There are certain rights recognized by the legal system, such as real rights like ownership and personal rights like tenancy. However, sometimes third parties—or even administrative authorities—may unlawfully interfere with the exercise of these rights. One of the most effective legal remedies available to put an end to such unlawful interference is the lawsuit known as Legal Action Against Trespass, also referred to as Action for Prevention of Unlawful Interference. In this article, we will explain what this lawsuit entails, under what conditions it may be filed, the additional claims that may be raised within the same action, the legal consequences of the judgment, and answers to frequently asked questions.
What Is a Legal Action Against Trespass and Unlawful Possession?
Ownership is a real right that grants the broadest range of powers over movable or immovable property. To fully understand what a trespass prevention lawsuit entails, it's essential first to understand the rights stemming from ownership. The owner has the right to use the property, benefit from its economic value and natural fruits, and dispose of it through legal acts such as a sale contract. However, the owner's ability to exercise these powers may be limited either by third-party interference or administrative action, such as de facto expropriation by the state.
In such cases, as stated in Article 683/2 of the Turkish Civil Code: "The owner may file an action for recovery of possession against anyone who unlawfully possesses the property, and may also bring an action to prevent any form of unlawful interference." Accordingly, the owner has the right to file a lawsuit to terminate the unlawful interference.
Moreover, this lawsuit may also be applicable to the protection of other real or personal rights beyond ownership. In a precedent by the Turkish Court of Cassation, it is affirmed that: "Any person who suffers harm due to excessive, abusive, or irresponsible use of property rights by a neighboring property owner—whether based on ownership, a limited real right (such as usufruct or easement), or a personal right (such as lease or partnership)— may file a trespass prevention lawsuit. In practice, where the abusive use does not affect neighboring land but affects individuals (e.g., excessive noise), it is accepted that the plaintiff must have actual control over the property. This control must derive from a real or personal right. Therefore, for someone to bring such a lawsuit as a neighbor, they must base their claim on a real or personal right and must have suffered harm as a neighbor. Those who do not have actual control over the property and merely claim that the property right is being abused must pursue legal action under public law, not under Articles 730 or 737 of the Civil Code." (Turkish Court of Cassation 7th Civil Chamber, Decision dated 30.05.2023, Case No. 2022/968, Decision No. 2023/2955)
Conditions for Filing a Legal Action Against Trespass
In order to bring a legal action to prevent trespass or unlawful possession, certain conditions must be met. When these requirements are satisfied, the competent court may accept and adjudicate the claim. Below is a breakdown of the necessary conditions:
1. The Plaintiff Must Hold a Real or Personal Right Over the Property
The person initiating the action must have a real right such as ownership, pledge, usufruct, or habitation over the movable or immovable property in question. Even if the plaintiff does not possess a real right, they may still bring this action if they hold a valid personal right—such as one derived from a lease agreement—and that right has been unlawfully interfered with.
2. There Must Be an Interference With the Real or Personal Right
Any act that restricts the lawful exercise of rights over the property, based on a valid legal relationship, constitutes interference. This interference—which qualifies as trespass—can take various forms, including:
- In co-ownership, one co-owner preventing another from exercising their share rights over the property;
- A neighboring landowner constructing walls, fences, or other structures that unlawfully encroach on adjacent land;
- The administration taking control over a property without following legal procedures;
- Retaining possession of a property based on a legal relationship that has never existed, has expired, or is otherwise invalid.
3. The Interference Must Be Unlawful
The interference must not be based on a valid legal right recognized by law. For instance, a tenant using the property under a valid lease agreement cannot be deemed to have committed unlawful interference. However, if the lease has expired and the tenant refuses to vacate the premises against the finalized judgment, that tenant would then be considered as trespassing, and the owner would have the right to initiate a legal action against trespass.
4. The Interference Must Have Already Begun or Be Imminent
The lawsuit may be filed to stop an ongoing act of interference or to prevent a clearly impending act of trespass.
The Turkish Court of Cassation has clarified this issue as follows:
"As a rule, a trespass prevention lawsuit may only be brought after the harm has occurred. Claims based on the possibility of future harm must be rejected. However, in exceptional cases, if it is highly likely or certain that harm will occur in the near future, the plaintiff should be entitled to take legal action to prevent the anticipated harm, without having to wait for the damage to materialize." (Court of Cassation, 7th Civil Chamber, Decision dated 19.01.2022, Case No. 2021/8288, Decision No. 2022/626)
Trespass Lawsuits in Co-ownership and Joint Ownership Structures
In general terms, a legal action against trespass is initiated by a person whose real or personal right has been violated, against the person who committed the unlawful interference. However, in cases involving co-owned property, it is also important to clarify who may file such a lawsuit.
In jointly owned or co-owned property, decisions regarding the management and disposition of the property are typically made:
- By unanimous consent in cases of joint ownership (elbirliği mülkiyeti), and
- By majority vote or mutual agreement in co-ownership (paylı mülkiyet).
However, as an exception, any co-owner may take individual action to protect the property from harm. Therefore, an action to prevent trespass may be brought by one, some, or all co-owners, regardless of whether the property is under joint or co-ownership. The court's decision will be binding for all co-owners.
On the other hand, it may be that one co-owner is using the property in a way that infringes upon the rights of the other co-owners. In such cases, the aggrieved co-owner has the right to bring a trespass prevention lawsuit against the co-owner committing the interference, to put an end to the violation.
Additional Claims in Legal Actions Against Trespass
A person whose rights have been unlawfully interfered with may, depending on the specifics of the case, request various additional remedies along with the legal action against trespass:
1. Request for Restoration of the Property
If the act of trespass has caused physical damage or alterations to the property, the plaintiff may request the restoration of the property to its original condition. In cases where the interference involves the construction or extension of a structure onto the plaintiff's land, they may demand the removal or demolition of the encroaching structures.
This principle is well illustrated in a Court of Cassation decision concerning the removal of an illegal structure:
"In accordance with the court's prior ruling, and based on the report prepared by a panel of expert architects and engineers, it was concretely determined—through a before-and-after comparison—that the unauthorized structure on the plaintiff's land caused substantial harm, including environmental disruption, depreciation in value, and loss of view. Given the country's efforts to eliminate unauthorized construction following recent earthquakes, and the potential for irreparable harm if the structure remains, the court concluded that the encroachment clearly exceeded tolerable limits. The court ordered the demolition of the illegal three-story extension attached to the building marked 'A' on the expert report." (Court of Cassation, 7th Civil Chamber, Decision dated 19.02.2024, Case No. 2024/150, Decision No. 2024/728)
2. Claim for Compensation (Ecrimisil)
The plaintiff may also seek compensation for damages, unjust enrichment, or unlawful use of property.
To be awarded a compensation, the following conditions must be met:
- The occupation must be unlawful, i.e., not based on a valid legal right;
- The occupant must have acted in bad faith, meaning they knew or should have known that their use was unauthorized;
- The occupation must have caused measurable harm.
If these conditions are satisfied, the rightful owner may claim damages for wear and tear, loss in market value, or lost profits that could have been earned had the property been lawfully used.
It is important to note that under the principle of bindingness to claims, the court will not automatically rule on these additional remedies. The plaintiff must explicitly request such relief in the lawsuit. Therefore, depending on the circumstances, asserting these claims in addition to the primary trespass action is legally necessary.
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Consequences of a Legal Action Against Trespass
As a result of the court's ruling in an action for the prevention of unlawful interference, the person who committed the interference will be ordered to cease possession, completely terminate the unlawful interference, and compensate for any resulting damages. By enforcing this judgment, the legal action will achieve its purpose.
As a general rule, a judgment in a trespass action can be enforced before it becomes final (i.e., before the appeal process is complete). Likewise, decisions concerning unjust occupation compensation may also be enforced without waiting for finalization.
However, in some cases, enforcement is subject to the judgment becoming final. For instance, if the person interfering with the immovable claims to have a real right, such as ownership, then the court must first resolve that dispute. According to Article 350/2 of the Tu rkish Code of Civil Procedure:
"Judgments regarding personal status, family law, and real rights on immovable property cannot be enforced until they become final."
In such cases, the court's ruling can only be enforced after the completion of appeal and cassation stages, if applicable. Therefore, enforcement of the judgment will be deferred until it becomes final.
Jurisdiction and Venue in Trespass Actions
Unless otherwise specified by law, civil courts of first instance have jurisdiction over trespass cases.
As for venue, it depends on whether the property in question is movable or immovable:
- If the interference involves immovable property, the court located in the property's district has exclusive jurisdiction.
- If the case involves movable property, general venue rules under the Code of Civil Procedure apply, meaning the lawsuit should be filed in the defendant's place of residence.
Statute of Limitations in Trespass Actions
A trespass action can be filed at any time while the unlawful interference continues, with no time limitation.
However, if the interference has already ended, the case may be classified as a tort (unlawful act), and thus will be subject to the general statutes of limitation:
- 2 years from the date the plaintiff becomes aware of the act and the perpetrator,
- Or a maximum of 10 years from the date the unlawful act occurred.
Frequently Asked Questions
In what situations can a trespass action be filed?
It may be filed in the following cases: Unauthorized entry onto real property without the owner's consent, Encroachment on property boundaries by a neighboring owner (e.g., wall or fence overreach), Obstruction by one co-owner of another co-owner's right to use shared property, Continued possession of movable property without legal grounds.
What is a legal action against trespass, and how is it filed?
It is a lawsuit aimed at stopping unlawful interference with one's real or personal rights. It is filed by submitting a petition to the competent and authorized court along with relevant evidence.
How long does a trespass lawsuit take?
The duration depends on factors such as the evidence, additional claims, and court workload. If the defendant asserts real ownership rights, the court will treat this as a preliminary issue and resolve it before addressing the trespass claim. For a swift and effective resolution, the process should be handled by a professional legal team.
Is a formal notice (warning letter) required before filing a trespass claim?
As a rule, no prior notice is required. However, if compensation is also sought, serving a notice may help establish an earlier date for interest accrual on the damages.
What is the compensation for unlawful possession?
Unjust occupation compensation is a legal remedy that allows the property owner to recover financial losses caused by unlawful occupation. It may be claimed alongside the trespass action or separately within 5 years.
Conclusion
In conclusion, a legal action against trespass and unlawful possession is an effective legal remedy for protecting the rights of owners of movable or immovable property. The action allows not only for the termination of the interference but also for compensation of resulting damages.
Depending on the nature of the interference, the plaintiff may request the demolition of structures, restoration of the property, or other appropriate reliefs. Property owners facing unlawful interference should act without delay to protect their rights and avoid financial loss by filing the appropriate lawsuit and asserting all relevant additional claims.
The execution stage of judgments in trespass actions must also be handled with precision, considering the specific nature of the interference. Therefore, it is highly recommended that both litigation and enforcement stages be conducted under the guidance of experienced real estate attorneys in Turkey.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
