Compensation for Unlawful Occupation (Ecrimisil)

Ecrimisil, also known as compensation for unlawful occupation, is a form of compensation arising from the unauthorized use of a public or privately-owned immovable property by a person who does not have the legal right of disposal and without the consent of the rightful owner.

In determining the compensation, it is irrelevant whether the property used by the occupier has been damaged or whether the occupier is at fault. The basis for the compensation is the potential income that could have been generated from the property in its original state prior to the occupation.

Ecrimisil compensation is the amount claimed by the rightful owner or the competent authority from the unlawful occupier who has benefited from the property without a legitimate reason.

Ecrimisil is regulated under Article 995 of the Turkish Civil Code:

“In regard to the possessor in bad faith
Article 995 – A possessor in bad faith is obliged to compensate the rightful owner for any damages caused due to the unlawful retention of the property which he is obligated to return, as well as for the benefits he obtained or failed to obtain from it.
The possessor in bad faith may only claim reimbursement for expenses that were necessary also for the benefit of the rightful owner.
Unless he knows to whom the property should be returned, the possessor in bad faith is only liable for the damages caused by his own fault.”

As can be seen from the wording of the law, compensation for unlawful occupation (ecrimisil) is a form of compensation demanded by the rightful owner—who has the legal authority to use the property but does not—in relation to individuals who use movable or immovable property without having any legal right to do so.

According to Article 683 of the Turkish Civil Code, the owner has the right, within the limits of the legal order, to use, benefit from, and dispose of the property as they wish. The owner may file a claim (action in revendication) against a person who unlawfully possesses their property, and may also initiate legal proceedings to prevent any form of unlawful interference. In short, in the event of unlawful occupation, the owner has the right to file a lawsuit to terminate this occupation. While lawsuits can be filed under Article 683 of the Turkish Civil Code to end the unlawful occupation, a separate action for compensation (ecrimisil) can be filed under Article 995 to recover damages resulting from the unlawful use.

As explained above, ecrimisil compensation is a form of indemnity claimed from the person engaging in unlawful occupation, and it is subject to certain procedural and substantive conditions.

Conditions Required for Ecrimisil Compensation

Unlawful occupation
Damage arising from unlawful occupation
Causal link
Bad faith

In this regard, for an ecrimisil (compensation for unlawful occupation) claim to be made, it is not necessary for the person in unlawful possession to be a third party; even among heirs, unlawful occupation may occur, and an ecrimisil claim can be made on that basis.

Who Is the Person in Unlawful Possession (the Occupier)?

A person or legal entity who takes possession of a property without the permission of the competent authority or the consent of the rightful owner, who holds, uses, or otherwise exercises control over the property in any manner, is referred to as an “occupier” (or person in unlawful possession).

Statute of Limitations

Lawsuits for ecrimisil (compensation for unlawful occupation) are subject to a 5-year statute of limitations. Claims not made within this period will expire due to the statute of limitations; therefore, to prevent loss of rights, this compensation claim must be filed within the legal time frame.

Competent and Authorized Court

The ecrimisil lawsuit is filed based on the unlawful use of an immovable property, and according to the general rules of jurisdiction, the court where the immovable property is located is authorized in these cases. Pursuant to Article 2 of the Turkish Civil Procedure Code No. 6100, the competent courts — regardless of the value or amount of the subject matter — are the Civil Courts of First Instance for cases related to property rights and personal status, unless otherwise regulated.

The ecrimisil lawsuit can be filed together with lawsuits to prevent the unlawful act that is the subject of the ecrimisil, such as an Injunction Lawsuit or Title Cancellation Lawsuit, or it can be filed independently from these lawsuits. However, in this lawsuit, it must be proven by the property owner that the immovable property was unlawfully occupied and the duration of such occupation.

DETERMINATION OF THE ECRİMİSİL AMOUNT

An ecrimisil lawsuit is fundamentally based on the damage arising from the loss of income suffered by the property owner, and therefore the damage is at least equivalent to the lost rental income. However, through examination and assessment by the court, taking into account the nature and manner of the unlawful use of the property, compensation calculations may also include other damages in addition to the rental income.

What Are the Factors That Can Affect the Value of the Property in the Ecrimisil Amount?

 o    Area
 o    Quality and Productivity (in agricultural lands)
 o    Zoning status
 o    Access to infrastructure services
 o    Location
 o    Income that can be obtained if used as before the occupation
 o    Determination of the market value

OBJECTION TO ECRIMISIL

After receiving the ecrimisil notification, you can file an objection by submitting a petition to the administration within 30 days. The administration is required to prepare and notify a positive or negative ecrimisil report within 30 days. A lawsuit to annul the ecrimisil notification can be filed within 60 days from the date of notification.

The Requirement of Prohibition from Enjoyment in Ecrimisil Lawsuits

Whether in joint ownership or in tenancy in common, a co-owner/partner who cannot benefit from the property may always demand ecrimisil from the other co-owners/partners who prevent them from using the property, proportional to their share.

However, as a rule, in both joint ownership and tenancy in common, co-owners cannot claim ecrimisil from each other regarding the property unless they have been prohibited from enjoying (intifadan men). The condition of prohibition from enjoyment is also dependent on the claimant co-owner having notified the defendant co-owner of their intention to benefit from the property or its income before the period for which ecrimisil is claimed. Although not a formal requirement, for evidential purposes, the notice of prohibition from enjoyment should be made in writing and, if possible, through a notary.
However, there are certain established judicial exceptions to the requirement that a notice of prohibition from enjoyment (intifadan men) must be given before the period for which ecrimisil is claimed. These exceptions are:
1) The immovable property subject to the lawsuit is public property,
2) The property for which ecrimisil is claimed is a place that produces natural products such as vineyards or gardens, or is leased to generate legal income such as workplaces or residences,
3) The co-owner occupying the jointly owned property claims full rights over the entire property and denies the co-ownership of the others,
4) There is a usage agreement between co-owners determining the common property or specific parts that each co-owner will benefit from,
5) The claimant has previously filed lawsuits or enforcement proceedings against other co-owners regarding this property, including prevention of trespass, dissolution of co-ownership, ecrimisil, or similar claims,
6) Regarding the products yielded by the property, cases of spontaneous products such as harvested grass, collected hazelnuts, tea, or the occupation of a business established by the deceased or independently income-generating businesses.

If any one of these conditions exists, there is no need for the requirement of prohibition from enjoyment (intifadan men), and a lawsuit claiming ecrimisil can be filed directly.

What Are the Differences Between Ecrimisil and Rent?

The process of collecting rent from any real estate involves making a lease agreement. However, in the case of ecrimisil, no contract is made. Compensation is obtained as a result of an ecrimisil lawsuit. Rent is collected regularly every month. Ecrimisil, on the other hand, is the collection of payment retroactively. If rent is not paid, the provisions of the Enforcement and Bankruptcy Law No. 2004 are applied. In case of a dispute regarding rent, the judicial courts are approached. In ecrimisil cases, administrative courts have jurisdiction. If the creditor in an ecrimisil case is a public administration, then Law No. 6183 on the Procedure for the Collection of Public Receivables applies. Legal disputes concerning rent are handled by judicial courts. In ecrimisil cases, if the creditor is an administrative body, administrative courts are approached; if not, judicial courts have jurisdiction.

Supreme Court, 8th Civil Chamber, Decision No. 2018/15147 E. – 2018/19877 K., dated 06.12.2018;

As a rule, co-owners cannot claim compensation for unlawful use (ecrimisil) from each other unless they have been prevented from benefiting from the property. The condition of prevention from usufruct (intifadan men) requires that, prior to the period for which ecrimisil is claimed, the plaintiff co-owner must have notified the defendant co-owner of their desire to benefit from the disputed immovable property or its income. However, there are several exceptions to this rule established by settled judicial practice. These exceptions include:

The immovable property for which ecrimisil is claimed is a place producing natural products (such as vineyards, gardens), or a place leased to generate legal income (such as workplaces or residences),
The co-owner occupying the jointly owned property claims rights over the entire property and denies the co-ownership of the others,
There is a usage agreement among co-owners specifying the common property or sections that each co-owner will benefit from,
The plaintiff has previously filed lawsuits or enforcement proceedings against other co-owners regarding the property, including actions to prevent unlawful interference, to terminate the co-ownership, to claim ecrimisil, or similar cases.

Additionally, with regard to the products yielded by the property, there is no need for the prevention from usufruct condition if the products arise naturally, such as harvested hay or collected hazelnuts, or if the property is occupied in a way that affects a business established by the deceased (muris) or an independently income-generating enterprise, or if the disputed immovable property is public property.

Similarly, in cases where usage agreements specify the common property or parts each co-owner will benefit from, prevention from usufruct is not required for lawsuits filed by the plaintiff co-owner against the defendant co-owner for preventing unlawful interference, terminating co-ownership, claiming ecrimisil, or similar matters concerning this property.