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ing from Roman law2. Leading scholars on the matter defend that Art.
683/2 of the CL, which entitles the owner to file a possessory action,
might be applied to easement rights by analogy, as well. As per this
Article, in cases where the unlawful intervention prevents the easement
right beneficiary from executing his right, such beneficiary can file a
possessory action3.
Within this context, the beneficiaries of a right of construction may
file a possessory action (or actio negatoria). A possessory action aims
to prevent on-going unlawful intervention against a land owner’s pos-
session and ownership right. The intervention does not need to be
faulty in order for this action to be filed. Additionally, as this action is
an action in rem, it is not subject to a time-bar, but the intervention
needs to be ongoing.
The Court of Cassation has also decided that all beneficiaries of a
right in rem can file a possessory action 4. The General Assembly of
Civil Chambers of Court of Cassation, dated 21.06.2006, clearly states
as follows5: “However, this right in rem may be claimed against any-
one. Even though there are no special provisions in the Civil Law pro-
tecting easement rights, in this regard, the provisions regarding own-
ership shall be applied by analogy. As such, the beneficiary of ease-
ment right may file a possessory action as per Article 638 of the Civil
Law.”
In addition to the possessory action, the beneficiary of the right of
construction may request prevention of any potential unlawful inter-
vention, and may file an action for damages if the requirements of the
law of torts are met. Moreover, the beneficiaries of easement rights
may oppose the claims in rem of third persons, as well. In cases where
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2 In order to obtain further information regarding (Actio de Superficiebus), an action in rem by
which the beneficiary can file actions against both the land owner and the third persons, please
see Nadi Günal, Roma Hukuku’nda Üst Hakkı (Superficies), Ankara University Law Faculty
Journal, 1998, Volume 47 Numbers 1-4, p. 114-115.
3 Oğuzman/Seliçi/Oktay-Özdemir, p. 784, n. 2760-2762.
4 Court of Cassation 14 th Civil Chamber, 15.3.2011, E. 2011/1699, K. 2011/3284; Court of
Cassation 14th Civil Chamber, 6.12.2005, E. 2013/13320, K. 2014/1459; Court of Cassation
14th Civil Chamber, 5.2.2014, E. 2005/9293, K. 2005/10983 ).
5 General Assembly of Civil Chambers of Court of Cassation, 21.6.2006, E. 2006/14-454, K.
2006/459, ).