Unjust Occupancy Compensation (Ecrimisil) Action — Requirements and Calculation

Ecrimisil is the unjust occupancy compensation that a person who uses or occupies an immovable property without a legitimate basis is obligated to pay to the property owner. Regulated under Article 995 of the Turkish Civil Code (TCC), ecrimisil is a legal institution of great importance for the protection of property rights. The ecrimisil action, which is one of the most effective legal remedies available to the property owner against a person unlawfully using their property, is an extremely common type of action in practice. Ecrimisil claims arise in joint inheritance among co-owners, between neighbors, in tenant-landlord relationships, and in the occupation of Treasury properties.

The Concept of Ecrimisil and Its Legal Basis

Ecrimisil, in other words unjust occupancy compensation, is the compensation that must be paid in exchange for the use of an immovable property without the consent of the owner and without any legal basis. Although this concept is not explicitly defined as "ecrimisil" in the law, it is a judicial concept derived from the provision of Article 995 of the TCC. Pursuant to Article 995 of the TCC, a possessor who is not in good faith is obliged to pay compensation for damages caused to the rightful owner due to the unlawful retention of the thing they are obliged to return, and for the products obtained or neglected to be obtained.

Although there are different views in doctrine regarding the legal nature of ecrimisil, according to the established case law of the Court of Cassation, ecrimisil, unlike tort compensation, is at minimum a usage fee that a bad-faith possessor must pay. The First Civil Chamber of the Court of Cassation defines ecrimisil as "a compensation equivalent to at least the rental income that a bad-faith possessor must pay." This definition forms the basis for using rental value as the basis for calculating ecrimisil.

Three fundamental conditions must be present together for ecrimisil to be claimed: first, the plaintiff must be the owner of the property or holder of a real right; second, the defendant must be using or occupying the property without a legitimate basis; and third, the defendant must be a bad-faith possessor. When all of these conditions are met, the property owner may file an ecrimisil action.

Conditions for Filing an Ecrimisil Action

Certain conditions must be met for an ecrimisil action to be filed. These conditions are the legal requirements that the court will seek for the acceptance of the action. The absence of these conditions may result in the dismissal of the action.

The first condition is that the plaintiff must have ownership rights or limited real rights over the property. A person who appears as the owner in the title deed record has the right to file an ecrimisil action. In joint ownership, each co-owner may claim ecrimisil in proportion to their share. In joint ownership by inheritance (joint inheritance), the ecrimisil action must be filed jointly by all heirs; however, the Court of Cassation accepts that the action may proceed if one of the heirs has the other heirs joined as parties to the case.

The second condition is that the defendant must be using the property without a legitimate basis (such as a contract, law, or court order). An ecrimisil action cannot be filed against persons using the property based on a legal right such as a tenant, usufruct holder, or residence right holder. However, ecrimisil may be claimed from a tenant who fails to vacate the property after the expiration of the lease agreement, from the date the lease agreement ended.

The third condition is that the defendant must be a bad-faith possessor. The provision of Article 995 of the TCC applies only to bad-faith possessors. A good-faith possessor, that is, a person who believes they have the right to use the property and is justified in this belief, is not obliged to pay ecrimisil. Bad faith means that the possessor knows or should know that they have no right over the property. In the practice of the Court of Cassation, where a title deed record exists for the property, a person who uses the property without examining the record is deemed to be in bad faith.

Ecrimisil Calculation Methods

The calculation of the ecrimisil amount is one of the most technical and most debated aspects of the action. While the Court of Cassation accepts that multiple methods may be used in calculating ecrimisil, it gives prominence to the comparable rental value method. The calculation is carried out through expert examination, and the court determines the ecrimisil amount based on the expert report.

The comparable rental value method is the most commonly used method in ecrimisil calculation. In this method, the rental values of similar properties in the area where the subject property is located are researched, and the ecrimisil amount is determined based on these values. The expert determines the comparable rental value by evaluating factors such as the location, size, nature, and intended use of the property and the rental market in the area.

The income method is a calculation method used particularly for agricultural land and commercial properties. For agricultural land, the crop income that could be obtained from cultivating the land is taken as the basis. For commercial properties, the income that could be obtained from using the property for commercial activities is taken into account. In this method, net income is calculated by deducting expenses from gross income.

According to the decisions of the General Assembly of Civil Chambers of the Court of Cassation, the method appropriate to the nature of the property must be selected in ecrimisil calculation. The comparable rental value method should be used for residential and commercial properties, the income method for agricultural land, and both the comparable rental and income methods should be evaluated together for plots. If the expert report is found to be insufficient or contradictory, the court should obtain a supplementary report or a new expert report.

The ecrimisil amount is calculated separately for each year. For each year during which the occupation continues, the current rental value or income value for that year is taken as the basis. Therefore, ecrimisil is not a fixed amount and may vary from year to year. Ecrimisil accrued up to the date of the action and ecrimisil to accrue after the date of the action are calculated separately.

Statute of Limitations

The statute of limitations in ecrimisil actions is evaluated within the framework of Articles 72 and 146 of the TCO. According to the established case law of the Court of Cassation, the ecrimisil claim is subject to a five-year statute of limitations. This period is calculated as five years retrospectively from the date of the action. Therefore, the plaintiff may claim ecrimisil for a maximum of five years retrospectively from the date of the action.

An important distinction must be made in the application of the five-year statute of limitations. The issue of whether ecrimisil is based on tort provisions or unjust enrichment provisions directly affects the statute of limitations. The Court of Cassation evaluates ecrimisil within the scope of tort and applies the two-year and ten-year statutes of limitations pursuant to Article 72 of the TCO. However, in practice, the retrospective five-year period has been established as a generally accepted principle.

The starting point of the statute of limitations is not the date on which the unjust occupation began, but the date on which the ecrimisil claim became due. Since a separate ecrimisil claim arises for each day, the statute of limitations also runs separately for each day. Ecrimisil claims older than five years at the date the action is filed are rejected if the defendant raises the statute of limitations defense.

The interruption of the statute of limitations is also possible. The statute of limitations is interrupted in cases such as filing an action, initiating enforcement proceedings, the defendant's acknowledgment of the debt, or the creditor's notification of intent to file an action. In the event of interruption, a new statute of limitations period begins to run.

Burden of Proof in Ecrimisil Actions

The burden of proof in ecrimisil actions rests, as a rule, on the plaintiff. The plaintiff must prove that they are the owner of the property, that the defendant is using the property unlawfully, and that the defendant is a bad-faith possessor. Pursuant to Article 190 of the Code of Civil Procedure, the party making a claim bears the burden of proving their claim.

In proving ownership, the title deed record is the strongest evidence. A person who appears as the owner in the title deed record is deemed to have proven their ownership, with the burden of proving otherwise resting on the defendant. For unregistered properties, possession and usage must be proven by other evidence.

In proving unjust occupation, evidence such as witness statements, site inspections, photographs, video recordings, expert reports, formal notices, and notarial determinations may be used. Determining the date from which the defendant has been using the property is of great importance in determining the ecrimisil period. Therefore, having a determination made through a notary before the action is recommended for evidence security.

Regarding the proof of bad faith, the Court of Cassation benefits from a presumption for registered properties. The land registry is public, and everyone has the obligation to examine the title deed record (TCC Article 1020). Therefore, a person who uses another's property without examining the title deed record is deemed to be in bad faith. For unregistered properties, bad faith must be separately proven.

Ecrimisil Between Co-Owners

In cases of co-ownership or joint ownership where one of the co-owners uses the property exclusively, including the shares of other co-owners, the excluded co-owners may claim ecrimisil. However, for ecrimisil to be claimed between co-owners, the excluded co-owner must have been barred from use (intifadan men).

The condition of being barred from use is, according to the established case law of the Court of Cassation, the sine qua non condition of ecrimisil actions between co-owners. Being barred from use may be effectuated through a formal notice sent to the other co-owner, filing an action, or verbal notification. However, sending a formal notice through a notary should be preferred for ease of proof. Ecrimisil may be claimed from the date of being barred from use.

There are also exceptions to the condition of being barred from use. According to the Court of Cassation, the condition of being barred from use is not required for properties that yield natural products or income between co-owners (such as rented property, agricultural land). Additionally, the condition is not required where the subject property is of a public property nature or where the co-owner claiming ecrimisil has been physically dispossessed. The First Civil Chamber of the Court of Cassation also does not require the condition of being barred from use where the property has been entirely rented out by the defendant co-owner.

In ecrimisil between co-owners, the calculation is made in proportion to the share of the excluded co-owner. For example, if one of four equal co-owners uses the entire property, the other three co-owners may claim ecrimisil corresponding to their shares. The ecrimisil is calculated based on three-quarters of the total rental value of the property.

Ecrimisil on Treasury Properties

In the event of unlawful occupation of State (Treasury) properties, ecrimisil is collected pursuant to Article 75 of the State Procurement Law No. 2886. Ecrimisil on Treasury properties is collected through administrative channels, unlike ecrimisil actions between private law persons. The National Property Directorate determines the unlawful occupation, issues an ecrimisil notice, and serves it on the occupant.

In Treasury ecrimisil, the occupant may file a correction request against the ecrimisil notice within thirty days of the date of service. If the correction request is rejected, an action may be filed at the administrative court within sixty days. Administrative courts have jurisdiction in these cases, and if an action is filed in civil courts, a lack of jurisdiction decision is rendered.

In Treasury ecrimisil calculation, the comparable rental values in the area where the property is located and the market value of the property are taken as the basis. The ecrimisil fee is determined by a commission and is updated each year at the revaluation rate. If the occupant fails to pay the ecrimisil, collection is made through compulsory enforcement pursuant to the Law on the Collection of Public Receivables No. 6183.

Interest in Ecrimisil Actions

The accrual of interest on the ecrimisil claim is an important element of the action. According to the established case law of the Court of Cassation, legal interest is accrued on the ecrimisil claim from the date of the action. The ability to claim interest for the period prior to the action date depends on whether a default notice has been sent. Interest is applied from the date of the notice to the debtor who has been put into default by the notice.

Regarding the interest rate, legal interest is applied to ecrimisil claims. Pursuant to the Law on Legal Interest and Default Interest No. 3095, the legal interest rate has been set at nine percent per annum. However, if the claim is of a commercial nature, commercial default interest may be applied. Interest is calculated on the gross ecrimisil amount.

Ecrimisil and Rental Relationship

The concepts of ecrimisil and rent are different from each other, but they are frequently confused in practice. Rent is a debt relationship arising from a contract between the parties; whereas ecrimisil is compensation that must be paid due to unjust occupation without any contractual relationship. Ecrimisil may be claimed from a tenant who fails to vacate the property after the termination of the lease, from the date the lease agreement ended.

The concept of unauthorized occupation (fuzuli işgal) is directly related to ecrimisil. Unauthorized occupation, defined in Article 75 of the State Procurement Law No. 2886, means occupying a property without a legitimate basis. The unauthorized occupant (fuzuli şagil) is obliged to vacate the property and pay ecrimisil.

Although there is a direct relationship between the ecrimisil amount and the rental price, ecrimisil does not always have to be lower than the rental price. The Court of Cassation states that ecrimisil must be calculated as "at least the rental price." This expression means that ecrimisil may also be higher than the rental price. If the income obtained by the unlawful occupant through using the property is higher than the rental price, ecrimisil may be determined based on this income.

Competent and Authorized Court in Ecrimisil Actions

In ecrimisil actions between private law persons, the competent court is the civil court of first instance. Regardless of the action value, ecrimisil actions are heard at the civil court of first instance. It should not be assumed that the civil court of peace would have jurisdiction based on the value of the property; an ecrimisil action is not an action relating to the substance of the property but is a compensation action based on a personal right.

The authorized court is determined within the framework of the Code of Civil Procedure provisions. Since an ecrimisil action is not an action relating to the substance of the property, the exclusive jurisdiction rule in Article 12 of the Code of Civil Procedure does not apply. Under the general jurisdiction rule, the court of the defendant's place of residence has jurisdiction (Article 6 of the Code of Civil Procedure). However, the court of the place where the tort occurred may also have jurisdiction (Article 16 of the Code of Civil Procedure). In practice, the action is generally filed at the court where the property is located.

In ecrimisil disputes relating to Treasury properties, administrative courts have jurisdiction. The annulment action to be filed against the ecrimisil notice assessed through administrative channels is heard at the administrative court of the place where the property is located.

Points to Consider When Filing an Ecrimisil Action

Certain points must be observed when filing an ecrimisil action for the action to reach a successful conclusion. First and foremost, correctly determining and documenting the start date of the unjust occupation is of great importance. Having a determination made through a notary before the action provides strong protection in terms of evidence security.

In ecrimisil actions between co-owners, it should be verified that the condition of being barred from use has been fulfilled. Ecrimisil actions between co-owners filed without sending a formal notice may be dismissed on the grounds that the condition of being barred from use has not been met. Therefore, a formal notice should be sent to the other party through a notary before filing the action.

The ecrimisil period requested must be clearly stated in the petition. Taking into account the statute of limitations, a claim should be made for a maximum period of five years retrospectively from the date of the action. If a claim is made for periods older than five years, the claim for that period will be rejected upon the defendant raising the statute of limitations defense.

Since an expert examination will be conducted to determine the ecrimisil amount, the plaintiff must be prepared to deposit the costs of site inspection and expert examination. Additionally, the ecrimisil amount requested in the petition may be amended in accordance with the expert report result. Therefore, requesting a low amount initially and then amending it in line with the expert report is a preferred method in practice.

In conclusion, the ecrimisil action is an important legal instrument in the protection of property rights. Property owners subjected to unjust occupation may claim unjust occupancy compensation by filing an action within the five-year statute of limitations. The collection of proper evidence, attention to statutes of limitations, and obtaining legal support from an expert lawyer are of great importance for the successful conclusion of the action.

This article has been prepared for general informational purposes and does not constitute legal advice. Professional legal support from an expert lawyer must be obtained in specific disputes.