Lawsuit for Prevention of Interference Arising from Turkish Neighborhood Law

Article 683 of the Turkish Civil Code (TMK) regulates the use and protection of property rights in Turkey. According to this article, the owner has the right to use, benefit from, and dispose of the property as desired; however, this authority must be exercised within the limits of the legal order. Additionally, the owner can sue to prevent any unlawful interference. This fundamental principle also acknowledges that property rights can be restricted for the benefit of society. Furthermore, Articles 730 and 737 of the TMK aim to prevent real estate owners from causing harm to others.

 

Limitations arising from neighborhood law are regulated under the title of “neighbor’s right” in Articles 737 to 750 of the TMK. These limitations can be summarized as doing, refraining, and enduring. As a rule, for a lawsuit to prevent interference to be filed, the damage must have occurred. However, in exceptional cases, if damage is highly probable or certain to occur in the near future, a lawsuit to prevent the risk of damage can be filed. It is important to note that the defendant’s fault is not required; it is sufficient that there is a causal link between the defendant’s action and the plaintiff’s damage.

 

In lawsuits to prevent interference, it must first be determined whether there is interference that exceeds the tolerance and endurance limits of a normal person according to the specifics of the event. At this point, as emphasized in various decisions of the 14th Civil Chamber of the Court of Cassation in the Turkish Legal System, the objective sensitivity of every normal person should be taken as a basis, not the subjective and excessive sensitivity of the plaintiff. If excessive use is determined, measures to be taken to completely eliminate the interference or to bring it within tolerable limits should be determined through experts.

 

Article 738 of the TMK provides a special regulation for lawsuits to prevent interference arising from neighborhood law. According to this article, the owner is obliged to avoid causing damage to neighboring properties while excavating and constructing. In this case, unlike Article 737 of the TMK, there is no need to investigate whether the damage exceeds the limits of tolerance. Moreover, the majority of lawsuits filed based on Article 738 of the TMK are aimed at eliminating the risk of damage.

 

Disputes arising from naturally flowing waters are regulated in Articles 742 and 743 of the TMK. According to these articles, the owner of the lower neighboring property cannot prevent water from entering their land by creating obstacles, and the owner of the upper land cannot retain more water than necessary on their own land. However, if the water from the source is sufficient for that property, the owner of the lower property cannot demand water from that source.

 

In compensation lawsuits arising from neighborhood law, the amount of damage suffered by the plaintiff should be determined through an expert, and compensation should be determined according to this damage. It is important to note that the amount of compensation can never exceed the damage. However, if the plaintiff is at fault in increasing the damage, the amount of compensation should be reduced or completely eliminated according to Article 52 of the Turkish Code of Obligations (TBK).

 

Also, in cases where there is a request for demolition alongside the request to prevent interference, it should not be overlooked that all owners on the defendant’s parcel should be included in the lawsuit.

 

One of the issues frequently mistaken in practice is determining the competent court. It should not be forgotten that the civil court of first instance is competent in lawsuits filed after 01.10.2011, when the Code of Civil Procedure (HMK) No. 6100 came into effect.

 

Another important point is that the claim of mere non-compliance with zoning regulations is a matter of administrative law. Therefore, the court should determine how and in what way the plaintiff has been harmed and how these damages can be prevented before making a decision.

 

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