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Compensation for unlawful occupation, otherwise known as ecrimisil, is the compensation for the damage caused when a person who has no right of use or enjoyment uses or occupies, wrongfully and without the owner's consent, a movable or immovable that does not belong entirely to that person or that legally belongs to someone else. In this article, we have covered the conditions for claiming ecrimisil; by whom, against whom, how and in what manner a claim may be brought where the property subject to unlawful occupation belongs to more than one person; the requirement of objection to use (intifadan men) and its exceptions; the persons entitled to bring an ecrimisil action and the limitation period of the action; the matters to be taken into account in determining compensation for unlawful occupation; and the issue of interest on the compensation to be claimed.
Ecrimisil (Compensation for Unlawful Occupation)
Where a person interferes with, or trespasses upon, a place to which he or she has no right, whoever holds the right may bring an action against that person and request that the interference be prevented.
Compensation for unlawful occupation is the compensation that an owner who is not in possession may claim, on account of the unlawful occupation, from a possessor in bad faith who is not the owner. To put it another way, it is the compensation for the damage caused where a person who has no right of use or enjoyment uses or occupies, wrongfully and without the owner's consent, a movable or immovable that does not belong entirely to that person and that legally belongs to someone else. The owner will be able to request, by way of an action, the termination of the unlawful occupation together with compensation. A person who is in possession of property in bad faith and occupies it unlawfully must, where certain conditions are met, return that property to the right holder and make good the damage arising from the unlawful occupation. We address in detail below what those conditions are.
Conditions for Claiming Ecrimisil (Compensation for Unlawful Occupation)
Article 995 of the Turkish Civil Code, regulated under the heading “With Regard to a Possessor Not in Good Faith”, reads as follows: “A possessor not in good faith is obliged to pay compensation for the damage caused to the right holder by wrongfully withholding the thing that he or she is obliged to return, and for the products that he or she has obtained or has neglected to obtain.”
As can be understood from the legal provision cited above, in order to become entitled to ecrimisil compensation;
A movable or immovable must be occupied unlawfully.
The occupier must be in bad faith.
Damage must have occurred as a result of the occupation.
There must be a causal link between the unlawful occupation and the damage.
1- Unlawful occupation
Unlawful occupation is a person's use, without the owner's consent and without any legal relationship or justified reason, of property that belongs partly or wholly to someone else. Whether possession of a property has been obtained is determined according to whether actual power of disposal over that property is held and whether actual control over the property has been established.
The person who carries out the unlawful occupation is not always a third party unconnected with the right holder. An ecrimisil action is also possible between heirs. For example, this action may also arise where an immovable is used by some of the heirs while the other heirs cannot benefit from that use. Accordingly, a person whose property has been occupied unlawfully will be able to claim compensation for unlawful occupation.
2- The occupier's bad faith;
Bad faith in unlawful occupation means that the occupier knows that the property is being used unlawfully or is in a position to know this if the necessary care is exercised. Article 995 of the Turkish Civil Code, cited above, which forms the legal basis of ecrimisil compensation, also provides that an occupier who is not in good faith must pay compensation.
3- The occurrence of damage as a result of the occupation;
If we list the damage that may be claimed as ecrimisil compensation on account of unlawful occupation;
-Damage arising from the ordinary wear and tear of the immovable due to its use,
-Damage arising from the mere use of the immovable (directly connected with the cause of the occupation),
- Damage suffered because of the profit that the owner of the immovable would normally have obtained during the period in which he or she could not use the immovable, but of which he or she was deprived because of the occupation of the immovable.
In practice, the most commonly seen damage in relation to ecrimisil compensation is the damage suffered because of lost profit. The ecrimisil amount to be determined here is at least the rental income that the immovable would bring. However, during the proceedings, it may also be that damage other than rental income is established.
4- Causal link;
There must be a causal link between the owner's damage and the unlawful occupation. The owner must have suffered damage because of the act of unlawful occupation. In other words, the damage in question must arise from the act of unlawful occupation.
Ecrimisil Where the Property Subject to Unlawful Occupation Belongs to More Than One Person
Unlawful occupation may be carried out by a third party unconnected with the right holder. However, in addition, it may also be the case that one of the co-owners carries out the unlawful occupation. Below, we explain by whom and in what manner a claim may be made against third parties where the occupier is not a co-owner/partner, and how and in what manner co-owners may make claims against one another where the occupier is a co-owner/partner.
Ecrimisil Where the Co-Owners/Partners Bring an Action Against Third Parties and the Occupier Is Not a Co-Owner/Partner
Where the property occupied unlawfully is subject to ownership in undivided shares and the occupier is not a co-owner/partner; each co-owner may claim ecrimisil compensation from third parties only in proportion to his or her own share. In other words, the co-owners may claim ecrimisil compensation together, or, if they wish, they may exercise this right by bringing separate actions.
Where the property occupied unlawfully is subject to joint (collective) ownership and the occupier is not a co-owner/partner; ecrimisil can be claimed only if all the partners act together, because in joint ownership the power to bring an action requires unanimity and there is a compulsory joinder of parties. Each partner is a right holder over the whole of the property subject to joint ownership.
The Requirement of Objection to Use (Intifadan Men) Where the Occupier Is a Co-Owner/Partner and the Co-Owners Bring an Action Against One Another
Where the occupier is a co-owner or partner, there are also certain conditions, in addition to those stated above, for co-owners to be able to claim ecrimisil compensation from one another. As a rule, for co-owners to be able to make an ecrimisil claim against one another, the requirement of “intifadan men” must be met. Intifadan men means an objection to the use.
Intifadan men will have been achieved when a co-owner or partner objects to the use of the place occupied by another co-owner or partner who occupies more than his or her entitlement, and gives notice concerning that excess use. The co-owner who cannot benefit in proportion to his or her share because of the occupation must notify the co-owner who carries out the unlawful occupation of his or her wish to benefit. No formal requirement is sought for the notice to be given. It may therefore be proved by any kind of evidence. Co-owners must be denied use (intifadan men) before an ecrimisil action is brought. Otherwise, the ecrimisil action to be brought will be dismissed, so it is important to pay attention to this point.
HOWEVER, IN SOME CASES CO-OWNERS CAN CLAIM ECRIMISIL COMPENSATION EVEN IF THEY HAVE NOT FULFILLED THE REQUIREMENT OF INTIFADAN MEN.
The cases in which co-owners may bring an ecrimisil action and assert a claim directly, without it being necessary for them to have objected to use (the exceptions to the intifadan men requirement), can be listed as follows;
The immovable that is the subject of the ecrimisil action is public property,
The property that is the subject of unlawful occupation is among places that yield legal or natural fruits (e.g. an orchard),
The place in respect of which the ecrimisil action is to be brought is among places from which benefit/income is obtained by letting, such as a workplace or a dwelling,
Where, as a result of a partition or an actual-use agreement made among the co-owners regarding the property used unlawfully, the common immovable, or the parts of it, from which each co-owner is to benefit have been determined, and the action is to be brought against the co-owner or partner who acted contrary to the agreement,
The co-owner who occupies the immovable held in shares asserts a claim to the whole of the place and denies the co-ownership of the others,
A legal act concerning this immovable has previously been taken by the claimant against the other co-owners or partners (the bringing of actions for prevention of interference, dissolution of co-ownership, ecrimisil and similar, or enforcement proceedings).
The property is a common place established by the deceased or a place that yields revenue, such as a factory, a hotel or a bakery,
Places in which certain public institutions, such as the Treasury and the Foundations, are co-owners,
Products arising spontaneously on the immovable (mown grass, harvested hazelnuts, tea, etc.) and cases of occupation of a business established by the deceased or of businesses that generate income in their own right,
Places in which certain public institutions, such as the Treasury and the Foundations, are co-owners
Persons Who May Bring an Ecrimisil (Compensation for Unlawful Occupation) Action
An ecrimisil compensation action may be brought by persons who hold a right over the movable or immovable that has been unlawfully occupied.
-The owner whose property has been unlawfully occupied,
-Persons holding a limited real right in the property subject to unlawful occupation, and
-Persons holding a personal right in the property subject to unlawful occupation have the right to bring an action for compensation for unlawful occupation.
-Each of the co-owners subject to ownership in shares (joint ownership) or to joint (collective) ownership may also bring an ecrimisil action within the conditions we have explained in detail above.
The Court with Subject-Matter and Territorial Jurisdiction in an Ecrimisil (Compensation for Unlawful Occupation) Action
The Court with Subject-Matter Jurisdiction in Ecrimisil Actions;
Article 2 of the Code of Civil Procedure (HMK) provides: “(1) Irrespective of the value and amount of the subject matter of the dispute, the court with subject-matter jurisdiction in actions relating to property rights and in actions relating to the status of persons is the civil court of first instance (asliye hukuk mahkemesi), unless otherwise provided. (2) Unless otherwise provided in this Law and in other laws, the civil court of first instance is also competent in respect of other actions and matters”, and pursuant to the provision of that article the Civil Courts of First Instance have subject-matter jurisdiction.
The Court with Territorial Jurisdiction in Ecrimisil Actions;
Pursuant to the provision of Article 6/1 of the Code of Civil Procedure (HMK), “The court of general jurisdiction is the court of the place of residence of the defendant, whether a natural or legal person, at the date on which the action is filed”;
-The court of the defendant's place of residence has territorial jurisdiction.
In addition, since this action arises from a tort, pursuant to Article 16 of the Code of Civil Procedure (HMK), in actions arising from a tort;
-The court of the place where the tort was committed, or
-The court of the place where the damage occurred or is likely to occur, or
-The court of the place of residence of the injured party also has territorial jurisdiction.
Limitation Period in an Ecrimisil (Compensation for Unlawful Occupation) Action
Pursuant to the Court of Cassation Decision on Unification of Case Law dated 25.05.1938 and numbered 29/10 and the settled case law of the Court of Cassation along the same lines, actions concerning ecrimisil claims are subject to a limitation period of five years. This five-year period runs backwards from the date on which the action is filed.
Determination of Ecrimisil (Compensation for Unlawful Occupation)
Ecrimisil is a special form of redress for damage, characterised as compensation for unlawful occupation. According to the settled practice of the Court of Cassation, in calculating the ecrimisil amount on the basis of rental income, matters such as the damage suffered by the owner, the income of which the owner was deprived, the income earned by the occupier through use of the property, the zoning status of the immovable, the surface area of the immovable, the nature and location of the immovable and comparable rent amounts must be investigated. An ecrimisil action must be calculated at a minimum of the rental income and at a maximum of the full loss of income.
In the proceedings conducted in an action brought for an ecrimisil compensation claim, the court must set a date for an on-site inspection of the unlawfully occupied movable or immovable, have an examination carried out through an expert witness, and have a report prepared that is capable of being reviewed.
Decision of the 8th Civil Chamber of the Court of Cassation, Docket No. 2018/8997, Decision No. 2018/13005, dated 22.05.2018:
“…As is known, as stated both in legal doctrine and in judicial practice, ecrimisil, in other words compensation for unlawful occupation, is a compensation that an owner who is not in possession may claim from a possessor in bad faith who is not the owner. In the Decision on Unification of Case Law dated 08.03.1950, No. 22/4, it was emphasised that unauthorised occupation cannot be likened to a lease agreement concluded by the mutual and corresponding intentions of the parties, that by its nature it must be regarded as a wrongful act, and that the damage arising from the unlawful occupation must be compensated. Since ecrimisil is a special form of redress for damage characterised as compensation for unlawful occupation, it is, at the least, damage corresponding to the rental income. Therefore, the actual loss (positive damage) arising from use, in the form of wear and tear resulting from the normal use that follows from the unlawful occupation, and the benefit of which the owner or possessor is deprived (negative damage), determine the scope of ecrimisil. Unlawful occupation is in the nature of a wrongful act. (Decision of the Grand Civil Chamber of the Court of Cassation (YHGK) dated 25.02.2004, No. 2004/1-120-96)
The calculation of ecrimisil is a matter requiring expertise; an on-site inspection and examination must be carried out through an expert witness appropriate to the nature of the immovable, and the amount of compensation for unlawful occupation must be determined while remaining bound by the claim. The expert report obtained must be based on concrete information and documents, must be open to review by the parties and the judge, and the grounds of the assessment must conform to scientific data and to Article 266 et seq. of the HMK.
Therefore, particularly where a claim is made on a crop basis because of the unlawful use of agricultural land, the official data on this subject must be obtained: the provincial or district directorate of agriculture must be asked what agricultural products are grown in the region where the immovable is located; the unit prices and per-decare yield values of the products reported to have been planted, for the years for which ecrimisil is claimed, must be obtained from the wholesale market directorate for the relevant period; and it must be established whether crop rotation is practised in the region and whether the immovable was left fallow.” This is how it reads.
As will be understood, in claims made on a crop basis because of the unlawful use of agricultural land, the matters stated in the Court of Cassation decision cited above must be taken into account.
Where a claim in an ecrimisil compensation action has been made on a rent basis in respect of plots and buildings, the rent must be determined and the result obtained on the basis of the rental amount. According to the case law of the Court of Cassation, ecrimisil compensation on the basis of rental income must be calculated taking into account the matters stated below.
Decision of the 8th Civil Chamber of the Court of Cassation, Docket No. 2020/1314, Decision No. 2021/4866, dated 08.06.2021:
“… comparable lease agreements must be requested from the parties; if necessary, the rental amounts of similar places at the date of occupation must be investigated and, if there are any, comparable lease agreements must also be obtained; a concrete comparison must be made between the immovable subject to the action and the comparable, and its superior or inferior aspects must be determined.
As a matter of principle, in determining ecrimisil on the basis of rental income, the rent that the immovable could bring on free terms in its condition at the first period subject to the action is determined according to the going rate in the locality, by comparing it with comparable lease agreements and also taking into account the size, nature and surroundings of the immovable. The ecrimisil value for subsequent periods is assessed at not less than the amount to be found by applying the full PPI (producer price index) rate of increase to the amount determined for the first period.”
The matters affecting the amount of ecrimisil compensation in respect of immovables can be listed as follows;
The zoning status, surface area and designation of the immovable,
The location and nature of the immovable,
Whether the immovable benefits from infrastructure services,
The urban development at the place where the immovable is located and the location of the immovable,
In agricultural land, whether irrigated or dry farming is practised, and the yield and nature of the land,
The income that would be obtained if the immovable were used in its condition before the unlawful occupation
Starting Date of Interest in an Ecrimisil (Compensation for Unlawful Occupation) Action
In an action to be brought against the party who occupies unlawfully, statutory interest may be claimed together with the compensation claim. For compensation for unlawful occupation, graduated statutory interest running from the end of each period may be awarded. It is therefore possible to claim interest separately for each period that elapses.
