"Possessory action" also known as Actio Negatoria, is a legal remedy granted to the owner to protect his/her property rights in cases of molestation or aggression. The possessory remedy is regulated under Article 683 of the Turkish Civil Code.
Article 683: The person who owns something has power to use, enjoy and dispose over that thing within the limits of the law.
The owner may file action of replevin against the person who has wrongfully seized his property, as well as a lawsuit for the prevention of all kinds of wrongful seizure.
Although the main goal of the possessory actions is to protect the property right of the owner, the owners are not the only ones who will request the prohibition of interference with this lawsuit; the owners of real right, such as usufruct right or right of habitation, may also request to stop of the unlawful interference on the movable or immovable property that they have the right to use or benefit from by filing a the protection against unwarranted interference.
The plaintiff's request in the possessory action is for the defendant to terminate the unwarranted interference in cases where it is based on the defendant's act, and to eliminate this situation in cases where it is based on the will of the defendant. In this respect, the possessory action is an action for performance since the plaintiff is suing to compel the defendant to do or not to do a certain thing. The purpose of the possessory action is also realized through the execution of the judgment that condemns the defendant to do or not to do. If the defendant fails to comply with the judgment, the judgment shall be enforced pursuant to Article 30 of the Bankruptcy and Enforcement Law on the enforcement of obligations to do and not to do.
The conditions of this lawsuit can be summarized as follows:
1. The plaintiff of the possessory action must be the one who owns property or the one has other real right on the property.
Article 683/2 of the TMK defines the person who can sue for the prevention of molestation as the owner. However, it is accepted by the doctrine and the judiciary that persons other than the owner also have the right to sue. Holders of limited real rights may also file a possessory action. For example, a person who owns a right of construction over a real property may file a possessory action in order to stop this molestation or occupation if this real property is unfairly occupied by third parties.
2. There must be an unlawful interference that interferes with the right to property or limited real rights and restricts the exercise of these rights.
The possessory action is filed in the event of an existing or future molestation with the real right. Accordingly, the unwarranted interference must be present or, although it is not present, it ought to happen in the future. In this sense, a possessory action cannot be filed for interventions that have taken place and ended ("already happened"), unless they will be repeated in the future. In this case, the owner of the real right may claim compensation for the damage caused by the taking. In other words, a possessory action can be filed before the molestation starts and while the molestation continues, and a lawsuit for compensation can be filed after the molestation ends.
As a rule, a possessory action may be filed in the event of an ongoing unlawful interference; however, a possessory action may also be filed in the event of future unlawful interferences that are deemed certain to occur. According to the practice of the Court of Cassation, in order to file a possessory action for future molestation, the molestation must be "likely or certain to cause damage in the near future".
3. The owner of the real right may bring this action in cases where he or she is not obliged to tolerate the intervention.
As mentioned above, the owner may bring this action to stop the intervention with his property in order to protect his right of ownership. However, if the intervention arises from a legal reason or from the law, the obligation to tolerate thus intervention would be in question. For example, the neighbouring real property owner is obliged to tolerate molestation that does not exceed a tolerable degree. In such a case, even if there is no agreement between the owners, there is an obligation to abide by the Law.
The Civil Court of First Instance is the competent court in the possessory action. It should be taken into consideration that if there is any legal relation between the intervener and the person whose real right is intervened, the case may fall under the jurisdiction of special competent courts. However, except in such specific cases, if the intervener's act is considered as a civil wrong, a "tort" will occur. and the case falls within the jurisdiction of the Civil Courts of First Instance.
Claims in a Possessory Action
In addition to the termination of the unlawful interference, the plaintiff may retrospectively claim the rent of the property used during the molestation. For example, a real property owner may claim that his/her real property has been unfairly used by a third party for two years and may request both the termination of the unlawful interference and the rent for the two years used in the possessory action. Although this situation is referred to as "mesne profits" in practice, there is no consensus on the nature of mesne profits in the doctrine and decisions of the Court of Cassation.
In addition to the possessory action, the plaintiff may also claim material and moral damages based on the principle of strict liability. It may also request that the unlawful interference be terminated, and the movable or real property be restored to its condition before the interference.
Judgment in Possessory Action
As a result of the possessory action, the defendant is sentenced to perform the acts that will end the molestation or to avoid from the acts that will lead to the molestation. Prevention of molestation takes place through the execution of the judgment that compels the defendant to do or not to do something. However, the judgment regarding the acceptance of the possessory action cannot be subject to enforcement proceeding with judgment until it is finalized.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
