The action for recovery of property enables an owner to reclaim an item belonging to them from a person who is holding it unlawfully. The source of this power is Article 683 of the Turkish Civil Code No. 4721; in the legal literature it is referred to as the protective power of ownership. That power arises from the right of ownership and cannot be considered separately from it. The owner’s object here is to bring the item back under their own actual control.
This action is one of the most effective instruments available to an owner in defending the right of ownership. It secures the direct protection of the right and restores to the owner the ability to exercise their ownership in fact. It performs the function of an important legal mechanism for the return of property that is being held unlawfully.
Since the right of action is tied directly to ownership, the capacity to sue belongs to the owner who does not have the property in hand, that is to say, who has lost the position of direct possessor. On the other side stands the person holding the item unlawfully. The result sought through the action is that the owner, relying on their ownership, regains direct possession of the item and that their right is protected. In this respect the action for recovery of property assists the right holder both in the protection of ownership and in its actual exercise.
Where the thing being held unlawfully is a movable, execution of the judgment obtained at the end of the action achieves the object of the action. In the case of immovable property recorded in the land registry, since possession is essentially secured through the land register, where the true owner is not recorded in the register the same function is performed by the action for rectification of the land registry. If the person appearing in the register is the true owner, the owner is not deemed to have lost direct possession; in such a case, instead of an action for recovery of property, an action for the "prevention of unlawful interference" arises. It may therefore be said that the action for recovery of property performs its principal function in relation to movable property.
Definition and Character of the Action for Recovery of Property
The action for recovery of property is a claim directed by an owner, on the basis of their ownership, against a person holding the item unlawfully. Since the return of the property is sought, it is an action in rem; and since restitution is requested as the outcome of the judgment, it is at the same time characterised as an action for performance. In the legal literature it is accepted that this action may also be brought on the basis of a limited right in rem.
Because the claim is one in rem, it is as a rule not subject to a statute of limitations; the action may be brought at any time for as long as the conditions are met. A special limitation period has, however, been laid down for the action for recovery of property on the ground of inheritance. Specific periods must also be observed in actions for recovery of property brought on the ground of attachment. The action for recovery of property based on ownership is also referred to as the "ordinary action for recovery of property".
Principal Features
- Action in Rem: Since the owner’s right of ownership lies at its foundation, it is regarded as an action concerning a right in rem.
- Action for Performance: Since it contains a claim directed at the return of the property, it is in the nature of an action for performance.
- Statute of Limitations: Being a claim in rem, it has not generally been made subject to a statute of limitations; special periods do, however, apply in actions for recovery of property arising from inheritance and from attachment.
Types of Action for Recovery of Property
This action takes different forms according to the object it pursues and its subject matter. Three principal types stand out in practice: the action for recovery of property on the ground of attachment, the action for recovery of property on the ground of inheritance, and the action for recovery of property brought on the ground that the property left the owner’s hands without their consent.
- Action for Recovery of Property on the Ground of Attachment
In enforcement law the object is that the creditor obtains what is owed by recovering it through compulsory enforcement from a debtor who does not pay their debt. Where, while the debtor’s property is being attached, the debtor themselves or a third party asserts over that property a right superior to the right to the claim, a question of recovery of property arises. The right asserted may be ownership, but it may equally be a limited right in rem such as a right of pledge. Because it takes its source from enforcement law, this type differs from the classic action for recovery of property.
- Action for Recovery of Property on the Ground of Inheritance
It is frequently encountered that, following the death of the deceased, some or all of the property forming part of the estate is held unlawfully by persons who do not have the status of heir. One of the routes open to heirs in order to protect their rights in this situation is the action for recovery of property on the ground of inheritance. The action is directed against third parties who have established unlawful possession over the property in the estate, and by this route the heirs seek the return of the property to themselves. The unlawful possessor in the position of respondent cannot rely on a defence of acquisitive prescription.
- Action for Recovery of Property Where the Property Left the Owner’s Hands Without Consent
This type is the ordinary action for recovery of property contained in the Turkish Civil Code No. 4721 within the scope of the protective power of ownership, and it is brought against the person unlawfully continuing to possess the property.
What is meant by the property leaving the owner’s hands without consent is that the owner lost possession contrary to their will. This action cannot, for example, be brought against a person holding an item on a justified basis such as a lease relationship. The action may be directed only against those holding possession unlawfully.
Conditions for the Action on the Ground of Attachment
The action for recovery of property on the ground of attachment is regulated in enforcement law and arises where, during the attachment of the debtor’s property, the debtor or a third party asserts a superior right over an item. The purpose of this provision is to prevent an item that does not belong to the debtor from being attached and sold, and thus to prevent loss being caused to the third party. The point at which it differs from the ordinary action for recovery of property is that here it is regarded as sufficient to rely on a superior right. In whose hands the property subject to the claim is found alters the procedure to be followed.
Where a claim to the property is asserted during the attachment, the enforcement office notifies the creditor; the creditor has a period of three days from the moment of becoming aware of it in which to object. If that period passes without an objection, the attachment over the property is lifted. If the creditor objects, the enforcement office refers the file to the enforcement court of its own motion. The enforcement court rules only on whether the enforcement is to be continued or stayed; it does not go into the merits of the claim to the property. Once the decision has been served on the parties, the third party must bring an action for recovery of property before the enforcement court within 7 days. If no action is brought within that period, the claim is deemed to have been abandoned and the attachment proceeds. Where an action is brought, the property cannot be sold until judgment is given; matters then proceed in accordance with the outcome. If the claim cannot be proved at trial, the sale proceedings are continued.
- The Property Is in the Debtor’s Hands or in the Hands of the Debtor and a Third Party Together
Under Article 97/a of the Enforcement and Bankruptcy Act No. 2004: "A person holding a movable item shall be deemed to be its owner. Even where the debtor and third parties hold the movable item together, the item shall be deemed to be in the debtor’s hands." Accordingly, the same provisions operate whether the property is in the debtor’s hands alone or under the joint control of the debtor and a third party. In both cases the property is deemed to be in the debtor’s hands and the debtor is taken to be the owner. What is involved is a presumption, and it may be rebutted.
In this situation the procedure that operates is as follows: the claim to the property asserted during the attachment is notified by the enforcement office to the creditor, and the creditor is given the opportunity to object within three days of becoming aware of it. If no objection is received, the attachment is lifted. Where the creditor objects, the file is sent to the enforcement court by the enforcement office of its own motion. The court rules on the continuation or stay of the enforcement; it does not examine the merits of the claim. Once that decision has been served on the parties, the third party is given a period of 7 days in which to bring the action for recovery of property before the enforcement court. If the period is allowed to pass, the claim is deemed to have been waived and the attachment process continues to operate. If an action is brought, no sale may take place until judgment is given. If the claim cannot be proved, the sale of the property proceeds.
- The Property Is in the Hands of the Third Party Alone
Where the property is under the control of a third party, the claim to the property must be asserted within 7 days of the attachment if it was carried out in their presence, or within 7 days of the date on which the attachment came to their knowledge if it was carried out in their absence. Once the claim is notified, the enforcement office gives the creditor a period of seven days directly, and the creditor must bring an action for recovery of property before the enforcement court within that period. Since the property is not deemed here to belong to the debtor, the creditor is not given a three-day period for objection and the file is not sent to the enforcement court for a decision. Because the item is in the third party’s hands, the claim to the property stays the proceedings automatically. Accordingly, it is the creditor and not the third party who is to bring the action. The enforcement measures are shaped by the outcome of the action.
The Action in Relation to Immovable Property
An action for recovery of property may arise in relation to both movable and immovable property.
- Immovable Property Recorded in the Land Registry
For immovable property recorded in the land registry, the work done by an action for recovery of property is performed by the action for rectification of the land registry. That is because Article 992 of the Turkish Civil Code No. 4721 provides that the person appearing in the register as owner is in the position of direct possessor. For as long as the owner appears in the land registry as the right holder, they are not deemed to have lost direct possession. Even if the immovable property is occupied from end to end, possession is not lost; it is merely subjected to an interference. Since the action for recovery of property is directed against the direct possessor holding possession unlawfully, in cases of occupation of immovable property an action for prevention of interference is generally preferred in practice. Our study entitled "Action for Prevention of Interference – Prevention of Interference (Trespass)" contains detailed information on this subject.
If the owner does not appear in the land registry as the right holder, that is to say, if according to the register they are not in the position of possessor of the immovable property, an action for rectification of the land registry record is brought, and that action fulfils the function of an action for recovery of property. For details on the subject, our study entitled "Action for Rectification of the Land Registry Record" may be consulted.
- Immovable Property Not Recorded in the Land Registry
For immovable property recorded in the land registry, the person appearing in the register as the right holder is deemed to be the owner; in other words, a presumption of right exists. No such presumption operates in the case of immovable property with no entry in the land registry; by contrast, the person who can establish the existence of the right of ownership is protected and may bring an action for recovery of property to the extent that they can prove their right. Ownership of an immovable property may, for instance, have been acquired by prescription, and such an owner may likewise have recourse to an action.
The Action in Relation to Movable Property
The field in which the action carries its principal weight is movable property. An action for recovery of property may be brought against a person unlawfully continuing to possess a movable. Where the transfer of a movable has taken place unlawfully, possession over that item likewise becomes unlawful.
Since, for movables, an action for movables may also be brought within the framework of Article 991 of the Turkish Civil Code No. 4721, the practical function of the action for recovery of property may to some extent be reduced. The clearest distinction between the two actions is that in an action for recovery of property it is obligatory to rely on a right in rem — that is, on the right of ownership. In an action for movables, by contrast, possessors who do not have the status of owner may also bring an action. Moreover, whereas an action for movables is subject to a limitation period, no such period is laid down for an action for recovery of property.
The Parties to the Action
There are two parties to an action for recovery of property, the claimant and the respondent. The claimant is the holder of the right of ownership, and the respondent is the person holding the property unlawfully.
Claimant: The Owner and Holders of Limited Rights in Rem
The capacity to sue belongs to the true owner of the property. Ownership may have been acquired individually, in shares or jointly:
- Co-ownership in Shares: A co-owner may bring an action alone in respect of their own share and may also, where indivisible interests are concerned, bring an action alone in respect of the whole of the property on behalf of the other co-owners.
- Joint Ownership: In cases of joint ownership, such as the community between heirs, the power to bring an action is conferred on all the joint owners. In this way the protection is made available to all of them.
- Holders of Limited Rights in Rem: Holders of limited rights in rem, such as a usufructuary or a pledgee creditor, also have the power to bring an action.
Respondent: The Possessor
The respondent is the person holding the property unlawfully. Whereas in the case of movables possession is established by actual control over the item, in the case of immovable property the land registry is decisive. Accordingly:
- For Movable Property: The possessor is the person actually holding the item.
- For Immovable Property: The possessor is the person recorded in the land registry as the right holder.
The unlawfulness of possession means that the holding of the property rests on no right, whether in rem or personal. A person holding a usufruct over an item, for example, or a tenant using the property under a lease agreement, bases their possession on a right, and an action for recovery of property cannot be brought against such persons.
Time Limits and Limitation Periods
The regime of time limits applicable to an action for recovery of property differs according to the type of action.
Time Limit in the Ordinary Action for Recovery of Property
Neither a limitation period nor a preclusive period is laid down for the ordinary action for recovery of property. The reason is that the action rests on a right in rem; this claim, directed at the protection of ownership, has not been made subject to any restriction of time.
Time Limits in the Action on the Ground of Inheritance
Article 639 of the Turkish Civil Code No. 4721 lays down specific periods for this action:
- Against Respondents in Good Faith: The action becomes time-barred on the expiry of one year from the date on which the claimant learned of their own status as heir and of the fact that the respondent in good faith held the estate or an item of the estate, and in any event on the expiry of ten years from the death of the deceased or the opening of the will.
- Against Respondents in Bad Faith: As regards persons not deemed to be in good faith, the ten-year period referred to above is applied as twenty years.
Whether the person holding the property is in good faith is determined according to whether they knew that the property belonged to the deceased. A person unaware of that fact is treated as being in good faith, and one who acted knowingly as being in bad faith.
Time Limits in the Action on the Ground of Attachment
The periods applicable in an action for recovery of property arising from attachment are as follows:
- The Property Is Held by the Debtor and a Third Party Together: In this case the action for recovery of property must be brought within seven days of service of the enforcement court’s decision on the stay or continuation of the proceedings.
- The Property Is Held by the Third Party Alone: Where a claim to the property is asserted during the attachment, the enforcement office gives the creditor a period of seven days directly in which to bring an action against the third party. In this situation the claim to the property stays the proceedings automatically; the fact that the periods have been clearly fixed serves the swift conclusion of the enforcement proceedings.
Allowing the periods or the limitation period to expire may lead to the loss of rights and may result in the claim to the property being deemed to have been abandoned. Observing the periods is therefore of great importance.
Allocation of the Burden of Proof
In an action for recovery of property the burden of proof falls as a rule on the claimant; the claimant is expected to establish the right of ownership. Relying on their ownership, the claimant must prove that they are the true owner of the property and that the respondent is holding it unlawfully.
Proof of ownership is not sufficient on its own; the claimant must also show that the respondent’s possession is unlawful. The burden of proof therefore extends to establishing that there is no uncertainty or dispute as regards the right of ownership and that the property is being withheld by an unlawful possessor.
The respondent, for their part, has the right to prove that the claimant is not the owner and that their own possession rests on a valid legal basis. The respondent may, for instance, show that they hold the property on a valid footing such as a lease agreement or a right of pledge. A respondent who succeeds in that proof may decline to return the property.
This balanced structure aims at producing a fair solution, having regard on the one hand to the protection of the claimant’s ownership and on the other to the respondent’s ability to defend their valid rights.
Jurisdiction of the Court
In the Action for Recovery of Property:
Subject-matter jurisdiction lies with the civil court of first instance. If the action concerns immovable property, the court of the place where the property is situated has exclusive territorial jurisdiction. For movables, the general rules of territorial jurisdiction operate and the court of the respondent’s last place of residence has jurisdiction.
In the Action on the Ground of Inheritance:
In this action too the court with subject-matter jurisdiction is the civil court of first instance. As regards territorial jurisdiction, the court of the deceased’s last place of residence is taken as the reference point.
In the Action on the Ground of Attachment:
In actions for recovery of property arising from attachment, subject-matter jurisdiction lies with the enforcement court. The court with territorial jurisdiction is that of the place where the enforcement proceedings are being conducted or of the respondent’s place of residence.
Legal Consequences of the Action
When an action for recovery of property, which is in the nature of an action for performance, is concluded, the right of ownership is determined and the return of the item in dispute to the owner is secured. By the judgment given, the unlawful possessor is compelled to return the property, by delivery in the case of movables and by eviction in the case of immovable property.
Execution of the Judgment: If the unlawful possessor does not return the item notwithstanding the court’s judgment, recourse is had to enforcement in order to have the judgment carried out. The judgment is executed by way of delivery for movables and eviction for immovable property (Articles 24-26 of the Enforcement and Bankruptcy Act No. 2004).
Rights and Responsibilities in the Obligation to Return:
- Possessor in Good Faith: A person whose possession rests on good faith is not required to pay compensation to the person to whom they are obliged to return the item on account of having used or enjoyed it in a manner consistent with the right they believed themselves to hold. Nor are they held liable for the destruction, loss or damage of the thing. By contrast, they may claim compensation from the person seeking the return in respect of the necessary and useful expenditure they have incurred, and may decline to hand over the item until that sum is paid. They have the possibility of detaching and removing their additions before returning it. The fruits obtained by the possessor are set off against their claims arising from the expenditure they have incurred.
- Possessor Not in Good Faith: A possessor in bad faith must compensate the loss suffered by the right holder as a result of unlawfully withholding the item they are obliged to return, together with the fruits they obtained or neglected to obtain. Such a person may claim reimbursement only of the expenditure that was necessary from the right holder’s point of view. For so long as they do not know to whom the thing is to be returned, their liability is limited to the loss they cause through their own fault.
Within this framework, the consequences of an action for recovery of property secure the right holder’s ownership on the one hand while determining the obligations of the unlawful possessor on the other. Obtaining professional legal support is important if the process is to reach a fair outcome and the loss of rights is to be avoided.
Independent Legal Assessment
In disputes over the recovery of property, the element that determines the outcome is most often not the argument on substantive law but the correct reading of the periods in the enforcement file. Although in whose hands the property was attached may appear to be a single finding, that finding alters both who is to bring the action and which of the three-day and seven-day periods will run. The statements recorded in the attachment record are for that reason the most critical document in the file.
In the ordinary action for recovery of property, by contrast, the weight lies at the stage of proof. It is not enough to show the existence of ownership; it must also be established that the other party’s possession rests on no right, whether in rem or personal. In practice we recommend that particular regard be had to the following matters:
- Examining with care the entry in the attachment record as to in whose hands the property was found and, if necessary, objecting to it
- Having the claim to the property entered in the enforcement file at the moment of the attachment or within seven days of becoming aware of it
- Clarifying at the outset whether the burden of bringing the action lies with the creditor or with the third party
- Choosing, in disputes over immovable property, whichever of the routes of prevention of interference or rectification of the land registry record is appropriate, rather than recovery of property
- Calculating, in claims arising from inheritance, the one-year period running from knowledge together with the ten-year and twenty-year long-stop periods, alongside the assessment of good faith
- Not neglecting, at the stage of return, the claim in respect of necessary and useful expenditure and the right of retention
Independent Legal provides advisory services and conducts litigation in disputes in this field, from claims to property arising during an attachment through to claims for restitution based on ownership.