Prevention of Interference Lawsuit in Turkish Law

PREVENTION OF INTERFERENCE LAWSUIT

A prevention of interference lawsuit occurs when a property owner cannot fully or partially exercise their ownership rights due to unlawful actions by third parties, even though they have actual control over the property. In such a lawsuit, the owner requests the court to eliminate the unlawful actions. This type of lawsuit is commonly seen for registered properties and is also known as a “lawsuit for prevention of intervention.”

In Turkish law, an individual who owns something is granted the right to use, benefit from, and dispose of it within the limits of the legal order. The owner is given two different authorities with this right. The owner, in terms of active authority, has the right to use, benefit from, and dispose of the property. This authority is not unlimited and is subject to legal boundaries. The second authority granted to the owner is the owner’s passive or protective authority. With this authority, the owner can file a lawsuit to reclaim the property from those who possess it unlawfully and prevent any unjust interference. The right to ownership is a perpetual right that can always be asserted, and the owner can always seek the protection of their ownership rights.

WHAT IS THE PREVENTION OF INTERFERENCE?

The aim of the prevention of interference lawsuit is to terminate the interference or the threat of interference. The threat of interference may be a new occurrence in a concrete case or an ongoing situation that has the potential to recur. The prevention of interference lawsuit ensures that the owner can freely exercise their rights.

As a result of a prevention of interference lawsuit, the defendant will be compelled to terminate the interference or refrain from actions that may cause interference. The judgment rendered upon the acceptance of the owner’s lawsuit will be executed.

Since the prevention of interference lawsuit is based on a real right and constitutes a real claim, it is not subject to any time limit. This lawsuit can be filed at any time as long as the interference or the threat of interference continues. It is not subject to any statute of limitations. However, if the owner files this lawsuit after a very long time and it appears that they are abusing their right rather than protecting it, the legal order will not protect this. It should be noted that while the lawsuit itself is not subject to a time limit, the claim for compensation is subject to a statute of limitations.

FILING A PREVENTION OF INTERFERENCE LAWSUIT

Also known as a lawsuit for prevention of intervention, this type of lawsuit aims to terminate or prevent violations that obstruct or make it difficult for the owner to exercise their rights. Along with the owner, individuals with limited real rights over the subject matter can also file this lawsuit.

1. If the property has been taken from the owner, i.e., if the possession of the property has been partially or completely lost: a reclaiming lawsuit.

2. If the property has been subjected to any other attack: a prevention of interference lawsuit is filed.

It is necessary to determine whether to file a reclaiming lawsuit or a prevention of interference lawsuit in the concrete case.

Situations requiring the filing of a prevention of interference lawsuit:

– A prevention of interference lawsuit can be filed for any violation of rights that does not result in the loss of actual possession of registered immovables.

– A prevention of interference lawsuit can be filed if the individual has a real right over an unregistered immovable.

– For movable properties, if there is ongoing or terminable interference, a lawsuit can be filed since violations happen quickly.

– Natural forces are protected by a prevention of interference lawsuit.

– Negative easement rights are protected by a prevention of interference lawsuit (e.g., easement of view).

– The owner of a pledged property can file a prevention of interference lawsuit if the real owner tries to take the property.

CONDITIONS FOR FILING A PREVENTION OF INTERFERENCE LAWSUIT

Condition 1: The existence of interference with a real right over a movable or immovable property or the possibility of future interference.

The existence of current or potential interference is a condition for the lawsuit. If the situation has occurred and there is no risk of recurrence, a prevention of interference lawsuit cannot be filed. However, compensation for the damage caused by the interference can be sought. In the case of future interference, the threat of interference must have reached a danger level, not just a possibility. It must be almost certain.

Condition 2: The plaintiff must not be obliged to tolerate the interference, meaning the interference must be unjust.

The owner can generally file a lawsuit against any unjust interference. The term “unjust interference” refers to situations where the real right holder is not obliged to tolerate the interference.

For a prevention of interference lawsuit, the existence of damage and fault is not required.

Condition 3: The plaintiff must prove their ownership right over the property in question.

WHERE TO FILE A PREVENTION OF INTERFERENCE LAWSUIT?

If the subject of the lawsuit is;

1. An immovable property, the lawsuit is filed in the civil court of first instance where the immovable is located.

2. A movable property, the civil court of first instance at the place of residence of the defendant has jurisdiction.

3. If it concerns condominium ownership, the court of peace has jurisdiction.

COMPENSATION LIABILITY DUE TO INTERFERENCE

Interference with a person’s real right constitutes an absolute violation of rights. Consequently, there will be liability for compensation due to unlawful acts. However, if there is a contractual relationship between the parties, the plaintiff may legally base their claim on the principles of contractual liability. It should be noted that in lawsuits filed to prevent future interference, the damage has not yet occurred. Compensation liability depends on the existence of damage, and if there is no damage, compensation cannot be claimed. However, in exceptional cases, compensation liability may arise even if there is no damage. Especially if no precautionary measures were taken and the interference caused damage to the owner, the damage may be compensated if there is an appropriate causal link.

Compensation liability arising from unlawful acts is subject to a statute of limitations. The claim for compensation is barred by a statute of limitations after two years from the date the injured party learns of the damage and the party liable for compensation, and in any case, after ten years from the date the act was committed.

Additionally, a claim for mesne profits may also arise.

OTHER LAWSUITS THAT CAN BE FILED ALONGSIDE A PREVENTION OF INTERFERENCE LAWSUIT

1. If the owner wishes, they can file a lawsuit for the determination of ownership rights instead of a prevention of interference lawsuit.

2. The owner can also file a lawsuit to terminate the attack on their possession (subject to a statute of limitations).

3. The owner can also file a lawsuit for restitution and prevention of damage.

 

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