Adequate pay which is also described as ejectment, is the use of a property or immovable by someone else without the consent of the owner. According to the established jurisprudence of the Court of Cassation, the compensation that the owner who is not a possessor can request from the malicious possessor who is not the owner due to unfair occupation is called adequate pay.
According to Article 995 of the Turkish Civil Code, the possessor who is not in good faith has to pay compensation for the damages he has caused to the right owner and the products he has obtained or neglected to obtain, due to the wrongful retention of what he is obliged to return.
What Are The Terms Of Adequate Pay?
1) Unlawful detainer
In order to be able to claim adequate pay, it is necessary to have a unlawful detainer. Unlawful detainer is the seizure of a property or immovable without the consent of the right owner and without a lawful reason.
2) The Unjust Occupation of the Malicious Unjust Possessor
The unjust occupation must be carried out by malicious unjust possession. The person who knows the injustice of owning the possession or who could have known if he had shown the necessary care is called malicious possessor.
3)Damage to the right holder
In the case law of the Court of Cassation, in order to be able to demand adequate pay, it is required that there be an unlawful occupation and that the unlawful occupation is carried out by a malicious unjust possessor, as well as the condition that the right holder suffers a loss.
If Authorızed By The Floor Owners, Can The Apartment Manager File A Case With Adequate Pay?
In the claim for adequate pay, the plaintiff is the person who has a right on the property or immovable subject to the unlawful occupation. Owners, limited real rights holders and personal rights holders have the authority and right to demand compensation.
In case of occupation of the common areas in the main immovable where the condominium is established, the Supreme Court Assembly of Civil Chambers dated 5.4.2017 and numbered 2017/1-1282 decision, it has been accepted that if the flat owners are authorized to use and protect the common places in accordance with their purpose, the manager can file an action for adequate pay, which is a kind of compensation arising from the unfair use (occupation) of the common places within the scope of his representation power.
In the adequate pay case the defendant is the person who unjustly occupies a property or immovable.
What Is The Period Of Lımıtatıon For Adequate Pay Requests?
The Court of Cassation, in a decision of joint chambers dated 25.5.1938 and numbered 37/29-38/10, likened the nature of this compensation to the rental price and accepted that it is subject to a 5-year statute of limitations in accordance with Article 126 of the Turkish Code of Obligations. Later, the Court of Cassation changed this view with the decision of joint chambers dated 8.3.1950 and numbered 22/4 and accepted that the claim for adequate pay was a compensation claim based on tortious act. However, despite this, the Supreme Court Assembly of Civil Chambers continues to apply the 5-year statute of limitations regarding the lease contract.
What Should Be Considered In Adequate Pay Account?
In the decisions of the Court of Cassation, a range of minimum rental income and maximum complete deprivation of income has been determined in the calculation of adequate pay.