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April 10, 2025
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The use or possession of another’s immovable property without a contractual relationship between the parties or the authorization of the law is unlawful and the owner has a right to claim against the unfair use or occupation of the other party. This receivable of the owner is called ejectment or unjust occupation. In other words, ejectment is a cause of action by a plaintiff who does not actually possess a piece of real property but has the right to possess it, against a defendant who is in actual possession of the property. In practice, although many lawsuits are filed with claims for compensation, it is sometimes seen it is qualified as unjust enrichment but that may result in loss of rights in favor of the owner.
First of all, it should be emphasized that ejectment is not a rental fee. No special qualification has been attributed in the Turkish Code of Obligations No. 6098 or other special laws. However, it has been accepted that ejectment is subject to tortious acts as a rule, together with the jurisprudence of the Supreme Court of Turkey. In fact, the conditions regarding the ejectment case were determined by the Supreme Court decisions. In this context, an ejectment request can be made in the presence of the following conditions:
As stated above, one of the conditions for requesting compensation through the court is the bad faith of the occupier. In other words, it can be said that the bona fide possessor does not have to pay the ejectment. In terms of private law, bad faith is the situation that injustice is known or can be known if the necessary care is taken. According to Article 3 of the Turkish Civil Code No. 4721, “a person who does not show the care expected from him according to the requirements of the situation cannot claim good faith.” In addition, this issue is also included in the provision of Article 993 of the TCC: “The possessor, who uses or benefits from the thing he has in good faith in accordance with his presumption existing right, is not obliged to pay any compensation for this reason against the person to whom he is obliged to return that thing.” On the other hand, the possessor in bad is obliged to pay compensation “for the damages it has given to the right owner or for the products it has obtained or neglected to obtain” considering Art. 995 TCC.
In ejectment cases, the statute of limitations is accepted as 5 years. The beginning of the statute of limitations is the date the lawsuit was filed. In other words, compensation can be requested for a period of 5 years retrospectively from the date of filing the lawsuit.
The purpose of compensation in continental private law is to compensate the loss of the injured person. In other words, compensation should be awarded as much as the damage. However, the issue of determining the scope of the damage in ejectment cases is also discussed in the high judiciary. In some decisions of the Court of Cassation, the fact that the owner of the right could not benefit from the occupied property was not considered sufficient for the damage alone, and the intention of the occupied place to use it for an economic purpose was also questioned. In some other decisions, the condition of economic allocation was not sought.
In this framework, when calculating ejectment;
will be taken into account.
In order to be able to claim compensation through a lawsuit, first of all, it is necessary to notify the unfair and malicious occupant, to state that the unfair use of the immovable is not accepted, consent is not given, and that compensation is requested due to previous use. This is called the “intifadan men koşulu” in Turkish law. In terms of proof, it would be appropriate to make this notification through a notary public. Prohibition from usufruct is accepted as a condition of action for ejectment cases. However, it has been accepted that that special condition will not be sought for the following situations:
The competent court for the ejectment cases is the civil courts of first instance. On the other hand, the competent court in terms of the location is determined according to the general jurisdiction rules. In this context, the court of the defendant’s place of residence will be primarily authorized. The point to be noted is that, since the ejectment lawsuits do not originate from the right in rem, there is no obligation to file in the place where the immovable is located. In addition, since the defendant’s place of residence is not a definite jurisdiction rule, the case is filed in an unauthorized court and if there is no objection to it, the court of that place will become competent.
Interest may be charged to the ejectment request as of the date of birth of the receivable. In other words, interest can be charged from the moment the unfair occupation begins. However, the starting date of the interest will also change in terms of ecrimisil demands for different periods. Therefore, it is understood that a gradual interest calculation should be made against ecrimisil demands.
In order to make a gradual interest calculation, the plaintiff must have a clear request in this direction. In the context of civil procedure law, within the framework of the principle of “dependency with the demand”, if interest is demanded from the date of the lawsuit, gradual interest cannot be calculated.
If you think that there is an unfair occupation on your property, you can contact our office and consult our expert team.
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