Ecrimisil case

Ecrimisil case, also known as unfair occupation compensation case, is a compensation case filed against the occupier by people who cannot use their real estate as they wish due to unfair occupation. There is no legal provision in private law regarding ecrimisi. However, this concept has been described as unfair occupation compensation by the Supreme Court jurisprudence. Varying decisions have been made by the Supreme Court regarding whether extortion is subject to tort provisions or lease provisions. According to the Supreme Court of Appeals Jurisprudence Unification decision dated 08.03.1950, which is still valid today, the legal nature of ecrimisil has been determined as a tort.

CONDITIONS OF THE ECRMISIL CASE

We have stated above that there is no legal regulation in private law regarding ecrimisi. However, the nature and conditions of ecrimination have been determined by judicial decisions. Accordingly, the conditions for requesting compensation are;

1-Existence of unfair occupation,

2-The bad faith of the person occupying the real estate,

3-Occurrence of damage,

4-Causal link between unfair occupation and damage,

It is possible to count as. These conditions will be examined separately under the headings below.

WHAT IS UNFAIR OCCUPATION?

There are various legal reasons for gaining possession of a property. However, taking complete possession of a property and keeping it without a legally valid reason is defined as unjust occupation. In case of unfair occupation, the owner of the property does not have any consent to the transfer of possession. Property is taken from the owner without his consent. In addition, unjust occupation also comes to the fore in cases where the possession is transferred by the owner of the property but the consent is later revoked. For example, a tenant who continues to use the property after the lease has expired may become an unjust occupier.

BALISM IN THE ECRIMISIL CASE

As we mentioned above, another condition for demanding remuneration is that the occupier has bad intentions. By good faith possessor, we mean the possessor who does not know or is not in a position to know that he is wrong. Bad faith refers to the fact that injustice is known or could be known if necessary care is taken. As a matter of fact, Article 3 of the TMK states: "However, a person who does not show the care expected from him according to the requirements of the situation cannot claim good faith." It is shaped like.

In the case of Ecrimisil, the bona fide possessor is not obliged to pay compensation. The basis of this rule is Article 993 of the Turkish Civil Code. According to the relevant article: "The possessor who uses or benefits from the thing he possesses in good faith, in accordance with his presumptive existing right, is not obliged to pay any compensation to the person to whom he is obliged to return that thing."

In a decision dated 2017, the 8th Civil Chamber of the Supreme Court of Appeals stated that the well-intentioned possessor cannot be held responsible for the compensation for extortion. "It should be noted immediately that the encumbrance is the compensation for unfair occupation that the malicious possessor is obliged to pay to the owner of the immovable property due to his use of the immovable property. In that case, it is impossible to accept the plaintiff-counterdefendant as superfluous. In the face of this situation, after the decision to prevent encroachment, the plaintiff-counterdefendant It is not correct to be held liable for retaliation. Again, from the scope of the file, it has been seen that the plaintiff-counter-defendant had purchased the immovable property externally and rebuilt it based on good faith, with the belief that it would be transferred to him in the future, and that he had removed some of the trees on the real estate during the zoning renewal and planted other trees in their place, and that the plaintiff-counter-defendant had continued to use the immovable property as a bona fide possessor until the date of the lawsuit, which is regulated in Article 993 of the TMK. It is undisputed that the possessor can benefit from the rights granted to the possessor in good faith. Accordingly, the possessor who has benefited from the immovable property in good faith is not obliged to pay compensation to the person to whom he is obliged to return it, and is not responsible for its loss, destruction or damage. In the face of these established facts, it is not deemed appropriate to award compensation for the cost of the trees that were claimed to have been on the immovable property before.

In addition, a well-intentioned wrongful possessor may ask the person who wishes to return the thing to compensate him for the necessary and useful expenses he has incurred for the thing, in accordance with TMK 994, and may refrain from returning the thing until this compensation is paid.

Article 995 of the TMK applies in terms of the criminal liability of the malicious and unjust possessor. According to the article; The malicious wrongful possessor must pay compensation to the rightful owner for the damages he caused to the rightful owner and for the products he obtained or neglected to obtain, due to his wrongful detention of the thing he was obliged to return.

It is not important whether the malicious wrongful possessor knows the owner of the goods to whom he will return the goods or not, in terms of criminal liability. As we mentioned above, the basis of ecrimination is unjust occupation. It is not necessary to know who owns the goods in terms of criminal liability due to unfair occupation. Damage occurred as a result of the action.

DAMAGE IN ECRMISIL CASE

According to the established Supreme Court jurisprudence, in order for the request for compensation to be accepted, the right holder must suffer damage due to unfair occupation. However, the mere fact that the rightful owner cannot benefit from the thing subject to occupation should be interpreted as being damaged.

In some of its decisions, the Supreme Court sought to determine whether the unjustly occupied place was used for an economic purpose in order to accept the remuneration request. If the owner of the property does not intend to use the occupied property for an economic purpose, he rejects the demands for compensation. There are many decisions in this direction. However, there are also decisions to the contrary, which we also agree with.

In a decision of the Supreme Court HGK dated 2014;

"There should be a reward for a person's use of real estate, which he knows belongs to someone else, as his own property, without any legal basis, and thus providing economic benefit; in this respect, the person using this place must pay unfair occupation compensation to the rightful owners; and since the fact that the unfairly used real estate is not dedicated to generating income for the purpose of economic allocation is not found to be effective on the result, it is against the procedure and law to resist the previous decision with contrary thoughts, while the decision of reversal of the Special Chamber should be complied with." He ruled as follows.

As can be understood from the decision, economic allocation condition is not required for the acceptance of bonus requests. Again, this condition was not required in recent decisions given by the Supreme Court of Appeals. A decision of the 8th Civil Chamber of the Supreme Court of Appeals dated 2019, referring to the HGK decision mentioned above;

"For this reason, the positive damage that occurs in the form of obsolescence as a result of normal use arising from unfair occupation, the positive damage resulting from use, and the benefit (negative damage) that the owner or possessor is deprived of, determine the scope of reprisal. Unfair occupation is an unfair action. On the other hand, in order to be judged with reprisal, it is not necessary to prove how the plaintiff party obtained economic income from the real estate, and even the fact that the unfairly used real estate is not dedicated to generating income for the purpose of economic allocation does not have an effect on the result." It was established as follows:

We agree with the decisions made by the Supreme Court in this direction, and we are of the opinion that the rightful owner should be deemed to have suffered damage only due to not being able to use the goods. Ecrimisil compensation is a type of compensation that must be paid in return for unfair use and does not require proof of damage.

EXCLUSIVE LIMITATION

As we stated above, the Supreme Court accepts the legal nature of ecrimisi as a tort. The statute of limitations for torts is 10 years. However, the Supreme Court of Appeals applies a 5-year statute of limitations in ecrimination cases, as in lease agreements.

According to the practice, ex-gratia compensation can be requested retroactively 5 years from the date the case was filed. In the Ecrimisil case, the statute of limitations begins on the date the case is filed.

ECRIMISIL AMONG THE HEIRS

In case of joint ownership, partners do not have specified shares. Each partner has rights over all assets of the partnership. In order for the heirs to claim compensation against each other, the condition of prohibition of usufruct must be met. In a decision dated 2015, the 1st Civil Chamber of the Supreme Court of Appeals said, "As a rule, stakeholders cannot request compensation from each other unless they are prohibited from doing so. The fulfillment of the condition of prohibition from usufruct depends on the defendant shareholder being notified of the plaintiff shareholder's desire to benefit from the immovable property or its income that is the subject of the lawsuit, before the period for which compensation is requested." stated as follows.

In order for stakeholders to claim remuneration, the condition of disqualification from usufruct will also be required.

WHAT IS THE PROHIBITION FROM RESIGNATION?

The word 'ban from usufruct' means objection to use. If another stakeholder or partner, who occupies more than his/her right, objects to the use of the extra space he/she occupies and prevents such use, it is called prohibition of usufruct. Prohibition from usufruct can be made verbally or in writing and can be proven with all kinds of evidence. However, for ease of proof in practice, it is recommended to issue a warning through a notary. In a decision dated 2003 by the 3rd Civil Chamber of the Supreme Court of Appeals, "In order for the condition of prohibition of usufruct to be fulfilled between the stakeholders of a real estate, it is sufficient for the requesting shareholder to continue to dispose of the real estate at a rate exceeding its share in the real estate, even though the requesting shareholder has conveyed to the other party his desire to benefit from the real estate, and the existence of the actual act of prohibition does not need to be proven." He stated as follows.

The claim that the condition of disqualification from usufruct has been fulfilled can be proven with all kinds of evidence, including oath. Since this condition is a condition of litigation, the court must investigate and determine whether it has been fulfilled or not. In the following cases, the condition of disqualification from usufruct is not required:

- The immovable property is public property,

- The immovable property for which payment is requested must be in places that produce natural products such as vineyards and gardens,

- The immovable property for which payment is requested must be from a place where legal income is obtained by renting, such as a workplace or a residence,

- The stakeholder who occupies the shared real estate claims the entire place and denies the shareholding of others,

- As a result of the usage agreement made between the stakeholders, the common real estate or sections that will benefit each stakeholder are determined,

- The plaintiff has previously filed lawsuits or enforcement proceedings against other stakeholders regarding this real estate regarding the prevention of seizure, dissolution of partnership, fines and similar lawsuits,

- Products that occur spontaneously in terms of the product brought by the immovable property; The occupation of mowed grass, collected hazelnuts, tea, or businesses established by muris, or businesses that generate income on their own.

WHO CAN A CRIMINAL CASE BE FILED BY?

Ecrimisil lawsuit is filed by the person/persons who have rights over the occupied thing. Other rights holders other than the owner may also file a lawsuit for compensation. These people may have limited real rights or personal rights.

In cases of shared or joint ownership, each stakeholder has the right to file a civil suit. All stakeholders do not need to file a lawsuit together.

COURT IN CHARGE OF ECRMISIL CASE

The court in charge of the Ecrimisil case is the civil court of first instance. Although the Supreme Court has made decisions stating that the court in charge of the requests for compensation between flat owners is the civil court of peace, it appears that in its decisions in recent years it has adopted the rule that the duty belongs to the civil court of first instance. As a matter of fact, this situation was stated in a decision of the 20th Civil Chamber of the Supreme Court of Appeals dated 2017 as follows: "In the Additional Article 1 of the Condominium Law No. 634, it is stipulated that any dispute arising from the implementation of this Law will be resolved in the civil court of peace. Since the Ecrimisil case does not arise from the implementation of the Condominium Law, the said article of the Law is not applicable in terms of this request, and the dispute must be concluded in accordance with the general provisions, taking into account its value." We think that the court responsible for agreeing with this opinion of the Supreme Court is the civil court of first instance.

The competent court is determined according to general jurisdiction rules. Therefore, in an ecrimisil case, the competent court is the court where the defendant resides. As a matter of fact, in a decision dated 2015, the 1st Civil Chamber of the Supreme Court of Appeals said, "Since the cases that are subject to the receivables are not related to the same immovable property, the absolute authority rule does not apply. For this reason, in the cases in which the receivables are subject to legal action, the authority is not related to public order, and the jurisdiction objection can only be raised as an objection. It is clear that there is no absolute authority in the decision based on the request, and the court cannot be observed ex officio and cannot give a decision of lack of jurisdiction on its own." He stated as follows.

HOW TO MAKE A CREDITS ACCOUNT?

According to the established decisions of the Supreme Court, when calculating the penalty, the calculation is made according to the minimum rental income and the maximum total income deprivation. Ecrimisil, the minimum that the malicious shagil has to pay is rental income, and the most is complete income deprivation. Scope of Ecrimisil;

1- Positive damage in the form of wear and tear as a result of normal use arising from unfair occupation,

2- The benefit (negative damage) that the owner or possessor is deprived of,

3- Determines the positive harm resulting from use.

Determination of the penalty fee based on rental income. As stated in a decision of the 8th Civil Chamber of the Supreme Court of Appeals dated 2019;

"In principle, in determining the rental income, the rental money that the real estate can bring under free conditions in the first period that is the subject of the case is determined according to the local market by comparing it with comparable rental agreements and taking into account the size, quality and environmental characteristics of the real estate. The interest rate for the following periods is determined not less than the amount to be found by reflecting the entire PPI increase rate to the amount determined for the first period."

Since the calculation of credit is a matter that requires expertise, the calculation should be determined by discovery and examination by an expert. The expert report must be based on concrete information and documents and must be open to the inspection of the parties and the judge. It is possible to list the properties of the real estate that affect the ecrimisil price as follows.

1- Zoning status of the real estate,

2- Area,

3- Quality,

4- If it is agricultural land, its productivity,

5- Benefiting from infrastructure services,

6- Location of the real estate,

7- The income it can generate if used in its state before the occupation, 8- The current value, taking into account the rents or penalties incurred for comparable immovable properties located in the same place and locality, final judicial decisions regarding them, if any, and, when necessary, the information to be obtained by investigating institutions such as the municipality, chamber of commerce, chamber of industry, chamber of agriculture, stock exchange, or experts, and all factors that will affect the value of the immovable.

ECRIMISIL INTEREST CALCULATION

Interest may be charged on your Ecrimisil request as of the date of birth of the receivable. For this reason, it is important to determine the date when the unjust occupation began. Legal default interest is charged on ex-gratia requests from the moment of malicious occupation. In other words, it is not mandatory to accrue interest from the date of the lawsuit. If interest is requested from the date of the lawsuit, the judge will be bound by the request and will not award more.

Legal interest must be charged on the reward amount determined for each year, starting from the end of the period of that year.