ECRIMISIL CASES
A right of pay is a concept of great importance in the Turkish legal system, particularly in
protecting property rights. A right of pay is a compensation claim that can be filed by the owner
against the user when real or movable property is used by someone else without the owner’s
consent and without a legal justification. This action is essentially a tort action and seeks to
compensate the owner for the material damages and lost benefits.
In Turkish law, mecrimisil cases are frequently encountered, particularly in real estate ownership disputes
and inheritance partnerships. The concept and terms of mecrimisil are constantly being developed in
Supreme Court decisions, providing solutions to practical problems. This article will provide a
comprehensive examination of the legal basis, conditions, practical problems, and current jurisprudence of
mecrimisil cases.
1-) Definition and Legal Nature of Ecrimisiil
Definition- Ecrimisil means “wrongful occupation compensation”; that is, compensation paid to the owner/possessor by the
person who uses or occupies the property without the consent of the owner or without a legal reason.
It is a necessary type of compensation.- In doctrine and jurisprudence, this use of the real estate is evaluated based on the rental potential of the real
estate, and it is stated that it should be at least equal to the rental amount.
Legal Nature
In Turkish law, the term “ecrimisil” is not explicitly regulated by law. Therefore, its legal nature is debatable;
according to some authors, it is a type of claim that is likened to tort, according to others to unjust enrichment,
and according to others to similar compensation institutions in the law of obligations.- In the case law, ecrimisil is considered as “special damage compensation”; it is not used for the benefit (deprived income,
rental-like earnings) and for the positive effects such as wear and tear of the real estate during the period it is used.
It is stated that it consists of damage elements.
2-) Legal Basis for Ecrimisiil
The basic legal bases of the Ecrimisil case are as follows:
Turkish Civil Code (TMK) article 683:The owner can take back his property from the person who wrongfully took
possession of it and claim compensation for the wrongful use of his property.
Turkish Code of Obligations (TBK) article 49:According to the provisions of tort, if a person causes harm to
another person unlawfully, he has the obligation to compensate for this damage.
Turkish Civil Code articles 995-997:The provisions regarding unjust occupation by the possessor and good faith or bad
faith possession are regulated.
Civil Procedure Code Article 12:The competent court for cases concerning real estate is the court where the real estate is located.
The Supreme Court of Appeals defines ecrimisil as “the payment to the owner of the benefit obtained as a result of
unjust occupation.” Therefore, ecrimisil is not considered rental payment, but compensation for unjust occupation.
3-) Conditions of the Ecrimisil Case
To file a claim for meager compensation, certain conditions must be met. These elements, as emphasized in
Supreme Court precedents, are as follows:
3.1. Real Estate or Movable Property Belonging to Its Owner- The plaintiff must be the owner of the property in question. Ownership must be proven through a land registry or other
documentation proving ownership.- In inheritance partnerships, one of the stakeholders may claim compensation against the other stakeholders.- In joint ownership, if one of the shareholders uses the entire property without the consent of the other shareholder, the right
of aggravation arises.
3.2. Unfair Occupation or Use- The defendant must use the property without any legal reason.- If there is a legal reason such as a lease agreement, usufruct or easement, no payment can be requested.- Whether the defendant has good faith or bad faith affects the amount of the penalty, but does not prevent the filing of a
lawsuit.
3.3. Lack of Owner’s Consent- The owner must not have consented to the defendant’s use of the property.- If there is explicit or implicit consent, it is not possible to request mere omission.- The Supreme Court interprets the existence of consent narrowly.
3.4. Plaintiff’s Proof of Damage or Deprivation of Benefit- The plaintiff must prove the benefit he could not obtain from the goods due to unfair use.- This is usually calculated based on the comparable rental price.- The court determines the usage value of the real estate through expert examination.
3.5 Condition of prohibition of usufruct (for partnership/shared ownership cases)- In order for a shareholder to claim compensation against other shareholders, the shareholder must have notified the
cessation of use (prohibition of usufruct) which has an important place in the Supreme Court precedents.
In some special cases, this condition is not required.
4-) Common Situations in Acrimonious Claims
4.1. Amount Paid in Inheritance Partnerships- If one of the heirs uses the real estate alone, the other heirs may request payment of the property.- In accordance with TCC article 640, any disposition of real estate before the termination of the inheritance partnership is subject to the
provisions of the partnership.- The Supreme Court accepts that the heirs must clearly oppose the use of the real estate.- There are decisions that indicate that consent can be considered for heirs who remain silent.
4.2. Compensation in Shared Ownership- If one of the stakeholders uses the entire property, the other stakeholders may request adequate payment.- It is important to determine which stakeholder is affected by the usage and to what extent.- The amount of Ecrimisil is calculated according to the share ratios.
4.3. Unfair Occupation in Good Faith- Whether or not the defendant is in good faith affects the amount of compensation.- The malicious occupier is liable for the full use value.- The liability of the bona fide occupier is more limited (TMK Art. 995).
5-) Person in Charge, Competent Court, Time Limit and Procedure for Filing a Lawsuit in the Acrimonious Case
5.1. Authorized and Competent Court- Competent Court:Ecrimisil cases are generally heard by the Civil Courts of First Instance. However,
administrative remedies may also be considered in cases such as occupation of public real estate, in which case
administrative courts or special administrative procedures may apply.- Competent Court:In cases where the parties are shareholders or in co-ownership relationships, claims based on sharing
(dissolution of partnership, partition) and claims for mere acrimonious property may not be considered together; some
precedents make a distinction on this matter.
5.2. Statute of Limitations- Although the Supreme Court has determined that unjust occupation, which is the subject of ecrimisile, is a
type of tort, it is seen that the 5-year statute of limitations valid for rental receivables is taken into account in
ecrimisile cases.- In accordance with the Unification of Court of Cassation Jurisprudence Decision No. 29/10 dated 25.05.1938 and the established jurisprudence
of the Court of Cassation on the same subject, mecrimisil cases are subject to a five-year statute of limitations and this five-year period begins to
run retroactively from the date of the case.- The starting date of the unjust occupation is important.- Separate ecrimisil requests can be made for each annual period.
5.3. Warning (Notification of Compensation) and Notification- When occupation of public property is detected, a report is prepared and the relevant administration determines the
occupier’s rights. Treasury regulations govern this determination and the procedure for reporting.- Upon notification, the occupier is given time to either pay or vacate. This notification/petition process is important for
the occupier to exercise their right to defense.
ECRIMISIL
IN HIS CASE
6-)
EXPERT EXAMINATION TO BE CARRIED OUT
AVAILABLE
6.1. Evidence- Title deed registration or ownership document,- Witness statements,- Expert reports,- Photo and video recordings,- Comparable rental prices to be obtained from the municipality or real estate agents.
6.2. Expert Review- The court appoints an expert to determine the value of the real estate.- The amount of Ecrimisil is generally calculated based on the comparable rental price.
EVIDENCE- The comparable value is determined according to the location of the real estate, its usage type, size and market conditions.
7-) How is the calculation done in the Acrimonisil case?
AND
The amount of the Ecrimisil is determined based on the objective utility value of the property. The following criteria are taken into account when
calculating:- The economic value of the location of the real estate,- Type of use (residential, field, commercial area, etc.),- Duration of use,- Equivalent rental prices,- Whether the defendant is in good faith or bad faith.
According to the established jurisprudence of the Supreme Court of Appeals, adequate compensation is not a rental payment
but a refund of the benefit gained through unjust occupation. Therefore, the rental fee is not taken directly into account in the
calculation, but is considered a significant criterion.
😎 Some Problems in Practice and the Approach of the Supreme Court
8.1. The Situation of Stakeholders Who Remain Silent Against the Majority- The Supreme Court may conclude that stakeholders who remain silent for a long time have implicitly consented to the
unilateral use of the real estate.- However, this situation is evaluated separately in each case.- The rights of children, elderly heirs or shareholders who do not have the opportunity to actually benefit from the real estate are
specially protected.
8.2. Statute of Limitations Issues- In practice, the date on which the statute of limitations begins is frequently debated.- According to the Supreme Court, the period of 5 years begins from the date of the start of the unjust occupation.- The claim that the plaintiff was not aware of the real estate is generally not taken into consideration.
8.3. Partial Use in Shared Ownership
If one of the stakeholders uses only a certain part of the real estate, the amount of the ecrimisil is
calculated limited to this usage area.
CONCLUSION
Acrimonial lawsuits are an important tool for protecting property rights in Turkish law. These lawsuits can
lead to serious disputes between owners, particularly in cases of joint ownership, inheritance partnerships,
and unjust occupation.
The primary objective in an Ecrimisil case is to compensate the owner for the benefits they have been deprived of due to unjust
occupation. Court of Appeals precedents provide guidance, particularly on matters such as the best interests of the child, bona fide
possession, the statute of limitations, and usage disputes between stakeholders.
The number of ecrimisil cases is increasing today, particularly in connection with urban renewal, zoning
regulations, and inheritance disputes. Therefore, proper litigation management, presentation of
accurate evidence, and prevention of statute of limitations issues are crucial.
In conclusion, ecrimisil cases are a mechanism that ensures the effective protection of property rights,
and legal processes must be carried out meticulously to ensure a balanced protection of the rights of
both owners and occupiers.
COURT OF APPEALS DECISIONS REGARDING ECRIMISIL CASES
1-) Court of Cassation 8th Civil Chamber, 2020/1314 E., 2021/4866 K (Decision that
the Ecrimisil account should be examined by an expert because it is a matter
requiring expertise);
“…Calculating adequate pay is a matter requiring expertise. The amount of unjust occupation compensation must be determined by
conducting an exploration and examination by an expert appropriate to the nature of the property, and adhering to the request. The
expert report obtained must be based on concrete information and documentation, open to review by the parties and the judge, and
the justification for the assessment must be in accordance with scientific data and Articles 266 and 100 of the Civil Procedure Code
(HMK). If a request is made based on a rental basis, particularly for land and buildings, comparable lease agreements must be
requested from the parties. If necessary, rental rates for similar properties at the time of occupation must be investigated, and if
applicable, comparable lease agreements must be obtained. A concrete comparison must be made between the subject property and
the comparable, and any advantages or disadvantages must be identified. In principle, when determining adequate pay based on
rental income, the rental income that the property could generate under free conditions in its current state during the initial period in
question is determined according to the local market value, taking into account the property’s size, nature, and environmental
characteristics. The adequate pay value for subsequent periods is determined by comparing it with comparable lease agreements.
“…is determined to be no less than the amount that would be found by reflecting the entire PPI increase rate to the amount
determined for the first period…”
2-) Supreme Court Decision – 7th HD., E. 2021/4582 K. 2021/2813 T. 9.11.2021 (decision that the
bad faith condition must be met in order to claim meagre compensation);
“…As stated both in doctrine and in judicial practice, the compensation for unjust occupation, in other words, the
compensation for unjust occupation, is a compensation that a non-possessing rightful owner can claim from a non-rightful
possessor in bad faith, and in the Unification of Jurisprudence Decision No. 22/4 dated 08.03.1950, it was emphasized that
unjust occupation cannot be likened to a lease agreement concluded by the mutual consent of the parties, that it should be
considered an unjust action by its nature, and that the damage caused by unjust occupation must be compensated…”
3-) Supreme Court Decision – 7th HD., E. 2021/711 K. 2021/1768 T. 12.10.2021
(Decision on when the 5-year adequate payment period will start);
“…In that case, while the court should have determined the date on which the letter in question reached the defendant and
ruled against the defendant for due diligence starting from this date, it was not deemed correct to have ruled for due
diligence for a period of 5 years retroactive to the date of the lawsuit, and therefore the judgment should have been
overturned…”
4-) Supreme Court Decision – 8. HD., E. 2021/184 K. 2021/4169 T. 20.5.2021 (decision regarding
the need for an expert report review in order to calculate the adequate compensation based
on the rental price in the adequate compensation case);
“…Although this is the rule, the adequate rent is the minimum rental fee and since the rental agreements can request a rent
determination based on the current market after 5 years according to Article 344 of the Turkish Code of Obligations, if the 5-year
period has passed between the period previously determined based on the current market and the first period in question, or if the
current and comparable rents increase due to changes in the location of the property due to special reasons such as development,
industrialization, settlement, etc., the adequate rent for the new period (the next period) can be determined and ruled upon,
without taking into account the values for the finalized period, by conducting a new expert examination based on the concrete
data to be collected…”
5-) Supreme Court Decision – HGK., E. 2017/1257 K. 2020/661 T. 23.9.2020 (Decision
that in case of joint ownership, persons other than the lessor partner can claim
adequate pay from the lessor partner or the tenant or both);
“…Leasing a property subject to joint ownership is, as a rule, subject to the unanimous decision of
all partners. However, it is possible for one or more partners to lease the property to a third party
without a unanimous decision and without the authority to represent them. In such a case, since
the lessor is not required to be the owner, and since lease agreements are agreements that
create personal rights, the lease agreement is legally valid between the parties (HGK dated
October 13, 2004, 2004/13-461 E., 2004/532 K.). This is also a consequence of the principle of
contractual contingency. However, such an agreement is not effective against the other partners
unless they consent. Therefore, they may claim compensation from the lessor partner, the tenant,
or both, or they may also demand the transfer of their portion of the benefit acquired from the
lessor partner under the provisions of the fictitious non-power of attorney…”
MOST WONDERED QUESTIONS ABOUT THE ECRIMISIL CASES
1-)Ecrimisilwhy?
Ecrimisil is compensation for unjust occupation arising from the use of a real estate or movable property by
someone else without the consent of the owner and without any legal basis.
According to the Supreme Court precedents, the payment of the benefit obtained due to unjust occupation is not the rental fee but the payment
to the owner.
2-) Who can file an Ecrimisil lawsuit?- A lawsuit for unpaid debt can be filed by the owner of the real estate or by a shareholder (heirs or co-owners).- If one of the stakeholders uses the entire real estate or a part of it that does not belong to him/her without the consent of the other
stakeholders, the other stakeholders may file a lawsuit for ecrimisil.- The owner may file the lawsuit personally or through his attorney.
3-) What is the legal basis of the Ecrimisil case?
Legal basis for Ecrimisiil:
TMK Art. 683:The owner may take back his property from the person who wrongfully took possession of it and claim compensation for the
damage he suffered.
Turkish Civil Code Articles 995-997:Provisions on possession and unjust occupation.
TCC article 49:Tort provisions.
Civil Procedure Code Article 12:The competent court for cases concerning real estate is the court where the real estate is located.
4-) In which court is the Ecrimisil case filed?
Competent Court:Civil Court of First Instance.
Competent Court:The court where the real estate is located (HMK art. 12).
5-) What is the statute of limitations in the Ecrimisil case?- The statute of limitations for Ecrimisil cases is 5 years.- In Ecrimisil compensation cases, damages arising from unfair use are claimed retroactively for 5
years from the date the case was filed.- Claims exceeding 5 years are subject to limitation.
6-) What conditions must be met for the Ecrimisil case?
There are four basic conditions for filing an Ecrimisil lawsuit:- The plaintiff must be the owner or shareholder of the real estate.- The defendant must use the real estate without any legal reason.- The owner must demonstrate that the defendant did not consent to its use.- The plaintiff must prove that he suffered damage or was deprived of the benefit due to unfair use.
7-) What is the difference between Ecrimisil and rental fee?- Ecrimisil is compensation for unfair occupation and is not a rental fee.- The rental fee is based on the contract between the parties.- A levy of debt arises from the use of real estate without a contract or legal basis. According to the Supreme
Court, a levy of debt is determined based on the rental amount, but it is not the same as the rental amount.
😎 Can a suit for meager inheritance be filed between the heirs?- Yes, if one of the heirs uses the real estate alone, the other heirs can file a lawsuit for adequate pay.- In accordance with TMK article 640, the heirs have joint ownership of the real estate before the inheritance is
shared.- If the use is unilateral, the other heirs may claim compensation due to unjust occupation.
9-) If one of the stakeholders uses the entire property, can a payment of adequate pay be requested?
In shared ownership, if one shareholder uses the entire property, the other shareholders may claim compensation in
proportion to their shares.
In this case, the Supreme Court stipulates that the calculation of the dues among the stakeholders should be made according to their
share ratios.
10-) How is the amount of Ecrimisil calculated?
Acreage is calculated according to the objective usage value of the real estate.
Criteria taken into account in the calculation:- The comparable rental value of the real estate,- Duration of use,- The nature of the real estate (land, residence, field, commercial area, etc.),- Whether the defendant has good or bad intentions.- The court usually makes calculations based on the expert report.
11-) What is the importance of bona fide or malicious occupation in the Ecrimisil case?
Well-intentioned occupier:A person who is unaware of, or cannot be expected to be aware of, the unfair use is being done. In this case, the
amount of ecrimisil is calculated limited.
Malicious invader:The person who knew or should have known about the unjust occupation is liable for the full usage
value of the property.
12-) Who has the burden of proof in the Ecrimisil case?
In the Ecrimisil case, the burden of proof belongs to the plaintiff.
The plaintiff must prove the following:- The ownership of the real estate belongs to him,- The defendant used the real estate without legal reason,- He/she does not have his/her own consent,- Damages suffered or benefits deprived due to unjust occupation.
13-) Is it mandatory to give a warning before filing a lawsuit for Ecrimisil?
No, it is not mandatory.
However, issuing a warning is important in terms of proving that the defendant is in bad faith and may result in favor of the
plaintiff during the litigation process.
It is recommended to send a notice first, especially in cases to be filed between heirs.
14-) If the real estate is sold while the Ecrimisil case is still ongoing, will the case be dismissed?
No, the case will not be dismissed.- Even if the ownership of the immovable property in question changes hands, the claims for meager pay for the past period remain
valid.- The new owner may request adequate payment for the period following the sale.
15-) How long does the Ecrimisil case last?- Ecrimisil cases can take a long time due to the processes of expert reports, witness statements and evidence
collection.- The average trial period varies between 6 months and 1.5 years.- If the parties agree or present evidence quickly, the trial period may be shortened.
THE IMPORTANCE OF LAWYER SUPPORT
Acrimonious debt collection cases require technical knowledge, legislative expertise, and in-depth expertise
in judicial practices. While the legal provisions are clear, each case has its own unique circumstances, and
even a small mistake can lead to loss of rights. Therefore, working with an experienced attorney from the
beginning of the process is crucial to determining the right strategy, protecting your rights, and achieving
the swiftest resolution.
It’s important to remember that every step taken during the litigation process has legal and financial implications.
A professional lawyer will guide you not only in preparing the petition but also in gathering evidence,
representing the court, negotiating, and pursuing potential alternative solutions.
In order not to risk your rights and to manage the process safely, it is recommended that you consult a specialist lawyer.