Where immovable property is used by another person without the consent of its owner or of the person otherwise entitled to it, Turkish law characterises that use as unjust occupation. Compensation for unjust occupation (ecrimisil) may be claimed in order to make good the loss the entitled person suffers as a result of that use.
In legal terms compensation for unjust occupation is a form of damages, yet in practice it is frequently confused with a claim for rent. In an ecrimisil claim, however, no valid lease relationship exists between the parties; what is compensated is the use value of which the entitled person has been deprived because of the unlawful use of the property.
In this briefing note we examine the concept of compensation for unjust occupation, the conditions required for unjust occupation, how the amount is calculated, the applicable statute of limitations and the procedural details of the action.
The Concept of Compensation for Unjust Occupation
Ecrimisil is the compensation for unjust occupation claimed on account of the unlawful use of immovable property without the consent of its owner or of the person otherwise entitled to it. Commonly referred to in practice as "compensation for unjust occupation", the institution is intended to remedy the deprivation of use arising from the unlawful use of the property.
Two facts lie at the root of the claim: the actual possession of the property by the respondent, and the fact that this use is contrary to the will of the entitled person. Because of this structure, ecrimisil frequently arises in co-ownership relationships, in disputes originating in inheritance and in occupations carried out by third parties.
Legal Nature of the Claim
An action for compensation for unjust occupation is in the nature of an action in damages arising from unlawful use.
The outcome sought through the action is compensation for the advantage of use obtained by the person unlawfully using the property and for the use value of which the entitled person has been deprived.
This claim does not rest on a contract; it is a sui generis claim in damages arising from unlawful use. For that reason the claimant must additionally establish the existence of actual use and that the use took place without their consent.
Legal Basis
The legal foundation of these claims is formed by the provisions of the Turkish Civil Code governing the right of ownership, together with the rules on tort and on unlawful possession.
Under Art. 683 of the Turkish Civil Code the owner is entitled to use the property and to derive benefit from it; the owner may also demand that unlawful interferences with the property be brought to an end.
Alongside these, the provisions on the unlawful possessor’s obligation to restore and to compensate, together with the settled case law of the Court of Cassation, define the framework within which ecrimisil operates.
Difference Between Ecrimisil and a Claim for Rent
Although the two institutions are frequently confused in practice, there are clear legal differences between them.
Behind a claim for rent there stands a valid contract binding the parties, whereas in an ecrimisil claim no such lawful use relationship exists. Ecrimisil is compensation claimed in return for the unlawful use of the property. Indeed, while in a lease relationship the parties’ intentions correspond to one another, the use giving rise to ecrimisil takes place without the consent of the entitled person.
Furthermore, the fact that comparable rental values of the property are used in the calculation does not turn ecrimisil into a claim for rent.
Conditions for a Claim for Compensation for Unjust Occupation
For ecrimisil to be claimed, the property must have been used unlawfully and the entitled person must thereby have been deprived of the possibility of using it. In examining the claim the court assesses together the position of rights over the property, the nature of the use, the benefit actually obtained by the respondent and whether the use rests on consent.
Where one of these conditions is absent, dismissal of the claim may follow.
The Claimant Must Be an Entitled Person
In order to bring a claim, the claimant must hold a right of ownership over the property or a legally protected right of use. Within this framework a holder of a right of habitation, a holder of a usufruct, an heir, a co-owner and an owner may claim ecrimisil under certain conditions. The claimant must prove their right over the property by means of the title deed record, a certificate of inheritance or comparable documents.
The Use Must Be Unlawful
One of the fundamental conditions of the claim is that the property is used unlawfully. This requires that the use infringes the entitled person’s power of use, that it does not rest on a valid legal relationship and that it lacks the consent of the entitled person.
Where a valid lease agreement or a recognised right of use exists between the parties, as a rule it is contractual claims rather than ecrimisil that arise.
The Use Must Occur Without Consent
A claim for ecrimisil depends on the use having continued without the express or implied consent of the entitled person. Where the entitled person has permitted the use or has adopted the use relationship, it is as a rule not possible subsequently to claim ecrimisil for the same period.
In actions between co-owners it is additionally important to establish that objection was made to the other co-owner’s use and that the possibility of use was obstructed.
Parties to an Ecrimisil Action
Standing is determined according to the relationship of rights established over the property and according to the source of the unlawful use. While ownership or a use power worthy of protection is required on the claimant’s side, on the respondent’s side the person unlawfully using the property must be correctly identified.
Co-ownership, community of heirs and uses carried out by third parties are the areas in which disputes as to standing most frequently arise.
Standing of the Claimant
The action may be brought by persons holding a right of ownership over the property or a legally protected right of use. The persons who may claim ecrimisil in this context are as follows:
- The holder of a right of habitation
- The holder of a usufruct
- An heir
- A co-owner
- The owner
The persons listed may bring a claim under certain conditions; the existence of the right is proved by the land registry, a certificate of inheritance or documents of equivalent standing.
Standing of the Respondent
The action is directed against the person who unlawfully uses the property or who actually derives benefit from it. Persons who continue to remain in the property although the lease relationship has come to an end, co-owners without a power of use, third parties using the property without permission and occupiers may all bear this standing.
What is decisive as regards liability is the actual use of the property and the derivation of an economic or factual benefit from that use.
Ecrimisil in Co-ownership
Where, in property held in co-ownership, one of the co-owners holds the whole or a significant part of the property in a manner that obstructs the others’ power of use, ecrimisil may arise.
However, in most cases the condition of notice of exclusion from enjoyment is required before a claim may be brought between co-owners. Accordingly, the claiming co-owner must establish that the other co-owner uses the property exclusively, that their own request to use it has been obstructed and that they wish to derive benefit from the property.
Ecrimisil in Joint Ownership
Because in joint ownership the co-owners have no separated shares, the use relationships over the property are subject to a different assessment.
Where a property forming part of a community of heirs is used by only one of the co-owners, the remaining heirs may claim ecrimisil.
In such disputes, whether the condition of notice of exclusion from enjoyment has been satisfied, whether the use rests on the consent of the other co-owners and the actual position of use over the property are decisive.
Disputes Between Heirs
The use of an inherited property by a single heir is among the most frequently encountered ecrimisil disputes. The obstruction of the other heirs’ use, the failure to distribute rental income and the property remaining in the hands of only one heir give rise to claims of this kind.
In the practice of the Court of Cassation, in most cases the condition of notice of exclusion from enjoyment must have been satisfied before ecrimisil may be claimed between heirs. That said, where the property is of a kind yielding natural produce, or where the use is such as clearly to exclude the other heirs, different outcomes may be reached according to the particular features of the case.
Determining the Amount of Ecrimisil
The most contested question in these actions is how the amount claimable in return for the unlawful use is to be determined. The fundamental aim of the calculation is to establish the use value of which the entitled person has been deprived.
Principles of the Calculation Method
The amount is determined on the basis of the objective use value the property could have yielded throughout the period of occupation. In making the calculation, comparable use values for the property, its economic value, the purpose for which it was used, its surface area and the region in which it is situated are taken into account.
The value taken as the basis here is not the value of the property at the date of the action, but its use value during the period in which the unlawful use continued.
The Role of the Market Rental Value
The criterion most frequently relied on in the calculation is the comparable (market) rental value of the property. The court has a comparable rent survey carried out, taking into account the property’s environmental features, its character, the manner of its use and its location.
However, since ecrimisil is not directly regarded as a claim for rent, the market rental value is treated as only one of the objective criteria on which the calculation is based.
The Effect of the Manner of Use
The purpose for which the property is used plays a direct role in determining the amount. Whether the property is used as a car park, for industry, as a warehouse, for commercial activity, for agriculture or for residential purposes may alter both the method of calculation and the use value.
For this reason the actual manner of use of the property is separately examined by the court.
Calculation for Agricultural Property
In calculating the amount for property of an agricultural character, the produce income obtainable from the property is generally taken as the basis. In the expert examination, regional agricultural data, annual income potential, productivity, the state of cultivation and the type of produce are assessed.
In practice such calculations are generally carried out by agricultural experts.
Calculation for Commercial Use
Where the property is used for commercial purposes, the amount is generally determined at a higher level. Letting or sub-use relationships, income-generating use, the operation of a commercial undertaking and use as business premises come to the fore at this point.
For commercial property, comparable rental values for business premises in the area and the intensity of use are taken into account together.
Statute of Limitations in Ecrimisil Claims
The statute of limitations is among the most debated issues in ecrimisil claims. In disputes where the unlawful use has continued for years, the question of which period may be claimed for becomes decisive.
In making this assessment the court examines together the duration of use, the period claimed for and the acts interrupting the limitation period.
The Five-Year Period
The limitation period accepted in practice for ecrimisil claims is five years. As a rule, therefore, the claimant may bring a claim for the last five-year segment counted backwards from the date on which the action was brought.
If the respondent raises the defence of limitation in respect of periods exceeding five years, the court may dismiss the claim as regards that period.
Commencement of the Period
The limitation period begins to run in respect of the periods in which the unlawful use took place. Even where the use continues without interruption, a separate assessment may be made for each period of use. For this reason the calculation is generally carried out on the basis of periodic use.
In long-standing occupations, practice takes as its basis the five-year segment counted backwards from the date of the action.
Interruption and Suspension
Under the general provisions on limitation, certain acts may interrupt or suspend the period. Acts such as the service of a formal notice, acknowledgement of the debt, the commencement of enforcement proceedings and the bringing of an action may produce such an effect according to the circumstances of the particular case.
The court separately assesses, for each file, the grounds interrupting or suspending the limitation period.
Retrospective Ecrimisil Claims
It is possible to claim the use value relating to a past period; that possibility is, however, limited by the limitation period.
The claimant may bring a claim for periods of unlawful use preceding the date of the action; as a rule that claim remains limited to the last five-year segment.
In long-standing occupations it is important in practice that the periods claimed for are clearly set out in the statement of claim.
The Court Proceedings
Ecrimisil actions are among those of a technical character, requiring the manner of use of the property, the duration of use and the use value to be established. For this reason on-site examination, expert examination and comparable rent surveys play a decisive role in the proceedings.
Courts With Subject-Matter and Territorial Jurisdiction
Subject-matter jurisdiction lies, as a rule, with the Civil Court of First Instance.
As regards territorial jurisdiction, the action may be brought before the court of the place where the property is situated. In addition, within the framework of the general rules on jurisdiction, the court of the respondent’s domicile may in certain cases also have jurisdiction.
However, since ecrimisil claims are mostly advanced together with an action for the prevention of interference, the court of the place where the property is situated comes to the fore in practice.
Interim Injunctions
Although ecrimisil actions are essentially actions for debt, applications for interim legal protection may arise depending on the features of the file. An interim injunction may be sought where there is a risk that evidence will be lost, a possibility that the property will be transferred, an aggravation of the use or a continuation of the interference.
In practice such applications are mostly assessed together with claims relating to the prevention of interference or to title deed disputes.
Evidence and the Burden of Proof
The burden of proof lies with the claimant, who must establish their right over the property, the respondent’s actual use and the unlawfulness of that use. The principal items of evidence relied on in this context are as follows:
- Comparable rent surveys
- Municipal and cadastral records
- Photographs and video recordings
- Witness statements
- Lease and use documents
- Certificates of inheritance
- Title deed records
In files to which co-owners are parties, proof of notice of exclusion from enjoyment carries particular weight.
On-site Examination and Expert Examination
In these actions the on-site examination and the expert examination are the stages that determine the outcome. During the on-site examination the actual position of use of the property, the area used, the manner of use and its character are established. The court-appointed experts calculate the comparable rental value of the property, its economic use potential and the amount of ecrimisil.
Agricultural experts may be appointed for property of an agricultural character, and real estate and technical experts for property of a commercial character.
Court Fees and Expenses
Ecrimisil actions are subject to a proportional court fee calculated on the amount claimed. During the proceedings items such as witness expenses, service costs, expert fees and on-site examination expenses may arise.
As a rule the unsuccessful party is held liable for these expenses at the conclusion of the proceedings.
Attorney Fees
Where one of the parties has been represented by a lawyer, a proportional attorney fee is awarded in that party’s favour pursuant to the Minimum Attorney Fee Tariff.
The fee is calculated on the basis of the ratios of acceptance and dismissal, according to whether the action is upheld in whole or in part.
In files involving high amounts this item may in practice reach considerable sums.
Appeal Routes
Where the conditions required by law are met, the routes of appeal and appeal on points of law are available against the decisions given.
Appeals are examined by the Regional Courts of Appeal and appeals on points of law, where the conditions are satisfied, by the Court of Cassation. Among the matters most frequently subject to review on appeal are comparable rent assessments, the condition of notice of exclusion from enjoyment, expert reports, the duration of use and the calculation of ecrimisil.
Outcomes of the Action
If at the conclusion of the proceedings it is established that the property has been used unlawfully and that the claimant has been deprived of the right of use, ecrimisil may be awarded. The sum to be awarded for collection is determined in the light of the duration of the occupation, the manner of use and the findings in the expert reports.
Award of Ecrimisil
Where the existence of unlawful use is established, ecrimisil is awarded as the counterpart of the claimant’s deprivation of use.
The amount is generally determined having regard to the comparable rental value and the character of the use of the property.
Interest
Interest may also be claimed alongside the ecrimisil award. As a rule interest begins to run from the moment at which each period of occupation comes to an end (the accrual date). Since ecrimisil is in the nature of damages, interest begins to run from the date on which the claim falls due.
In these actions the statutory rate of interest is generally applied. That said, where the relationship between the parties is of a commercial character or where the occupied place is a commercial undertaking, it may be possible to claim the advance interest rate (commercial interest).
Enforcement of the Judgment
Once the judgment on ecrimisil has become final, the collection process may be commenced by way of enforcement based on a judgment.
Actions That May Be Brought Together With Ecrimisil
Ecrimisil claims are rarely advanced on their own in practice; they are combined with different actions and claims according to the nature of the interference with the property. Several claims may be assessed within the same file with a view to resolving the ownership dispute, bringing the unlawful interference to an end or remedying the factual situation that has arisen over the property.
Action for the Prevention of Interference
Ecrimisil is most frequently brought together with an action for the prevention of interference. In this combination, the claim for the prevention of interference seeks to bring the interference to an end, while the ecrimisil claim seeks to remedy the loss of use relating to the past period.
Removal and Demolition Actions
An action for removal (demolition) may be brought for the removal of structures or physical interferences unlawfully placed on the property.
In practice, interferences obstructing use, encroaching structures and unauthorised structures are the subject of such actions.
Actions in Damages
Pecuniary damages may be claimed in order to make good the losses arising from the unlawful use; non-pecuniary damages may also be claimed where the conditions are met.
These additional claims may arise in cases such as damage to the property, loss of income and loss of use.
Independent Legal Assessment
In ecrimisil files the most common reason for dismissal of the claim is not weakness of the legal basis but a deficiency in proof. Particularly in disputes between co-owners and heirs, the failure to satisfy the condition of notice of exclusion from enjoyment causes a claim that is essentially well founded to come to nothing. For this reason, before an action is brought, it must always be reviewed whether there is a formal notice showing that the intention to use was communicated to the other party.
The second critical heading is periodicity. Since the five-year limit runs backwards from the date of the action, setting out in the statement of claim, in a separated form, which periods the claim covers simplifies from the outset the arguments both as to the defence of limitation and as to the starting point of interest.
In a particular file the following headings should be prioritised:
- Documenting the condition of notice of exclusion from enjoyment in advance by means of a notary’s formal notice or an equivalent document
- Setting out the periods claimed for in the statement of claim, separated year by year
- Establishing evidence of the manner of use of the property (residential, agricultural, commercial) before the expert examination
- Supporting the commencement date of the actual use with photographs, witnesses and administrative records
- Selecting the correct type of interest from the outset, according to the character of the occupied place
- Assessing, from the point of view of case strategy, whether to bring the action together with a claim for the prevention of interference
Independent Legal provides advisory services and conducts litigation throughout the entire process, from the formal notice stage to the enforcement of an ecrimisil judgment, in disputes arising from the unlawful use of immovable property.