Unlawful and Encroaching Structure Lawsuits in Turkish Law
Unlawful and Encroaching Structures
Concepts of Unlawful and Encroaching Structures
Also known as “Unlawful Construction,” “Unlawful Structure” refers to an immovable structure built by a person on their own land with someone else’s materials, on someone else’s land with their own materials, or on someone else’s land with someone else’s materials. Additionally, “Encroaching Construction,” or “Partially Unlawful Structure,” known legally as “Encroaching Structure,” is defined as a structure built on a piece of land that extends beyond the boundaries of that land into neighboring land.
In this article, we will discuss the legal situations and consequences that may arise from the construction of unlawful and encroaching structures.
Legal Differentiation between Unlawful and Encroaching Structures:
Typically, constructing a structure on someone else’s land using one’s own materials is the most common form of unlawful structure. This situation bears significant similarity to encroaching structures, which are sometimes termed as “partially unlawful structures.” However, this does not mean that encroaching structures are subject to the same provisions as unlawful structures, as **encroaching structures are subject to separate regulations**.
Provisions for Unlawful Structures
According to Article 718/2 of the Turkish Civil Code (TCC), the ownership of land includes the ownership of structures on it. However, if a structure is built using someone else’s materials without a legal relationship between the parties, the issue of “unlawful structure” arises, which is resolved according to Articles 722-724 of the TCC.
In the first scenario, the landowner uses someone else’s materials to construct a structure. The owner of the materials may request the return of the materials after dismantling them, demand compensation, or request the transfer of the land’s ownership. Dismantling the materials should not cause excessive damage, and the compensation amount is determined based on the landowner’s good faith.
In the second scenario, the material owner constructs the structure. The removal of the materials or the demand for compensation is again subject to excessive damage, and the good faith of the material owner is important.
In the third scenario, neither the material owner nor the landowner constructs the structure, and in such cases, the provisions of Articles 722-724 of the TCC are applied by analogy.
Provisions for Encroaching Structures
An encroaching structure occurs when part of a structure built on a piece of land extends beyond the boundaries into neighboring land. This situation constitutes an exception to the principle stated in Article 718/2 of the TCC.
According to Article 725 of the TCC, if the person who built the encroaching structure has an easement right on the encroached land, the encroaching part is considered an integral part of the structure. In this case, the person who built the encroaching structure has the right to request an easement from the landowner.
For this request to be valid, the landowner must not object within fifteen days of becoming aware of the encroachment, and the person who built the encroaching structure must be in good faith. If these conditions are met, the ownership of the encroaching part can be transferred for an appropriate fee or an easement can be established.
In this case, the landowner subjected to the encroachment will be obligated to establish an easement right. The established easement will be for the benefit of the property. This provision prescribes a real obligation attached to the property, so if the landowner transfers the ownership, the requirement to establish an easement for the benefit of the property can also be demanded from the new owner.
Lawsuits against Unlawful and Encroaching Structures
Action for Prevention of Intervention (Prevention of Trespass)
If a person has unlawfully constructed a structure on someone else’s land without permission, the landowner may file an action for prevention of intervention. In this lawsuit, the landowner can request the demolition of the structure and the payment of expenses incurred by the person who built the structure. This right is based on the provision defining property rights in the Turkish Civil Code.
Unjust Enrichment (Compensation for Unlawful Occupation)
Unjust enrichment is compensation that must be paid to the property owner for the unlawful use of immovable or movable property. This claim is based on the relevant provision of the Turkish Civil Code. To claim unjust enrichment, the property owner must show that the person who unlawfully used the property acted in bad faith or caused damage. Good faith means not knowing the use was unlawful or not being able to know even with necessary research. If the person who unlawfully used the property acted in bad faith, the property owner can claim both the damages and the profits they would have gained from the other party.
Right to Claim Easement or Ownership
In the case of an encroaching structure, the owner of the structure has certain rights against the landowner. These rights are specified in Article 725 of the Turkish Civil Code. If a structure extends into another person’s land and the person who built it has an easement right on the encroached land, the encroaching part becomes an integral part of the original property. However, if this right does not exist, and if the conditions justify, the person who built the structure can request the establishment of an easement right for an appropriate fee or the transfer of the ownership of the encroached part of the land to them.
If the owner of the encroaching structure has an easement right on the neighboring land, the encroaching part becomes an integral part of the original property. However, if such a right does not exist and certain conditions are met, the person can request the establishment of an easement right or the transfer of the ownership of the encroached part. To claim an easement or ownership right, the structure owner must have built the structure in good faith, the landowner must not have objected within fifteen days of learning about the encroachment, the conditions must justify, and the structure owner must pay an appropriate fee to the landowner.
The good faith of the structure owner is also important. Good faith means not knowing that the structure encroaches on someone else’s property or not being able to know even with necessary attention and care. However, in regulated and marked lands, good faith is not accepted. A person who builds a structure within the boundaries shown by the authorized officer after applying to the relevant official institutions is considered to be in good faith. Therefore, the care shown by the structure owner to prove their good faith is important.
”(…) If there is no such easement right, the owner of the encroaching structure, if they have built the structure in good faith, can request the establishment of an easement right or the transfer of the ownership of the encroached part of the land to them for an appropriate fee, provided that the landowner does not object within fifteen days from the date they learn of the encroachment and the conditions justify (…) 1st Civil Chamber 2011/12811 E. , 2011/11736 K.
Action for Prevention of Intervention
To claim an easement or ownership right, the encroaching structure owner must ensure that the landowner has not objected within fifteen days of learning about the encroachment. An objection by the landowner within this period prevents the encroaching structure owner from claiming good faith. The date the landowner learns about the encroachment is considered the date the structure becomes visible.
This 15-day period is not a statute of limitations. Even if no objection has been made, the landowner can still file an action for prevention of intervention, demolition of the structure, and compensation for unjust occupation. However, the objection is not a prerequisite for filing a lawsuit. The absence of an objection allows the encroaching structure owner to claim an easement or ownership right. There is no specific legal form for the objection, but it is recommended to be done with a notary-approved notice.
Read our article for more detailed information about the Action for Prevention of Intervention.
Situations of the Encroached Landowner and the Encroaching Structure Owner
If an easement or ownership right is granted in favor of the encroaching structure and the landowner will suffer significant damage as a result, the right will not be granted. However, if the dismantling of the encroaching structure will cause more damage to the main structure and its owner than the damage caused to the landowner by granting the right, an easement or ownership right will be established for the encroaching structure.
The landowner must be compensated appropriately. If the conditions are favorable, the encroaching structure owner must pay an appropriate fee to the damaged landowner for the establishment of an easement or ownership right. Before the court issues a decision, it determines the fee to be paid to the landowner and gives the plaintiff a period to deposit this fee in court. If the fee is deposited within the given period, the request is accepted; otherwise, it is rejected.
Unlawful Structure Constructed by a Person on Multiple Neighboring Lands with Their Own Materials:
A person may have constructed a structure on multiple neighboring lands owned by others with their own materials. In this case, the landowners can assert claims arising from the unlawful structure against the material owner. However, both landowners can assert the same claim, and determining which claim should prevail presents a complex issue.
In this situation, the issue of which claim should prevail can be resolved directly or by analogy with the provisions related to unlawful and encroaching structures.
It can be considered that the main land is the one on which the structure is predominantly located in terms of its economic and allocated purpose, and the issue between the landowner and the material owner can be resolved using the provisions of unlawful structures.
Exceptionally, the structure may be extensive in terms of its economic and allocated purpose over multiple lands. In this case, it is clear that the structure constitutes an unlawful structure for each landowner.
According to one opinion in the literature, in this case, it can be accepted that the landowners have co-ownership over the structure. This solution completely excludes the provisions of encroaching structures and allows the direct application of the provisions of unlawful structures to the relationship between the co-owner landowners and the material owner.
Although there are debates about whether dismantling and removing the materials would cause excessive damage, the general principle is to compare the damage caused to the landowner and society by removing the materials with the benefit the landowner would gain. If the removal of the materials increases the landowner’s damage, the request for removal can be denied.
If the landowner still suffers damage despite the removal of the materials, compensation for this damage may be required under the provisions of tort or unjust enrichment. Additionally, the material owner who continues their bad faith possession on the land may have to pay compensation for the products obtained or neglected and, if there is any benefit, unjust enrichment.
Impact of the Claim on the Other Landowner:
When a person constructs a structure on multiple neighboring lands owned by others with their own materials, all landowners can collectively request the material owner to dismantle and remove the materials. However, if only the landowner of the land where the structure is predominantly located requests the dismantling and removal of the structure and this request is fulfilled, the ownership of the other landowners is preserved.
Exceptionally, if the structure is extensive in terms of its economic and allocated purpose over multiple lands, a unanimous decision by all landowners is required to request the dismantling and removal of the materials. This request is considered a transaction over the entire shared property under Article 692 of the TCC.
Unlawful Structures Constructed by a Third Party Who is Neither the Landowner nor the Material Owner:
According to the Turkish Civil Code, there are no specific regulations for unlawful structures constructed by a third party who is neither the landowner nor the material owner. However, in this case, general provisions can be applied, and the rights and obligations of the parties can be determined by utilizing the general provisions related to tort, unjust enrichment, and agency without authority.
Therefore, a person constructing a structure on someone else’s land using someone else’s materials can resolve the issue by analogy with the general and unlawful structure provisions.
Contents of Legal Articles Related to Unlawful and Encroaching Structures:
What is Article 722 of the TCC?
According to Article 722, which regulates ownership relations concerning structures on land, if a person uses someone else’s materials on their land or uses their or someone else’s materials on someone else’s land, the materials become part of the land.
However, if the materials are used without the owner’s permission, and if the removal of the materials does not cause excessive damage, the material owner can request the return of the materials after dismantling them at the expense of the person who built the structure. Similarly, under the same conditions, the landowner can request the removal of the materials used without their permission at the expense of the person who built the structure.
What is Article 723 of the TCC?
According to Article 723, which regulates compensation regarding land and construction materials, if the materials are not removed, the landowner is obliged to pay appropriate compensation to the material owner. However, if the landowner who built the structure is not in good faith, the judge may decide to compensate the material owner for the entire damage. Similarly, if the material owner who built the structure is not in good faith, the compensation amount determined by the judge cannot exceed the minimum value of the materials for the landowner.
What is Article 724 of the TCC?
According to Article 724, if the value of the structure is clearly higher than the value of the land, the good faith party can request the transfer of ownership of the entire land or sufficient part of it to the material owner for an appropriate fee.
Article 724 of the TCC states that if the value of the structure is higher than the value of the land, the good faith party can request the transfer of ownership of the entire land or sufficient part of it to the material owner for an appropriate fee.
Although some argue that this right should also be granted to the landowner, this criticism is generally not considered accurate. Because the possibility of the landowner not benefiting at all from a structure they built themselves is unnecessary to consider. Furthermore, even if the landowner cannot benefit from the structure, it has been included as an economic value in their assets, and the good faith landowner is only obliged to pay appropriate compensation to the bad faith material owner.
For the good faith material owner to make this request, it is also necessary that the value of the structure is clearly higher than the value of the land. If the ownership of the entire land is requested, the difference in value should be based on the entire value of the land. However, if the structure only occupies a part of the land, the transfer of ownership of only that part can also be requested. In this case, the land should be divisible, and the division should not harm the remaining part. If the conditions are met and only the transfer of ownership of a part of the land is requested, the value difference should be based only on that part.
What is Article 725 of the TCC?
According to Article 725 of the TCC regarding encroaching structures, if a structure extends into another person’s land and the person who built it has an easement right on the encroached land, the part of the land becomes theirs.
However, if there is no such easement right and the landowner does not object within fifteen days of learning about the encroachment, and the conditions justify, the person who built the structure in good faith can request the establishment of an easement right or the transfer of the ownership of the encroached part of the land to them.
What is Article 726 of the TCC?
Regarding the right of superficies, Article 726 states that the ownership of structures permanently located above or below someone else’s land is based on the right of superficies. If condominium ownership or the right of condominium is established on the independent sections of a building, this is subject to the Condominium Ownership Law.
What is Article 727 of the TCC?
Regarding pipelines, Article 727 states that pipelines such as water, gas, and electricity, even if they are outside the property where the enterprise is located, are considered an accessory of the enterprise unless otherwise stipulated and belong to the owner of the enterprise.
However, except for situations arising from neighborhood law, a property can only be burdened with such a pipeline by establishing an easement right. The easement right arises by registration in the land registry if the pipeline is not visible from the outside, and by a notarized contract if it is visible from the outside.
What is Article 728 of the TCC?
Regarding movable structures, Article 728 states that temporary structures built on someone else’s land, such as huts, kiosks, arbors, and barracks, belong to the owner of these structures. These structures are subject to the provisions for movable property and are not registered in the land registry.
What is Article 729 of the TCC?
Regarding saplings planted on land, Article 729 states that if a person plants someone else’s sapling on their land or plants their or a third person’s sapling on someone else’s land, the provisions relating to structures built using someone else’s materials or movable structures apply to saplings as well. However, trees and forests are not covered by the right of superficies.
What is Article 730 of the TCC?
Regarding the liability of the landowner, Article 730 states that if a landowner uses their property in violation of legal restrictions, causing harm or danger to someone else, that person can request the restoration of the previous condition or the elimination of the danger and compensation for the damage.
The judge can decide that appropriate compensation for damages arising from unavoidable encroachments should be paid in accordance with local customs.
Supreme Court Decision Related to Unlawful and Encroaching Structures
14th Civil Chamber 2014/10774 E. , 2015/1900 K.
“Legal Precedent Text”
COURT: Civil Court of First Instance
The plaintiffs’ counsel filed a lawsuit against the defendant on 29.11.2012 for prevention of intervention and demolition, and the plaintiff of the consolidated case filed a lawsuit on 30.10.2013 for cancellation of the title deed and registration based on Article 725 of the TCC. The original lawsuit was dismissed, and the consolidated lawsuit was accepted by the judgment dated 10.04.2014, which was appealed by the plaintiffs’ counsel. After accepting the timely appeal petition, the file and all the papers within it were examined, and it was decided as follows:
JUDGMENT
The lawsuit is related to the prevention of intervention and demolition.
The consolidated case is related to the request for cancellation of the title deed and registration based on Article 725 of the TCC.
The court decided to dismiss the original lawsuit and to accept the request for cancellation of the title deed and registration in the consolidated case.
The judgment was appealed by the plaintiffs’ counsel requesting prevention of intervention and demolition.
Except for legal privileges, according to Articles 684/1 and 718/2 of the TCC, the ownership and the associated disposal rights of the land also include things made permanently on the land. One of the exceptions to this rule is regulated in Article 725 of the TCC, thereby breaking the connection with the accretion and allowing the building owner to acquire the property of the encroaching structure under certain conditions.
For this to happen, a building constructed with the intention of being permanent on a registered property must encroach on another registered property owned by a third party.
Encroaching construction unites two neighboring properties physically and economically. Due to this characteristic, the claim for registration based on the encroaching structure is a personal right attached to the property.
The transfer obligation of the encroached landowner is a real obligation attached to the property, and the construction owner can use their right against any owner of the encroached land. New owners can also benefit from the rights and are responsible for the obligations specified in Article 725 of the Turkish Civil Code.
In such cases, if the person who built the encroaching structure does not have an easement right on the encroached land, they can request the establishment of an easement right or the transfer of the ownership of the encroached part of the land to them for an appropriate fee if the conditions justify.
To claim registration based on Article 725 of the TCC, certain conditions must be met;
a) The first condition is that the material owner must be in good faith.
As clearly stated in Article 725 of the TCC, the primary condition for the transfer of ownership of the encroached part of the land to the structure owner is good faith. There is no doubt that the good faith prescribed is the subjective good faith regulated in Article 3 of the TCC.
This rule means that the person constructing the encroaching structure did not know or could not have known that the land they encroached upon belonged to someone else, despite showing the expected care and attention, or had a justified reason for constructing the encroaching structure.
The existence of good faith should be investigated ex officio by the court, regardless of the claims and defenses. However, as stated in the Unification of Jurisprudence Decision No. 17/1 dated 14.02.1951, if it is clear from the events and presumptions that the person constructing the encroaching structure did not show the expected care and attention, it is not possible for them to claim registration.
Because in such cases, bad faith is determined without the need for proof by the other party. Furthermore, good faith must continue from the start of construction to its completion. If the condition of good faith is not met, there is no need to investigate whether other conditions are met. (Subjective condition)
b) The second condition is that the value of the structure is clearly higher than the value of the encroached part of the land. (Objective condition)
c) The third condition is that the person constructing the encroaching structure must pay this fee to the landowner.
d) In addition to the three conditions mentioned above, for the court to decide on cancellation and registration, it must also be possible to separate the encroached part of the land from the main property.
Considering the principles explained above and the specific case;
The plaintiffs stated that the defendant unlawfully encroached on their property at parcel number 129 block 6 by constructing a house and yard and requested the prevention of unlawful encroachment and the demolition of the encroached parts.
In the consolidated case, the plaintiff requesting registration argued that the plaintiffs did not object for a long time after the construction was completed and requested the registration of the encroached part of the land in their name, provided that the determined land value is paid, considering their good faith.
It was understood that the plaintiff requesting registration constructed the building unlawfully on the property of the plaintiffs requesting the prevention of encroachment after a partition among the heirs.
In general, good faith claims are not accepted when encroaching constructions are made on registered properties. Furthermore, according to the witness statements and the entire case file, it was not proven that the plaintiff showed the expected care and attention before constructing the encroaching building. Therefore, the request for registration should be rejected, and a decision should be made regarding the prevention of encroachment and demolition in the original case, instead of the written judgment.
CONCLUSION: For the reasons explained above, the appeal objections of the plaintiffs’ counsel are accepted, and the judgment is REVERSED. If requested, the appeal fee will be refunded to the payer, and it was unanimously decided on 24.02.2015, with the right to request correction within 15 days from the notification of the decision.
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Unlawful and Encroaching Structure Lawsuits in Turkish Law
