The attachment of property is the legal process of seizing property to ensure the satisfaction of a judgment.
Attachment of tangible movable property
In Italy, judicial officers can seize and subsequently sell tangible movable property. Moveable property consists of things that can either move themselves or be moved in space. Tangible personal property can be anything with physical existence. These movables can be seized/attached in different ways:
- Enforcement in general
In Italy, tangible assets can be the subject of enforcement through:
1° Attachment
2° Consignment (movable assets) and release (immovable assets)
3° Precautionary seizure
4° Judicial sequestration
According to Italian law, the creditor must possess an enforceable title prior to launching an enforcement procedure. There is a further prerequisite: before initiating the enforcement procedure, the creditor must serve a document to the debtor, known as the ‘precetto‘, or writ of execution. There are two purposes to this formality:
-to give the debtor a deadline for voluntary compliance,
-to term a term, of ninety days, within which the enforcement must begin.
- Injunction
An injunction is a legal constraint on attached assets that has the effect of rendering invalid transactions entered by the debtor. The attachment procedure consists of an injunction directed at the debtor, by the Judicial Officer.
- Attachment of movable assets from the debtor
Italian law provides two different methods of attachment depending on the location of the property.
-Attachment of movable assets at the debtor’s house and/or other places belonging to him;
-Third party attachment allows the creditor to seize the property of the debtor which is subject to the attachment. If, however, the third party does not consent to disclose the debtor’s property, the creditor has two alternatives:
a) third party attachment: article 543 of the Code of Civil Procedure states that the third party may give a statement before the judge;
b) direct attachment: subject to an authorization order by the president of the Court or a judge delegated by him, upon application by the creditor, to attach items that cannot be found in locations belonging to the debtor, but which the debtor may directly have at his disposal.
- Third-party attachments
Expropriation through third parties is regulated by articles 543-554 of the Code of Civil Procedure.
A creditor wishing to attach a movable object owned by his debtor but held by a third party, must act according to the procedures and forms laid down by article 543 of the Code of Civil Procedure (expropriation through third parties), unless the third party agrees to voluntarily disclose the object to the judicial officer. In addition to the injunction against the debtor referred to in article 492 the document must contain:
1° an indication of the claim regarding which action is being brought forward, the enforceable title and the writ of execution;
2° a general list of the objects and sums owed and an instruction to the third party not to use such objects without an order from the judge;
3° a declaration of residence or address of the service in the municipality of the competent court;
4° the summons for the third party and the debtor to appear before the Court (of the third party’s place of residence).
- Attachment of aircrafts and ships
Enforcement relating to aircraft, ships, floats and accessories, is regulated solely by the special measures set out in Book Four, Title V, of the Code of Navigation, as well as in Title IV of the regulations implementing that Code, approved by Presidential Decree 328 of 15 February 1952. The rules on enforcement in the Code of Civil Procedure are not applicable except in cases where specific reference is made.
The Code of Navigation provides that the attachment of ships, floats or shares in their ownership – aircraft – is carried out through the creditor’s application, by service of the document on the owner. When, therefore, the attachment refers to ships or aircraft:
1° the form of the attachment differs from the one described in the Code of Civil Procedure: the judicial officer does not arrange for the search and identification of the ship/aircraft;
2° enforcement is regulated solely by the special measures set out in Book Four, Title V, of the Code of Navigation, as well as in Title IV of the regulations implementing that Code, approved by Presidential Decree 328 of 15 February 1952;
3° the judicial officer merely serves the relevant attachment order on the owner, master or captain.
- Enforcement of release and consignment
The first paragraph of Article 608 of the Code of Civil Procedure states that enforcement begins when the notice is served. The judicial officer shall inform the party at least ten days in advance, stating the date and time on which the action shall take place.
Release enforcement is assigned to the judicial officer, although provision is made for the intervention of the judge if, during execution, difficulties arise. In this case, article 610 of the Code of Civil Procedure provides that each party may ask the enforcement judge to exercise his authority and take the temporary measures.
On the day and at the time appointed, the judicial officer, bearing the enforceable title, the writ and the prior notice, shall go to the location of the property, to implement the execution.
It should be pointed out that, pursuant to articles 608 and 513 of the Code of Civil Procedure, the judicial officer’s powers and duties include those of opening doors, store rooms or containers, overcoming resistance offered by the debtor or third parties, or removing persons who disrupt the execution.
If the judicial officer finds the evictee or another person living there, the first formal request is to hand over the keys and, depending on the circumstances:
1° to transport elsewhere all the movable objects not related to the enforcement;
2° to avoid leaving valuables, money or other objects of value in the property being released.
- Expropriation of invisible assets
When the assets are jointly held by more than one individual, they are called “indivisible assets”. (For example: assets inherited together with other heirs or under the regime of joint estates of spouses).
The act of serving an attachment notice, regrading a joint-asset, upon co-owners who are not debtors, has two aims:
-prohibit the joint property from being separated without an order from the judge;
-allow all interested parties to be heard, as stipulated by article 600 of the Code of Civil Procedure.
There are three methods by which enforcement on joint assets may take place:
1° separation of the share;
2° division of the asset;
3° sale of the indivisible share.
- Enforcement judge
The enforcement judge:
-has the duty of verifying whether the compulsory expropriation is conducted in accordance with the principle of strict legality and whether the fundamental constitutional freedoms are respected;
-may not be substituted by another judge, save in cases in which there is an absolute impediment or serious service requirements.
Attachment of intangible movable assets
Intangible personal/movable property only exists as an intellectual notion and has no material existence (e.g. company shares).
Two separate stages of the procedure can be identified in the attachment of immovable assets:
1) service of the attachment order to the debtor;
2) the transcription of a certified copy of the attachment notice/order, which has been duly served on the debtor, in the public property registers.
The attachment shall commence from the service of the order. The transcription in the public register makes the enforcement effective against third parties.
- Transcription
Transcription becomes of decisive importance for the attachment of real property, in that it gives rise to an inalienable right to enforcement. Thus, the function of the transcription is constitutive and not merely declarative, with the effect that the attachment is finalised only at the moment of transcription and not at an earlier stage (see article 2693 of the Civil Code, in relation to article 2913 et seq. of the Civil Code).
- Subject of the attachment: immovable assets
The Civil Code (article 812) defines amongst immovable assets buildings and other constructions, including those attached to the ground temporarily. In general, immovable assets are naturally or artificially incorporated to the ground. Windmills, bathing establishments and other floating buildings are considered to be immovable when they are firmly fastened to the bank or riverbed and are intended to be so permanently for the purposes of use.
When the subject of attachment is an immovable asset, pursuant to article 2912 of the Civil Code, the attachment includes:
-Appurtenances:according to article 817 of the Civil Code appurtenances are objects which despite being intended in a lasting manner to serve or decorate another object (the main object) may be the subject of separate documents and legal records (such as wells, garages and fences). The relationship between the main object and the ancillary object is considered by the law not to be a relationship of physical or structural connection, but an economic and legal relationship of functional instrumentality and complementarity (…) since the purpose of the appurtenance is to serve or decorate the main object in order to facilitate use or enjoyment of it or enhance its decoration. (Court of Cassation, Civil, Division II, 19 March 1990, no. 2278).
-Yield: these assets derive directly from other assets, either with or without the contribution of man-made work (natural assets) or revenue from an asset resulting from payment for its use granted to others (civilian property: capital interest, rent etc.).
- Sale of immovable property
Upon expiration of a term of ten days from the attachment (and within ninety days) the creditor may demand the sale of the attached immovable property. During the hearing the judge determines the procedure for the sale (after obtaining clarification from the expert and questioning the parties if necessary) and may delegate the sale transactions to a notary, lawyer or qualified accountant (non-auction sale).
The rules regulating the sale of immovable property clearly state that an auction sale shall only take place if a first attempt to a voluntary sale fails.
Once the delegate has been chosen, in accordance with the turnover system referred to in article 179-c of the enacting provisions and with the task assigned according to the provisions referred to in article 569 and 591-a of the Code of Civil Procedure, the Enforcement Judge:
-establishes the deadline by which the sales operations must take place;
-indicates the ways in which the sale must be advertised;
-indicates where bids must be made and where they will be examined;
-indicates where the auction shall take place.
It should be pointed out that the assigned professional shall carry out substitute tasks entrusted to the judicial authority, within the limitations of the delegation.
Attachment of real/immovable property
The division of property rests on the concept of physical mobility. Traditionally, real/immovable property is considered to be stationary in space.
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