Protection Of Right Of Easement

The right of easement is a right in rem which provides the right of utilization from a good to the rightholder on that good. This right may be asserted to anyone because of being a right in rem. The right of easement contains the right of usage and usufruct (usus - abusus). The rights in rem are subject to principle of "numerus clausus", so parties may not create a new right in rem between them by agreeing.

These rights of easement are specified as right of habitation, usufructuary right, right of construction, resource right and other rights of easement in Turkish Civil Code. The use frame of the right of habitation, usufructuary right, right of construction and resource right is certain. But, saying that the rights of easement are numerus clausus is impossible because of not specifying how the other rights of easement is used according to some opinions in doctrine.

(Oğuzman-Seliçi-Oktay Özdemir Law of Property p.776)

There is a general provision related to protection of the easement rights mentioned above in the Turkish Civil Code numbered 4721, Art. 786.

Article 786 - The owner of easement right may take necessary precautions for protection and usage of its right, but it must use its right in such a way as to cause minimum damage to the owner of property.

The owner of property may not behave to prevent or complicate the use of easement right.

This article has been taken from Swiss Civil Code, Art. 737 by only translating and there was no change on it. The same article was in previous Turkish Civil Code numbered 743, Art. 710, with same content, it was only arranged for making it more convenient to current language.

The right of easement which is one of restricted real rights is such a right that even the owner of property which is inflicted with easement right may not restrict or prevent the usage of the owner of easement right, as can be seen in second subclause of the article. Therewithal, the owner of easement right also should behave in such a way as to cause minimum damage to the owner of the property. As can be seen from the article, the owner of easement right may take necessary precautions for protection or usage of its right.

As can be seen when Turkish Civil Code is examined, there is no special provision about protection of type of easement rights mentioned above. However, comparative application can be done from Art. 683 of Turkish Civil Code in the subject mentioned above.

(Oğuzman-Seliçi-Oktay Özdemir Law of Property p.784)

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