Conditions and Exceptions to the Exclusion-from-Use Requirement in Ecrimisil Claims by Joint Owners and Co-Owners

The use of movable and immovable property held in joint ownership (elbirliği mülkiyeti) or co-ownership in shares (paylı mülkiyet) causes considerable problems among the co-owners. In particular, joint ownership over assets passing to the heirs of a deceased person gives rise to great difficulties regarding the use and sale of the immovable property and the enjoyment of its fruits. This is especially significant for analysing the legal position of co-owners who are unable to benefit from immovable or movable property and, in order to avoid any loss of rights, for claims for prevention of interference (el atmanın önlenmesi) and ecrimisil. In joint ownership and co-ownership in shares, whether the exclusion-from-use requirement has been satisfied before claims for prevention of interference and ecrimisil are made is the most important condition for the admissibility of such claims.

According to the settled case law of the Court of Cassation, in co-ownership in shares, a co-owner who is unable to use the immovable property may at any time claim against the other co-owner or co-owners obstructing him the prevention of interference with his share and/or compensation for unlawful occupation (ecrimisil). In joint ownership, too, one of the joint owners may, without obtaining the consent of the other joint owners or without a representative being appointed to the community of heirs, on his own bring an ecrimisil action against the joint owners who prevent him from using the common immovable property. However, if that co-owner uncontestedly uses a portion of the property corresponding to his share, the ecrimisil action he brings cannot be heard. According to the settled case law of the Court of Cassation and the scholarly opinion to the same effect, a co-owner who claims to be using less than his share must resolve the issue by bringing an action for division, which produces a definitive result, or an action for partition by sale.

As a rule, co-owners cannot claim ecrimisil from one another unless they have been excluded from use. The fulfilment of the exclusion-from-use (intifadan men) requirement depends on the claimant co-owner having notified the defendant co-owner, before the period for which ecrimisil is claimed, of his wish to benefit from the immovable property in dispute or from its income. However, there are certain exceptions to this rule that have emerged through settled judicial practice. Constituting one of the most important points of our article, the exceptions to the exclusion-from-use requirement are as follows:

These are the cases of the immovable property in dispute being public property; the immovable property for which ecrimisil is claimed being property that yields natural produce (such as a vineyard or orchard) or yields civil fruits by being let (such as business premises or a dwelling); the co-owner occupying the property held in shares claiming rights over the whole of it and denying the co-ownership of the others; the common immovable property or the parts of it that each co-owner is to use being determined as a result of a use agreement made between the co-owners; and the claimant having previously brought actions for prevention of interference, partition, ecrimisil and similar actions, or having initiated enforcement proceedings, against the other co-owners in relation to that immovable property. Apart from this, with regard to the produce yielded by the immovable property, there is no need for the exclusion-from-use requirement to be met in the case of naturally occurring produce such as cut grass, harvested hazelnuts or tea, or in the case of occupation of a business established by the deceased or of businesses that generate income in their own right.

Likewise, where the common immovable property or the parts of it that each co-owner is to use have been determined as a result of a use agreement made between the co-owners, the exclusion-from-use requirement will again not be sought in cases where the claimant co-owner brings actions for prevention of interference, partition, ecrimisil or similar actions against the defendant co-owner in relation to that immovable property.

According to the decision of the 1st Civil Chamber of the Court of Cassation dated 30.03.2017, Docket No.: 2014/20749 – Decision No.: 2017/1529:

“…The action concerns a request for annulment of the objection made against enforcement proceedings initiated for the collection of an ecrimisil receivable.

The claimant alleged that, in 1982, he and the defendant jointly constructed a building on the immovable property registered as block 1411, parcel 7, of which they are co-owners; that the defendant has resided in this building since 1998 and has not paid him ecrimisil in return; that, for this reason, enforcement proceedings were initiated against the defendant through file no. 2011/5122 E of the … 3rd Enforcement Office for the collection of a total of TRY 18,745, being the amount of ecrimisil corresponding to the creditor's share of the total ecrimisil calculated for the period between 20.07.2006 and 20.07.2011, together with interest; and that the proceedings were halted as a result of the defendant's unjustified objection. He requested that the defendant's objection to the enforcement proceedings be annulled, that the proceedings continue, that the ecrimisil subject to the proceedings be collected from the defendant, and that the defendant be ordered to pay compensation for bad-faith denial of the debt of not less than 40% of the receivable subject to the proceedings.

The defendant argued for the dismissal of the action, stating that the claimant is the husband of his elder sister; that the claimant resided, without paying any consideration, until 1998 in the house they had jointly built in 1981 on the immovable property in dispute; that, when the claimant left the house on that date, its use passed to him; that he has resided in the house in question for 13 years; that he has a house in … where he resides; that his son has resided at the property in dispute since 2003; and that he himself uses this property from time to time.

The court dismissed the action on the ground that the exclusion-from-use requirement had not been proven.

It is understood from the case file and the evidence gathered that the claimant, the defendant and the non-party … Municipality are co-owners of the disputed immovable registered as block 1411, parcel 7; that the claimant initiated enforcement proceedings against the defendant on the grounds that the immovable in dispute had been in the defendant’s use since 1998, that the defendant resided in the immovable and that no compensation for unlawful occupation (ecrimisil) had been paid to the claimant; that the enforcement proceedings were stayed following the defendant’s objection and that the present action was therefore brought; that the defendant also accepts that the immovable in dispute is in the defendant’s use and that the defendant has not paid the claimant any consideration in return; and that the defendant’s defence is that the immovable in question was used by the claimant for 17 years without paying any consideration and has been used by the defendant for 13 years, and the defendant accordingly requested that the action be dismissed.

It should be stated at the outset that the parties are co-owners of the immovable property in dispute. In co-ownership in shares, a co-owner who is unable to use the immovable property may at any time claim against the other co-owner or co-owners obstructing him the prevention of interference with his share and/or compensation for unlawful occupation (ecrimisil). In joint ownership, too, one of the joint owners may, without obtaining the consent of the other joint owners or without a representative being appointed to the community of heirs, on his own bring an ecrimisil action against the joint owners who prevent him from using the common immovable property. However, if that co-owner uncontestedly uses a portion of the property corresponding to his share, the ecrimisil action he brings cannot be heard. According to the settled case law of the Court of Cassation and the scholarly opinion to the same effect, a co-owner who claims to be using less than his share must resolve the issue by bringing an action for division, which produces a definitive result, or an action for partition by sale.

As a rule, co-owners cannot claim ecrimisil from one another unless they have been excluded from use. The fulfilment of the exclusion-from-use (intifadan men) requirement depends on the claimant co-owner having notified the defendant co-owner, before the period for which ecrimisil is claimed, of his wish to benefit from the immovable property in dispute or from its income. However, there are certain exceptions to this rule that have emerged through settled judicial practice. These are the cases of the immovable property in dispute being public property; the immovable property for which ecrimisil is claimed being property that yields natural produce (such as a vineyard or orchard) or yields civil fruits by being let (such as business premises or a dwelling); the co-owner occupying the property held in shares claiming rights over the whole of it and denying the co-ownership of the others; the common immovable property or the parts of it that each co-owner is to use being determined as a result of a use agreement made between the co-owners; and the claimant having previously brought actions for prevention of interference, partition, ecrimisil and similar actions, or having initiated enforcement proceedings, against the other co-owners in relation to that immovable property. Apart from this, with regard to the produce yielded by the immovable property, there is no need for the exclusion-from-use requirement to be met in the case of naturally occurring produce such as cut grass, harvested hazelnuts or tea, or in the case of occupation of a business established by the deceased or of businesses that generate income in their own right.

Likewise, where the common immovable property or the parts of it that each co-owner is to use have been determined as a result of a use agreement made between the co-owners, the exclusion-from-use requirement is again not sought in cases where the claimant co-owner brings actions for prevention of interference, partition, ecrimisil or similar actions against the defendant co-owner in relation to that immovable property.

Therefore, save for the exceptions listed, the fulfilment of the exclusion-from-use requirement will be sought in respect of the immovable properties in dispute, and the allegation that the exclusion-from-use requirement has been met may be proven by any kind of evidence. (Decision of the Assembly of Civil Chambers of the Court of Cassation dated 27.02.2002, 2002/3-131 E, 2002/114 K)

As to the specific case, it is understood that, in his petition dated 11.03.2014, the claimant's counsel named as witnesses, by way of evidence, the persons named Refik Şenol and …, who have not been heard and whose hearing has not been waived, and stated that they wished these witnesses to be heard regarding their knowledge and statements concerning the exclusion-from-use requirement.

In these circumstances, it is not correct to dismiss the action without making a decision, either positive or negative, on hearing the witnesses named by the claimant's counsel in order to determine whether the exclusion-from-use requirement was met between the parties to the action, who are co-owners of the immovable property in dispute.

The claimant's grounds of appeal on this point are well founded. It was unanimously decided on 30.03.2017 to accept them and to REVERSE the judgment for the reason explained, pursuant to Article 428 of the former Code of Civil Procedure No. 1086 (HUMK) (by reference to provisional Article 3 of Law No. 6100), and to return the advance fee paid to the appellant…” The decision reads as above.

Should you face a legal dispute in the areas mentioned, you may contact us at UTU Hukuk & Danışmanlık for its resolution.

Related legislation: Turkish Civil Code No. 4721 (mevzuat.gov.tr)