Adequate Pay in Turkish Law
The adequate pay, in other words, the concept of unfair occupation compensation, is generally included in the doctrine as a lawsuit that compensates the damage suffered by the real right owner as a result of the malicious possessor’s detention and unjust use of the goods in question. The person who is right can claim compensation from the malicious person with this case. In other words, adequate pay is a kind of unfair occupation compensation. As a rule, adequate pay is arranged to protect the right to property. In some cases, although there is no legal relationship, there are situations that make the right owner victimized by establishing possession on a property without good intentions. The adequate pay case is a legal institution that can be based on in such cases. For example, the planting and use of crops by other than the heirs on the inherited field may raise this case.
This lawsuit is directed to the person who uses the immovable without any right and occupies the property unnecessarily. Compensation can be claimed from the rent income obtained from the occupant of the immovable as occupation compensation, up to the loss of income that the right holder is deprived of.
The title deed registration of the immovable, which is claimed to have been unjustly occupied, obtained from the Land Registry Directorate of the place where the immovable is registered or taken from the system, should be added to the case file.
THE CONDITIONS OF ADEQUATE PAY CASE
Certain conditions have been stipulated for the Adequate Pay Case.
1. The property must be unjustly occupied by another person.
Using this immovable without the permission of the owner constitutes the element of occupation. Situations such as using the immovable without permission, making construction without permission, engaging in agricultural activities are examples of this. If there is no occupation, the ecrimisil case has no subject. However, it is not necessary for the occupation to be continuous. In practice, it is seen that seasonal and periodic occupations are also in question in some cases. Whether there is an occupation or not will be determined as a result of exploration and expert examination. The starting date of the occupation, the information of the invader and the purpose of use are important. As a rule, the plaintiff can prove the existence of the occupation with any kind of evidence.
2. The defendant must be in the position of unfair possession.
In this regard, the person in question must not have a valid legal title or right. Otherwise, it will not be able to become an invader.
3. The occupation must be done in bad faith.
The invader is considered malicious if he knows or should know that he is wrong. The legal order does not protect bad faith. The characteristics of the concrete event are taken into account while determining the bad faith. For example, it is accepted that the person using an independent section, although it is not allocated to him in practice, is not in good faith. There will be no malicious intent if the plaintiffs perform this act with the permission of other heirs.
4. The plaintiff must suffer damage.
According to some opinions, it is argued that even if the plaintiff is not harmed, the ecrimisil case can be filed.
CASE OF ADEQUATE PAY BETWEEN SIBLINGS
The adequate pay case between heirs is frequently seen among siblings in practice, but also frequently comes up among other heirs. If it is necessary to give an example from practice, the fact that a single sibling has used this immovable for years on an immovable to which all siblings have rights will bring up the case of adequate pay. However, it should be noted that first of all, the other party should be prohibited from using.
ACTION OF ADEQUATE PAY BETWEEN OTHER HEIRS
The case of adequate pay, which is frequently encountered between siblings in practice, may also come to the fore among other heirs. In this case, it is not necessary for all stakeholders to come together. As a rule, each heir can file a lawsuit for ecrimisil on his own behalf. After providing the condition of barring from usufruct, the heir requesting ecrimisil can go to court.
THE CASE ADEQUATE PAY AND THE CONDITION OF PROHIBITION OF USING
In particular, immovable property subject to co-ownership, which is formed through inheritance, remains in this form for many years without being divided among the heirs and without terminating this co-ownership. In this way, it is treated as if it were the property of a single person. In order for one of the stakeholders to demand compensation from the other stakeholder who used that share for the share he could not use, he should be notified because prohibiting from using. As a rule, prohibition from using is a notification made by other heirs against the heir who unjustly holds and uses an asset. With this notification, other heirs also declare that they want to benefit from this property. Banning from resignation is usually done by issuing a warning. However, in some cases, it is not necessary to meet the condition of prohibition from using. These cases are;
1. In case the immovable belongs to the state
2. Obtaining rental income from the real estate
3. Earning income by growing agricultural products on the said real estate
4. The fact that the immovable in question has been the subject of another lawsuit before
5. Claims of the person who occupies the property unjustly on the whole of the real estate in question.
After the condition of prohibition from using is met, the heir brother who requests adequate pay can file a lawsuit and initiate the legal process.
The ecrimisil case, which is frequently encountered between siblings in practice, may also come to the fore among other heirs. In this case, it is not necessary for all stakeholders to come together. As a rule, each heir can file a lawsuit for ecrimisil on his own behalf. After providing the condition of prohibition from using, the heir requesting adequate pay can go to court.
WHERE CAN THE CASE OF ADEQUATE PAY OPENED?
The court in charge of the case of adequate pay is the civil courts of first instance. The court of the defendant’s place of residence will act as the competent court. In this context, you can start your legal process in the civil court of first instance of the defendant’s place of residence. An action for compensation can also be filed in the civil court of first instance of the place where the immovable is located.
WHAT IS REQUESTED IN THE CASE OF ADEQUATE PAY?
1. Return of the goods in question
2. Revenues, products, obtained by the unjust person
3. Incomes, products that the unjust person neglected to obtain
4. Loss of value in the property as a result of the unfair person’s use of the property
With the case of adequate pay, the loss arising from the minimum rental income can be compensated. The amount of compensation is calculated by taking into account the characteristics of the concrete event. During this calculation, aspects such as the location, surface area, zoning status, qualifications and current value of the property subject to the tax are taken into consideration.
LIMITATION PERIOD IN ADEQUATE PAY CASE
A 5-year statute of limitations has been foreseen for the case of adequate pay. The 5-year statute of limitations will begin to run backwards from the date of the lawsuit. This period was accepted as a result of the Supreme Court Jurisprudence Unification Decision and the established jurisprudence of the Supreme Court. For example, a person who filed a lawsuit in 2020 can claim adequate compensation until 2015, the period is retroactive.
For more detailed information on the case of adequate pay, you can contact us.