If a real estate owned by the persons has been used by others without any justified reason and occupied in some way, the owner of this real estate can prevent this action by filing a case. This case is called a possessory case or actio negatoria. The owner of real estate, such as a house, workplace or land can file a possessory case in an effort to evacuate the person who has used these goods unjustly from that real estate, and to stop the unfair use. In addition, in this case, the owner of the real estate has the right to claim other pecuniary rights, such as damages incurred during use or rental income that he could not obtain, from the person who has used the real estate unjustly, as ejectment compensation.
In this bulletin, we desire to provide brief information about in which cases, when and where the lawsuit for the Possessory Actions should be filed, and what can be claimed in the lawsuit, in a comprehensible manner
1. In Which Circumstances Can a Possessory Action be filed?
Possessory Actions can be filed based on a wide variety of reasons. To name a few of the most common of these,
- Due to the unjust use of the inherited real estate by one or more of the heirs against the others,
- In the event that the tenant whose lease agreement has expired continues to use the real estate unjustly, despite the need to vacate the house or workplace,
- In case of unjust construction on someone else’s land or property,
- Due to placing garbage, excavation, construction materials on someone else’s land or property,
- Due to the cultivation of someone else’s field, planting trees on it, etc.,
- Due to the unauthorized use of someone else’s house, warehouse, workplace, based on the fact that no one has used it for a long time.
- Due to the construction of roads, power lines, etc. over private property without expropriation, which is known as confiscating without expropriation,
Possessory actions can be filed.
2. What Can be Demanded in Possessory actions?
In Possessory Actions, claims are made in an effort to put an end to any behaviour that violates the property rights of another person. For example, the situation in which tenant who continues to live in the same house despite the termination of the rental agreement may be claimed to terminate the unjust use of the house, or the person who has built on someone else’s land may be requested to stop the construction and demolish it. Likewise, it may be also claimed to demand from the person who puts her belongings or garbage on someone else’s land to evacuate this area.
In Possessory Actions, the claimant whose property right has been violated can also demand compensation known as ejectment compensation from the other party. The relevant compensation serves to compensate the damage suffered by the owner due to the unjust use of the property or to receive the incomes such as the loss suffered due to the inability to use the real estate during this period and the rent that could not be obtained retrospectively.
3. In Which Court should the Possessory Actions be filed?
Possessory Actions should be filed in Civil Courts of First Instance. The competent court is the court of the place where the unjustly occupied real estate is located.
4. Who Can File the Possessory Actions?
The plaintiff who owns a house, land, workplace or other buildings that have been unjustly occupied can file the Possessory Action. In addition, the reversioner of the real estate, that is, the person who uses that real estate as the owner, can file a possessory action. In this action, the beneficiary may request compensation from the persons who use or benefit from the property by eliminating the attacks on the right to property.
5. What is Ejectment Compensation?
Ejectment compensation is also called unjust occupation compensation. 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. 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.”
Ejectment cases can be claimed on its own in a separate lawsuit, or it can be claimed within the possessory actions or within the dase for the cancellation of the title deed and registration.
6. How is Ejectment Compensation Calculated?
Even though the courts decide on the compensation for exemplary damages to cover the following damage items, in fact, there is no need for a concrete damage to have arisen in order for the ejectment compensation to be claimed. 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 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 determined amount of ejectment compensation is notified to the defendant, who has used the real estate unjustly, within 15 days from the date of determination, with 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.
7. For How Long Can Ejectment Compensation Be Requested?
Ejectment compensations can be claimed retrospectively for a maximum of 5 years from the date of the lawsuit. Ejectment claims are subject to a 5-year statute of limitations.
8. 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. You can find examples of exceptional cases where the prohibiting from sufruct condition is not sought in the Supreme Court decision shared below. For detailed information on the topic, you can check out our article on “Ejectment Cases”.
“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.”
The right to property of individuals is a fundamental right insured both in our Constitution and in the European Convention on Human Rights. As stated in the Constitutional provision regarding the circumstances under which the right to property can be restricted, the right to property can only be limited for the purpose of public interest. It is illegal and sometimes even a crime for one person to attack another’s property right.
Possessory Actions shall be filed in order to prevent any unjust intervention to the real estate without the owner’s consent and permission and to ensure that it is not repeated. Ejectment compensation can also be claimed and sued in the case.
In cases where the property right on the residence, workplace, building, land or land is not respected or the property right is violated, a possessory action can be filed. The most common forms of the aforementioned case are the possessory actions between heirs and possessory actions between the lessor-tenant.
Hoping that you have accessed the information you need from our article, we kindly remind you that you can contact the expert lawyers of Solmaz Law and Consultancy Office for more information.
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.
1st Civil Chamber of the Supreme Court, E.2016/5743, K.2016/7306, 15.06.2016.
1st Civil Chamber of the Supreme Court, E.2014/16962, K.2016/5448, 03.05.2016.
 1st Civil Chamber of the Supreme Court, E.2016/5743, K.2016/7306, 15.06.2016.
 1st Civil Chamber of the Supreme Court, E.2014/16962, K.2016/5448, 03.05.2016.