What is a Notice in an Ecrimisil Lawsuit??

• The defendant, i.e., the person who unjustly occupied the immovable property, must have benefited from the property without the plaintiff's consent. Unjust occupancy manifests itself in various forms. Some of these include: continued use of the immovable property despite the expiration of the lease term, unauthorized construction on a plot, use of the immovable property without the owner's consent, etc., which are the most common situations where unjust occupancy occurs.
• The defendant must be in bad faith. The condition of being in bad faith is defined in Article 995 of the Turkish Civil Code as "a possessor not in good faith."
• The situation must be notified to the defendant by means of a notice before filing a lawsuit. As a rule, unjust occupancy compensation cannot be claimed without notifying the existence of *intifadan men*, i.e., the prohibition of use.

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In unjust occupancy compensation lawsuits, the condition of *intifadan men* must have been fulfilled beforehand for the plaintiff to file a lawsuit. *Intifadan men* is the communication of the desire to benefit from that immovable property to the person actually benefiting from it. In daily practice, this manifests as notifying the addressee, via a warning letter, that you do not accept their use of the property, that you do not consent, and that you demand unjust occupancy compensation because they are using it without your consent. The fulfillment of this condition is not subject to any specific form. It can be fulfilled orally or in writing. However, having the *intifadan men* condition in writing will facilitate the plaintiff's burden of proof.

Although the plaintiff's ability to claim unjust occupancy compensation is contingent upon the fulfillment of the *intifadan men* condition, there are some exceptions to this rule. These exceptions are explained as follows in the Decision of the 8th Civil Chamber of the Court of Cassation dated 24.12.2019, with Docket No. 2018/1026 and Decision No. 2019/1174: _As a rule, co-owners cannot demand unjust occupancy compensation from each other unless they have been prevented from use. However, there are certain exceptions to this rule established by settled practices.

These include: the immovable property subject to the lawsuit being public property; the property being one that yields natural products (such as vineyards, gardens) or legal fruits through rent (such as workplaces, residences); the co-owner occupying the shared property claiming rights over the entire property and denying the co-ownership of others; and cases where, as a result of a usage agreement among co-owners, the common property or its sections to be used by each co-owner are specified.

Furthermore, regarding the products generated by the immovable property, there is no need for the *intifadan men* condition to be fulfilled in cases of occupation of naturally occurring products such as mown grass, harvested hazelnuts, tea, or an enterprise established by the decedent, or enterprises that generate income independently._

Similarly, there is no need for the *intifadan men* condition to be fulfilled if the plaintiff has previously filed lawsuits against other co-owners concerning this immovable property, such as actions for prevention of encroachment, partition of co-ownership, or similar actions, or has initiated enforcement proceedings. To obtain information about the partition of co-ownership lawsuit, which is one of the exceptions to the *intifadan men* condition, you can read our article on Partition of Co-ownership Lawsuit.

The statute of limitations for unjust occupancy compensation is 5 (five) years. By filing this lawsuit, you have the right to claim a 5-year retrospective amount from the person who used the immovable property without your permission. In these lawsuits, damages incurred up to the date of the lawsuit can be claimed. Damages that may occur after the lawsuit date cannot be claimed, not even by way of amendment.

Unjust occupancy compensation is, by its nature, a tort. As it is an unlawful act, the damage resulting from unjust occupancy must be compensated. Due to its nature as a special form of damage compensation for unjust occupancy, the minimum damage is equivalent to rental income. Unjust occupancy compensation is calculated in one-year periods and adjudicated accordingly. Interest accrues for the amount of each period as of the end of that period.

Indeed, the 8th Civil Chamber of the Court of Cassation, in its decision dated 16.01.2019, with Docket No. 2018/2813 and Decision No. 2019/416, explained as follows: "_In unjust occupancy compensation lawsuits, the claim can be awarded for the period up to the date of the lawsuit. For the period after the lawsuit date, a claim cannot be made, not even by way of amendment, unless a new lawsuit is filed. Ecrimisil, in other words, unjust occupancy compensation, is a compensation that a non-possessing owner can demand from a non-owner possessor acting in bad faith.

In the Unification of Jurisprudence Decision dated 08.03.1950 and numbered 22/4, it was emphasized that unauthorized occupation cannot be likened to a lease agreement established by the mutual conforming wills of the parties, that it should be considered an unlawful act by its nature, and that the damage caused by unjust occupation must be compensated. Due to its nature as a special form of damage compensation for unjust occupation, the minimum damage is equivalent to rental income.

Therefore, the scope of unjust occupancy compensation is determined by the actual damage in the form of wear and tear resulting from normal use arising from unjust occupation, the actual damage resulting from use, and the benefit lost by the owner or possessor (negative damage)._"

Filing and Proof of Ecrimisil Lawsuit

An unjust occupancy compensation lawsuit can be filed together with an action for prevention of the tort subject to the lawsuit, i.e., an action for prevention of interference, or title deed cancellation lawsuits, or it can be filed as a sole claim in the petition.

In unjust occupancy compensation lawsuits, the plaintiff must prove their case. That is, the burden of proof lies with the plaintiff. The plaintiff must prove that their immovable property was unjustly occupied by the defendant, and if partial occupation is in question, the extent of the property occupied and the duration of this occupation.

Which Expenses Can Be Claimed in an Ecrimisil Lawsuit?

Pursuant to Article 995 of the Turkish Civil Code, a possessor not in good faith may claim reimbursement for expenses that are also necessary for the right holder. However, they cannot claim reimbursement for luxury and useful expenses they have incurred. Conversely, if it is possible to separate the useful and luxury expenses from the immovable property subject to the lawsuit without causing damage to it, the possessor in bad faith is entitled to separate and take them. The judge determines, according to objective principles, whether the incurred expense was also necessary for the right holder. Since the right to claim expenses arises with the restitution of the unjust occupation, the statute of limitations will also begin to run from this date.

Competent and Authorized Court in Ecrimisil Lawsuit

An unjust occupancy compensation lawsuit must be filed in the court of the place where the immovable property subject to the lawsuit is located. The competent court is the Civil Courts of First Instance.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy