Ejectment cases are seen frequently in Turkey. In ejectment cases, a compensation called ejectment compensation or adequate pay compensation is requested from the other party. This compensation serves the purpose of compensating for the loss suffered due to the use and/or exploitation of the real-estate without the permission or consent of the owner. In order to claim the ejectment compensation, the person using the real-estate must use or benefit from the real-estate even though the said person knows that he/she does not have a right on it.
Ejectment cases can be filed for many different reasons. While an independent case can be filed to demand compensation, compensation can also be requested in cases of possessory actions or cancellation and registration of title cases. In this bulletin, we have focused only on the conditions and features of ejectment cases for which compensation is claimed.
1. What is Ejectment Compensation?
The owner of a real-estate has the right to claim his/her pecuniary rights, such as damages incurred during use or rental income that he cannot obtain, from the person who have used the real-estate unfairly, under the name of ejectment compensation. Ejectment compensation is based on the purpose of covering the following damages;
- damages arising from the fact that the unfairly used real estate has been used merely without permission,
- damages caused by the wear and tear of real estate or its unusability,
- Rental income that the real-estate owner could not obtain during unjust use and the cost of other earnings that he has been deprived of,
- Unjust enrichment of the person who has used the real-estate due to this use.
“..In the examination of the whole file scope, the claims and defenses of the parties, it is understood that the overhead power line belonging to the defendant Institution passed over the parcel numbered 1408 at issue and this situation was also accepted by the defendant institution, and as of the date of the case, the right of easement has not been established on the real-estate. Undoubtedly, installing an overhead power line over the real estate without establishing the right of easement is an intervention to the property right of the plaintiff, who is the owner of the title deed. In that case, in the event that an easement right has been established on the real estate by the court regarding the use of the defendant institution, although it was necessary to decide on an ejectment compensation that would be determined in accordance with the period demanded by the plaintiff by considering the easement fee that the defendant institution had to pay, it is not considered correct to dismiss the case by a written justification.”[1]
2. What are the Conditions for Claiming Ejectment?
In order to claim ejectment compensation, it is necessary to fulfill two conditions. These are that the person who occupies the real estate is not in good faith and does not have the right to take action at issue on the relevant real estate. The fact that the occupant is not in good faith means that the person using the real estate uses or benefits from it despite knowing that this person does not have a right on that real estate. For example, if a person has moved his/her construction to an area thinking that it is within the boundaries of his/her own land, even if he/she is not the rightful owner, it will not be possible to claim ejectment compensation for this action. This problem is solved according to the provisions of unjust construction (construction encroachment).
The second condition is that the other party asked to pay ejectment compensation, does not have the right to take the action at issue on that real estate. As the rightful person of the real estate cannot be claimed for ejectment compensation due to exercising the powers granted as the owner (except for the ejectment compensation that can be claimed between the heirs or in the co-ownership), no ejectment compensation will be claimed from the person who is entitled to a valid contract based on the use of the real estate (for example, the situation of the lessee in the lease contract).
“…possessory and ejectment actions are filed against the person or persons using the real estate. Indeed, the current case has also been filed with this claim. In this case, if the tenancy is proven, it becomes clear that the ejectment does not exist.
On the other hand, without prejudice to the provisions of the special law, the validity of rental agreements for both movable and real estates is not subject to any condition of form. Rental agreements can be made verbally or in writing, as well as implicitly. As long as the parties agree on the essential elements of the lease agreement. Plus, this rule is clearly emphasized in the decision to unite the beliefs dated 18.03.1942 and numbered 37/6.”[2]
3. How is the Compensation Amount Calculated in the Ejectment Case?
In calculating the ejectment compensation, the expert appointed by the court determines a price by considering many different criteria, such as the value of the real estate according to its features, the imputed rental value of places with similar features, the yield of the products cultivated in the real estate, the differences between the pre-and post-unjust use of the real estate.
The matters regarding the calculation of the ejectment compensation in the Supreme Court decisions are discussed as follows;
“… the ejectment calculation is a matter that requires expertise, and the amount of ejectment compensation must be determined by making exploration and examination by the expert in accordance with the nature of the real estate and adhering to the claim. The expert report received must be based on concrete information and documents, open to the inspection of the parties and the judge, and the reasons for the evaluation must comply with scientific data and Articles 266 of the Code of Civil Procedure.
For this reason, especially if there is a claim on the basis of product due to the unjust use of agricultural lands, the official data on this subject and the agricultural products planted in the region where the real estate is located should be asked from the provincial or district directorate of agriculture, the unit prices according to the years for which the ejectment is requested and decare yield values of the crops declared to be planted should be brought from the marketplace directorate for the relevant period, and it should be determined whether rotational planting is done in the region and whether the real estate is fallow.
If especially there is a demand on the basis of rent for land and buildings, imputed rental agreements should be asked from the parties, if necessary, the rental prices of similar places at the date of ejectment should be investigated, if any, imputed rental agreements should be brought, a concrete comparison of the real estate at issue and its imputed real estate should be made, and the superior or deficient sides should be determined.
As a principle, in determining the price over the rental income, the rent money that the real estate can bring under free conditions in the first period at issue is determined according to the current market price in the region by comparing it with the imputed rental agreements, taking into account the size, nature and environmental features of the real estate. For the following periods, the ejectment value is appraised, not less than the amount to be found by reflecting the entire PPI increase rate to the amount determined for the first period…”[3]
4. What is the Ejectment Notice?
Ejectment receivable is an unquantified debt.[4] It is not clear how much ejectment compensation the plaintiff can claim when the case is filed. The amount of the ejectment compensation determined must be notified to the defendant, who uses the real estate unfairly, within 15 days from the date of determination. This is called an ejectment notice. In the notification sent, it is stated that the use of the real estate is not allowed, the defendant is a disseisor and a ejectment compensation is demanded from the relevant person based on this claims. This is called the “prohibition from usufruct condition” in the application of the Supreme Court. The defendant may notify objections to this notice within 30 days from the notification of the notice.
5. What is the Prohibition from Usufruct Condition?
The owner of the real estate who will claim ejectment must first send a notice to the person who uses the real estate unjustly, informing him/her that he/she has been using the real estate without his/her consent, therefore he/she prohibits that person from using the real estate, and that he/she will use the right to sue if necessary action is not taken. Sending this notice is mandatory as a rule, but there are some exceptions. These are;
- The real estate at issue is included in the treasury or the assets of a public legal entity and is in the nature of public property,
- The real estate for which the ejectment is claimed (such as a vineyard, garden) is a real estate that produces natural products,
- The real estate for which the ejectment is claimed (such as workplace, residence, etc.) is among the places where the legal result, that is income, is obtained by renting.
- The pretension in the whole of this place and denial of the shareholding of the others of the stakeholder occupying the real estate in joint ownership,
- Determined joint real estate or parts of the real estate of which each stakeholder will benefit, as a result of the use agreement between the stakeholders of the immovable in joint ownership,
- Executive proceedings or filed cases such as the prevention of ownership, dissolution of the partnership, ejectment and similar cases against other stakeholders regarding this real estate.
The following determinations were made in the Supreme Court decision on the subject;
“As a rule, stakeholders cannot claim ejectment compensation from each other unless prohibited.
The prohibition from usufruct condition depends on the fact that the claimant stakeholder’s desire to benefit from the real estate at issue or its income has been notified to the defendant stakeholder before the ejectment is claimed. However, there are a number of exceptions to this rule that have arisen as a result of the established judicial practice. These are; the immovable at issue is a public domain, the real estate for which the ejectment is claimed (such as a vineyard, garden) is a real estate that produces natural products or among the places where the legal result, that is income, is obtained by renting (such as workplace, residence, etc.), the pretension in the whole of this place and denial of the shareholding of the others of the stakeholder occupying the real estate in joint ownership, determined joint real estate or parts of the real estate of which each stakeholder will benefit, as a result of the use agreement between the stakeholders of the immovable in joint ownership, executive proceedings or filed cases such as the prevention of ownership, dissolution of the partnership, ejectment and similar cases against other stakeholders regarding this real estate. Apart from this, there is no need for the prohibition from usufruct condition to occur, in terms of the product brought by the immovable, for the products that occur spontaneously such as mowed grass, collected hazelnut, tea or the business established by the de cujus or the independent businesses.
Again, the prohibition from usufruct is not sought in the event that joint real estate or parts of the real estate of which each stakeholder will benefit are determined as a result of the use agreement between the stakeholders of the real estate in joint ownership, that the claimant stakeholder prevents the sequestration of this real estate against the defendant stakeholder, that the partnership is dissolved, that ejectment and similar cases are filed.”[5]
In another decision, the Supreme Court decided that the verdict should be reversed due to the fact that the prohibition from usufruct condition could not not met;
“… this request was rejected on the grounds that the witness list was submitted after the deadline given to the parties to present the witness list, and the five-year use could not be proved from the testimony of the plaintiff’s witnesses; in a separate file, although the notice sent by the plaintiffs and … and … before the lawsuit, provided the prohibition from usufruct condition for the independent area that the defendant was personally using, it was determined that it was not investigated whether prohibition from usufruct condition was met in terms of the residential independent area from ……, one of the plaintiffs; according to this result determined, what should have been done by the Court was first to clarify, without doubt, whether the entire period for which the ejectment compensation was claimed was in the use of the defendant, by hearing the witnesses reported by the defendant in the reply petition, and whether the prohibition from usufruct condition for the residential independent area was met from ….., one of the plaintiffs, then secondly to decide according to the result emerged; but it was not considered appropriate to reach the conclusion as written with an incomplete examination, and the verdict had to be reversed for the reasons explained.”[6]
6. The Competent Court in the Ejectment Case
Ejectment Cases should be filed in the Civil Courts of First Instance. The competent court is the court of the place where the real estate subject of the ejectment is located. However, if the ejectment case is based on a personal right, such as rent, and is filed due to a right not related to the same real estate, it is not obligatory to file a case in the court of the place where the real estate is located.[7]
7. How Long is the Statute of Limitations for Ejectment Cases?
Ejectment claims are subject to a 5-year statute of limitations. Ejectment compensations can be claimed retrospectively for a maximum of 5 years from the date of the lawsuit.[8]
Conclusion
Ejectment cases are among the most common cases related to real estate. In order to claim ejectment compensation, certain conditions must be met. You can contact the Solmaz Law and Consultancy team about your questions and legal assistance requests regarding these lawsuits, which are likely to be won if you have adequate information about their technical features.
References
8th Civil Chamber of the Supreme Court, 2019/913 E., 2021/2724 K., 24.03.2021.
1st Civil Chamber of the Supreme Court, E.2016/5743, K.2016/7306, 15.06.2016.
1st Civil Chamber of the Supreme Court, 2017/3747E., 2017/4705K., 27.09.2017.
8th Civil Chamber of the Supreme Court, 2019/393 E., 2021/2438K., 17.03.2021.
1st Civil Chamber of the Supreme Court, E.2014/16962, K.2016/5448, 03.05.2016.
8th Civil Chamber of the Supreme Court, 2019/58 E., 2021/2137 K., 10.03.2021.
Supreme Court Assembly of Civil Chambers, E.2017/2616, K.2019/1330, 10.12.2019.
DURĞUN ŞANLI, İrem, Haksız İşgal-Ecrimisil Tazminatı, Yüksek Lisans Tezi, İstanbul Üniversitesi Sosyal Bilimler Enstitüsü Özel Hukuk Anabilim Dalı, 2019, İstanbul, erişim: http://nek.istanbul.edu.tr:4444/ekos/TEZ/ET000484.pdf, erişim tarihi:13.05.2021.
[1]8th Civil Chamber of the Supreme Court, 2019/913 E., 2021/2724 K., 24.03.2021.
[2] 1st Civil Chamber of the Supreme Court, E.2016/5743, K.2016/7306, 15.06.2016.
[3]1st Civil Chamber of the Supreme Court, 2017/3747E., 2017/4705K., 27.09.2017.
[4]8th Civil Chamber of the Supreme Court, 2019/393 E., 2021/2438K., 17.*03.2021.
[5] 1st Civil Chamber of the Supreme Court, E.2014/16962, K.2016/5448, 03.05.2016.
[6]8th Civil Chamber of the Supreme Court, 2019/58 E., 2021/2137 K., 10.03.2021.
[7] Supreme Court Assembly of Civil Chambers, E.2017/2616, K.2019/1330, 10.12.2019.
[8] Decision of the Supreme Court Jurisprudence Unification Board dated 25.05.1938 and numbered 29/10.