The legal avenue resorted to in order to bring to an end a continuing unlawful encroachment upon an immovable property is known in practice as the action for the prevention of interference (removal of encroachment). By means of this claim, which is in rem in character, the holder of the right of ownership or of a limited right in rem may ask the court both to remove the existing infringement and to prevent the repetition of the same act.
In practice the facts forming the subject matter of the action are varied: unauthorised use of the parcel, the holding of the immovable property under occupation, encroachment across a neighbouring boundary, the construction of a building without a permit, the closing off of common areas of use or the rendering of the owner’s enjoyment of their immovable property impossible in fact are foremost among them.
In this briefing note we address in detail the legal character of the action, the conditions required for it to be brought, who may be a party to it and how the proceedings are conducted.
What Is an Action for the Prevention of Interference?
An action for the prevention of interference is an action in rem in character, brought in order to halt unlawful encroachments directed at ownership or at a limited right in rem over an immovable property. By this avenue the holder of the right seeks the removal of the infringement — whether factual or legal in nature — directed at their immovable property, and that the interference not be continued.
At the core of the action lie two objectives: to bring the continuing infringement to an end, and to protect the right of ownership in fact rather than on paper. In that respect the action finds its most productive field of application in disputes where the encroachment is still ongoing.
Legal Nature of the Action
The source of the claim is the right of ownership itself; the action is therefore characterised as an action in rem. Since the result sought is the cessation of the unlawful encroachment upon the immovable property, there is no need to establish fault on the part of the person carrying out the interference.
This is also the respect in which the action differs from actions for the protection of possession: the basis is not possession but the right of ownership or a limited right in rem directly. For that reason the first burden falling on the claimant is to establish in law their right over the immovable property.
Legal Basis of the Action
Under Art. 683 of the Turkish Civil Code No. 4721, the owner retains the power to use their property, to derive benefit from it and to dispose of it within the limits drawn by the legal order. The same provision also provides that the owner may bring an action for the prevention of interference against persons who encroach upon their property unlawfully. Among the forms of encroachment that may be made the subject of an action are the construction of a building on the immovable property, the closing off of common areas, breach of the boundary, factual occupation of the immovable property and obstruction of its use.
Purpose of Protecting the Right of Ownership
The action aims at bringing to an end unlawful encroachments that are directed at the right of ownership and are still continuing.
Ownership is among the fundamental rights in rem secured both by the Constitution and by the provisions of the Turkish Civil Code. Since the owner has the power to use and to derive benefit from their immovable property as they see fit, it is a natural consequence that they should seek the removal of the tortious acts impairing that power.
Ultimately, the action aims to secure factual control over the immovable property and to bring the unlawful encroachment to an end.
Overlap Between Encroachment and Unjust Occupation
Encroachment is a broad concept covering all unlawful interferences directed at the right of ownership. Unjust occupation, for its part, describes the manifestation of that interference, most often in the form of factual use. By way of example, use of the immovable property without consent, the construction of a building upon it, the closing off of an area of use or the obstruction of enjoyment of the immovable property may be assessed both as encroachment and as unjust occupation. Because of this overlap, claims for the prevention of interference are in practice frequently advanced together with claims for compensation for unjust occupation.
The Concept of Encroachment (Interference)
The concept of interference denotes the infringement of ownership or of a right in rem over an immovable property without the consent of the holder of the right and in an unlawful manner. The infringement may appear in the form of factual occupation of the immovable property, but it may equally arise through legal transactions that narrow the power of use or lock up the exercise of ownership.
Two points are important as regards the bringing of the action: that the encroachment be unlawful in nature, and that in most cases it still be continuing.
Factual Interference
In factual interference, the right of ownership has been encroached upon physically and directly. In infringements of this type the immovable property is being used, is held under occupation, or the owner’s opportunity to derive benefit from it is being narrowed by acts on the ground.
Cases of Continuing Interference
Where the encroachment continues without interruption, one speaks of "continuing interference". Uninterrupted obstruction of the right of use, the erection of obstacles of a permanent nature, the continual occupation of the immovable property and the construction of unauthorised buildings are typical examples assessed under this heading. It is also to continuing encroachments of this kind that the action for the prevention of interference is most intensively applied.
Situations of Partial Interference
The infringement may be directed at the whole of the immovable property, but it may equally remain limited to a particular part of it. The occupation of a section of an immovable property held in co-ownership, the closing off of part of a common area, overspill onto a neighbouring parcel and boundary infringements are given as examples of partial interference. In such cases the action may be brought in respect only of the section that is the subject of the encroachment.
Conditions Required for the Action to Be Brought
Whether a claim for the prevention of interference may be entertained depends on a number of conditions being satisfied together, relating both to the nature of the encroachment and to the legal position of the claimant. The absence of one of these conditions may result in the dismissal of the action.
The principal matters examined by the court are the following: the claimant’s right over the immovable property, whether the encroachment is unlawful, whether the interference is continuing, and whether a legal interest worthy of protection exists on the claimant’s part.
The Claimant Must Hold Ownership or a Right in Rem
Since the action is as a rule based on the right of ownership or on a limited right in rem, it is in rem in character. The claimant must therefore hold a legally protected right in rem over the immovable property. The holder of a right of superficies, the holder of a right of habitation, the holder of a usufruct, a co-owner and the owner are among the holders of rights who may bring this action. The claimant is obliged to prove their right over the immovable property by the land register entry, by official documents or by other legal evidence.
There Must Be an Unlawful Interference
At the basis of the claim lies the existence of an unlawful encroachment directed at the immovable property. In this context it is required that the interference lack the consent of the holder of the right, that it not rest on any legal power and that it impair the power of use or of disposal over the immovable property. In practice, the construction of a building on the immovable property without permission, encroachment across the boundary, obstruction of use and occupation of the immovable property are the most frequently encountered cases of this nature.
The Interference Must Be Continuing
Since the action aims at the cessation of continuing encroachments, the interference must as a rule still be ongoing as at the date the action is brought.
Where the encroachment has entirely ceased, the claimant’s legal interest may fall away and the claim may be dismissed. That said, there is no impediment to claims for compensation for unjust occupation or for damages being advanced separately in respect of the losses arising from an interference that has come to an end.
The Claimant Must Have a Legal Interest
As required by the general rule of procedure, here too the claimant must have a current legal interest worthy of protection.
The fact that the right over the immovable property has not been infringed at all, or that the encroachment had entirely ceased before the action was brought, may render the condition of legal interest contestable.
The court, having regard to the features of the particular dispute, assesses whether the claimant has a legitimate and current interest in bringing the action.
The Parties to the Action
In this action, the standing of the parties is determined on the basis of the relationship of the right in rem over the immovable property and the relationship of factual encroachment. While on the claimant’s side the existence of a right worthy of protection over the immovable property is required, on the respondent’s side the correct identification of who carried out the unlawful interference acquires importance.
In practice, disputes as to standing arise most often in relation to limited rights in rem, tenancy relationships, the community of heirs and relationships of co-ownership in shares.
Who May Be the Claimant?
As a rule the action is brought by persons holding a right of ownership or a limited right in rem over the immovable property. The holder of a right of superficies, the holder of a right of habitation, the holder of a usufruct, a co-owner and the owner of the immovable property have the power to bring an action in this context. Moreover, in some situations persons whose possession of, or right to use, the immovable property is protected by the legal order may also seek the prevention of the encroachment.
In co-ownership in shares, each co-owner may claim the prevention of unlawful encroachments directed at the whole of the immovable property.
In joint ownership, on the other hand, the rule is that the community of heirs act together.
Against Whom Is the Action Brought?
The action is directed against the person encroaching unlawfully upon the immovable property. Third parties who continue the unlawful interference, those who obstruct the right of use, those who construct buildings on the immovable property, occupiers and those who use the immovable property unlawfully may bear the status of respondent. Where the encroachment has been carried out by more than one person together, the action may be brought against all of the participants jointly.
Position of Tenants and Holders of Limited Rights in Rem
This action is not reserved to the owner alone; persons whose power to use or to derive benefit from the immovable property is legally protected may also bring an action under certain conditions. Holders of a right of superficies, holders of a right of habitation, holders of a usufruct and tenants may seek the halting of encroachments directed at their own power of use or enjoyment. By way of example, where a tenant is obstructed in their enjoyment of the leased property, where the power of enjoyment of the holder of a usufruct is impaired, or where a right of superficies is encroached upon, it is possible for the holder of the right concerned to bring an action.
The Course of the Proceedings
These actions are counted among the disputes over rights in rem that may, depending on the nature of the encroachment, make a technical examination necessary.
Court With Subject-Matter and Territorial Jurisdiction
As regards subject-matter jurisdiction the rule is the Civil Court of First Instance.
As regards territorial jurisdiction, the action is heard by the court of the place where the immovable property is situated, and this jurisdiction is exclusive in nature.
The claim must therefore be directed to the civil court of first instance at the place where the immovable property subject to the encroachment is situated.
Request for an Interim Injunction
While the proceedings are pending, an interim injunction may be sought with a view to forestalling the aggravation of the interference or the arising of losses that are difficult to make good. Preventing the transfer of the immovable property to third parties, preserving the existing use, halting the encroachment temporarily and freezing construction activities are among the measures most frequently sought in these actions. For the court to be able to grant an injunction, the criterion of prima facie proof must be satisfied.
Proof and Evidence
The burden of proof lies on the claimant, who must establish both their right over the immovable property and the unlawful encroachment. Technical reports, municipal records, photographic and video recordings, witness statements, on-site examinations and court-appointed expert examinations, cadastral records and land register entries are the principal items of evidence resorted to in these actions. In interferences involving buildings, allegations of overspill and boundary disputes, the technical expert’s report is most often the element determining the outcome.
Court Fees and Costs of the Proceedings
The amount of the court fees and the costs of the proceedings is shaped by the subject matter and nature of the dispute.
Service costs, expert fees, the costs of on-site examinations and similar items may be collected from the parties at later stages of the proceedings.
At the end of the proceedings, responsibility for these costs is as a rule placed on the party who is unsuccessful in the action.
Attorney Fees
In favour of the party who has been represented by an advocate in the proceedings, proportional attorney fees are awarded on the basis of the Minimum Attorney Fee Tariff.
Depending on whether the claim is allowed or dismissed in whole or in part, attorney fees may be assessed at different rates.
In disputes where more than one claim is advanced together in the same file, the calculation of attorney fees requires particular care.
Avenues of Appeal
Against the judgments given in these actions, appeal and appeal on points of law may be pursued where the conditions required by law are met.
Appellate review is conducted by the Regional Courts of Appeal; review on points of law, where the conditions exist, is carried out by the Court of Cassation.
Consequences of the Action
If, at the end of the proceedings, the court establishes the existence of an unlawful encroachment directed at the immovable property, it may order the interference to be brought to an end. The decisions given produce consequences in rem directed at the removal of the factual or legal infringement over the immovable property.
Cessation of the Interference
Where the claim is allowed, the court orders the unlawful encroachment upon the immovable property to be brought to an end. With the judgment, the respondent becomes obliged to halt their unlawful acts over the immovable property.
Eviction from the Immovable Property
Where the immovable property is unlawfully occupied, it is possible for eviction to be ordered. An eviction order is given effect in fact once it has become final and the enforcement process has been completed.
Obligation of Restoration to the Former State
Where the existing condition of the immovable property has been altered by reason of the encroachment, restoration to the former state may also be ordered. Returning areas of use to their previous condition, re-establishing boundaries that have been removed and reopening closed passageways are typical applications assessed in this context. The purpose here is to undo the consequences produced by the interference.
Orders for Demolition and Removal
Where unlawful buildings, walls, wire fencing or similar obstacles have been created on the immovable property, their removal or demolition may be ordered. Physical interferences obstructing use, structures created for the purpose of occupation, encroaching structures and unauthorised structures are the subject of orders of this kind. Such claims are most often advanced together with claims in the nature of an "action for removal (demolition)".
Enforcement of the Judgment
The judgments given are carried out by way of enforcement based on a judgment. If the respondent continues the encroachment notwithstanding the decision, the requirements of the decision may be carried out through the Enforcement Office.
Actions That May Be Brought Together
In practice a claim for the prevention of interference seldom arises on its own; depending on the nature of the encroachment, it is advanced in combination with other actions and claims. With a view to making good the losses arising from unjust occupation, to removing unlawful structures on the immovable property or to resolving the dispute as to ownership, more than one claim may be assessed in the same file.
In that assessment, the nature of the encroachment, the legal position relating to the immovable property and the losses suffered by the holder of the right are weighed together.
Action for Compensation for Unjust Occupation
Claims for the prevention of interference are frequently brought together with claims for compensation for unjust occupation. Such compensation denotes the sum claimed by reason of the unlawful use of the immovable property without the consent of the holder of the right.
Action for Removal
An "action for removal" may be pursued in order to have unlawful buildings, walls or other physical interferences erected on the immovable property done away with. These claims too are generally advanced together with the claim for the prevention of encroachment.
Actions for Damages
Damages may additionally be claimed with a view to making good the losses suffered by the holder of the right by reason of the encroachment. Pecuniary losses arising from the interference and the losses occurring in the value of the immovable property form the subject matter of claims of this kind in practice.
Independent Legal Assessment
Although actions for the prevention of interference may at first sight appear to be a simple claim to "stop the encroachment", a significant proportion of files are interwoven with technical matters such as the determination of boundaries, the zoning position and the building permit. Structuring the on-site examination and expert stage correctly is most often the very stage that determines the direction of the judgment.
Furthermore, confining the claim solely to the halting of the interference may leave the holder of the right without redress for their losses in respect of the past. We therefore recommend that the litigation strategy be constructed holistically from the outset. In a particular dispute the following headings in particular should be addressed as a priority:
- Documenting the right over the immovable property by land register and cadastral records before the action is brought
- Establishing concretely, by evidence, that the encroachment was still continuing at the date of the action
- Constituting the parties correctly from the outset in immovable properties held in co-ownership in shares or in joint ownership
- Assessing whether claims for compensation for unjust occupation, for removal and for damages are to be advanced in the same file
- Submitting a request for an interim injunction together with the statement of claim against the possibility of the construction progressing
- Planning the enforcement stage following the judgment becoming final
Independent Legal provides advisory and litigation services throughout the whole of the process in disputes arising from ownership of immovable property, from the establishment of the encroachment through to the enforcement of the judgment.