First of all, to define what Ecrimisil is; It is the “unlawful occupation compensation” arising from the use of an immovable by a person who does not have the right and authority to use of it, without the permission of the owner of the property. Ecrimisil is not a rent payment debt!
The real or legal person who is the debtor of Ecrimisil, who is in an unfair occupation, must be in bad faith and must not have the right and authority to dispose of the said immovable. The possible income that can be obtained from the immovable as it was before the occupation is calculated retrospectively. Paying the ecrimisil fee does not prevent evacuation and also does not give the wrongful occupant any right to property!
The Ecrimisil lawsuit is filed in the Civil Court of First Instance where the real estate is located. Although it is defined as a tortious act, it is limited to 5 years, unlike the case law and practices of the Supreme Court and the general statute of limitations within the scope of the Code of Obligations. In other words, it has the right to demand a 5-year fee retrospectively.
The unjust occupant, who has bad faith, may demand compensation for the expenses that must be made for the right holder, but he cannot demand useful and luxurious expenses. On the other hand, if it is possible to separate the useful and luxury expenses without damaging the property, the unjust occupant must have the same authority to separate the luxury expenses as the bona fide possessor.
It will affect the value of the real estate in order to determine the ecrimisil price; zoning status, area, quality, efficiency, whether it benefits from infrastructural services, its location, the income it can generate if it is used as it was before the occupation, the rental fees or penalties incurred for immovables with precedent quality in the same place and location, if any, finalized judicial decisions regarding them, if necessary, according to their relevance Information to be obtained from institutions such as municipalities, chambers of commerce, chambers of industry, chambers of agriculture, stock exchange or experts is taken into consideration.
Ecrimisil, which is determined by considering these issues, is notified to the occupant with the “Ecrimisil Notice” within 15 days from the date of determination. In this warning, it should be stated that the use of the immovable in this way was not accepted, the consent was not given and the compensation fee was demanded because it was used without consent. This is called the “condition of prohibition from usufructuary”. However, filing a lawsuit for dissolution of the partnership before the Ecrimisil lawsuit also means that the condition of prohibition from usufruct is fulfilled. There is a right to object with a petition within 30 days from the notification of the notice.
In the decision of the 1st Civil Chamber of the Court of Cassation, dated 03/03/2004 and numbered 2004/1772 Main, 2004/2156 Decision, the scope of ecrimisil has been determined.
“Since Ecrimisil is a special form of compensation for unjustified occupation, it is at least a loss against rental income.
In the decision of the 1st Civil Chamber of the Court of Cassation, dated 03/03/2004 and numbered 2004/1772 Main, 2004/2156 Decision, the scope of ecrimisil has been determined. “Since Ecrimisil is a special form of compensation for unjustified occupation, it is at least a loss in return for rental income.
- a) Positive damage in the form of obsolescence as a result of normal use arising from unfair occupation,
- b) Positive damage arising from use,
- c) The benefit (negative harm) that the owner or the possessor is deprived of determines the scope of ecrimisil. Unjust occupation is an unjust act. All relevant chambers of the Supreme Court of Cassation and the Supreme Court of Law have based their decisions on these summarized principles.”
Ecrimisil Transactions in Treasury Immovables
In case it is determined that the treasury immovables are occupied by real or legal persons; Within fifteen days from the date of determination, Ecrimisil is determined and appreciated by the price determination commission, based on the immovable determination report, not exceeding five years from the date of determination. However, the Ecrimisil price determined and appraised cannot be less than the rental price. Even if a counterclaim is filed, the Ecrimisil amount has to be allocated.
There is a right to object with a petition within 30 days from the notification of the notice. Upon this objection, a positive or negative “Ecrimisil Correction Notice” is issued and notified to the relevant person within 30 days. Fifteen percent discount is applied if the payment is made to the accounting units within 60 days from this notification, or a lawsuit can be filed within this period for the cancellation of the penalty correction notice. At this stage, if a lawsuit has been filed upon a request for pause of execution, if the Court has decided to stay of execution, the collection is suspended until the case is concluded.
If the administration corrects the mistakes made by the administration and which need to be corrected ex officio; In case of objection or lawsuit filed against the Ecrimisil notice and the lawsuit filed against the Ecrimisil correction notice is unconditionally waived, a twenty percent discount is applied. If the debtor of ecrimisil requests in writing due to insolvency, the ecrimisil may be paid in installments, at least twenty-five percent in cash, and the remaining part at the installment times deemed appropriate by the Administration and within a maximum of three years. Legal interest is applied to the remainder of the receivable.
You can contact us for all your legal assistance and support needs, if you have an unjustly occupied immovable in this way or if an ecrimisil notice has been sent to you even though these conditions are not met
