A TERM CREATED BY TURKISH LAW DOCTRINE AND LEGAL PRECEDENT: “ADEQUATE PAY”
A TERM CREATED BY TURKISH LAW DOCTRINE AND LEGAL PRECEDENT: “ADEQUATE PAY”
The term “Adequate Pay” also known as “mesne profits” in Turkish law is created under the light of doctrine and precedent rulings. the term Adequate pay is defined as “a compensation which the owner (who is not the possessor) may ask from the possessor in bad faith (the disseisor) for its unlawful occupation of the property” According to the established jurisprudence of the Turkish supreme court of appeals. This article will briefly mention what are the requirements of adequate pay, what sort of damages can be compensated, the statute of limitations, and the legal procedures.
Adequate pay can be described as compensation that emerges when the disseisor benefits from the real estate without the consent of its rightful owner.
Requirements
- Unlawful occupation
The first requirement for a mesne profits claim is the act of unlawful use or occupation of a real estate with bad faith without the consent of its rightful owner. It is not necessary for disseisor to be a third party, in some cases, there are mesne profit claims among inheritors. To respecify, the important point is that the possessor – whether a third party or among the successors- must know the fact that it shouldn’t be occupying the real estate and must be aware that it is using the estate without the consent of the legal owner despite not having right or authority for disposition, in other words, it must have bad faith.
The unlawful occupation may occur in different forms. For example, occupation of real estate despite an expired rental contract, construction without consent, occupation of an estate without the consent of the owner, and benefiting from it. These are the most common forms of unlawful occupation.
- Damages
The second requirement for a mense profit claim is the existence of damages caused by the unlawful occupation. We can list the possible damages that can be claimed with the mense profit case as follows;
- The depreciation caused by normal usage of the property.
- The damages that occurred from the mere use of the property, in other words, damages due to unlawful occupation and the damages directly in connection with it.
- The damages sustained by the owner due to the profit that it could obtain under normal circumstances during the period he cannot use the property but was deprived of due to the unlawful occupation of the property, in other words, lost profit damages.
In practice, the most common form of mense profit cases are based on lost profit damages
In brief, the least amount of mesne profit can only be as low as the property’s rental value. However, if the evaluations done by expert reports reveal additional damages, these will also be considered.
- Causal relation
There must be an existing causal connection between damages and unlawful occupation of the property. Since the mesne profit is a type of tort compensation, the damage must be caused by the act of occupation which is a tortious component of the unlawful occupation.
- Bad faith
According to the legal basis of the mesne profit, Turkish Civil Code art. 995/1;
… the possessor in bad faith must compensate for the damages that resulted from its unlawful detention of property and the goods that the possessor may or may not have collected.
As it can be clearly seen by the article, the law seeks bad faith in dessiesor as a requirement for the owner to make mesne profit claims. In other words, the possessor in bad faith must know or should be able to know the fact that it is using the property without the consent of the owner and it doesn’t have the right of disposition of the property but despite this information, still continues its tortious conduct.
Procedural requirement
The mesne profit may be claimed alongside with actio negatoria (action to deny) case land registration case or independently. The burden of proof is on the plaintiff. The plaintiff must prove both the unlawful occupation itself and the duration of the alleged occupation (that is important because the compensation will be calculated in accordance with that).
The Competent Court
According to the 6100 Turkish Code of civil procedure article 2, Regardless of the value and amount of the subject of the case, the court in charge of cases related to assets and cases related to personal assets is the Civil Court of First Instance unless there is a contrary arrangement. Since mesne profit cases are related to property rights, the competent court is the Civil Court of First Instance.
Since the mesne profit lawsuit is filed based on the unfair use of an immovable property, the court of the place where the immovable property is located is authorized in mesne profit cases in accordance with the general jurisdiction rules.
In cases where the real estate belongs to the Administration, the court of the place where the real estate subject to the lawsuit is connected to is the competent court, but in this case, the court in charge is the Administrative Court and an action for the annulment of the administrative act must be filed in the Administrative Court.
Statute of limitations
Although mesne profit compensation is defined as a tort, it is limited to a period of 5 years by separating the case law and practices of the Court of Cassation and the statute of limitations to which this compensation is subject from the general statute of limitations under the Code of Obligations. This 5-year period starts from the date of the tortious act. In addition, the compensation subject to the mesne profit claim can only be claimed retrospectively due to its nature. In other words, ecrimisil cannot be requested for the period after the lawsuit has been filed.
In the decisions and the practices of the supreme court of Appeals, the time limitation is separated from the general rule for the limitations in the Turkish Code of Obligations and is limited to the 5-year time period which is starting from the moment when the tortious act is committed. In addition, the claim for the mesne profit, due to its nature, can be only done retrospectively. This means after a lawsuit is filed, the plaintiff cannot ask for mesne profit.
Keywords: Adequate Pay, mense profit, Tort, Unlawful occupation, ecrimisil, Turkish code of obligation, TCO, Property Law.
Kaya & Partner Hukuki Danışmanlık
Lawyers – Rechtsberatung
Istanbul / Turkey
Atty. Oğulcan AKMİL
Atty. Mustafa Barış SARIOĞLU