Careful When Claiming Ecrimisil From Your Co-Owner: The Notice-to-Vacate Requirement and the 5-Year Statute of Limitations

In property that has become jointly owned through inheritance or a joint purchase, one co-owner may use the property alone while the other co-owners receive no share of that use for years. In this situation, the claim the other co-owners bring is ecrimisil — compensation for unauthorized use. However, how far back this claim can reach, when the notice-to-vacate (intifadan men) requirement is met, and how the statute of limitations defense operates are matters frequently confused in practice. In this article we explain the limits of an ecrimisil claim in shared ownership in light of Court of Cassation rulings.

Summary of the Situation

In a property subject to shared ownership, one co-owner uses the property alone for many years (for example, ten years), while the other co-owner makes no claim during that period. At some point, the other co-owner sends a notarized notice to the co-owner in possession, communicating their wish to benefit from the property and claiming retroactive compensation (ecrimisil). The co-owner in possession may respond with a defense such as "we had a verbal agreement between us that I would not pay."

The Legal Issue

Three key questions arise in this type of dispute:

• Is the ecrimisil claim calculated from the date use of the property began, or only from the period following the notice?
• What is the statute of limitations period in ecrimisil cases, and from when is it calculated?
• Does the opposing party's defense that "there was a verbal agreement" constitute a statute of limitations defense?

What Does the Court of Cassation Say?

The Notice-to-Vacate Requirement: A Precondition for Ecrimisil

In property subject to the shared ownership regime, as a rule the "notice to vacate" (intifadan men) requirement must be met before co-owners may claim ecrimisil from one another. According to the settled case law of the Court of Cassation's 8th Civil Chamber (E. 2018/16206, K. 2020/5453, 2020; E. 2020/2017, K. 2021/1522, 2021), the notice-to-vacate requirement is met when the plaintiff co-owner communicates their wish to benefit from the property to the defendant co-owner.

However, where the property has been used for a long time without objection, this use is presumed to have initially been "based on consent" (Court of Cassation, 1st Civil Chamber, E. 2010/945, K. 2010/2213, 2010; Court of Cassation, 8th Civil Chamber, E. 2018/3024, K. 2019/1587, 2019). This consent can only be terminated by a notarized notice or a similar communication. In that case, ecrimisil is calculated from the date the notice is served (or from the expiry of any period granted in the notice) (Court of Cassation, 1st Civil Chamber, E. 2015/6817, K. 2017/5740, 2017). It is also emphasized that a family relationship together with long-term use implies tacit consent, and that ecrimisil can only be triggered by a notice (Court of Cassation, 7th Civil Chamber, E. 2022/359, K. 2023/1864, 2023).

Statute of Limitations for Ecrimisil: 5 Years, Counted Back From the Date of the Lawsuit

Ecrimisil claims are subject to a five-year limitation period under the Court of Cassation's Unification of Case Law Decision of 25 May 1938, No. 29/10 (Court of Cassation, General Assembly of Civil Chambers, E. 2008/45, K. 2008/103, 2008). This five-year period runs not from the date of the notice, but backward from the date the lawsuit was filed (Court of Cassation, 8th Civil Chamber, E. 2019/4235, K. 2021/3325, 2021; Court of Cassation, 7th Civil Chamber, E. 2022/6168, K. 2023/6279, 2023).

In other words, even where a claim covers, say, ten years, if the defendant duly raises a statute of limitations defense, the court may only examine the five years immediately preceding the date the lawsuit was filed. If the statute of limitations defense is not raised, ecrimisil may be awarded for a period exceeding five years as well (Court of Cassation, 1st Civil Chamber, E. 2014/1852, K. 2014/7086, 2014).

The "There Was a Verbal Agreement" Defense Does Not Count as a Statute of Limitations Defense

A statement the defendant might raise in a response notice — "we had a verbal agreement between us, I was not going to pay rent" — is not, in its legal nature, a "statute of limitations defense" but a substantive "consent/contract" defense. Decisions of the Court of Cassation's 3rd Civil Chamber (E. 2012/18146, K. 2012/22801, 2012) and 8th Civil Chamber (E. 2020/1526, K. 2020/5364, 2020) emphasize that a limitation defense must be raised explicitly and separately, in due form. General objections in a response notice or a mere denial of the debt do not substitute for a statute of limitations defense.

The Timing of the Statute of Limitations Defense Is Critical

The statute of limitations is a defense that, under Code of Civil Procedure No. 6100 (HMK), must as a rule be raised within the period for the response petition (Court of Cassation, 8th Civil Chamber, E. 2018/5806, K. 2020/5614, 2020).

• Raised in time: If the defendant raises the limitation defense within the statutory response period after the case is filed, this defense is accepted as valid and the claim is limited to five years.
• Raised after the deadline: A limitation defense raised after the response period has expired falls within the "prohibition on expanding the defense". Unless the plaintiff explicitly consents to this expansion, the court cannot take the limitation defense into account (Court of Cassation, 3rd Civil Chamber, E. 2012/18146, K. 2012/22801, 2012).
• Raised at the appellate stage: A limitation defense not raised before the court of first instance cannot be raised for the first time at the regional court of appeal stage (Konya Regional Court of Appeal, 6th Civil Chamber, E. 2021/13, K. 2022/2061, 2022).

Points to Watch

• Draft the notice correctly. The notice must clearly reflect not merely a request but the intent to "terminate the implied consent" (intifadan men). This document will determine the starting date for the ecrimisil calculation.
• Do not forget the burden of proof. The claim of "residing with permission" must be proven by the defendant; however, long-term silence between siblings up until the notice carries the risk of being interpreted as "tacit consent."
• Investigate exceptions to the notice-to-vacate requirement. In situations such as the property being leased out and generating income, a ten-year retroactive claim may succeed without the notice-to-vacate requirement; this possibility should be assessed before filing suit.
• Be prepared for a statute of limitations defense. If your claim covers a period longer than five years, bear in mind that the opposing party may raise a limitation defense, in which case your claim may be limited to the last five years.

Conclusion: What Should You Do?

It is possible to claim ecrimisil in shared ownership; however, there is a high likelihood of encountering a "use based on consent" defense for the period before the notice to vacate, and of the claim being limited to the period after the notice. In addition, if the defendant duly raises a statute of limitations defense, your claim will be limited to the five years preceding the date the lawsuit was filed.

Before filing suit, be sure to evaluate the history of the property's use, the exceptions to the notice-to-vacate requirement (such as leasing), and the correct drafting of the notice together with a real estate law attorney. This will directly affect both the scope of your claim and the likelihood of success in the case.