WHAT IS AN ECRIMISIL (UNLAWFUL OCCUPATION COMPENSATION) LAWSUIT?

Ecrimisil (unlawful occupation compensation) originates mainly from Article 995 of the Turkish Civil Code. Accordingly, a person who is not in good faith and possesses a movable or immovable property is obliged to compensate the owner (the true right holder) for the damages caused and for the benefits obtained or neglected to obtain.In brief, it is a type of compensation that a non-possessor owner can claim from a possessor who does not have ownership rights.

As Uzunpınar Tüfek Law Firm, acting as a real estate lawyer in Istanbul, we protect our clients’ rights and apply the most effective legal strategies in ecrimisil cases.

An ecrimisil lawsuit (compensation for unlawful occupation) may be filed together with an action for prevention of interference (actio negatoria) or a title deed cancellation and registration lawsuit, or it may be filed independently.

CONDITIONS FOR FILING AN ECRIMISIL LAWSUIT

• There must be an unlawful occupation. The possessor must be holding possession without any legal basis.
• The possessor must be aware of the unlawful occupation – in other words, must be acting in bad faith.
• There must be a damage caused by the unlawful occupation.
• There must be a causal link between the damage and the unlawful occupation.

 

PROPERTY SUBJECT TO SHARED OR JOINT OWNERSHIP

1. a) In cases of shared ownership (co-ownership):

If the occupier is not a co-owner of the property, each co-owner may claim ecrimisil in proportion to their share.

If the occupier is also a co-owner, the right to claim ecrimisil arises only if the other co-owner(s) have been excluded from use (intifadan men).

1. b) In cases of joint ownership:

Ecrimisil can only be claimed jointly by all co-owners together, as mandatory joinder of parties applies.

If the occupier is also a joint owner, ecrimisil can only be claimed upon the notification of exclusion from use (intifadan men), except in specific exceptions.

Court of Cassation, 1st Civil Chamber, E.2015/3695 K.2017/5955 T.01.11.2017:

Even in joint ownership, one co-owner may file an ecrimisil claim against another co-owner who prevents them from benefiting from the common property without consent or appointment of a representative for the estate. However, if the co-owner is using a portion equivalent to their share, an ecrimisil claim cannot be heard. Co-owners using less than their share must instead resolve the issue through partition (taksim) or dissolution of co-ownership through sale.

 

CONDITION OF EXCLUSION FROM USE (INTİFADAN MEN)

 

For co-owners or joint owners to claim ecrimisil, they must first clearly express that they do not consent to the unlawful use and that they wish to benefit from the property themselves — this is called the intifadan men notice.

In cases of joint ownership, this notice is a procedural requirement, shaped by the Court of Cassation’s precedents.

Intifadan men can be proven by any type of evidence, including oath, and must also be examined ex officio by the court.

While the general rule requires intifadan men, there are exceptions:

• If the property is public property,
• If the property produces natural income or can be rented for profit (Court of Cassation, 3rd Civil Chamber, E.1992/17672 K.1993/48 T.18.01.1993),
• If the occupying co-owner claims ownership of the entire property and denies the co-ownership of others,
• If there is an agreement on the use of specific parts of the property among co-owners (Court of Cassation, 1st Civil Chamber, E.2014/7383 K.2014/10676 T.29.05.2014),
• If the claimant has previously filed actions such as prevention of interference, dissolution of co-ownership, or enforcement proceedings, the intifadan men condition does not apply.

 

CALCULATION OF ECRIMISIL COMPENSATION

The minimum limit for unlawful occupation compensation is the rental income, and the maximum limit is full loss of income.

According to the Court of Cassation’s precedents and the Unification of Judgments Decision dated 08.03.1950, numbered 22/4, unlawful occupation cannot be treated as a lease contract formed by mutual consent; it constitutes a tortious act. Therefore, the damages caused by unlawful occupation must be compensated.

Ecrimisil represents the loss corresponding at least to the potential rent. It covers both positive damages (wear and tear due to use) and loss of benefit (negative damages) suffered by the owner or possessor.

(Court of Cassation, 1st Civil Chamber, E.2014/2236 K.2014/4098 T.24.02.2014)

 

When filing the case, the claimant must clearly indicate the basis of the ecrimisil claim:

For land and buildings, the basis is rental value.

For agricultural land, it is the value of the products obtained from use.

(Court of Cassation, 8th Civil Chamber, E.2018/3170 K.2019/2948 T.20.03.2019)

 

For rental-based calculations, the amount is determined by comparing the property’s potential rental value with similar lease agreements, taking into account size, location, condition, and market rates.

For agricultural land, the calculation also considers the type of farming (irrigated or dry), productivity, and previous use and income of the land.

 

STATUTE OF LIMITATIONS IN ECRIMISIL CASES

Ecrimisil claims are subject to a five-year statute of limitations, calculated retroactively from the date of filing. This period begins from the moment the unlawful occupation occurs, as accepted by the Court of Cassation’s settled case law.

JURISDICTION AND COMPETENT COURTS

Under Article 2 of the Code of Civil Procedure (Law No. 6100), Civil Courts of First Instance have jurisdiction over ecrimisil cases.

The competent court is the one in the defendant’s place of residence, but since ecrimisil is a tortious act, the court where the unlawful act occurred or where the damage took place is also competent.

If the ecrimisil claim is filed together with a prevention of interference claim, jurisdiction lies with the court where the property is located.

However, if the dispute arises from a lease agreement, Civil Courts of Peace may have jurisdiction.

(Court of Cassation, 3rd Civil Chamber, E.2017/3212 K.2018/6289 T.04.06.2018)

 

RELATION BETWEEN ECRIMISIL, TITLE DEED CANCELLATION AND REGISTRATION, AND THE ISSUE OF PREJUDICIAL MATTERS

When an ecrimisil lawsuit is filed concerning a property, and the occupier subsequently files a title deed cancellation and registration case, there may be different approaches in practice.

In general, if a title deed cancellation case is pending, it is considered a prejudicial matter (bekletici mesele) for the ecrimisil case, since ownership determination directly affects the outcome of the compensation claim.

(Court of Cassation, 23rd Civil Chamber, E.2016/5138 K.2019/4065 T.07.10.2019;

see also Court of Cassation, 7th Civil Chamber, E.2022/4295 K.2022/7099 T.22.11.2022 and 5th Civil Chamber, E.2019/5189 K.2020/10982 T.08.12.2020)

 

CONCLUSION

An ecrimisil lawsuit is a crucial legal mechanism protecting the rights of property owners against unlawful occupation of movable or immovable assets.

Given its complex relationship with other real estate disputes and the specific nature of property law, professional legal assistance is essential in such cases.

At Uzunpınar Tüfek Law Firm, operating as real estate lawyers in Istanbul, we provide our clients with tailored legal strategies and representation in all ecrimisil and title deed-related disputes.

Stj. Av. İrem ÖZBERK 

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