An attachment of movable property may be classified in two ways:
- a precautionary attachment and an attachment of movable property in execution of a judgment (for a general explanation, reference is made to E-Note 1)
- the attachment of tangible movable property and the attachment of intangible personal property
This contribution will cover the attachment of tangible property.
In this E-note:
The property of tangible movable property
As in most European Union Member States, the right of attachment of tangible movable property is not unlimited.
1. Condition: ownership by the debtor
The one condition for being entitled to expropriate assets in order to pay creditors is that those assets must belong to the debtor.
Article 2279 of the Civil Code: possession implies title
The legislator associates the property that the debtor has in his possession with a presumption of ownership.
In this respect, attention should be drawn to article 2279 of the Civil Code:
“In matters of movable property, possession implies title. Nevertheless, a person who has lost an object or from whom it has been stolen may, over a term of three years from the day of its loss or theft, claim it back from the person in whose hands it is held, without prejudice to the latter’s right of recourse against the person from whom he has obtained it.”
This means that when the judicial officer visits the debtor’s address he may legally assume that the debtor is the owner of all the movable objects to be found there. No obligation is placed on the judicial officer to prove the title of ownership of all the movable property located there. He may, therefore, proceed with the attachment without problems.
Action to establish title
If property belonging to a third party is attached, the law offers that party the possibility of asserting his rights.
If the judicial officer lists in his report assets that are not owned by the debtor, the actual owner must bring an action against the attachment officer to establish his title.
This action serves to lift the attachment of his property and to recognise his rights of ownership, and must be brought by means of a writ filed with the judge of attachments.
During this procedure, the actual owner may demonstrate his ownership by any legal means at his disposal. Such evidence may be furnished in the form of photographs and invoices, but also be given by witnesses and by presumption. The court will give its ruling having regard to all the practical circumstances.
The procedure is governed by article 1514 of the Judicial Code:
A party claiming to be the owner of all or part of the objects distrained may object to the sale by the service of process on the distraining creditor, the distrained debtor and the judicial officer, containing a summons of the creditor and the debtor and specifying the proofs of ownership, on penalty of nullity.
The claim stays the proceedings (solely as regards the objects claimed). The ruling thereon will then be given by the judge of attachments.
The clerk of the court will serve a third party notice on any other distraining creditors by judicial recorded delivery, with a copy of the summons and a request to appear.
The judgment is deemed to have been given after all parties have been heard. The losing claimant is ordered to pay damages, where appropriate, to the creditor.
The judicial officer to whom the objection has been notified enters the information, by the first working day thereafter at the latest, in the Register of Notices, to be added to the notice of attachment concerned, mentioning the interlocutory application and stating the identity of the claimant and, where applicable, of his counsel, as well specifying the court to which the matter has been referred.
The clerk of the court to which the application is referred remits to the Register of Notices the operative provisions of the judgment or order ruling as to the application, by the first working day following that judgment or order, so that the outcome of the action to establish title can be entered in the notice of attachment in the Register of Notices.
Given that the judicial officer is himself required to refrain from attaching any objects belonging to third parties, the debtor may present proof of ownership to that judicial officer at the time of the attachment. If there is no possible doubt as to the third party’s right of ownership, the judicial officer will not include the objects in his report.
Great caution should be exercised in view of the high risk of fraud. This is why the judicial officer will not simply accept an invoice in the third party’s name as a certain proof of ownership. This document may, on the other hand, be used in any proceedings for the establishment of title.
2. Exemption of personal property from attachment
There are several types of goods that may not be attached, benefiting from this exemption for various reasons.
Exemption from attachment by law
Article 1408 of the Judicial Code lists the property that is not subject to attachment.
§ 1. The following may not be attached, in addition to the goods declared to be exempt from attachment by special laws:
1° the bedding needed by the debtor and his family, the clothing and household linen essential to their own use as well as the items of furniture required for storage, a washing machine and an iron, the necessary heating appliances for the family home, tables and chairs enabling the family to take their meals in common as well as crockery and basic domestic utensils for the family, an appliance for the preparation of hot meals, an appliance for the storage of foods, one lighting appliance per inhabited room, the objects needed by handicapped members of the family, objects used by dependent children living under the same roof, domestic pets, the objects and products necessary for bodily care and the maintenance of the premises and the tools required for upkeep of the garden, all of these to exclude luxury furnishings and objects;
2° books and other objects needed for the pursuit of studies or vocational training of the debtor or the dependent children living under the same roof;
3° unless they are used for the payment of their price, the objects essential to the debtor’s occupation, up to the value of (EUR 2,500) at the time of the attachment, at the debtor’s choice;
4° objects used for religious practice;
5° food and fuel needed by the debtor and his family for one month;
6° one cow, or twelve sheep or goats at the debtor’s choice, as well as one pig and twenty-four farmyard animals, together with one month’s supply of hay, fodder and grain for the said animals’ feedstuffs and bedding.
Non-attachable goods as defined in article 1408 of the Judicial Code are therefore mainly objects of a domestic, occupational, educational or religious nature.
The exemption from attachment of the assets listed above reflects the legislator’s concern for the dignity of the current and continuing existence in society of the debtor and his family. The aim is to achieve the delicate balance between family solidarity and the rights of the creditor, who might suffer disproportionately as a result.
The objects mentioned benefit from the exemption from attachment only to the extent that they are associated with the place at which the debtor habitually lives or works and that they directly or indirectly are instrumental to family solidarity. If the objects are located elsewhere, there may in principle be no limits on their attachment.
Clearly, the above statutory list is not hard and fast. Article 1408 of the Civil Code is often interpreted in diverging ways in legal opinion and in case law. For instance, questions are often raised about the luxury nature of certain movable assets. Luxury clothing, such as a fur coat, is obviously distrainable. Since, however, the enforcement of debt on the person is not authorised, the judicial officer may not seize objects that the debtor is wearing.
The procedure
If the debtor does not agree with the attachment of certain goods that he considers should be excluded pursuant to article 1408 of the Judicial Code, he may make his comments known to the judicial officer at the time of the attachment or at the latest within five days of service of notice of the attachment. This period is prescribed on penalty of its prescription, and any application entered after this period will be declared to be inadmissible.
The judicial officer must then enter these comments in his attachment report. In this case, the procedure set out in article 1408 § 3 of the Judicial Code must be followed.
§ 3. The difficulties that arise in the application of this article are settled by the judge of attachments on the basis of the attachment report recording the observations made by the debtor to the judicial officer, on penalty of lapsing, either at the time of the attachment or within five days of service of notice of the first attachment order.
On the filing of a copy of the attachment report with the clerk of the court by the judicial officer or by the first party to take action, within fifteen days following the delivery of the copy of the said report or, if applicable, notice of the attachment to the debtor, the judge of attachments sets a date and time for examining and resolving the difficulties, the creditor having previously been heard or called. The clerk of the court convenes the parties and informs the judicial officer acting in the matter.
The procedure may not be carried out unless the copy of the attachment report specified in the preceding paragraph has been filed.
The application stays the proceedings, but the assets continue to be attached until the judge has issued his decision.
he judge of attachments gives his decision, setting all other matters aside, whether in the presence or in the absence of the parties; no objection or appeal is allowable against his order; the proceedings may then be resumed immediately.
As is evident, this provision refers only to disputes as to the distrainability of the assets.
Assets that are exempt from attachment by their nature
Movable assets are sometimes non-attachable by their nature and/or by being inseparable from the person of the debtor.
The following may, for example, be included in this category:
- personal letters
- personal documents and identity papers (identity card, residence card, social security card, bank cards, etc.)
In addition, movable objects that may under no circumstances be traded for cash cannot be attached:
- cheque books
- medical products
- luncheon vouchers
Unpublished literary or musical works or unfinished works of art are also deemed to be exempt from attachment. (J. CORBET, APR Auteursrecht, nr. 120.)
Property in joint ownership
If a given movable asset is co-owned by the debtor, the judicial officer may nevertheless proceed with its attachment.
If a given movable asset is co-owned by the debtor, the judicial officer may nevertheless proceed with its attachment.
The debtor must also make an application for its apportionment. It is only after apportionment that enforced execution may proceed.
Public assets
The exemption from attachment of assets associated with a public service was introduced by the Law of 30 June 1994 and is set out in article 1412bis of the Judicial Code.
According to the Court of Cassation, the general principle of the law on the continuity of public services is that assets associated with public services cannot be the subject of enforcement measures in that the continuity and operation of public bodies must be guaranteed.
The non-distrainability of movable assets in public ownership extends to assets belonging to the state, the regions, the communities, the provinces, the communes, public interest agencies and in general all public-law corporations. The exceptions to this general rule are described in paragraphs 2 and 3. The Government itself may, moreover, may draw up a list of distrainable assets by having the competent bodies make a declaration on the subject and filing the declaration with its registered office in accordance with article 42 of the Judicial Code and according to the procedures drawn up by Royal Decree.
The judicial officer may, however, attach assets that manifestly do not serve for the operation and continuity of public service.
The assets of foreign states
In principle, the assets of other states also enjoy immunity from enforcement measures under Belgian law.
This immunity, however, is not absolute. By analogy with the provision on the non-distrainability of assets associated with a public service, the assets of an embassy or a consulate may, for example, be attached if they are not associated with the performance of the diplomatic mission’s functions.
Attachment procedures
1. Precautionary attachment of movable assets
Procedure
Any creditor in possession of a claim that is certain, of a fixed amount and due may proceed with the precautionary attachment of his debtor’s assets if the latter’s solvency is compromised.
Pursuant to article 1414 of the Judicial Code, any judgment serves as an authorisation for the precautionary attachment of assets in respect of judgments given against the debtor, unless this has been excluded by the court.
The necessity of an urgent measure must also be proved by the creditor, to justify the fear that his claim may not be capable of (full) repayment.
Although the precautionary attachment obviously does not go so far as compulsory enforcement, the creditor nonetheless has a means of limiting his debtor’s freedom to dispose of his property without necessarily having to obtain an enforceable title.
The debtor, however, continues to be the owner of his assets, while the precautionary attachment does not offer any privilege to the distraining creditor. This measure may, on the other hand, ease the pressure on a creditor not wishing to proceed immediately with the costly, radical measures entailed in compulsory enforcement.
The precautionary attachment procedure is governed by articles 1422 et seq. of the Judicial Code:
“Art. 1422. The application for the precautionary attachment of movable personal property and unharvested fruits will contain, in addition to the particulars specified in article 1026, an indication of:
1° the title, causes and amount, or estimated amount, of the claim;
2° the debtor’s surname, forename and address.”
A precautionary attachment therefore always calls for an order by the judge of attachments, save in the exceptional case of a precautionary attachment of property in the hands of third parties, based on an authentic instrument or private documents pursuant to article 1445 of the Judicial Code. The judge of attachments will therefore in most cases verify whether the creditor’s claims meet all the requirements for the authorisation of the attachment.
The procedure is introduced by a unilateral application in accordance with the rules of article 1025 et seq. of the Judicial Code. It must be signed by a lawyer and contain the following particulars, on penalty of nullity:
- The day, month and year;
- The applicant’s surname, forename, occupation and address, and where applicable the surname, forename, address for service and capacity of his legal representatives;
- The subject of, and a summary of the grounds for, the application;
- The designation of the judge to whom the application is to be referred;
- The signature of the party’s lawyer, unless otherwise provided by law.
All the practical details justifying the urgency of the measure must also be set out in the application, so that the judge of attachments can reach an informed decision.
The court hearing the case will issue its order within eight days of the filing of the application.
Notice of the order will be given by judicial recorded delivery within three days of its issue.
Appeals
Pursuant to article 1419 of the Judicial Code, an appeal may be made against:
- an order granting or refusing authorisation to carry out a precautionary attachment
- an order granting or refusing to retract this authorisation
The creditor may, in such cases, enter an appeal within a month of notification of the decision, whereas the debtor or any other interested party may lodge a third party objection by means of a writ filed with the court that has handed down the disputed decision.
If the precautionary attachment is carried out without the authorisation of the judge of attachments, the debtor may summon the distraining creditor before that judge to obtain an order to lift the attachment pursuant to article 1420 of the Judicial Code.
Validity
In principle, an attachment expires automatically three years after the date of the order or the service of notice of the attachment, but its term may be extended if the judge of attachments has good grounds for so doing.
An extension must be requested by a unilateral application, which is possible provided that the first term has not yet expired. The judge of attachments may also explicitly limit the duration of the precautionary attachment in his order, or make it subject to certain conditions.
To obtain an extension, the creditor must prove that the condition of the urgency of the measure is still satisfied.
Within three working days of the precautionary attachment, the judicial officer must file a notice of the attachment with the Fichier central des avis (the Central Register of Notices), a centralised database for notices of attachment, delegation and collective settlement of debts.
Conversion of the precautionary attachment into an attachment in execution of a judgment
Article 1491 of the Judicial Code states:
“The judgment as to the merits of the application constitutes the enforcement title, where appropriate up to the amount stated in the judgments handed down; the mere service of notice of this title converts the precautionary attachment into an attachment in execution of that judgment.
This provision does not detract from the suspensive effect of appeals or from the rights pertaining to the owner in the event of a judicial order to ensure the conservation of property that the owner seeks to recover from a third party.
If the attachment is the subject of a dispute brought before the judge of attachments at the time of service of notice of the final decision on the merits of the dispute, the precautionary attachment is converted into an attachment in execution only when notice is served of the decision of the judge of attachments recognising that the attachment is in due order.”
Following the conversion of the precautionary attachment into an attachment in execution of a judgment, no new attachment may be made against the debtor, which means that further costs can be avoided.
2. Attachment of goods in execution of a judgment
A creditor in possession of an enforceable right may carry out the enforced execution of the debtor’s goods to obtain payment of his claim.
Before a creditor can proceed with an attachment in execution under the enforced execution procedure, he needs an enforceable title in which his claim is formally recognised as being certain, of a fixed amount and due. This may be a judicial decision or order to pay, but it may also be an authentic instrument, an arbitral award, a foreign judgment with authority to execute, etc.
The enforceable title is deemed to grant a title for the collection of the costs of execution.
The order to pay
The procedure for the attachment of goods in execution of a judgment is contained in articles 1499 et seq. of the Judicial Code.
“Art. 1499. Any attachment of goods in execution of a judgment will be preceded by an order to pay given to the debtor at least one day before the attachment and, if the title consists of a judicial decision, serving notice of that decision, if it has not yet been given.”
An attachment of goods in execution of a judgment is therefore necessarily preceded by an order to pay. If provisional execution of the enforceable title is recognised by the judge pursuant to article 1398 of the Judicial Code, the order to pay is generally combined with the notice of the judgment in the form of a “service of process with order to pay”. The order is valid for ten years.
The debtor may enter an objection to the order, enabling him to state his complaints before the judge of attachments as to any procedural defects in the title or its invalidity. No term of prescription is associated with the objection, and it does not have a suspensive effect.
Execution order
Attachment by creditors in common, or attachment with verification and extension of the attached goods
Before the judicial officer carries out the execution order, he will check whether there are other attachments in the Central Register of Notices. In this case, the judicial officer may opt to verify the list of distrained goods for any missing items or extend the list to include those items, as provided by article 1524 of the Judicial Code, rather than conducting a further attachment. This helps to avoid the high costs associated with an attachment.
The two procedures may be undertaken following a request for a certified copy of the previous attachment that has been conducted:
“Art. 1524. Every creditor opposing [another creditor] and having an enforceable right by virtue of which the order to pay has been served may obtain a certified copy of a previous attachment that has been conducted, that has not yet been lifted and that that has not been disputed in law, through the intermediary of a judicial officer designated by the creditor. This certified copy will be delivered by the judicial officer who has conducted the attachment, in accordance with the formalities listed below.
The creditor referred to in the previous paragraph may check the movable goods and effects on the list of the assets attached, which has been given to him, and may attach the assets omitted in order to extend the list. If the sale does not take place on the appointed date, the party making the attachment following such verification and extension may, without formulating any subrogation application, proceed with the sale through the intermediation of the judicial officer he has commissioned for this purpose.
The creditor referred to in the first paragraph may also, and without an action for subrogation, arrange for the enforcement of his right through the intermediation of a judicial officer whom he has designated on the basis of a certified copy of the previous attachment that has not yet been lifted and is not disputed in law, through a judicial officer designated by him, provided that this attachment has occurred not more than three years previously.
The report on the attachment report by verification and extension will be filed in the Register of Notices in the form of a notice of attachment as referred to in article 1390, §1.
The attachment and, where appropriate, the attachments by verification and extension will be effective up to the time at which a release has been authorised by all the creditors making or opposing the attachment on the basis of an enforceable right, by virtue of which that order to pay has already been served; it will be for the judge to settle any disputes that may arise.
The creditor referred to in paragraph 3 above must, in the first document specifying the date of the sale, based on a certified copy of the previous attachment, clearly notify the debtor, on penalty of nullity, that the proceeding is being conducted on the basis of a previous attachment that is not yet lifted and that is not disputed in law, and he is required to serve the certified copy that he has been given for this purpose, on penalty of nullity. A term of at least one month must elapse between the service of notice of this first document stating the day of the sale based on a certified copy of an attachment, notice of which has previously been served, and the date of the sale. In this case, the intermediating judicial officer forwards a common notice of attachment to the Register of Notices within three working days at the latest after the negotiation, pursuant to article 1390 §1. An advice of attachment of this nature states, besides the date of the previous attachment, the particulars of the creditor for the previous attachment and the particulars of the judicial officer conducting the attachment.
The judicial officers who have served notice of the attachment will be under an obligation to keep a register with serial numbers in which they enter the certified copies that they issue to the creditors referred to in paragraph 3. The latter may use this certified copy only in application of the enforceable right for which it has been requested.”
The ordinary attachment procedure
At least one day must elapse between the service of the order to pay and the attachment.
This waiting period is not time-barred, on penalty of nullity.
The judicial officer will visit the address before the attachment and will arrange for access to the dwelling. If the occupants do not allow his access, he may call upon the services of a locksmith and the law enforcement authorities, which will lend its support if he expects there to be difficulties. The authorities called upon do not have discretionary power.
The judicial officer may inspect all the rooms and take note of the movable assets, which he will simply observe even without entering a room.
Pursuant to article 1501 of the Judicial Code, the judicial officer must be accompanied by an adult witness, on penalty of nullity of the notice of attachment. The locksmith or a colleague of the judicial officer may validly act as a witness. The creditor may not be present or represented during the attachment.
Given that the creditors have a right to take possession of the debtor’s property, the place of attachment is not in itself relevant. The judicial officer may, for example, seize a vehicle on the public highway without problems.
The execution order may also be carried out on a third party’s premises rather than at the debtor’s address (as listed in the population register); a distinction should be made between this and the garnishment, as well as the attachment of intangible assets such as claims. For these, reference may be made to E-Note 4.
The creditor must for this purpose make an application to obtain the authorisation of the judge of attachments.
The judicial officer makes a detailed note of the attachable movable goods that he records in the attachment report.
The report must include the compulsory particulars specified by articles 43 and 1389 of the Judicial Code.
Attachment does not entail the removal of the assets or the transfer of ownership. The judicial officer may place seals on a rented safe if necessary. The place, date and time of the sale will be stated in the attachment report.
“Art. 1512. If the attachment is carried out at address of the debtor or in his presence, the copy of the report will be left with him on the spot, signed by the persons who have signed the original; if the debtor is absent, a copy will be forwarded to him or lodged as provided by articles 35 and 38; the person called upon by the judicial officer pursuant to article 1504 will countersign the report without charge.
If the attachment is carried out away from the debtor’s address and in his absence, a copy of the report will be served on him; the attachment will not be effective against him until service has been made, and the term for the sale will run from the time of service.
In this manner, there is a guarantee that the debtor will always be informed of the attachment and of the assets of which he may no longer dispose of freely and to whose fruits or produce he is no longer entitled. The debtor must continue to administer the assets distrained with due care and attention. With this in mind, the assets must be described in sufficient detail in the (“accurate and detailed”) report.
If the judicial officer fails to find any goods at the place of the attachment, or if he finds only goods of a minimum value, he will draw up a nulla bona report, so that he always has a record of the duties he has performed.
The debtor will receive a copy of the attachment report or the nulla bona report. A notice of attachment will also be forwarded to the Central Register of Notices within three days of the attachment.
A term of at least one month must elapse from the service of the attachment report before a sale may take place.
Interlocutory applications
Various forms of legal recourse still exist for all the parties concerned, enabling them to state their complaints in the course of execution.
Objection by other creditors
The other creditors may file an objection to the payment of the proceeds from the sale price, in accordance with article 1515 of the Judicial Code.
The first paragraph of article 1628 of the Judicial Code states that:
“Only undisputed claims or those secured by a title, including a private title, may be taken into account in the distribution of proceeds, up to the amounts thus justified.
A creditor owed a debt of this nature may have a notice of objection delivered to the Central Register of Notices through a judicial officer.
By means of the objection, he may assert his rights and take steps to ensure that his claim is taken into account in a case file or a further attachment, and in the event of a procedure for the apportionment of the proceeds of sale among the creditors.
In this manner, the execution becomes collective in nature.
Action to establish title
The procedure to establish ownership of assets that may be undertaken based on article 1514 of the Judicial Code has already been described above.
Application to the judge of attachments to set aside a decision
Article 1498 of the Judicial Code states as follows:
“In the event of difficulties in execution, any interested party may enter an appeal before the judge of attachments, although the exercise of this action will not have a suspensive effect.
The judge of attachments will, where appropriate, order the attachment to be lifted.”
The party applying to set aside the decision must bring the case before the judge of attachments by an application initiating proceedings. The judge of attachments may then give a ruling on:
- The lawfulness of execution: the existence and the execution of the enforceable title, the exemption of the assets from attachment, attachment abuses, etc.;
- The proper conduct of dispossession: any nullity by which the procedure may have been tainted, in particular the nullity of the order to pay or the attachment as a result of failure to comply with procedural requirements and time-limits, for example;
- The difficulties associated with the sale, for instance its location, time and publicity, etc.
The judicial officer must not be involved in the procedure, unless his responsibility is at issue.
The sale
At least one month must elapse between the service of the attachment report and the sale.
This period may be advantageous to both the attachment debtor and the creditor: the debtor has one last opportunity to settle his debt before actual expropriation and the creditor may be able to publicise the sale sufficiently before it is held.
Sale by private treaty
Since 1993, the debtor has been entitled to take the initiative in selling his assets by private agreement to his family or friends and to pay his creditors out of the proceeds (article 1526bis of the Judicial Code).
This is a manner of humanising the law on attachments by allowing the debtor to arrange for family or friends to purchase the assets attached in such a way as to keep down the costs.
For this purpose, within ten days of service of the attachment report, he must make an application to the judicial officer, who will determine whether the proposal is satisfactory. This time limit has been decided on penalty of nullity. There is no requirement of any kind as to the form of the distrained debtor’s proposal, but it must be sufficiently precise.
The judicial officer may refuse the debtor’s proposal if the likely proceeds are not proportionate to the size of the debt. In the event of dispute as to the application of this condition, the creditor may always apply to the judge of attachments to prevent the public sale. Such an objection does not have a suspensive effect.
After the offer has been accepted, the purchase price must be paid within eight days.
Sale by order of the court
If a sale by private treaty cannot be realised and the debt cannot be paid by the distrained debtor, the creditor may proceed with a judicial sale.
The role of the judicial officer is laid down by article 226 of the Code of Registration, Mortgage and Court Fees:
“Furnishings, merchandise, timber, fruits, crops and all other tangible movable objects may be sold at public auction only in the presence of and by a notary or a judicial officer.
The State, the provinces, communes and public establishments may however arrange for the public sale of movable objects belonging to them to be conducted by their agents.”
The legislator has, therefore, attributed a key role to the judicial officer in the coordination of a public sale of movable assets.
The attachment report states the date, time and place of the sale. If the sale is to be held on a different day, the debtor must be informed by the service of notice by the judicial officer or by registered letter at least four days before the sale.
The public sale of movable assets will be announced by the display of posters at the place of the sale at least three days in advance. The poster will state the date, time and place of the sale and will also be remitted to the debtor. The sale will also be announced in the press.
In accordance with article 1522 of the Judicial Code, the sale will be held in the judicial officers’ saleroom in the district of the place of attachment. The said article states that if such a saleroom does not exist the sale will take place in a room at the location at which (public) auctions are held.
The judicial officer will arrange for the public auction of the goods, to be sold to the highest bidder against cash payment. The judicial officer will draw up a report on the sale in which he will state whether or not the debtor was present and list the buyers, the purchase prices and the items sold.
The judicial officer will receive the purchase prices paid to him in cash and will be personally responsible for them. The sale will continue up to the time at which the proceeds are sufficient to repay the amounts owed to the attachment creditor, as well as the claims of the creditors who have joined him.
