Lawsuit for Prohibition of Interference (Preventing Unauthorized Interference)

A lawsuit for the prevention of unauthorized interference is a legal remedy that protects the owner of a property from any interference that hinders their right to dispose of the property, ensuring the removal of such interference. The owner of a property has the right, within the limits of the legal order, to use, benefit from, and dispose of their property as they wish. An owner can file a claim for restitution against someone who unjustly holds their property, as well as sue to prevent any kind of unauthorized interference. It is not necessary to be the owner of the property to file this lawsuit. Personal right holders, such as those with usufruct or lease rights, are also authorized to initiate this lawsuit.

Conditions for Filing a Lawsuit for the Prevention of Unauthorized Interference

Both real and personal right holders are authorized to file this lawsuit. Examples of limited real rights include usufruct, habitation, superficies, and right of way. In cases of joint ownership or shared property, each partner/shareholder can file a lawsuit for the prevention of unauthorized interference. In such cases, the decision should concern the entire property, not just the proportionate share of the partner/shareholder initiating the lawsuit.

To file a lawsuit for the prevention of unauthorized interference, there must be an interference with the real or personal rights on movable or immovable property, or a risk of such interference. The possibility of future interference does not preclude the filing of a lawsuit for the prevention of unauthorized interference. This lawsuit aims to end the interference with real rights (ownership, usufruct, etc.) or prevent the risk of such interference.

The interference with the real or personal rights must be unjust. For the interference to be considered unjust, the interfering party must have no legitimate reason for creating the obstacle. The plaintiff does not need to be faultless in this lawsuit. Even if at fault, they can still file a lawsuit for the prevention of unauthorized interference, as this lawsuit solely protects the right of ownership and the rights derived from it.

Circumstances Necessitating the Filing of a Lawsuit for the Prevention of Unauthorized Interference

• A lawsuit for the prevention of unauthorized interference can be filed for any kind of rights violation in registered immovable properties that does not result in the loss of physical possession.

• If there is a real right holder on an unregistered immovable property, they can file a lawsuit for the prevention of unauthorized interference.

• A lawsuit can be filed if there is an ongoing and resolvable interference with movable properties.

• Natural forces are protected by the lawsuit for the prevention of unauthorized interference.

• Negative easements are protected by the lawsuit for the prevention of unauthorized interference. (e.g., easement to not block the view)

• If the holder of a pledge right has the property and the real owner of the property attempts to take it, the pledgee can file a lawsuit for the prevention of unauthorized interference.

Whether the Lawsuit for the Prevention of Unauthorized Interference Can Be Filed Alongside Additional Claims

The lawsuit for the prevention of unauthorized interference is filed to put an end to the unlawful interference. In some cases, the unlawful interference may also cause damage. The real or personal right holder (ownership right, usufruct, habitation right, etc.) can demand compensation for damages caused by the unlawful interference. In case of unlawful interference, the following claims can be made: The real or personal right holder can request restoration of the damaged or altered property to its original condition.

• If there are unauthorized constructions on the immovable property, the right holder can demand the demolition or removal of these constructions. For example, if someone unlawfully and maliciously constructs a building on the property, the owner can demand the demolition of this building as it is considered an unauthorized construction.

• The real or personal right holder can claim compensation for the unlawful use of the property (unlawful occupation compensation). In a lawsuit for the prevention of unauthorized interference, the above issues cannot be decided upon unless claimed by the real/personal right holder. For instance, if the owner demands both demolition and compensation for unlawful occupation, these demands must be separately stated in the lawsuit petition.

Prohibition of Interference in Shared Ownership and Joint Ownership

In cases of joint ownership, each partner, and in shared ownership, each shareholder, can independently file a lawsuit against third parties for the prevention of unauthorized interference, as such interference constitutes a tort.

Shareholders can also file this lawsuit against each other. In shared ownership, a shareholder who is unable to benefit from the property can always demand the prevention of interference by other shareholders. Even in joint ownership, a shareholder can file a lawsuit against other shareholders who prevent them from benefiting from the jointly owned property without the consent of other shareholders or without appointing a representative for the inheritance community. However, if there is an undisputed part of the property that the shareholder uses in exchange for their share, there is no possibility of hearing a lawsuit for the prevention of unauthorized interference. According to established Supreme Court precedents and scientific opinions, a shareholder claiming to use less than their share should resolve their issue not through a lawsuit for the prevention of unauthorized interference but by filing a lawsuit for partition or termination of joint ownership for a definitive resolution.

Trial in Lawsuit for the Prevention of Unauthorized Interference

Statute of Limitations: Unauthorized interference, by its legal nature, is a tort. As long as the act of interference continues, a lawsuit for the prevention of unauthorized interference can always be filed. Therefore, there is no prescriptive period or statute of limitations in a lawsuit for the prevention of unauthorized interference. For example, a person whose land has been illegally built upon can file a lawsuit for the prevention of unauthorized interference even after 7 years, as the unlawful interference continues.

Court Fees: The lawsuit for the prevention of unauthorized interference is subject to proportional fees based on the value of the subject matter of the lawsuit.

Parties in the Lawsuit for the Prevention of Unauthorized Interference: In the lawsuit for the prevention of unauthorized interference, the owner of the movable or immovable property or the lessee with personal rights is the plaintiff. The person or persons alleged to have unlawfully interfered with the property are the defendants. In movable or immovable properties subject to shared or joint ownership, each partner/shareholder can independently file a lawsuit for the prevention of unauthorized interference.

Proof in the Lawsuit for the Prevention of Unauthorized Interference: In a lawsuit for the prevention of unauthorized interference, the burden of proof lies with the plaintiff, who is the real/personal right holder (Civil Code Art. 6, Code of Civil Procedure No. 6100 Art. 190/1). The plaintiff must prove their real/personal right and that this right was unlawfully interfered with. The defendant, on the other hand, is obligated to prove that they did not interfere with the real/personal right. If the defendant admits to interfering with the real/personal right, they must prove the legal justification for the interference, that is, why the interference was not unjust.

Competent Court: The Court of First Instance, as the general jurisdiction court, is determined to be competent to hear the lawsuit for the prevention of unauthorized interference.

Jurisdictional Court: For immovable properties, the competent court to hear the lawsuit for the prevention of unauthorized interference is the court located where the property is situated. For movable properties, the competent court is the court of the defendant's residence, according to the general jurisdiction rule.

Judgment in the Lawsuit for the Prevention of Unauthorized Interference: As a result of the lawsuit for the prevention of unauthorized interference, the defendant is ordered to cease the acts of interference or refrain from actions that could lead to interference. The purpose of the lawsuit for the prevention of unauthorized interference is achieved through the execution of the judgment, which compels the defendant to act or refrain from acting.

Necessity of Finalization for Execution of the Judgment: In lawsuits for the prevention of unauthorized interference, if the ownership of the disputed item is also contested, the judgment obtained as a result of the trial cannot be executed until it becomes final. However, if the ownership of the item is not disputed, the judgment obtained as a result of the lawsuit for the prevention of unauthorized interference can be executed before it becomes final. For example, in a lawsuit filed by A against B for the prevention of unauthorized interference, if the defendant B claims ownership rights to the disputed immovable property, the property becomes contested, and regardless of the judgment rendered, it must be finalized before execution.