment on property without right occurs if one of the co-owners prevents the others from exercising their rights or uses the entire property.
Can the Crime of Encroachment on Property Without Right Occur in the Case of Joint Ownership?
In joint ownership, as in co-ownership, the crime of encroachment on property without right occurs even if one of the co-owners exercises control over only their own share.
Statute of Limitations
For cases of the crime subject to a complaint, the statute of limitations is six months; for other cases, it is eight years.
Postponement of the Penalty
According to Article 51 of the Turkish Penal Code, “The sentence of a person sentenced to imprisonment for two years or less for the crime committed may be postponed.” Accordingly, a decision to postpone the penalty can be made for the relevant offense.
HAGB (Suspension of the Announcement of the Verdict)
If the sentence for the relevant offense is two years of imprisonment or less, a decision may be made to defer the announcement of the verdict. In order for a HAGB decision to be issued;
- The defendant has not been previously convicted of an intentional crime;
- The court, taking into account the defendant’s personal characteristics and behavior during the trial, must be convinced that the defendant will not commit another offense;
- The damage caused to the victim or the public by the commission of the crime must be fully remedied through restoration, return to the previous state, or compensation.
Precedent Decisions
“…Considering that one of the co-owners of the relevant land, … …, was in prison, the complainant … …, who was appointed as guardian by the court, was determined to be able to exercise the right to complain on behalf of her father. Taking into account the statements of … … …, who was heard as an informant, and the statements of the suspect …, who testified as a defendant in file no. 2011/372 of the İzmir 3rd High Criminal Court, regarding the existence of a consensual division agreement over the land, an on-site inspection was conducted through technical experts and impartial local experts and witnesses familiar with the region. It should have been examined whether there was an actual division among the owners, and if there was, whether the suspects had encroached on the portion left to the complainant; if there was no actual division, whether the suspects prevented the complainant from exercising her rights or used more than their share of the property. The legal status of the suspects should have been determined based on the investigation, including inquiries to impartial local experts and witnesses familiar with the area, and other evidence to be collected. However, without considering this, a decision was made, based on an incomplete investigation, to dismiss the case. Therefore, instead of expanding the investigation, the written objection was rejected, which is contrary to the law, and the request for revision in favor of the law was deemed justified.”
It has been understood that, based on the type and upper limit of the sentence to be determined for the defendant’s offenses under trial, an ordinary statute of limitations period of eight years applies. Although the statute of limitations had not expired at the time of the judgment, a dismissal decision was issued for the defendant; however, considering the type and upper limit of the penalty prescribed for the offense under the law, it is understood that the ordinary eight-year statute of limitations under the Turkish Penal Code had expired from May 13, 2015, the date of the first conviction decision, which interrupted the statute of limitations, until the date of review.”
(Supreme Court 8th Criminal Chamber, Case No. 2023/2902 E., 2024/2134 K., 06.03.2024)
“The crime of encroachment on property without right is of a continuing nature, and as long as the continuation persists, the victim’s right to file a complaint also continues. Given that the defendant continued to use the immovable property until the date the complainants filed their complaints, and acknowledging that the complaint was made within the six-month period, the trial should have continued. Considering that the defendant’s actions constitute the crime of encroachment on registered property, an on-site inspection should have been conducted with local witnesses and experts present to determine who previously owned the property and whether the defendant acted with criminal intent, and a substantive judgment should have been issued accordingly. Instead, the case was dismissed on the grounds that the complainants did not exercise their right to complain within the time limit, which was found to be contrary to the law.”
(Supreme Court 8th Criminal Chamber, Case No. 2022/5617 E., 2023/10539 K., 25.12.2023)
“Although the defendant stated in his defense that the wall was built by his ancestors and not by himself, according to the expert report, it was determined that the wall in the defendant’s garden encroached upon the complainant’s land. Contrary to the defendant’s claim of lacking criminal intent, he knew that the wall encroached on the complainant’s property but did not remove the encroaching portion, which indicates criminal intent. Therefore, a conviction should have been issued instead of acquittal, and the acquittal decision is contrary to the law.”
(Supreme Court 8th Criminal Chamber, Case No. 2023/4375 E., 2024/400 K., 16.01.2024)
“Pursuant to Article 34 of Law No. 6763, published in the Official Gazette on 02.12.2016 and effective on the same date, amending Article 253 of the Code of Criminal Procedure No. 5271 and its added paragraph, the provisions regarding judicial reconciliation were reorganized. It was understood that the offense of encroachment on property without right attributed to the defendant falls within the scope of reconciliation. Accordingly, taking into account Articles 2 and 7 of the Turkish Penal Code No. 5237, the reconciliation procedure must be applied, and the defendant’s legal status should be re-evaluated and determined within this framework.”
(Supreme Court 8th Criminal Chamber, Case No. 2024/20493 E., 2025/2424 K., 25.03.2025)
Lawyer. Gökhan AKGÜL & Lawyer. Züleyha APAYDIN
