Case for Prevention of Intervention

Regarding "prohibition of intervention";

One of the fundamental aims of legal systems is to safeguard the rights of individuals while establishing social peace and justice. Foremost among these rights is the right to property, which is based on tangible assets and grants the individual the broadest powers. Guaranteed by the Constitution, the right to property grants the owner the authority to use, benefit from, and dispose of the property as they wish. However, these absolute rights may sometimes face unjust interference from third parties in the ordinary course of life. The owner wishes to stop these unjust infringements on their property and restore their peace of mind. At this point, one of the most fundamental and effective legal protection mechanisms offered to the owner by the Turkish legal system of interference, or in other words the lawsuit to prevent encroachment.

The Legal Nature and Basis of the Action to Prevent Interference

An action for the prevention of interference, as the name suggests, is a real action aimed at stopping or preventing actions that unjustly seize, trespass upon, or hinder the owner's right to property (movable or immovable). The legal basis for this action is Article 683, paragraph 2 of the Turkish Civil Code (TMK) No. 4721. The relevant article states: "The owner may sue for the prevention of interference against someone who unjustly possesses his property, and in cases of unjust interference, he may request the prevention of all kinds of trespass."

Property rights are an absolute real right; that is, they can be asserted against anyone and violated by anyone. The action to prevent interference arises as a consequence of this absolute right. The most fundamental characteristic of this action is that the wrongful interference is currently ongoing and provides legal protection for the future. If the unlawful act has ended and there is no risk of it recurring, an action to prevent interference cannot, as a rule, be filed; in this case, the dispute falls within the realm of compensation law.

Conditions for a Lawsuit to Prevent Interference

For a case to be accepted by the courts and for a ruling to be made in favor of the plaintiff, certain material and legal conditions required by law and case law must be met. These conditions must be carefully examined in the context of an action to prevent interference:

• The Plaintiff Must Be the Owner or Holder of a Superior Right: The person initiating the lawsuit must possess ownership rights (or a similar superior real right) over the subject matter of the lawsuit. This right can be sole ownership, co-ownership, or joint ownership. Furthermore, holders of limited real rights granted protection based on ownership by law (e.g., usufructuary or right of habitation), even without possessing ownership rights, are also entitled to file this lawsuit within the scope of their respective rights.

• The Interference (Seizure) Must Be Unlawful and Illegal: The defendant's action on the property belonging to the owner must not be based on any legal grounds. If the defendant's seizure is based on a valid contract (e.g., an ongoing lease agreement), a legal authority (e.g., an expropriation process, or a legal right of way), this seizure is not considered "unlawful," and the action to prevent the interference will not be heard. For the interference to be unlawful, it is necessary that the owner's consent is absent and that there is no legal justification.

• Ongoing Interference: The most characteristic feature of this type of lawsuit is its continuity. At the time the lawsuit is filed, the defendant's wrongful trespass or interference must still be ongoing. For example, a person placing a container on someone else's land without permission and refusing to remove it, building a structure that encroaches on a neighbor's building, or unauthorized entry into a dwelling are examples of ongoing interference. If the interference has completely ceased, then lawsuits for compensation based on tort law or compensation for unlawful occupation (ecrimisil) can be filed to recover past damages.

• Interference Preventing or Hindering the Exercise of Property Rights: The defendant's action must prevent or significantly restrict the owner's full enjoyment of their property rights. This lawsuit cannot be filed for purely abstract, imaginary, or minor disturbances that do not create any actual obstacle to the use of the property; however, any interference that exceeds the limits of equity and undermines the essence of property rights will be considered within this scope.

Parties to the Action for Prevention of Interference

As with any legal case, in an action to prevent encroachment, ensuring that the active and passive legal standing of the parties is correctly assigned is vital to avoiding the dismissal of the case on procedural grounds.

1. Plaintiff (Standing to Sue)

As a rule, the lawsuit to prevent encroachment by the owner .

• Joint Ownership Status: In jointly owned movable or immovable property, each co-owner may file a lawsuit independently to prevent unlawful interference with the entire property or their share, without seeking the consent of the other co-owners. The provisions of the Turkish Civil Code protecting joint ownership grant co-owners this broad authority.

• Joint Ownership Situation: In joint ownership (co-ownership), as a rule, the co-owners must act unanimously or all co-owners must participate in the lawsuit. However, according to court decisions, the lawsuit can be conducted by appointing a representative for the estate or in accordance with the exceptional provisions of the Turkish Civil Code that protect the interests of the co-owners.

2. Defendant (Passive Standing to Sue)

In an action to prevent interference, the defendant is the person who has unlawfully seized, trespassed on, or interfered.

• This person may be the direct possessor of the property, or they may be someone who, while not actually using the property, is the perpetrator or instigator of the wrongful interference.

• For example, a person who dumps rubble on someone else's land, occupies their property, or constructs a building that encroaches on their property is directly named as a defendant. If the interference is carried out jointly by more than one person, it is preferable, for the sake of the integrity of the trial, to direct the lawsuit against all of these individuals (even if there is no mandatory rule of joinder of parties, it is practical for all of them).

Time Limits and Statute of Limitations Regime

One of the most frequently asked questions in legal practice is whether a lawsuit to prevent encroachment is subject to a statute of limitations or forfeiture period.

An action to prevent interference is a real claim arising from and existing alongside the right of ownership. As long as the right of ownership has not been extinguished, an action to prevent interference is never subject to a statute of limitations or forfeiture period. As long as the owner's ownership continues and the unlawful encroachment continues, the owner can file this action at any time to demand the termination of the interference. Even for an encroachment that began years ago and is still ongoing, there is no legal obstacle to filing this action today.

However, a significant exception and supplement to this rule compensation for unlawful occupation (ecrimisil) . Along with a lawsuit for the prevention of interference, claims for ecrimisil are usually made for past periods of unlawful use. Since ecrimisil claims are, by their nature, compensation for torts, to a 5-year statute of limitations . Therefore, ecrimisil cannot be claimed for periods prior to the 5-year period calculated backward from the date of the lawsuit; however, there is no time limit for the main claim for the prevention of interference.

Burden of Proof and Trial Procedure

In accordance with the general principles of the Code of Civil Procedure (HMK), the rule of proof of the claim is fully applicable in this case. The method the parties follow in proving their claims and defenses directly affects the outcome of the case.

• Plaintiff's Burden of Proof: The plaintiff must first concretely prove that the property in question is their property (with title deeds, ownership documents, invoices, or valid acquisition documents) and that the defendant has unlawfully interfered with this property. In the case of immovable property, title deeds are the strongest evidence.

• Burden of Proof on the Defendant: After the plaintiff proves ownership and interference, the ball passes to the defendant. If the defendant claims that their interference was not unlawful, but rather based on a legitimate legal reason (lease, usufruct, surface right, consent, etc.), they must prove this claim with written evidence or legal grounds. If the defendant fails to prove their claim, the acceptance of the case becomes inevitable.

During the trial process, the court, if necessary, conducts an on-site inspection and technical assessment of the property through expert appraisers (surveying engineers, civil engineers, or real estate appraisers). The expert report constitutes the most important evidence clarifying the existence and extent of the encroachment.

Outcomes and Enforcement of the Action to Prevent Interference

If the court rules in favor of accepting the case as a result of the trial, the following consequences will arise in the judgment:

• Cessation of Interference and Restoration to Original State: The court orders the prevention of the defendant's unlawful trespass and encroachment on the property, and the removal of any unlawful structures or elements (if removable or demolished). The court's judgment clearly specifies exactly how the interference will be terminated.

• Enforcement of the Judgment: If the defendant does not voluntarily cease the interference after the judgment becomes final, the plaintiff may apply to the enforcement office for enforcement proceedings. With the assistance of enforcement officers (and if necessary, law enforcement and demolition/dismantling teams), the illegal structure or elements are removed, and the property owner regains actual control.

• Unjust Enrichment and Damages Outcomes: Provided that it has been requested and the conditions are met, the defendant shall pay the plaintiff unjust enrichment amounts for past periods due to the unlawful occupation, as well as any damages caused to the property.

In summary, the action to prevent interference, one of the strongest safeguards granted to property rights by the Turkish Civil Code, is an indispensable legal remedy that protects the inviolability of property against wrongful infringements, is not subject to statute of limitations, and ensures the establishment of justice.