Where the owner of an immovable property establishes that the property is being used without his consent, he may claim damages irrespective of whether any concrete loss has arisen from that use and irrespective of whether the person using it is at fault. In practice this claim is known as ecrimisil, or, by its other name, compensation for unjust occupation. The claim is not confined to immovable property held in private ownership; the same possibility exists in respect of places held by the public authorities. Where a person is regarded as an occupier of an immovable property belonging to a public legal entity, the administration concerned serves upon him a notice of compensation for unjust occupation. That notice is founded upon a property inspection record. Since the notice is regarded as a final and enforceable administrative act, the regime of objection and annulment provided for administrative acts applies here as well.
Looking at the picture on the ground, the units that serve such notices most frequently are metropolitan, provincial and district municipalities, together with governorships and national real estate units. A person who receives a notice may, if he considers that the inspection or the amount is unlawful, apply to the administration and request rectification, or he may go directly to the courts.
In this briefing note we examine, in practical terms, the legal character of the notice, the mandatory content required in the underlying record and in the notice itself, the criteria to be observed in determining the amount, the period that may be made the subject of the calculation and, finally, the objection and litigation process.
Legal Character of the Notice
A notice of compensation for unjust occupation drawn up by the administration is regarded as an administrative act, since it is a decision established through the use of public power and producing final and enforceable effects.
Administrative acts benefit from the presumption of lawfulness. For that reason, the mere fact that an action has been brought against the notice does not of itself affect its validity; the act continues to produce effects until the proceedings are concluded or a stay of execution is ordered. Where, on the other hand, any one of the elements of competence, form, cause, subject matter and purpose is defective, the act must be set aside by a judicial decision.
The Underlying Document: The Property Inspection Record
When information reaches the administration that a place belonging to the public authorities is being unlawfully occupied, the necessary examinations and investigations are carried out and their results are recorded in a Property Inspection Record. The survival of the notice depends on that record, which forms its basis, having been drawn up in conformity with the law. The information that must appear in the record is set out, on a non-exhaustive basis, in Article 5(1) of the General Communiqué on National Real Estate (No. 336). Under that provision, the record must contain the following matters if it is to be regarded as valid:
- The identity of the persons actually using the property, that is to say of those in the position of occupier
- The date on which the occupation began
- The purpose for which the use is being continued
- The surface area of the space subject to the use or occupation
- The data that may be relied upon in assessing the amount, and any other information considered useful to know
The absence from the record of even one of the matters listed renders the document legally invalid. Since a notice of compensation for unjust occupation built upon an invalid record is defective from the outset, that deficiency alone may result in annulment.
Information That Must Appear in the Notice
Following the drawing up of the inspection record, the competent commission must determine the amount of compensation for unjust occupation in respect of the property within 15 days from the date on which the unlawful use was established.
The following are required in the content of the notice to be served:
- The name, Turkish identity number and address details of the person in the position of occupier
- The address at which the property subject to the use is located
- The administration’s share in that property, or its share expressed in square metres
- The surface area of the space actually occupied and the manner in which the occupation took place
- The monthly amount of compensation assessed
- The date and number of the commission decision forming the basis of the notice
- The total amount claimed and the period to which that debt relates
- The period allowed to the occupier for payment
- A warning that, if the amount is not paid within the period, the administration may exercise its power of eviction and may collect its claim, together with default interest, by way of enforcement proceedings
Where any of this information is omitted, annulment of the notice may be sought on the ground that it is defective as regards the element of form.
Who Has the Power to Determine the Amount?
If it is established that an immovable property belonging to the public authorities is being used without the administration’s permission, the commission concerned assesses the amount within 15 days from the date of the inspection. Where the property belongs to the Treasury, that power lies with the Valuation Commission; where it belongs to a municipality, it lies with the Mayoralty Valuation Commission.
It is a statutory requirement that the commission convene with all of its members present. A decision on the assessment of the amount taken with a member missing becomes defective as regards competence.
In addition, it is a statutory requirement that no member abstain; a decision formed contrary to that rule is unlawful. An action for annulment may be brought before the administrative courts against a notice that is defective as regards the element of competence.
Criteria to Be Observed in Assessing the Amount
Whether the amount can be determined in conformity with the law depends on the commission carrying out an examination and assessment of sufficient breadth. Although the requirements of the particular case may make it necessary to have recourse to more extensive data, the basic criteria that must always be taken into account in the assessment are the following: the zoning status and location of the property, its surface area and character, the level of yield in the case of agricultural land, whether it benefits from infrastructure services and, finally, the manner in which it is used and whether income is derived from that use.
The commission is under a duty to carry out a comparable-value survey consistent with those characteristics. In other words, the rental or occupation figures applied to nearby properties bearing similar features must always be taken into account in the new assessment. In addition, the commission must seek the opinions of bodies that may be expected to have knowledge of the property, such as the municipality, the chamber of commerce, the chamber of industry, the chamber of agriculture and the commodity exchange.
Where the dispute is brought before the courts, the court is expected to obtain a report from a court-appointed expert and to investigate whether the true characteristics of the property correspond to those in the inspection record and what the level of the amount ought to be. Only in that way can the lawfulness of the findings and of the figure in the notice be established. A judgment given otherwise would constitute an incomplete examination and may therefore be a ground for reversal.
The Period of Occupation That May Be Calculated
Article 5(2) of the National Real Estate Communiqué governs the frequency of property inspections as follows:
General Communiqué on National Real Estate, Art. 5(2)
“It is the rule that inspections of immovable properties be carried out at least once a year. However, in compulsory situations the duration of inspection programmes may exceed one year. Nevertheless, inspection programmes may not be drawn up for periods exceeding five years. In preparing the programmes, regard shall be had to the inspection of immovable properties at least once every five years, of properties considered important every year, of properties used for agricultural purposes with account also taken of harvest times, and of properties within municipal adjacent areas every year (in compulsory cases, for longer periods). Provincial treasury directors in the provinces, and district finance directors or, where they exist, national real estate directors in the districts, shall take the necessary measures for these inspections to be carried out.”
As a rule, the calculation is carried out on the basis of inspections that are to be conducted once a year; where necessary, that interval may be extended. Nevertheless, in no circumstances may compensation for unjust occupation be calculated for a period exceeding 5 years; notices exceeding that limit are unlawful.
The Problem of Excessive Increases in the Amount
One of the most frequently encountered heads of dispute in the application of compensation for unjust occupation is an extraordinary increase in the amount despite there having been no change whatsoever in the manner in which the property is used. Where no other legal ground altering the character of the use has arisen, an excessive increase in the sum assessed for a property that has been used for the same purpose for years constitutes unlawfulness.
Accordingly, persons who continue to use the property as in earlier periods may seek the annulment of new amounts that remain excessively high when compared with the figures of past years.
In a leading decision of the Council of State on the subject, the following assessment was made:
Council of State, 10th Chamber, Case No. 2018/744, Decision No. 2019/7544, 7.11.2019
“In this situation, whereas in determining the amount of compensation for unjust occupation a decision ought to have been given by comparing the amounts of compensation for unjust occupation for earlier periods arising from the use of the property in the same character, and comparable amounts of compensation for unjust occupation and rental amounts, with the property taken as the basis of the respondent administration’s valuation, and in such a way as to be not less than 3% of the property’s real estate tax value, (…)”
Properties Holding Facilities Serving a Public Purpose
On a Treasury property dedicated to a public service by its founding legislation, facilities performing a public function of a purely social, cultural or sporting character may be established without any commercial gain being sought. In practice, it is frequently encountered that such structures are built without permission and that the competent administration nevertheless approves a request for their allocation or transfer. In such cases no administrative proceedings for compensation for unjust occupation are pursued in respect of those facilities. Where the allocation or transfer takes place, amounts accrued for past periods are not collected; sums already paid, however, are not refunded either.
Where the property subject to administrative compensation for unjust occupation has been let by the administration to which it was allocated, letters are sent within 15 days from the date of the inspection both to the tenant and to the administration holding the allocation. Those letters state that, if no request for a lease is made or if such a request is refused, the property will be evicted. The letters go on to state that the rental amounts which the administration holding the allocation ought to have collected must be calculated retrospectively and paid to the Treasury within 15 days, failing which legal remedies will be pursued.
Where the administration holding the allocation has left the property to the use of third parties without receiving any payment, administrative compensation for unjust occupation is assessed and collection is pursued in accordance with the procedure explained above.
Objection to the Administration and Request for Rectification
A person who considers that there is an error in the notice served upon him may, within 30 days from the date of service, apply by way of a petition to the administration that drew up the notice and make a request for rectification. The administration decides on that request within 30 days from the date on which the application was made. The commissions examining the request may, where they need to, carry out or have carried out an on-site examination. For those commissions too, as for the Property Inspection Commission, the rules of convening with the full number of members, taking decisions by majority and not casting abstentions apply.
A person intending to bring an action for annulment is not obliged to exhaust this avenue of objection first; there is no obstacle to bringing an action directly. That point has also been expressly settled in the recent case law of the Assembly of Administrative Chambers of the Council of State.
Action for Annulment of the Notice
Annulment of the notice, which has the character of a final and enforceable administrative act, may be sought on the ground that it is defective as regards at least one of the elements of competence, cause, form, subject matter and purpose. To that end, an action must be brought before the Administrative Court of the place where the administration that drew up the notice is located, naming that administration as respondent.
The time limit for bringing the action is preclusive in character and is 60 days from the date on which the notice was served.
By contrast, where an objection has first been made to the administration, the time limit for bringing an action is suspended. If the request for rectification is refused by the administration, the suspended period resumes from where it left off. For detailed information on the subject, our study entitled Annulment of a Notice of Compensation for Unjust Occupation may be consulted.
On the other hand, in respect of property held in private ownership too, it is possible to claim compensation for unjust occupation on the ground of unlawful use by third parties. The legal avenues to be followed in that event are addressed in our study entitled Action for Compensation for Unjust Occupation (Compensation for Unlawful Occupation).
Frequently Asked Questions
Is representation by a lawyer mandatory against such a notice?
In Turkish law parties may defend and represent themselves in person before the courts; save for limited exceptions, retaining counsel is not an obligation. No such obligation is prescribed in respect of the Administrative Courts either. That said, the complexity of administrative law legislation and the short and strict character of the periods in the Administrative Procedure Act may lead to errors of both procedure and substance that are difficult to remedy where the process is conducted by persons who are not lawyers. In order to avoid a loss of rights in administrative proceedings governed by detailed rules, it is advisable to obtain support from lawyers practising in the field of administrative law before any step is taken.
What do compensation for unjust occupation and the notice of compensation for unjust occupation mean?
Compensation for unjust occupation is the compensation claimed where a Treasury property is occupied or held by natural or legal persons without the permission of the competent administration, without any inquiry into whether the administration has suffered loss or whether the person using it is at fault. The notice of compensation for unjust occupation is the document sent by the administration to a person alleged to be using a Treasury property without any contractual relationship, informing him that the amount assessed must be paid within the period allowed.
Does the debt end on the death of the addressee?
Since a notice drawn up by the administration in the name of the deceased is not of a punitive character, the debt does not disappear upon death. The heirs are jointly and severally liable for the debt set out in the notice.
Is a user who is not at fault also held liable?
The legislation regards as an unlawful occupier any person who, irrespective of whether he is at fault, takes possession of a Treasury property without the permission of the competent administration, holds it, or in any manner whatsoever uses that property or keeps it at his disposal. For that reason, persons who use the property unaware of the situation and without any fault on their part are also liable for the amount set out in a duly drawn up notice.
For how many years in the past may compensation be claimed?
Compensation may be calculated against a person alleged to be occupying a Treasury property only for a period of five years counting back from the date on which the occupation was established. If the notice covers a period exceeding five years counting back from the date of the inspection, it must be annulled.
Does paying compensation confer a right over the property?
Payment of the amount does not confer on the person paying it any right of ownership over the property. Compensation for unjust occupation is no more than compensation for occupation received in consideration of the use during the past period.
Independent Legal Assessment
Disputes over compensation for unjust occupation are often reduced to an argument about figures alone; yet in a significant proportion of files the real outcome arises not from the size of the amount but from procedural deficiencies in the underlying documents. The content of the inspection record, the manner in which the commission convened and took its decision, whether a comparable-value survey was carried out, and the limit of the period made the subject of the calculation are matters that must often be addressed before any argument on the merits.
The shortness of the time limits is a further source of risk. Although choosing the avenue of objection suspends the period, a failure to calculate correctly the period remaining after service of the decision of refusal may cause the file to be dismissed without the merits being examined. Strategy must therefore be devised from the very first day on which the notice is served.
In a given file, the matters to be given priority are the following:
- Verifying whether any of the mandatory information has been omitted from the inspection record
- Investigating whether the commission that assessed the amount convened with its full number of members and whether the rules on voting were observed
- Checking, period by period, whether the calculation exceeds the five-year upper limit
- Documenting the allegation of an excessive increase by making a comparison with the amounts of previous years
- Bringing comparable rental and occupation data and the opinions of the relevant professional bodies into the file
- Scheduling the 30-day period where the avenue of objection is to be used, or the 60-day preclusive period where an action is to be brought directly
Independent Legal provides advisory and litigation services throughout the entire process in disputes over compensation for unjust occupation concerning public property, from the request for rectification to be made to the administration through to the conduct of the action for annulment.