What is an unjust enrichment lawsuit?

WHAT IS ECRIMISIL? WHAT IS ITS LEGAL BASIS AND LEGAL NATURE?

Ecrimisil is one of the most critical mechanisms protecting property rights in the Turkish legal system. To properly understand this concept, it is necessary to first examine the legal articles on which it is based and the interpretations of these articles in legal doctrine.

1. Legal Basis: Article 995 of the Turkish Civil Code

The fundamental basis for compensation for unlawful use of property is Article 995 of the Turkish Civil Code (Law No. 4721). This article, under the heading "Liability of the possessor acting in bad faith," stipulates the following:

"A possessor acting in bad faith is obliged to compensate the rightful owner for the damages caused by wrongful retention of the property he is obligated to return, and for the produce he obtained or failed to obtain."

According to this article, compensation for unlawful use of property is a compensation that a "bad possessor" who holds a property without the owner's consent is obligated to pay. Here, the legislator has protected not only the actual use of the property but also the "products the owner neglected to obtain" as a result of this use

2. Legal Nature: Is it a Tort or a Specific Form of Compensation?

The legal nature of compensation for unlawful use of property has been the subject of long-standing debates in the legal world. However, the Supreme Court's Unification of Jurisprudence Decision No. 22/4 dated March 8, 1950. According to this decision, compensation for unlawful use of property is:

• By its legal nature, it is a tort compensation.
• However, in terms of calculation methodology, "rent" is accepted as a lower limit.
• This is not a contractual rent receivable; because there is no agreement between the parties.

3. Scope of Application and Relationship with Other Laws

Compensation for unauthorized use of property is not limited solely to the Turkish Civil Code. Different laws apply depending on the nature of the immovable property

• Law No. 2886 on State Procurement (Article 75): Regulates the compensation to be collected by the administration in case of occupation of lands under the control and disposition of the state.
• Turkish Code of Obligations No. 6098: General provisions regarding tort liability (Articles 49 and onwards) shall be applied by analogy in cases of unjust enrichment.
• The Foundations Law: Allows for the application of special procedures in cases of occupation of foundation properties.

4. Elements of Compensation for Unlawful Use of Property (Legal Requirements)

In order for the case to be won, the following four elements must be present in light of Article 995 of the Turkish Civil Code:

1. Unlawful Occupation: There must be no legal basis for it, such as a lease, usufruct right, or right of habitation.
2. Bad faith: The possessor knowing that he does not have the right to use the immovable property, or being in a position to know this if he had exercised due diligence (as referenced in Article 3 of the Turkish Civil Code).
3. Damage: An economic loss suffered by the owner (direct damage or lost profit).
4. Causal link: The damage resulting from unlawful occupation.

 THE NATURE, PARTIES, AND PROCEDURE OF UNLAWFUL USE OF PROPERTY LAWSUITS

An unjust enrichment lawsuit is a compensation lawsuit based on property rights . In this lawsuit, the court rules on the collection of the economic cost of the wrongful use, rather than the recognition of a "right."

1. Parties to the Case (Standing to Sue)

The right to file a lawsuit (Active Standing) and against whom the lawsuit should be filed (Passive Standing) are the most critical points to prevent a lawsuit from being dismissed on procedural grounds.

• Plaintiff (Active Hostility): The owners of immovable property are the co-owners in shared ownership, the heirs in joint ownership, or the usufructuaries.
  • Important Note: Individuals who do not have a title deed but possess the property can also file this lawsuit against unlawful occupation (Turkish Civil Code Article 995).
• Defendant (Passive Party): The person who possesses the immovable property without a justifiable reason and in bad faith. This person can be a natural person or a legal entity.

2. Competent and Authorized Court

According to the Code of Civil Procedure (HMK), where a lawsuit is filed is a matter of public order

• Competent Court: According to Article 2 of the Code of Civil Procedure No. 6100 , regardless of the value of the subject matter of the lawsuit, the competent court for these lawsuits concerning property rights is the Civil Court of First Instance
• Competent Court: According to Article 12 of the Code of Civil Procedure , the court of the place where the immovable property is located has exclusive jurisdiction in cases concerning real rights over the property . However, when a claim for compensation for unlawful use of property is classified as a personal claim, it can also be filed in the court of the defendant's place of residence, which is the court with general jurisdiction. In the practice of the Supreme Court of Appeals, the place where the immovable property is located is generally preferred.

3. Subject of the Case and Claims

Although a claim for compensation for unlawful use of property is usually filed alone, in practice it is frequently for prevention of interference (prevention of encroachment), in a step-by-step manner.

1. Prevention of Encroachment (Turkish Civil Code Article 683): ​​This is a request to "end the unlawful occupation and return the property to me."
2. Ecrimisil: This is a demand for compensation for periods of unlawful occupation in the past.

4. Rules of Proof and Evidence

In a claim for compensation for unlawful occupation, the burden of proof rests with the plaintiff who alleges the existence and duration of the unlawful occupation. However, if the occupier claims that their use was based on consent or a contract (for example, saying "we had an oral lease agreement"), they are responsible for proving this claim.

Main Evidence Used:

• Land Registry Records and Cadastral Plans: For proof of ownership.
• On-site inspection and expert examination: This is necessary to determine the condition and value of the property.
• Witness statements: To prove the date and nature of the occupation.
• Municipal and Tax Records: For comparable property values.

5. Statute of Limitations Defenses and Time Limits

the Supreme Court's Unification of Jurisprudence Decision dated May 25, 1938, numbered 29/10, the statute of limitations for unjust enrichment claims is 5 years.

• This period is calculated backward from the date of the lawsuit.
• Even if the unlawful occupation continues, compensation can only be claimed for the last 5 years prior to the date the lawsuit was filed. If the defendant raises the "statute of limitations defense" for the periods exceeding 5 years, the court will reject these claims.

 METHODS OF CALCULATING COMPENSATION FOR UNLAWFUL USE OF PROPERTY AND EXPERT WITNESS CRITERIA

When determining compensation for unauthorized use of property, the judge does not perform the calculation himself; Article 266 of the Code of Civil Procedure, he obtains a report from expert appraisers. The type and use of the immovable property are decisive factors in preparing these reports.

1. Fundamental Principles of Calculation

According to the established jurisprudence of the Supreme Court, compensation for unlawful occupation is "the minimum rent that the unlawful occupant is obliged to pay." However, the calculation is not merely a basic rent estimate. The following criteria are legally required:

• Property Characteristics: Location, zoning status, surface area, yield, infrastructure services, and potential average income.
• Comparative Valuation: Rental prices of similar properties in the vicinity of the property during the period in question (the last 5 years).
• Gradual Calculation: A separate calculation is made for each year within the 5-year statute of limitations period. The current price is obtained by applying the Producer Price Index (PPI) increase rates for subsequent years to the price determined for the first period (the oldest year) .

2. Calculation Methods Vary According to the Type of Property

A. Land and Housing (Rental Income Method)

If the property is an apartment, shop, or vacant land, the calculation is based on the "rental value it could generate".

• The expert calculates the gross income that would be obtained if the property were rented out under free market conditions.
• of the 1st Civil Chamber of the Supreme Court of Appeals ; expenses that must be covered by the owner, such as the period the property remains vacant, property tax, and insurance, can be deducted from this price.

B. Agricultural Lands (Income Method)

In agricultural lands, compensation for unauthorized use is calculated based on the net income that can be obtained from that land, rather than the rental fee .

• Data Collection: Information regarding crop yields, unit sales prices, and production costs (fertilizer, fuel, labor) in that region is obtained from the Provincial or District Directorates of Agriculture and Forestry.
• Formula: (Total Product Quantity × Selling Price) – Production Costs = Net Income.
• Even if the unlawful occupant has not harvested any produce from the land, he is still obligated to pay for the income he "neglected to obtain" (Turkish Civil Code, Article 995).

3. Interest Rate and Start Date

Since compensation for unlawful use of property is a form of tort compensation, interest accrual is determined accordingly

• Graduated Interest: Interest is applied to the compensation amount for each year (period) from the date that period accrues.
• Type of Interest: As a rule, legal interest is applied. However, if the unlawful occupation concerns a commercial business, "advance interest" may be charged.

4. Is a discount possible on compensation for unauthorized use of property?

In our legal system, as a rule, it is not possible to reduce compensation for unauthorized use of property. However, in some exceptional cases, if the defendant has incurred necessary expenses that increased the value of the property, these costs may be deducted from the compensation. This situation Article 995/2 of the Turkish Civil Code :

“A possessor acting in bad faith may only claim reimbursement for expenses incurred that were also necessary for the rightful owner.”.

SPECIAL CIRCUMSTANCES REGARDING COMPENSATION FOR UNLAWFUL USE OF PROPERTY – COMPENSATION FOR UNLAWFUL USE OF PROPERTY AMONG HEIRS AND THE CONDITION OF "PROHIBITION OF BENEFIT"

In cases of inherited real estate or jointly owned properties, the ability of other co-owners to claim compensation for unauthorized use of the property by one co-owner is subject to different and more stringent conditions than a general lawsuit for compensation for unauthorized use.

1. Right of Use in Joint and Co-ownership

Article 688 of the Turkish Civil Code, in co-ownership, each co-owner has rights and obligations in proportion to their share. However, since each co-owner has a right to the entire property, the use of one co-owner is not considered "unlawful occupation" unless it infringes upon the rights of another. For this reason, "Prohibition of Use" has been developed in our legal system.

What are the conditions for preventing the Second Intifada?

The term "intifada men" means "to prevent someone from using" or "to prevent someone from benefiting from" something. According to the established jurisprudence of the Supreme Court of Appeals, in order for one co-owner to claim compensation for unlawful use of property from another, it is a prerequisite that the plaintiff co-owner informs the defendant co-owner of their desire to use the property.

• Legal Basis: Although this condition is not directly stated in a law, it arises from the necessity of exercising property rights within the framework of the principle of good faith (Turkish Civil Code Article 2).
• Proof: The prohibition of intifada can be proven by any kind of evidence, but for ease of proof, it is recommended to send the notice through a notary public

3. Exceptions to the Condition of Prohibiting Intifada (Cases Where Warning is Not Required)

In some cases, the Supreme Court rules that "a warning notice is not necessary; compensation for unlawful use of property can be demanded directly." These exceptions completely change the course of the case

1. Legally Beneficial Cases: If a property, such as a shop or residence, is leased to a third party and one co-owner receives the rent alone, the other co-owner can claim their share without issuing a formal notice.
2. Naturally Productive Lands: If the property is a naturally producing hazelnut orchard, olive grove, or field, and the produce has been sold, no warning notice is required.
3. Complete Denial of Right to Use: If the defendant co-owner completely denies the plaintiff co-owner's property rights (for example, saying "this is not inheritance, it's only mine"), no notice is required.
4. Established Usage Method in Joint Ownership: If the co-owners have agreed in advance how they will divide the property among themselves, any use contrary to this agreement constitutes a direct unlawful occupation.

4. Compensation Processes Among Heirs

Joint ownership among heirs exists (Turkish Civil Code Article 701). If one of the heirs uses a real estate property included in the estate (inherited assets) without the consent of the other heirs:

• An heir can file a lawsuit for compensation for unlawful use of property in proportion to their share.
• However, except for the exceptions mentioned above, a notification of "prohibition of intifada" must be given before this lawsuit is filed.
• If a "partition" lawsuit has been filed among the heirs, the filing of this lawsuit can, in some cases, be considered equivalent to being prevented from benefiting from the property.

5. The Relationship Between Expropriation Without Compensation and Unjust Enrichment

If an administration (municipality, highways department, etc.) seizes a citizen's immovable property without carrying out a proper expropriation process, the citizen may claim both the value of the property (compensation for unlawful seizure) and compensation for the period between the date of seizure and the date of the lawsuit. In this case, the provisions of Law No. 2942 on Expropriation shall also be taken into consideration.

CONCLUSION OF THE UNLAWFUL USE OF PROPERTY LAWSUIT, ENFORCEMENT PROCESS AND GENERAL ASSESSMENT

The conclusion of an unjust enrichment lawsuit is not limited to the court determining an amount. For this decision to be enforced and for the property right to be fully established, enforcement law procedures must also be followed.

1. Finality and Enforceability of the Decision

In our legal system, as a rule, decisions regarding the ownership of immovable property cannot be enforced before they become final (Code of Civil Procedure, Article 367/2). However, since a claim for compensation for unlawful use of property is, by its nature, a "claim for damages," there is a distinction in this regard.

• If a claim for compensation for unlawful use of property is filed together with a claim for prevention of interference , the execution of the decision is awaiting finalization until the dispute regarding the ownership of the immovable property is resolved
• If a lawsuit has been filed solely for compensation (ecrimisil), the judgment does not need to be final before it can be enforced, as this is considered a performance lawsuit; however, the debtor can halt the process by obtaining a "stay of execution" order.

2. Enforcement Proceedings and Collection

After receiving the court judgment, the creditor (plaintiff) initiates enforcement proceedings in accordance with the provisions of the Enforcement and Bankruptcy Law No. 2004

• Execution Order: An execution order is sent to the debtor (unlawful occupant) through the enforcement office.
• Seizure Procedures: If the debtor fails to pay the compensation, interest, and court costs specified in the judgment, their assets may be seized.

3. Court Costs and Attorneys' Fees

In cases involving compensation for unlawful use of property, court costs and attorney fees proportionally to the amount agreed upon.

• Fees: Proportional fees are paid based on the amount claimed when filing the lawsuit.
• Expert Witness and On-Site Inspection Expenses: Although these expenses are initially covered by the plaintiff, they will be collected from the defendant if the case is accepted.

4. General Summary and Conclusion

Ecrimisil, Article 995 of the Turkish Civil Code, is the economic compensation for an unlawful attack on property rights. As we have seen in this in-depth analysis, which spans 2,500 words;

1. Unlawful occupation and malice are the basis of the case.
2. The five-year statute of limitations is critical in terms of preventing loss of rights.
3. of intifada is the first obstacle to overcome in disputes between stakeholders.
4. Calculations are made using scientific data and PPI increase rates, with the expertise of specialists.

The protection of property rights is possible not only by ending the occupation but also by receiving compensation for the period during which the property was unavailable. Therefore, lawsuits for compensation for unlawful occupation remain one of the most dynamic and widely applied branches of Turkish real estate law.