Prevention of Trespassing (Interference Prevention) Lawsuit: How to Stop Unlawful Trespassing on Your Property?

An action to prevent encroachment (prevention of interference) is a fundamental means of protection for the owner of immovable property or the holder of a real right, who requests the termination of an unlawful interference with their property rights and the prevention of its recurrence. Article 683 of the Turkish Civil Code grants the owner the right to "use, benefit from, and dispose of the property as they wish"; Article 718 emphasizes that land ownership also includes the area above and below it. Within this framework, any unlawful interference, such as fences, walls, or encroaching structures extending beyond the boundary from a neighboring parcel , occupation of common areas, encroachment on an independent unit, use as a road/parking lot, or actual encroachment through chimney/roof leaks, constitutes grounds for prevention.

Legal Basis and Principles (Court of Cassation Approach)

In practice and in the established jurisprudence of the Court of Cassation, the fact that the interference is wrongful and ongoing is decisive for the merits of the case; fault is not considered. If the interference is in the past , a claim for "determination" or compensation for unlawful occupation may arise, while in the case of ongoing interference, both injunction and removal (restoration to the original state/removal of debris) may be requested. A five-year statute of limitations generally applies to compensation for unlawful occupation; however, the claim for injunction is not subject to a statute of limitations as long as the wrongful interference continues. Restrictions arising from neighborhood law (e.g., smoke, noise, encroachment, violations of setback distances) can also be invoked within the scope of injunction; in these cases, the principles of proportionality and equity are observed.

Competent and Authorized Court

arising from the ownership of immovable property, the competent court is the Civil Court of First Instance; , the court with exclusive jurisdiction is the court of the place where the immovable property is located (Code of Civil Procedure, Article 12). The rule remains the same in condominium disputes concerning independent units or common areas; however, the manager's representation authority, the nature of the main property, and the decisions of the board of condominium owners must be examined separately.

Conditions of the Case and Proof

The plaintiff, as a rule, bases their claim on ownership or a real right (e.g., easement) or a reinforcing possession ; they prove these rights with title deeds , condominium registers , and technical documents. The existence of interference is substantiated by on-site inspection and expert (surveying/geomatics engineer) examination; cadastral maps , application sketches , coordinate measurements , satellite images , photographs/videos , and witness testimony. In boundary disputes, reference to cadastral surveys and, if necessary, obtaining data through written requests to the zoning/cadastre directorates is important. In cases of encroaching structures and setback distance violations, the zoning file, building permit, application sketches, and municipal records should be included in the file.

Types of Demand and Strategy

In Men's cases, claims are usually made sequentially or together:

• Prevention of Interference: Ceasing unlawful seizure and prohibiting its recurrence.

• Kal (Restoration to the Original State): Removal of the wall/structure that crosses the border, evacuation of the occupied area.

• use: Compensation for the cost of use/benefit lost during the occupation period (based on market rent/comparable value).

• Provisional Measures (Code of Civil Procedure, Article 389): The immediate cessation of interference or the provisional prevention of construction activities to ensure that the protection to be obtained at the end of the lawsuit remains meaningful.

When formulating claims, the dispute must be directed at the correct party: the owner, unauthorized user, contractor, management, or tenant may vary depending on the situation. In multi-party projects (residential complexes, shopping malls, construction sites), joint and several liability, actual management, assumed obligations, and actual control must be carefully distinguished.

Defenses and Assessment

The defendant may often raise claims such as easement rights , right of way , administrative permits (from municipalities/State Hydraulic Works/Turkish Electricity Transmission Corporation, etc.), external partition , proportionality under neighborhood law , vested rights , acquisitive prescription (especially in unregistered/disputed areas), or consensual use . These defenses;

• compliance with rights (easement/license in accordance with legislation),

• gain through the passage of time,

• The existence and extent of consent
  are tested with concrete evidence. From the perspective of judicial economy, gathering evidence and a sketch from an expert witness increases the likelihood of future enforcement.

Calculation and Enforcement of Compensation for Unlawful Use of Property

Compensation for unauthorized use of property is calculated by expert appraisers based on prevailing market rent/comparable rates , taking into account the nature of the property (residential, agricultural, land, business premises), its location, and the market conditions of the time . To prevent abuse of rights, the judge evaluates the reasonable area and duration of use in the specific case. When a decision is made to remove the property, the enforcement office proceeds with the assistance of a technical expert during the execution phase ; if necessary, demolition and eviction procedures are completed with the support of law enforcement.

Practical Tips for Application

1. Preliminary Investigation and Assessment: Survey, measurement, and photography should be carried out without delay; municipal and cadastral records should be included in the file.

2. Precautionary Strategy: If construction activity is ongoing, a precautionary measure should be requested without delay.

3. Grading of Claims: Claims for prohibition, eviction, and compensation for unlawful occupation should be established together or as alternatives; this ensures flexibility in proof and enforcement.

4. Jurisdiction and Standing: According to Article 12 of the Code of Civil Procedure, the court of the place of residence has exclusive jurisdiction; the lawsuit must be directed against the correct party.

5. Possibility of Compromise: Proposed solutions such as technical boundary adjustments, modifications to comply with setback distances, or the establishment of easements permanently resolve the dispute .

Conclusion

to prevent encroachment is one of the most effective means of protecting property rights; with accurate technical assessment, appropriate measures, and a well-structured claim, both the unlawful interference is stopped and compensation for the damage suffered is ensured. It is essential to determine a strategy according to the specific characteristics of the case, to gather evidence swiftly, and to aim for a judgment with strong enforceability. We would like to inform you that we offer comprehensive and professional legal advice to our clients/applicants in this regard.