The Purpose and Legal Nature of the Condition of `Prohibition of Use` in Mesne Profit Claims Between Joint Owners

Abstract

The Court of Cassation, through its established case law, has delineated the condition of "prohibition of use" ("in tifadan men") in instances where other joint owners initiate a claim for mesne profits ("ecrimisil") against a joint owner who is in actual use of property subject to joint ownership. Nevertheless, the definition and legal function of this condition remain ambiguous, both in doctrine and in practice. Some scholars perceive it as an unjustified limitation on property rights and criticize the case law. However, the study reveals that the condition required by the Court of Cassation is a legal construct inherently rooted in the structural logic of joint ownership particularly the scope of use and utilization rights. This is because, in order for one joint owner to file a claim for compensation against another, it is first necessary to determine the limits of the latter's right of use and whether these limits have been exceeded. In this context, the term "prohibition of use" functions as a practical criterion for determining whether the actual use of the property by a joint owner is justified. In this study, the condition of "prohibition of use" is first defined in light of the decisions ofthe Court of Cassation; then, the purpose of this condition is revealed within the framework ofthe 'use' and "utilization" rights of the co owners in jointly owned properties. Subsequently, the cases recognized as exceptions bythe Court ofCassation are evaluated in line with the purpose ofthe condition, and finally, the legal nature of "prohibition of use" is determined.