Mesne Profits (Unlawful Occupation Compensation) - What is it?

Mesne Profits (Unlawful Occupation Compensation) - What is it?

Mesne profits refer to compensation for the unauthorized use of movable or immovable property by someone other than the owner. This legal remedy is pursued through a lawsuit by the property owner against the unauthorized user. In a mesne profits lawsuit, the minimum compensation is equivalent to the rental value of the property. The maximum compensation is based on the profit loss that the owner would have incurred if they had utilized the property themselves.

Conditions for Claiming Mesne Profits

Mesne profits lawsuits are not explicitly outlined in statutes but have been established through judicial precedents, particularly by the Supreme Court of Appeals. To file for mesne profits, certain conditions must be satisfied: The property, whether movable or immovable, must be unlawfully occupied. The occupier must act with malicious intent, and the property owner must have incurred damage due to the occupation.

1- Condition of Unlawful Occupation

Unlawful occupation involves using someone else’s property without a legal justification. This includes taking possession of another's property without consent. Even if possession was initially lawful but later became unlawful, the person is considered an unlawful occupier. Unlawful occupation can occur not only by third parties but also by heirs or joint owners.

2- Condition of Malice

For mesne profits to be claimed, the occupier must be acting with malice. If the occupier is in good faith, mesne profits cannot be claimed. Malice implies the occupier's awareness or reasonable knowledge of their unlawful use of the property. A person may transition from good to bad faith over time, and in such cases, mesne profits can only be claimed for the duration of malicious intent.

3- Condition of Damage

There must be demonstrable damage due to the unlawful occupation. The damage could be physical wear and tear of the property or loss of potential rental income. As per judicial interpretations, damages claimable under mesne profits include:

• Damages due to normal wear (positive damage)

• Damages arising from non-use (positive damage)

• Loss of benefits that the owner is deprived of (negative damage)

4- Condition of Causal Relationship

A direct causal relationship between the unlawful occupation and the resultant damage is necessary. The damage must clearly stem from the unlawful occupation.

How is Mesne Profits Compensation Calculated?

The calculation of mesne profits ranges from a minimum equivalent to the rental income to a maximum of the total income deprivation. The plaintiff must clearly state their claim in the lawsuit. The mesne profits amount is determined by an appointed expert panel during the trial. Factors such as the property's zoning status, location, size, type of agriculture (irrigated or dry), conditions before and after the occupation, and comparable rental values are considered in determining the compensation.

Mesne Profits in Joint Ownership

In joint ownership, divided into fractional ownership and joint tenancy, the procedure for filing mesne profits lawsuits among joint owners and against third parties varies.

Joint Owners Suing Third Parties

In fractional ownership, each joint owner can file a lawsuit against third parties (non-partners) who unlawfully occupy the jointly owned property, claiming mesne profits proportional to their shares. These lawsuits can be filed individually according to their shares or collectively. In joint tenancy, although unanimous consent is generally required for dispositional acts, as shaped by Supreme Court decisions, mesne profits are divisible rights. Therefore, any joint owners in a joint tenancy can claim for their specific share.

Joint Owners Suing Each Other

In both joint tenancy and fractional ownership, any joint owners can file a lawsuit for mesne profits compensation if the jointly owned property is unlawfully occupied by other joint owners. However, if the joint owner claiming mesne profits is using a portion of the property corresponding to their share undisputedly, their lawsuit for mesne profits will not be entertained. If there is a usage agreement defining each joint owner's portion, the condition of being deprived of enjoyment (intifa) does not apply. If a joint owners claims to use less than their share, they should not file for mesne profits but rather seek resolution through partition or dissolution of the partnership by sale. In a type of joint tenancy like inheritance joint ownership, if an estate representative is appointed, the right to file for mesne profits belongs to this representative.

Condition of Prohibition from Usufruct in Mesne Profits Lawsuits Among Joint owners

In both fractional and joint tenancy ownership, mesne profits claims are often raised among joint owners rather than against third parties. However, filing mesne profits claims against each other is subject to specific formal conditions. For joint owners to file a mesne profits lawsuit against each other, the condition of prohibition from usufruct must be met. This condition is fulfilled when the plaintiff joint owner communicates their desire to benefit from the disputed property or its income to the defendant joint owner before filing for mesne profits. Once the joint owner is prohibited from usufruct, a mesne profits lawsuit can be filed against them for compensation. The condition of prohibition from usufruct is achieved by notifying the other joint owners through a notarial warning, previous lawsuits like interference prohibition, dissolution of partnership, enforcement proceedings, or any other verifiable means expressing the desire to benefit from the property or its income. Without prior prohibition from usufruct, mesne profits lawsuits filed against joint owners will be dismissed. The communication of the usufruct request to the joint owner can be proven by all kinds of evidence.

In some cases, mesne profits lawsuits can be filed directly against joint owners without the need for prohibition from usufruct. According to the Supreme Court, situations where mesne profits lawsuits can be filed without prior prohibition from usufruct include:

• The property in question is public property,

• The property (like vineyards, gardens) naturally produces goods,

• The place to file a mesne profits lawsuit is a commercial or residential property that generates rental income,

• The occupying joint owner claims full rights over the shared property and denies the joint ownership of others,

• A usage agreement among joint owners determines specific parts of the shared property for each joint owner,

• The plaintiff has previously filed lawsuits or enforcement proceedings related to the property, such as prevention of interference, dissolution of partnership, mesne profits, etc.,

• The property produces spontaneous goods; harvested grass, collected nuts, tea, or the occupation of a business established by the deceased or self-sustaining revenue-generating businesses does not require the condition of prohibition from usufruct,

• In case of common properties established by the deceased, like factories, hotels, bakeries generating revenue, the condition of prohibition from usufruct is not required.

Except for these exceptions, the condition of prohibition from usufruct must be met and proven by all means for filing a mesne profits lawsuit among joint owners.

Statute of Limitations in Mesne Profits Lawsuits

Mesne profits lawsuits are subject to a statute of limitations. These claims fall under a five-year limitation period, which counts backward from the date of filing the lawsuit. Since it is not a preclusive period, claims exceeding five years can be made if the statute of limitations defense is not raised. The judge will accept such claims if no objection is raised.

Interest Start Date in Mesne Profits Lawsuits

Legal interest can be claimed along with mesne profits compensation from the person who unlawfully occupies the property. The legal interest on the mesne profits amount can be claimed from the end of each period from the defendant.

Competent Court for Mesne Profits Compensation Lawsuits

The competent court for mesne profits compensation lawsuits is the Civil Court of First Instance. The court with jurisdiction to hear mesne profits compensation cases is generally the court located in the defendant's place of residence. A mesne profits compensation lawsuit is not considered a lawsuit related to the property itself but rather pertains to compensation for its use. Therefore, these cases are heard in the general jurisdiction court.

Frequently Asked Questions

Who Can File a Mesne Profits Lawsuit?

Not only the property owners but also those with rights providing possession, such as limited real rights, have the legal right to file a mesne profits lawsuit. For instance, a person with a usufruct right can also file a mesne profits lawsuit.

Can a Lawsuit for Prohibition of Interference and Mesne Profits Be Filed Together?

If procedural rules are correctly applied, these two lawsuits can be filed together and resolved concurrently.