Another person using an immovable property registered in your name at the land registry (tapu), building on it or crossing your boundary is one of the most common property disputes. Under art. 683 of the Turkish Civil Code (TMK), the owner has the right to reclaim the property from anyone who holds it unlawfully and to sue for the prevention of any unlawful interference (elatmanın önlenmesi, also called müdahalenin men-i).
When can a lawsuit be filed?
- If a neighbour’s wall, building or garden crosses your boundary,
- If your field is being farmed or used for grazing without your permission,
- If part of your property is being used as a road, storage area or car park,
- If one co-owner of a jointly inherited property uses it alone, excluding the others.
If the interference was carried out by a public authority without an expropriation, different rules apply. We covered this in our article on expropriation.
The action to end trespass
The lawsuit is filed at the civil court of first instance (asliye hukuk mahkemesi) where the property is located. The court usually carries out an on-site inspection (keşif) and has a survey expert prepare a report showing the encroached area on a map.
For land registered at the land registry, the action to end trespass is not subject to a limitation period as long as the interference continues. If the claim is upheld, the court orders the interference to end and, where necessary, the removal (kal) of buildings, walls or trees on the property.
Mediation: If the dispute arises from neighbour law, such as excessive use, noise or smoke, applying to a mediator before filing suit is a precondition for the lawsuit (Mediation in Civil Disputes Law (HUAK) art. 18/B). Whether this precondition applies to classic trespass cases where the property boundary has actually been crossed must be assessed on the facts of each case. If in doubt, applying to a mediator first eliminates the risk of the lawsuit being dismissed on procedural grounds.
If your neighbour’s building crosses your boundary: transfer of title (temliken tescil)
If your neighbour, while building on their own land, encroached on your land in good faith and the value of the building clearly exceeds the value of that part of your land, the owner of the building may, instead of demolition, request that the encroaching part be registered in their name against appropriate compensation (TMK art. 725). In that case the court orders that you be paid the real value of the land. Whether the outcome is demolition or compensation depends on whether the builder acted in good faith and whether the objection was raised in time.
Ecrimisil: compensation for past use
The action to end trespass stops the interference for the future. If your property has been used without permission in the past, the remedy is ecrimisil, that is, compensation for unlawful occupation. Ecrimisil is calculated by an expert on the basis of the rental income the property would have generated in that period.
- According to a unification-of-case-law decision of the Court of Cassation (Yargıtay), ecrimisil can be claimed for five years back from the date of the lawsuit.
- The action to end trespass and ecrimisil can be claimed together in the same lawsuit.
- The person using the property unlawfully must be in bad faith. For example, a person who rents the property from you pays rent, not ecrimisil, while the lease is in force.
Ecrimisil between co-owners
In shared ownership (paylı mülkiyet), each co-owner has the right to use the whole property. For this reason, the Court of Cassation as a rule requires that, before one co-owner can claim ecrimisil from another, they must first have excluded that co-owner from use (for example, by sending a formal notice or filing an action to end trespass). Ecrimisil can then be claimed for the period after that date.
In some situations, however, this requirement does not apply. For example, ecrimisil can also be claimed for past periods against a co-owner who lets the property alone and collects the rental income, who changes the nature of the property by constructing a building on it, or who actually prevents the other co-owners from using it.
For an heir who does not use a jointly owned property, first sending a written notice to the co-owner who does use it is important, because it fixes the starting date of any ecrimisil that may be claimed later.
Practical tips
- The land registry record, the plot plan (çap) and the cadastral map sheet are the key documents in the dispute; obtain up-to-date copies before filing suit.
- Keep photographs, witness details and official correspondence showing when the interference began and how long it has lasted.
- In disputes between co-owners, the lasting solution is often partition (ortaklığın giderilmesi). A claim for ecrimisil should be considered together with that process.
This article is for general information only and is not legal advice. For your specific situation, please seek advice from a lawyer.