Correct Determination of the Adequacy Claim
Clear determination of the period in which the Adequacy Claim will be made: Adequacy can be requested up to five years retroactively. Therefore, it is important to determine the exact period of unfair use and to determine the period in which the claim will be made accordingly.
Correct determination of the nature of the real estate: The Adequacy Claim varies depending on the purpose of use of the real estate. Calculating the Adequacy Claim according to the type of real estate such as agricultural land, commercial area or residence increases the legitimacy of the claim.
Example: If an agricultural land is used without permission, the Adequacy Claim for this land should be calculated based on the rental prices of similar agricultural lands. If an incorrect classification is made, a loss of rights may occur in the case.
2. Strong Collection of Evidence
Documents proving unfair occupation: In an Adequacy Claim, documents proving the unfair occupation of the real estate are very important. Land registry records, photographs proving the period in which the real estate was occupied, video recordings and witness statements play an important role in the case process.
Determining whether the use is commercial: If the occupied real estate is used for commercial purposes, the adequacy fee may be higher. Therefore, it is advantageous to provide documents proving that the real estate is used for commercial activities.
Example: If the real estate located in an industrial zone is used as a warehouse without permission, the adequacy fee may be increased by proving commercial use.
3. Correct Use of Expert Reports
Expert reports for adequacy calculations: Expert reports play a critical role in the accurate calculation of the adequacy fee. During expert examinations, factors such as the use of the real estate and comparable rental prices in the region are taken into consideration.
Determining comparable rental prices: The rental prices of comparable real estates in the region where the real estate is located are an important element in the calculation of the adequacy fee. Accurately determining the rental rates and rental values of similar properties in the region ensures a favorable outcome in the case.
Example: In the case of unfair occupation of a commercial area in Istanbul, the rental prices of similar workplaces in that area should be supported by expert reports.
4. Be Cautious in Cases Where the Adequacy Fee is a Dispute
Objections regarding the Adequacy Fee: It is possible that the other party will object to the requested Adequacy Fee. In this case, requesting more than one expert report and presenting new evidence may be a strategic move if necessary. In addition, detailed and concrete evidence should be provided against the claims of the other party.
Example: If the other party claims that the Adequacy Fee is too high, the court may request a new expert examination. During this process, it is important to present new evidence on the actual usage status of the real estate and comparable rental prices.
5. Making the Adequacy Request in a Timely Manner
Pay attention to the statute of limitations: There is a five-year statute of limitations for Adequacy Fee cases. The lawsuit must be filed within five years from the date of detection of the unfair occupation. Missing the statute of limitations results in the loss of the right to sue.
Sending a notice: Before filing a suit for meagre payment, sending a notice stating that the immovable property is unjustly occupied can strengthen the plaintiff’s hand. A notice provides an opportunity for the other party to end the unjust occupation or accept payment of meagre payment.
Example: A property owner who realizes that the immovable property is unjustly occupied should immediately send a notice to the other party, requesting that the occupation be terminated and payment of meagre payment.
6. Proper Management of the Legal Process
Be prepared for the defenses of the defendant: The other party may claim that the property belongs to them or that the occupation is based on a justified reason. In this case, the claims must be refuted with legal documents such as land registry records, property documents and, if any, lease agreements.
Seeking a solution through amicable means: In order to increase the likelihood of winning the case, resorting to amicable means is always a tactic that should be considered during the litigation process. It may be possible to shorten the litigation process by reaching an agreement with the other party.
Example: Instead of a long-running lawsuit, an agreement can be made between the parties to ensure that the other party accepts to pay the arrears and the court process can be concluded quickly.
Achieving success in arrears cases is possible by developing the right strategy. Strong evidence, clearly stating the use of the real estate and supporting it with expert reports are factors that increase the chance of winning the case. In addition, paying attention to the statute of limitations and managing the legal process effectively is also critical.
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