I. Possessory Action
The possessory action is a legal action that individuals can initiate to protect their property rights. Article 683 of the Turkish Civil Code states: “The owner of a thing has the authority to use, benefit from, and dispose of it as they wish within the limits of the legal order. The owner may bring an action for recovery against anyone unlawfully holding their property, as well as prevent any kind of unlawful interference.” This type of lawsuit is also referred to as an action for prevention of interference.
If the owner cannot use their property as they wish, cannot benefit from it as desired, or if their right of disposition is somehow restricted, they may initiate a possessory action to terminate such situations and rid themselves of unlawful interferences. This lawsuit aims not to recover damages suffered but to cease the interference. However, along with possessory action, a second lawsuit for damages incurred may also be filed.
The possessory action can be filed to prevent existing interferences or to prevent future interferences. In this lawsuit, the plaintiff requests that the defendant, who interfered with their property, be compelled to either take or refrain from taking certain actions.
The lawsuit should be filed in the court of first instance (asliye hukuk mahkemesi) where the immovable property subject to interference is located. The owner of the interfered immovable property or the holder of a limited real right should file the lawsuit against the interfering party.
II. Obligations Arising from Neighbourhood Law
There are certain obligations that neighbors have towards each other. These obligations are regulated in the Turkish Civil Code and the Condominium Ownership Law.
Neighbors are obliged:
- To avoid causing disturbances that would adversely affect each other,
- Not to cause annoyance by emitting smoke, steam, dust, odor, noise, or vibration beyond a tolerable level,
- Not to encroach on each other’s properties by constructing buildings beyond permissible limits,
- When excavating or constructing, not to disturb or endanger neighboring properties or affect their facilities,
- Upon request, to remove branches and roots that encroach onto the neighbor’s land and cause damage,
- To tolerate the natural flow of waters, especially rain, snow, and untapped spring waters, from higher to lower properties,
- To tolerate the passage of pipes for waterways, drainage channels, gas, and similar utilities, as well as electrical lines and cables, through or over their own properties if it is impractical or excessively costly to install them elsewhere, provided that the full cost of any damage incurred is reimbursed in advance,
- To contribute proportionally to the necessary actions and expenses for the use of rights arising from neighborhood law, in accordance with their own benefits.
III. Under What Circumstances Can a Possessory Action Be Filed?
There are specific reasons recognized by the Court of Cassation for filing a possessory action. You can initiate the lawsuit if there is a violation of an obligation arising from neighborhood law and you are not obliged to tolerate it.
In the following situations, it is possible to file a possessory action:
- Dissemination of odor, moisture, or dampness from your neighbor’s property to yours,
- Emission of soot or smoke in a manner that damages the appearance or structure of your property or obstructs the view,
- Discharge of wastewater from your neighbor’s property onto yours,
- Emission of gases from thermal power plants,
- Unpleasant odors emanating from a carpentry workshop,
- Unpleasant odors resulting from livestock farming,
- Smoke from your neighbor’s chimney dirtying your garden or balcony,
- Smoke from your neighbor’s stove reaching your property and posing a fire hazard,
- Noise, dust, wastewater, and environmental pollution caused by a concrete plant,
- Diminishing sunlight, sunlight, or wind due to your neighbor planting trees or constructing,
- Dust arising from trucks using the road adjacent to your neighbor’s property,
- Leakage from a boiler located on your neighbor’s property,
- Noise generated by a generator on your neighbor’s property,
- A road built by your neighbor leading to theft on your property,
- Structures or plants on your neighbor’s property partially or completely obstructing the view from your property,
- Windows directly facing your property from your neighbor’s property.
IV. Conditions for Filing a Possessory Action Arising from Neighbourhood Law
There are certain conditions for initiating and winning a possessory action. Firstly, it is necessary for the owner’s rights over the property to be unlawfully restricted or to be potentially restricted in the future. However, ownership of the property must not have passed to another possessor.
The fault of the defendant or the occurrence of damages is not crucial. Fault on the part of the defendant is not a condition for the lawsuit. Additionally, the plaintiff must not be obliged to tolerate the nuisance. The nuisance must be unjust.
For instance, the owner is obliged to tolerate nuisances that are within reasonable limits. If the owner has granted a limited real right or relative right that allows the use of the property, they must tolerate the beneficiary’s use of the property. Furthermore, if the owner has established a right of passage in favor of the defendant, they must tolerate the defendant’s use of the passage. In such cases, a possessory action cannot be filed.
V. Consequences of a Possessory Action
A possessory action aims to cease any ongoing violation or prevent future violations. Therefore, the outcome of the lawsuit typically involves a decision to eliminate the unjust nuisance.
If the lawsuit is successful, the defendant may be ordered to cease the actions causing the nuisance or refrain from engaging in activities that would cause the nuisance. For example, if the defendant is responsible for noise that constitutes an unjust nuisance, they may be ordered to reduce the noise to a level that no longer constitutes a nuisance. If it is determined that the construction of a building by the defendant would damage the foundation of the plaintiff’s property, the defendant may be prohibited from constructing the building.
A possessory action does not automatically rectify the negative situation already present on the plaintiff’s property due to the nuisance. In addition to a possessory action, a separate lawsuit for damages or restoration to the previous state can be filed to address any damages incurred.
Ece Deniz Vardar
Lawyer / Attorney in Turkey
Call Us : +90 212 909 86 34
Sen Mail : info@ballawyer.com
