The Fulfillment Of The Condition Of Non-Use Of The Immovable Immovable Property – Decision Regarding Whether The Actual Use Binding All Stakeholders On The Contested Immovable Property With A 3-Storey Building Has Not Been Determined
T.C. JUDICIARY
1st Civil Chamber
Basis: 2015/3581
Decision: 2016/7039
Decision Date: 09.06.2016
ECRİMİMİSİL CASE – THE REALIZATION OF THE CONDITION OF DISALLOWANCE WILL BE SOUGHT IN TERMS OF IMMOVABLES – IT HAS NOT BEEN DETERMINED WHETHER THE ACTUAL USE THAT BINDS ALL STAKEHOLDERS HAS OCCURRED ON THE DISPUTED IMMOVABLE PROPERTY WITH A 3-STOREY BUILDING – THE JUDGMENT IS REVERSED
SUMMARY: Except for the exceptions listed for the immovables subject to the lawsuit, the realization of the condition of exclusion from occupation will be sought and the claim that the condition of exclusion from occupation has been realized can be proved with all kinds of evidence. In the disputed immovable property where there is a 3-storey building, it is not established whether the actual use of the disputed immovable property that binds all shareholders has occurred, if it has occurred, who or whose shares the disputed section corresponds to and by whom it is used, if not, whether there is a place that the plaintiff can use, whether there are empty apartments in the immovable property. The judgment is reversed for this reason.
(4721 S. K. art. 995) (YHGK 27.02.2002 T. 2002/3-131 E 2002/114 K.)
Case and Decision: At the end of the ecrimisil case between the parties, the decision of the local court regarding the acceptance of the case was appealed by the defendant within the legal period, the file was examined, the report of the Examining Judge … was read, his explanations were listened to, and the necessity was discussed and considered;
The lawsuit is related to the claim for ecrimisile.
The plaintiffs claimed that the immovable property numbered 4802 block 14 parcel of land owned by their heir … has been used by the defendant heir for a long time, but no compensation has been paid for their shares, and that they have not received any results despite the notice they have issued, and requested a decision for ecrimisile.
Defendant defended the rejection of the lawsuit.
The Court decided to accept the case on the grounds that the claim was fixed.
It is a matter of record that the immovable property numbered 4802 block 14 parcel, on which there is a 3-storey building on which no condominium easement or condominium ownership is established, was registered in the name of …, the heir of the parties, but upon his death, it was transferred to the name of the plaintiff …, …, the defendant … and the defendant … and the non-suit …, who are his heirs.
It should be noted immediately that the parties are shareholders in the immovable property subject to the lawsuit. In shared ownership, the shareholder who cannot benefit from the immovable property may always request the prevention of the seizure and/or ecrimisil from the other shareholder or shareholders who prevent it. In the case of joint ownership, one of the shareholders may file an action for ecrimisil against the shareholders who prevent him/her from benefiting from the common immovable property without obtaining the consent of the other shareholders or without appointing a representative to the inheritance company. However, if that shareholder has an undisputed use of a part of the immovable property in return for his/her share, it is not possible to hear the action for ecrimisil. According to the established case law of the Court of Cassation and the scientific opinions in the same direction, the shareholder who claims that he/she uses less space than his/her share should resolve his/her problem by filing a lawsuit for partition or elimination of the partnership through sale.
As a rule, shareholders cannot claim ecrimisil from each other unless they are barred. The fulfillment of the exclusion condition depends on the fact that the plaintiff shareholder notified the defendant shareholder of the plaintiff shareholder’s intention to benefit from the immovable property subject to the lawsuit or its income before the period for which ecrimisil is requested. However, there are some exceptions to this rule that have emerged through established judicial practices. These are the immovable property subject to the lawsuit is a public property, the immovable property for which ecrimisil is requested is one that yields natural products (such as vineyards, gardens) or where legal benefits are obtained by renting (such as workplaces, residences), the shareholder occupying the shared immovable property claims the right to the whole of this place and denies the shareholding of the others, the existence of a common immovable or parts of the immovable that each shareholder will benefit from as a result of the use agreement between the shareholders, and the filing of lawsuits or execution proceedings by the plaintiff against the other shareholders regarding this immovable, such as prevention of encroachment, elimination of partnership, ecrimisil and similar lawsuits. Apart from this, in terms of the product that the immovable brings, there is no need to fulfill the condition of barring from occupation in the case of occupation of spontaneous products; mowed grass, harvested hazelnuts, tea, or the business established by the muris or businesses that generate income on their own.
Again, in the event that there is a common immovable or its parts to be benefited by each stakeholder as a result of the use agreement between the stakeholders, the condition of prohibition of occupation is not sought in cases where the plaintiff stakeholder files a lawsuit against the defendant stakeholder for the prevention of seizure, the elimination of the partnership, ecrimisil and similar lawsuits regarding this immovable.
Therefore, except for the exceptions listed for the immovable immovables subject to the lawsuit, the realization of the condition of non-occupancy will be sought and the claim that the condition of non-occupancy has been realized can be proved with all kinds of evidence. (Decree of the Supreme Court of Appeal General Assembly of Civil Chambers dated 27.02.2002 and numbered 2002/3-131 E, 2002/114 K)
As for the concrete case; it has not been revealed whether the actual use of the disputed immovable property, where there is a 3-storey building, which binds all shareholders, and if so, who or whose shares the disputed section corresponds to and by whom it is used, and if not, whether there is a place that the plaintiff can use, and whether there are empty apartments in the immovable property.
In this case, it is necessary to conduct an investigation and examination in a manner that covers the principles mentioned above, to collect all the evidence submitted by the parties, to determine whether the actual use that binds all shareholders has occurred, and if so, to determine who uses where, If the actual use has not occurred, it is necessary to determine whether there is a place that the plaintiff uses or can use in the immovable property in return for his share, or whether the entire immovable property is used by the defendant, whether there are empty apartments in the immovable property, and a decision should be made within the framework of the result to be reached, but it is not correct to have established a judgment as written by being satisfied with incomplete investigation.
Conclusion The appeals of the defendant are appropriate for the reasons stated. It was unanimously decided on 09.06.2016 that the judgment shall be annulled in accordance with Article 428 of the Code of Civil Procedure No. 1086 (with reference to the provisional Article 3 of the Law No. 6100) for the reasons explained, and the advance fee shall be returned to the appellant.
You can access our other article examples and petition examples by clicking here.