A party that has property right over something has active and passive rights.
The provision of Article 683 of the Turkish Civil Code is mandatory provision: “One who owns a thing, within the limits of law, has the power of use, enjoy and dispose over that thing. The owner may file an action for the recovery of the title to the person who unfairly possesses his/her property, as well as sue for the protection against unwarranted interference.’’
It covers rights such as active exercise of right, using civil fruits and having power to dispose an it is not unlimited. The property owner can only exercise his/her active authority within the limits of the law. Passive power includes the right to prevent the use of active power or to protection against unwarranted interference (formerly called Actio Negatoria) and to file an action for the recovery of the title. Although this lawsuit can be in question for both movable and immovables, its common practice is about immovables.
The case for the actio negatoria may be brought by the owner or absolute owner of the immovable property. In the case of common ownership, all stakeholders, any of the stakeholders or a stakeholder authorized by the stakeholders may sue; also, in heritage companies, the representative may be able to sue.
The public purse, the village legal entity and the municipality may file a lawsuit to for the protection against unwarranted interference of their immovables; In public roads, squares and similar places, lawsuits can be brought by public officials. If the public official does not fulfill his/her duty, any person can also sue.
The lawsuit is subject to the general jurisdiction rule and if the subject of the lawsuit is immovable, the location of the real estate shall be filed in the Court of First Instance, and if it is related to the move, the defendant's settlement shall be filed in the Court of First Instance. There is no statute of limitations.
Stakeholders will be able to file the case against each other or against a third party. It is sufficient for the defendant to interfere with the property right of the owner and that this intervention is unlawful, the defendant need not be at fault. The plaintiff is obliged to prove both that he is the owner and that the intervention is unlawful. The defendant, on the other hand, will be able to reject the case by proving that the plaintiff is not the owner, that he has not intervened, or that the intervention has ended.
Sample Court of Cassation Decisions on the subject are presented below:
Court of Cassation 1st Civil Chamber (E. 2013/17754, K. 2014/2177, T.11.2.2014)
“At the end of the demolition case, protection against unwarranted interference seen between the parties; The decision of the local court regarding the partial acceptance and partial rejection of the case was appealed by the parties within the legal period, and the file was examined. The report of the Investigative Judge Baydın was read, his explanations were listened to, and the necessity was discussed and considered;
The case was about the protection against unwarranted interference the large-scale immovable and the request for demolition, and a request for registration was made through defense:
The court accepted the request to protection against unwarranted interference, that its destruction would cause exorbitant damage and that the defendant was malicious. The request for demolition was rejected on the grounds that the minimum cost of supplies was not paid.
The content of the file, the evidence collected, the legal and legal grounds on which the verdict is based, and especially the field-qualified real estate subject to the dispute numbered 1215 parcel numbered 1215, the section of the 370 m2 area marked with the letter (A) by the scientific expert as a result of the application made by the court is justified and valid by the defendant used without a reason; There is no inaccuracy in the fact that it was determined that the defendant was not in good faith and the decision was made to protect against unwarranted interference. Not all appeals of the defendant are justified. Denial,
JUDGMENT: As for the appeal of the plaintiff; It is understood that the defendant can direct his personal rights arising from the external purchase to the dealer (purchased externally), and the conditions specified in Article 725 of the Turkish Civil Code numbered 4721 are not fulfilled in terms of the defendant. Although it is accepted by the court that the demolition will cause exorbitant damage, it is understood that the demolition will not cause exorbitant damage according to the determined building costs.
In this case, it is not correct that a written decision was made with a misjudged evaluation, while it should be decided to demolish the buildings belonging to the defendant in the plaintiff's immovable by granting superiority to the property right.
The defendant will present the evidence that he is justified in using the real estate to the court at the trial stage. However, if the defendant has a just cause, it should be known that this case will be lost. "
Court of Cassation 1st Civil Chamber E: 2011/8260 K: 2011/10559
"In the case between the parties:
The plaintiff claimed that the defendant's immovable was built without justification, and requested the protection against unwarranted interference and a decision for destruction. The defendant has made a request for registration in conjunction with his combined counter action.
The decision regarding the dismissal of the case and the acceptance of the counterclaim has been quashed by the Chamber, by referring to the counterclaim that other owners of the immovable property should be involved in the case; At the end of the trial, which was completed in accordance with the reversal by the court, it was decided to dismiss both cases.
The decision has been appealed in due time by the plaintiff-counter defendant: The report of the Investigation Judge Murat Ataker was read, his opinion was taken. The file was examined and considered:
JUDGMENT: The case is about the protection against unwarranted interference and demolition; The counterclaim is related to the registration requests.
From the contents of the file and the collected evidence, it was determined that the subject immovable property in 1974 was determined as ownership in case of participation in the name of the plaintiff's murderer Ahmet Ç and many other persons, based on the title deed record, with 37 parcel number. ; Besides, it is understood that some of the immovable property was used by the defendant by building a 3-storey house.
Hasan Ç, the heir of Ahmet Ç, one of the registration owners, requested the protection against unwarranted interference and destruction with the case.
The defendant, on the other hand, argued that he built the house in the immovable property in 1990 with the permission of the plaintiff's mother, Cennet, and the place. With the jointed main case of 2003/55, it was requested that a decision for registration be made on the basis of Article 724 of the Turkish Civil Code. Both cases were dismissed by the court; the verdict was appealed by the main plaintiff.
As it is known, if a permanent and permanent building is built on someone else's immovable, as per the provisions of Articles 684 and 718 of the Turkish Civil Code, the building shall become an integral part of the immovable it is on or under, subject to the ownership of the main immovable. The lawmaker did not leave the relationship between the owner of the real estate in this position and the person who built the building to general provisions, and deemed it appropriate to regulate the special provisions of Articles 722, 723, 724 of the Civil Code.
If a person has built a permanent and complementary structure to someone else's immovable with his own material and (according to the Civil Code article 724) the value of the building is clearly more than the value of the land, the good faith party may request the ownership of the whole or a sufficient part of the building and the land to be given to the owner of the material for an appropriate price. As it is clearly understood from the provision of the said article, the primary condition for the ownership of the immovable property to be given to the building owner is good faith. There is no doubt that the foreseen good faith is subjective good faith stipulated in article 3 of the Civil Code. This rule means that he does not know that the immovable he has unwarranted interference is the property of someone else, or that he is not in a position to know despite showing all the expected attention and care, or that there is a justified reason to build the building. In such a case, the person who claims to be a good faith must prove this claim as stated in the Unification of Case Law No. 17/1 of 14/2/1951.
The second condition is that the value of the building is clearly more than the value of the property. This condition should be determined according to the trial date and objective principles, and the excess should be easily understood at first glance. As the third condition, the builder must pay an appropriate price to the owner of the real estate.
Although the appropriate value is generally accepted as the real value of the land amount required for the building at the date of the lawsuit, when a large immovable is needed to be transferred, the deficiencies in the price of the remaining part, if any, taking into account other damages related to the immovable, it is a requirement of the right and decency rule. It should be noted immediately that the right to request registration by assignment is a personal right that can only be claimed in a lawsuit filed against the owner of the immovable at the time of construction, and it can turn into a real right after the finalization of the decision at the end of this innovative lawsuit.
On the other hand, article 722 of the Turkish Civil Code grants the property owner the right to demand the demolition of the building that was made without his consent and whose destruction does not cause excessive damage; It has decided that the cost of demolition will belong to the owner of the building. However, since the concept of excessive harm is not defined in the law, it is useful to consider the main purpose of the legislator in this direction.
The main reason for the regulation of the mentioned article is the general economic benefit present in the protection of the created structure. In other words, in the event of demolition of the building, the excessive damage to be determined within objective measures according to the date of the case indicates the presence of excessive damage. However, subjective facts such as the degree to which the owner of the property can benefit from that structure, whether the integrity of the land is disrupted, and the imperfection that may arise in the value of the property should also be taken into consideration by referring to the knowledge of experts in special and technical issues when necessary.
It is stated in Article 723 of the same Law that if the building cannot be demolished due to excessive damage, the owner of the immovable property must give a compensation to the owner of the material, as the property owner must give a compensation to the owner of the material, if the owner of the material is not in good faith, the amount of compensation will not exceed the minimum value of the supply. In this case, if the building cannot be demolished due to excessive damage in accordance with the principle adopted in the justification of the Decision of Unification of Case Laws dated 4/3/1953 and numbered 10/3, it should be asked from the landowner whether he will pay justified compensation according to good or bad faith or the minimum cost of supplies; If he accepts, it must be decided to belong to the owner of the building in return for this price, otherwise the request for demolition must be rejected. From the word "cogent compensation" in the article, not only the construction cost, but according to the nature of the incident, the most appropriate price that the judge will appreciate based on the authority obtained from Article 4 of the Civil Code; From the word "minimum supply cost", the value of the building subjectively in terms of the owner of the real estate should be understood.
In the present case, it is undoubtedly that the consent given by one of the partners in the immovable subject to joint ownership will not be binding on the other partners and the defendant will not be considered in good faith. In this case, there is no inaccuracy in the rejection of the counterclaim since the condition of good faith, which is the primary condition of the Turkish Civil Code article 724, is not fulfilled. However, there has not been a sufficient investigation in terms of the original case.
As such, the prevention of confiscation and demolition requests alleged in the original case should be evaluated with the evidence to be gathered within the framework of the principles mentioned above and a decision should be made according to the result, it is inaccurate to make a decision with an incomplete investigation.
CONCLUSION: The plaintiff's appeal is justified for the reason explained. Upon its acceptance, it was unanimously decided on 19.10.2011 that the provision will be REVERSAL in accordance with Article 428 of the Civil Procedure Law, and that the advance fee collected will be returned to the appellant. "