Protection of Possession

Protection of Possession

Possession is an important and legally protected concept that provides actual control over an object. As one of the cornerstones of property law, possession ensures that individuals can use their belongings safely and is protected against unlawful interference from others. 

Possessor's Rights

• Right to Use Force (Right of Self-Defense): The possessor has the right to defend themselves using proportionate force in the event of an attack or usurpation of their possession. This right enables the possessor to protect their property and resist unlawful interference.
• Possession Lawsuits: In case of breach of possession, the possessor can seek redress by filing various lawsuits. These lawsuits include claims for restitution of possession, cessation of the infringement, prevention of the cause of the infringement, and compensation. Possession lawsuits enable the possessor to recover their property or obtain compensation for the damage suffered.
• Right to Compensation: If a possessor suffers damage as a result of a breach of possession, they have the right to claim compensation. Compensation aims to cover the material and moral damages suffered by the possessor.

Possession Cases: Legal Protection of Dominance

The protection of possession ensures that it is under the guarantee of the legal order. This allows individuals to use their property safely and protect them against unlawful interference from others. Possession is a legal status that grants actual control over an object and is protected by the legal system. In case of breach of possession, the possessor can resort to various lawsuits to protect their rights and remedy the breach. These lawsuits are legal protection mechanisms granted to the possessor in case of usurpation or attack on possession. In this article, we will examine the types, conditions, and legal consequences of possession lawsuits.

Types of Possession Cases

1. Action for Restitution of Possession (Article 982 of the Turkish Civil Code): This is a lawsuit filed when the possession of an item has been unlawfully seized. The plaintiff requests the return of the item. In an action for the restoration of possession, it is irrelevant whether the plaintiff's possession is legitimate or whether the defendant acted in good faith. The defendant may be relieved of the obligation to return the item if they prove that they have a superior right to it.
2. Action to Cease the Attack (Article 983 of the Turkish Civil Code): This is an action filed in case of an attack on possession. An attack is any act that prevents the possessor from exercising their actual control. The plaintiff requests that the attack be stopped and the property be restored to its original state. The defendant's claim of a superior right over the property does not negate the obligation to cease the attack.
3. Action to Prevent the Cause of Attack (Article 983 of the Turkish Civil Code): This is a lawsuit filed when there is a danger or threat of an attack on possession. The plaintiff requests the elimination or prevention of the cause of the attack. This lawsuit aims to prevent an attack that has not yet occurred.
4. Compensation Claim: This is a lawsuit filed when a possessor suffers damage as a result of the usurpation or attack of their possession. The plaintiff seeks compensation for the material and moral damages suffered. Compensation claims are evaluated according to the provisions of tort law, and the fault of the defendant is examined.

Conditions for Possession Cases

• Possession: The plaintiff must be in possession of the property in question.
• Breach: The claimant's possession must have been usurped or attacked.
• Statute of Limitations: Actions regarding possession must be filed within two months of learning of the infringement, and at the latest within one year from the date the incident occurred.

Legal Consequences of Possession Cases

In possession cases, the court may decide to order the return of possession, the cessation of the infringement, the prevention of the cause, or the payment of compensation. These decisions ensure that the possessor's rights are protected and the consequences of the infringement are eliminated.

Administrative Protection of Possession

Authorized Authority

In cases of trespass or interference with immovable property, the governor of the central district or the district governor of any sub-district may be requested to issue a decision to prevent such attack or interference.

Application

The possessor who is subjected to this interference must request it.

For legal entities, the authorized persons of that institution or organization can apply.

The application must be made by the authorized person within 60 days of the date they learned of the attack or interference. However, this period can be used within one year from the date the interference occurred.

If we were to present the Supreme Court's view on the protection of possession and possession based on rights,

20th Civil Chamber, Case No. 2015/15378 E., Decision No. 2016/803 K.
“Case Law Text”
“Articles 981, 982, and 983 of the Turkish Civil Code contain provisions established to protect the possession of persons who have no right other than possession over the property. With the lawsuits regulated in these articles, the possessor, without bearing the burden of proving that their possession is based on a right, simply asserts their possession and files a lawsuit in the peace courts, benefiting from the ease provided by the simplified trial procedure applied in these courts.
However, when the possessor's possession is based on an objective or personal right, the lawsuit takes on the character of a claim for rights.”