Lawsuit to Prevent Infringement in Joint Ownership under Turkish Law
Joint ownership, as defined in Article 688/1 of the Turkish Civil Code, refers to a situation where multiple individuals hold specific shares of an undivided property.
Article 688/3 of the same code states that each co-owner has the rights and obligations of an owner concerning their share. Therefore, each co-owner has the right to file a lawsuit to prevent infringement, which is one of the authorities provided by ownership.
A co-owner may first file this lawsuit against another interfering co-owner. In this case, determining the existence of an agreement recorded in the Land Registry regarding the usage of the property is important, as such an agreement may define how each co-owner can use the property and within what limits.
If there is no such agreement, the existence of an external division or de facto usage among the co-owners should be determined. This situation must be preserved until an official division in the land registry, the sale of the co-ownership, or the implementation of zoning regulations, in line with the principles of justice and fairness.
When an agreed de facto usage is accepted among the co-owners, a co-owner’s lawsuit to prevent infringement against other co-owners in the area allocated to them is not accepted, as it violates the rules of good faith.
Another possibility is that a co-owner may file this lawsuit against third parties. This right of the owner does not disappear even if the other co-owners have accepted the interference.
If the property subject to joint ownership is divisible and possession is according to the shares of the owners on these divided parts, each co-owner can request the prevention of infringement concerning their share.
Article 693/3 of the Turkish Civil Code grants each co-owner the authority to protect indivisible benefits on behalf of the other co-owners. According to this rule, the co-owners can file a lawsuit to prevent infringement concerning the entire property.
If the lawsuit is filed by one co-owner, the other co-owners can only benefit from the positive outcomes obtained from the lawsuit.
In a special case, it is necessary to mention the prevention of unlawful structures. If there is an unlawful or excessive structure erected on a property subject to joint ownership, and there is no agreement or de facto situation determining the areas left for the use of co-owners, all co-owners must be parties to the lawsuit for the demolition of this structure.
In this case, all co-owners have the ownership right over the structure, which has become part of the property, according to their shares.
You can review our article on the Lawsuit to Prevent Infringement (Eviction).
You can review our detailed article on Unlawful Construction and Excessive Structures.
Some Supreme Court Decisions on Lawsuits to Prevent Infringement in Joint Ownership:
(…) According to Article 691/1 of the Turkish Civil Code, lease agreements made without achieving the majority of shares and co-owners are not valid and are not binding on the co-owners.
Accordingly, it was incorrect to rule for compensation excluding the part defined as the basement used by the defendant without arranging a lease agreement by achieving the majority of shares and co-owners. (…) 1HD, Case No: 2014/21649, Decision No: 2017/2083, Date: 24.04.2017
(…) In that case, in the lawsuits to prevent infringement among co-owners, attention should be carefully paid to whether there is an external division agreement binding on all co-owners, a special parcel plan, or a de facto usage form, and if so, who is using the disputed area. If there is no external or de facto division, the dispute should be resolved according to the provisions of joint ownership as mentioned above.
In the concrete case, it was incorrect to dismiss the lawsuit by stating that the condition of “intifadan men” required in compensation lawsuits among co-owners was not met without conducting research as mentioned above. (…) 1HD, Case No: 2016/6490, Decision No: 2016/5900, Date: 10.05.2016
(…) The mentioned lawsuit was filed by the ¼ share owner … and the other ¼ share owners …, …, and … by appointing the same attorney.
The defendant … does not have any right arising from the land registry and ownership. The lawsuit is related to the request for the prevention of infringement for the entire property filed by the share owner and some share owner heirs based on the land registry.
Whether the property is subject to joint or collective ownership, all co-owners or heirs benefit from the lawsuit filed by some share owners or heirs against a third party to protect the property. (…) 8HD, Case No: 2018/3190, Decision No: 2019/3839, Date: 08.04.2019
(…) The lawsuit is about the request to prevent infringement among co-owners, and it was determined that the property located at parcel number 150 block 74 is registered as joint ownership in the names of the plaintiff, defendant, and third parties, and the entire property is used by the defendant. There is no inaccuracy in the decision to prevent infringement proportionally to the plaintiff’s share.
However, since the request in the lawsuit was for the prevention of infringement on the share and the entire lawsuit was accepted, it was incorrect to share the court fees and litigation expenses among the parties, although this was not a reason for reversal according to the status of the appellant.
The defendant’s appeal objections are not justified. The approval of the judgment is decided (…) 1HD, Case No: 2013/11524, Decision No: 2013/15070, Date: 04.11.2013
Lawsuit to Prevent Infringement in Joint Ownership under Turkish Law
