Adequate Pay Cases Under Turkish Law

An Adequate Pay Lawsuit is filed with the aim of claiming compensation from a person who uses a property without the owner's consent. In such compensation claims, unlike general rules, the existence of damage is not required. Even if no damage has occurred, compensation may still be awarded upon determination of unlawful occupation.

What Does Adequate Pay Mean?

Adequate pay refers to the use of a property without a contract with the owner or without the owner's consent. This situation provides an unjust benefit to the occupier. The owner may file a lawsuit to end this interference, asserting their property rights. The court evaluates the parties’ claims and defenses to determine whether the plaintiff indeed holds property rights, whether unlawful occupation exists, and, if so, the amount of compensation to be paid for such occupation.

Legally, adequate pay is compensation payable retroactively due to unlawful occupation. In such cases, the rightful owner of the property files an adequate pay lawsuit against the unlawful occupier, requesting both the determination of the occupation and compensation. A general statute of limitations of five years applies to such claims. However, over time, Court of Cassation decisions and practices have shown variation. Today, the issue is evaluated within the framework of general statute of limitation provisions.

The basic rule in the legal system is the presumption of good faith. The party alleging the absence of good faith must prove it. Moreover, in cases where the necessary care has not been exercised, a defense based on good faith cannot be asserted. In an adequate pay lawsuit, the party alleging unlawful occupation bears the burden of proof.

If the person accused of unlawful occupation claims the allegation is incorrect, they must also prove their claim. Proof is not subject to a specific form. Unlawful occupation refers to any kind of use without a just and valid reason. For example, renting out an unused apartment without the owner’s consent or one co-owner constructing a road over another co-owner’s share without permission are examples of unlawful occupation. Adequate pay lawsuits are closely related to lawsuits concerning right of passage, prevention of interference (actio negatoria), and partition of jointly owned property.

How to File an Adequate Pay Lawsuit

A person who wishes to file an adequate pay lawsuit must first prove their ownership rights over the occupied property. This is generally done with a title deed, which is sufficient. If the plaintiff holds a usufruct right, this must also be registered in the land registry and proven with the land registry records. Unlike classic tort claims, the occurrence of damage is not required in this case. Likewise, the fault of the occupier is irrelevant. The owner (or right holder) may claim compensation from the person who has used the property unlawfully, even if no actual damage has occurred. The basis of this claim is the unauthorized and unlawful use of the property.

The compensation amount must be calculated by considering the property's location, characteristics, and nature. If the unlawful use has prevented the owner from generating income, this should also be clearly stated in the lawsuit petition. In any case, the amount of compensation to be determined must be based on comparable rental values of similar properties and should never be lower than standard rent. The plaintiff must attach documents showing ownership or usufruct rights to the petition. If these documents are not available, the court must be requested to obtain them from relevant institutions. The burden of proof for unlawful occupation also lies with the plaintiff.

The plaintiff must prove that the opposing party used the property unlawfully. For example, there should not be a valid rental agreement between the parties. However, if the tenant uses more area than specified in the contract, this also constitutes unlawful occupation. When determining the damage, factors such as wear and tear due to use, profits gained by the defendant through such use, and the duration of the use are considered. These elements are assessed together to determine the amount of compensation.

The plaintiff should detail these elements in the lawsuit petition, request an expert examination from the court, and demand an on-site inspection. If the damage cannot be precisely calculated at the time of filing (which is often the case), the claim should be filed as an unquantified receivable. As the expert examination clarifies the damage during the proceedings, the lawsuit will proceed based on the determined amount. Initially claiming only a partial amount helps avoid potential loss of rights.

How Long Does an Adequate Pay Lawsuit Take?

Postponement of hearings for various reasons, failure to conduct on-site inspections, or delayed submission of expert reports can prolong the legal process. Therefore, it is important to avoid such disruptions. Under normal conditions, an adequate pay lawsuit typically concludes within an average of 2 years.

Under What Conditions Can an Adequate Pay Lawsuit Be Filed?

To file an adequate pay lawsuit, there must be an unlawful occupation. In addition, the right holder must have suffered damage. This damage may result from the use of the property, depreciation of the property, or the loss of expected profits. Furthermore, the damage must be caused by the occupation—there must be a causal link between the unlawful use and the damage. Adequate pay cannot be claimed for damages unrelated to or not caused by the occupation.

For the occupation to be considered unlawful, the occupier must be in bad faith. That is, the person must either know or be in a position to know that they have no right over the property. For example, someone who builds a shack on a neighboring parcel they know is not theirs, or a tenant who remains on the property after the lease period ends, is considered to be in bad faith and an unlawful occupier.

In addition to all these conditions, the statute of limitations must be considered. Adequate pay is not directly defined in the law but has been shaped by judicial decisions. Therefore, the applicable legal provisions have been interpreted differently over time. At various times, provisions regarding lease agreements, torts, or unjust enrichment have been applied.

Although adequate pay is now considered a type of tort, it is subject to a five-year statute of limitations, unlike classic tort lawsuits. This period starts from the date the act causing the unlawful use occurred. However, a significant point is that if the unlawful use is ongoing, the statute of limitations is not considered to have started.

Competent Court for Adequate Pay Lawsuits

Unless otherwise stipulated by law, lawsuits concerning immovable properties are heard in civil courts of first instance. As with lawsuits for prevention of interference, preemption rights, or cancellation and registration of title deeds, adequate pay lawsuits are also heard in civil courts of first instance due to the lack of a specific regulation. The competent court is the court located in the jurisdiction where the property is situated.

Notice Requirement in Adequate Pay Lawsuits

Sending a notice to the defendant before filing an adequate pay lawsuit is not mandatory. Even if no prior notice has been given, the right holder may directly file a lawsuit. In practice, the purpose of sending a notice is to put the defendant in default so that interest begins to accrue from the date of notice rather than the date of the lawsuit.
Failure to send a notice does not result in dismissal of the lawsuit. The plaintiff may claim adequate pay without giving notice. Since notice is not mandatory, it also does not have to be in writing. Oral or behavioral notices are also considered valid, provided they can be proven. There is no specific form required for proof; witness statements or oaths may suffice.

Adequate Pay Lawsuits Among Heirs

While a notice is generally not required, the situation differs for properties inherited and subject to joint or collective ownership. In such cases, a condition known as “intifadan men” (prevention from usufruct) makes notice mandatory.
Some heirs may be using undivided inherited properties. If the other heirs wish to terminate this use and claim adequate pay, they must first send a notice or file a lawsuit for prevention of interference. Either method fulfills the requirement for intifadan men.
A written notice is not mandatory; any notice that can later be proven is valid. If there is a previously filed lawsuit for partition or cancellation and registration of the title deed, such lawsuits are accepted in lieu of notice, and the intifadan men requirement is deemed fulfilled.

In practice, adequate pay lawsuits among heirs are quite common. For example, cultivating an inherited field without the consent of the other heirs or renting out a jointly inherited house without their approval are typical cases.
Suppose two siblings inherit a two-story house with a garden from their mother. One sibling lives in one apartment and rents out the other. In this case, the other sibling may directly claim adequate pay for the rented apartment. However, for the occupied apartment, the intifadan men requirement must first be fulfilled; compensation can be claimed only for the period following that date. The court will award adequate pay for the period from the date of intifadan men to the date of the lawsuit.

If an adequate pay lawsuit is filed without fulfilling the intifadan men requirement, and the defendant argues, “The plaintiff could have used it too if they wanted,” and proves this claim, the case will be dismissed. Conversely, the plaintiff must prove that they attempted to use the property and communicated this request to the defendant.