Concept and Purpose of the Lawsuit

The lawsuit for the prevention of unlawful interference (el atmanın önlenmesi davası) is fundamentally aimed at protecting the right of ownership. In addition to property rights, this type of lawsuit is also applicable in the context of: prevention of interference with titled immovable property, prevention of interference among co-owners, prevention of interference arising from neighborhood law, prevention of encroachment onto roads, prevention of interference with water sources, prevention of interference with pastureland, and prevention of interference caused by base stations.

The above-mentioned lawsuits are protective legal actions brought against those who interfere unlawfully, not only against violations of property rights but also against illegal interferences with limited real rights or personal rights (such as ownership, usufruct, right of residence, lease, etc.). The objective is to stop an ongoing or imminent act of unlawful interference. This type of lawsuit is also known as an “action for prevention of interference” or “action for prevention of trespass.”

1. Plaintiff and Defendant

Plaintiff: Real or legal persons who own the immovable property have the legal standing to file a lawsuit if their property is being occupied by another person or by neighboring parcel owners. Heirs, as well as holders of personal rights such as lease or usufruct, may also file a lawsuit. In cases of joint ownership, any co-owner may file a lawsuit concerning the entire property (Turkish Civil Code Art. 693/3).

Defendant: The third party or parties violating the right. If the interference is carried out jointly by multiple real or legal persons, all must be named as defendants. When the lawsuit includes a demolition request in addition to the prevention of interference, not only the interfering party but also the owner of the structure subject to demolition must be included as a defendant. Otherwise, the court cannot rule on the demolition request.

2. Jurisdiction and Competence

Competent Court: According to Article 12/1 of the Code of Civil Procedure, in matters concerning immovable property, the competent court is the Civil Court of First Instance where the immovable property is located. If there are multiple properties involved, the case may be filed in a court located where any one of the properties is situated.

Authorized Court: For disputes involving immovable property, the authorized court is the Civil Court of First Instance under the Code of Civil Procedure. The same applies to movable property cases.

3. Evidence and Procedure

The title deed of the disputed immovable property should be summoned from the Land Registry Directorate with all its records through the preparation of a preliminary report. Additionally, a map of the property should be obtained from the Cadastral Directorate and included in the case file. An on-site inspection is mandatory to establish a substantive judgment. Witnesses of the parties should be heard not in the courtroom but on-site during the inspection. If the lawsuit includes a demolition claim alongside the request for prevention of interference, the court must also examine the issue of demolition and assess the potential for excessive damage resulting from demolition through on-site inspection and expert review.

4. Procedural Rules

As lawsuits for the prevention of interference are contentious in nature, the written procedure applies to these cases.

Procedural Time Limits: As long as the unlawful interference continues, the lawsuit can be filed at any time; it is not subject to any statute of limitations or forfeiture period. However, once the interference has ended, only a claim for retroactive compensation (such as unjust occupation compensation — ecrimisil) can be pursued, and the lawsuit for prevention of interference can no longer be filed. After the interference ends, only the statutory limitation periods provided in the Code of Civil Procedure and relevant articles apply for compensation or ecrimisil claims.

5. Claims and Outcomes

Prevention of Interference: The plaintiff demands that the defendant cease the interference and refrain from repeating it.

Request for Precautionary Measures: In urgent cases, a request for interim relief may be made under Article 389 and following of the Code of Civil Procedure; the court may decide on a temporary halt to the interference.

Ecrimisil (Unjust Occupation Compensation): Alongside or separately from the main case, a lawsuit may be filed for unjust occupation compensation.

Demolition: In lawsuits for the prevention of interference, if the owner of the structure is also included as a party, and if relevant title and cadastral documents are summoned, along with an inspection and expert review, the court may rule both for the prevention of interference and for the demolition of the structure.

Within the procedural and substantive framework outlined above, lawsuits for the prevention of unlawful interference are among the fundamental legal remedies available to holders of real or personal rights. Commonly practiced and supported by jurisprudence, this legal action ensures effective protection against unlawful violations of property and similar rights.

Attorney Batu Atabek

This article is about lawsuits for the prevention of unlawful interference (el atmanın önlenmesi) in Turkey.