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Translated from Turkish by Tim Drayton

II. ATTACHMENT

Attachment:

1 – Time period for application

Article 78 - (Amended: 3/7/1940-3890 Article 1)

(Amended paragraph one: 22/7/2020-7251 Article 49) Following expiry of the period in the payment order and, if the obligor has objected, following removal of the objection, the obligee may seek attachment without awaiting the schedule of assets. However, should the obligee desire, he may, without making application for attachment, search on the National Judicial Network Informatics System as to whether the obligor has any assets, rights or receivables by means of the informatics systems integrated into this system. At the outcome of the search, the National Judicial Network Informatics System provides information as to the nature and details of the obligor’s property, rights or receivables, if any, and, in such case, attachment may also be sought over the system. In such cases, the enforcement office may attach the detected goods, right or receivable electronically. Unlawful disclosure may not be made of the information obtained at the outcome of the search. To enable search and attachment procedures to be operated, public institutions and entities and credit institutions and financial institutions defined in Article 3 of the Banking Law number 5411 of 19/10/2005 shall bring about integration between the National Judicial Network Informatics System and their own systems. The type, scope and limits of the search along with other matters shall be specified under a regulation placed into effect by the Ministry of Justice.

(Amended: 6/6/1985-3222 Article 9) The right to seek attachment extinguishes with the passage of one year as of service of the payment order. In the event of objection or a lawsuit, the period from their arising until finality of judgment, or, in the event of the making of instalment agreements by the obligee and obligor at the enforcement office, that until these are breached is not included in the calculation.

Should the obligee so desire, he is provided with documentation of the attachment application having arisen. Such document is not subject to any fee or due.

If application for attachment is not made within the statutory period or is not renewed within this period following withdrawal, processing of the case ceases.

Renewed seeking of attachment is dependent on service by the obligee of the ensuing renewal application on the obligor. The fee is levied once more on renewal applications that are not based on a judgment. The costs and fees of renewal are not imposed on the obligor.

2- Period for commencement of attachment:

Article 79 - The enforcement office shall place attachment within an absolute three days of application.

(Amended paragraph: 6/6/1985-3222 Article 10) If the attachable assets are in another place, it shall immediately write to the enforcement office of the place where the assets are located with a view to the placing of attachment. In such case, complaints in respect of attachment are resolved by the enforcement court to which the enforcement office from which assistance was sought is subject. Attachment of assets in official registers may also be placed directly through entry into the record by the enforcement office where the executory action is conducted.

Attachment at residences

Article 79/a - (Appended: 28/3/2023-7445 Article 1)

If the enforcement officer establishes that the place where placement of attachment is sought is a residence, he orders the placing of attachment at such place and immediately submits this order for the approval of the enforcement court.

Should it be determined from examination of the record that it will make within no more than three days from submission of the file that the place where placement of attachment is sought is a residence, the court rules with finality that the order be approved. Attachment is placed at the residence on notification of this ruling to the enforcement office. Should it be determined that the place where placement of attachment is sought is not a residence, the court annuls with finality the order for placement of attachment at a residence. The enforcement officer issues a fresh order with respect to the existing application for attachment on notification of this ruling to the enforcement office.

If a place visited for attachment purposes in pursuit of a court approval ruling is determined not to be a residence, attachment is continued. However, if, in the course of attachment conducted in pursuit of an attachment order issued in respect of a place held not to be a residence, such place is determined to be a residence and the obligor also does not consent to attachment being placed, attachment procedures are ended and the provisions of paragraphs one and two are applied to subsequent procedures.

The provisions of this article are not applied to interim attachment.

3- Powers of attaching officer:

Article 80 - (Amended: 3/7/1940-3890 Article 1)

The enforcement officer may either conduct attachment himself or have this done by one of his auxiliaries or clerks.

If the obligor is not present at the location of the asset and cannot be immediately summoned there, attachment is placed in his absence.

The obligor must open locked places and cupboards and present other effects on demand. Forcible opening of such places is directed if necessary.

(Amended: 18/2/1965-538 Article 45) If the attaching officer is aware that the obligor is concealing cash, securities, gold or silver or other valuable effects about his person and the obligor refrains from rendering these, force may be used against the obligor’s person.

Duties of police officers and village heads:

Article 81 - On the enforcement officer’s written application, all police officers must assist him and carry out his directions in the matter of using force.

In villages, village heads must also carry out the directions of attaching officers.

Unattachable assets and rights:

Article 82 - (Amended: 18/2/1965-538 Article/45)

The following things are unattachable:

1. State property and property specified as being unattachable in specific laws,

2. (Amended: 2/7/2012-6352 Article 16) All manner of things that are necessary to enable the obligor whose economic activity is based on his physical labour rather than his capital to continue his profession,

3. (Amended: 2/7/2012-6352 Article 16) Personal effects owned by the obligor and family members living under the same roof and all domestic effects that serve the family’s common use apart from such valuables as cash, securities, gold, silver, precious stones, antiques and ornaments,
(Footnote: The wording appearing in this sub-paragraph, “Necessary effects for ... members ...; one of these if there is more than one effect used for the same purpose” was amended to “personal effects owned by ... members ... and all domestic effects that serve the family’s common use” under Article 2 of Law number 7445 of 28/3/2023.)

4. If the obligor is a farmer, the land and draught animals and means of transport and other accessories and agricultural tools necessary for his and his family’s livelihood; if not, the necessary tools and equipment and books for his trade and profession, and means of transport that secure the livelihoods of such small transporters as carters, boatmen and porters,

5. If needed for the obligor and his family’s upkeep, one milk-yielding water buffalo or cow or three goats or sheep of the obligor’s choice, and three-months’ fodder and bedding for these,

6. Two months’ food and fuel for the obligor and his family and, if the obligor is a farmer, the planting seed needed for the future crop,

7. If the obligor is a cultivator of horticultural land or fruit and vegetables, the horticultural land necessary for his and his family’s livelihood and the necessary tools and equipment for this trade,

The number of head necessary for the upkeep of the obligor who derives his livelihood exclusively from animal husbandry and three months’ fodder and bedding for these animals,

8. Life annuities formed so as to be unattachable pursuant to Article 510 of the Code of Obligations,

9. Pensions awarded to those disabled in national military and police service along with stipends awarded to their families due to the performance of one of these services and flight and diving compensation and bonuses given to members of the navy and air force,

Promotion raises given and shares in monopoly premiums given in accordance with the provision of Law number 1485 to the military disabled and orphans of the fallen,

10. Stipends awarded in such cases as sickness, need and death by a welfare fund or society,

11. Funds that are or should be awarded to the injured party himself or his family as a lump sum or stipend in compensation for injuries caused to the body or health,

12. (Amended: 2/7/2012-6352 Article 16) A home as befits the obligor’s circumstances, and

13. (Added: 2/7/2012-6352 Article 16) Student grants.

The provision of Article 807 of the Civil Code remains unprejudiced. The exception in the sub-paragraphs numbered 2, 4, 5, 7 and 12 is restricted to cases in which the obligation does not arise from the price of such objects.
(Footnote: The wording “3” appearing in this sub-paragraph was removed under Article 2 of Law number 7445 of 28/3/2023.)

(Additional paragraph: 2/7/2012-6352 Article 16) In the event that the value of the property enumerated in the sub-paragraphs numbered (2), (4), (7) and (12) of paragraph one is excessive, it is attached and sold with a portion of the proceeds to be ceded to the obligor as befits his circumstances to enable his needs to be met.

(Additional paragraph: 2/7/2012-6352 Article 16) The enforcement officer shall assess the attachability of property and rights whose attachment is requested and accept or decline such requests.

Partially attachable things:

Article 83 - (Amended: 3/7/1940-3890 Article 1)

Wages, allowances and all manner of fees, usufructuary rights and their fruits, maintenance payments not based on a maintenance order and pensions and stipends awarded by insurance and retirement funds may be attached following deduction of an amount assessed by the enforcement officer as being necessary for the obligor and his family’s upkeep.

(Amended: 12/4/1968-1045 Article 1) However, the attached amount may be no less than one-quarter of these. If there is more than one attachment, these are ranked. Until the first-ranking attachment has been satisfied out of amounts withheld, amounts may not be withheld for the next-ranking attachment.

Prior agreements:

Article 83/a - (Added: 18/12/1965-538 Article 47)

Prior agreements as to the non-attachability of the property and rights set out in Articles 82 and 83 are void.

Attachment of animals with young:

Article 83/b - (Added: 18/12/1965-538 Article 47)

In attaching animals, the young which are in need of nursing and care from their mothers may not be attached separately from their mothers nor may their mothers be attached separately from their young.

Attachment of appurtenances under immovable pledges:

Article 83/c - (Added: 9/11/1988-3494 Article 7)

Appurtenances listed in the immovable pledge mortgage agreement table may not be attached separately from the immovable.

The provision of Article 777 of the Turkish Civil Code remains unprejudiced.

Attachment of unripe crops:

Article 84 - Unripe field and orchard crops of all kinds may be attached at most two months prior to their ripening. The transfer by the obligor to another of crops so attached is void with respect to the obligee and does not prevent the enforcement from continuing.

The right of the obligee whose claim is secured with an immovable pledge to the unripe crops of the pledged property as integral thereto is not prejudiced. This is with the proviso that the pledgee must have applied for executory action for enforced realization of the pledge before the crops have ripened.

Attachment of movables and immovables:

Article 85 - (Amended: 3/7/1940-3890 Article 1)

A sufficient amount to satisfy all claims of the obligor’s immovable and movable property in his possession and that of others and his receivables and rights including the principal receivable, interest and costs is to be attached; however, attachment in excess of this amount may not be placed.
(Footnote: The wording appearing in this sub-paragraph, “is to be attached” was amended to “is to be attached; however, attachment in excess of this amount may not be placed” under Article 3 of Law number 7445 of 28/3/2023.)

(Amended paragraph: 9/11/1988-3494 Article 1) Should a third party have ownership of or a limited in-rem right such as the right of pledge over a movable or should a movable have been attached by a third party, the obligor or persons who possess the property along with the obligor must declare this matter to the attaching officer and request entry of their declaration into the attachment record, and the attaching officer must invite such statement from the obligor or persons who possess the property along with the obligor. The attachment of such property and property over which claims of interim attachment or ownership are made by third parties is left until last.
(Footnote: The wording appearing in this paragraph, “Or persons who possess the property along with the obligor” and, ”Or persons who possess the property along with the obligor“ were added and integrated into the text under Article 20 of Law number 4949 of 17/7/2003.)

However, if the obligor furnishes movable property or non-doubtful mature receivables sufficient to satisfy the obligation before an attached immovable is put up for auction, the immovable or receivable furnished is also attached such that the attachment over the immovable survives.

This is with the proviso that the enforcement office may not interfere with the administration and operation of the immovable that thereby remains attached and the fruits and interests deriving therefrom.

Things whose proceeds will certainly not exceed the cost of liquidation and, if necessary, cost of storage and administration are not to be attached.

The attaching officer must as far as possible reconcile the interests of the obligor and obligee.

Consequences of attachment of movables:

Article 86 - (Amended: 18/2/1965-538 Article 48)

The obligor may not dispose of attached movables without obtaining the obligee’s consent and the enforcement officer’s approval. The attaching officer shall caution the obligor that action to the contrary necessarily entails penal liability.

Based on ownership provisions, rights a third party acquires in good faith over an attached moveable are reserved.

Rights a third party acquires over an attached movable contrary to the rules of good faith are void to the extent they breach the obligee’s rights attaching to that property through attachment.

Valuation:

Article 87 – (Amended: 24/11/2021-7343 Article 6)

With the exception of assets recorded in registers, the attaching officer shall value the property he attaches. If necessary, he may apply to experts.

The valuation of assets recorded in registers must be assigned to experts included on the regional board of experts’ list and experts authorized by the Ministry of Justice for this purpose or, in their absence, other listed experts.

The procedural and substantive rules on the implementation of this article are stipulated in a manual placed in effect by the Ministry of Justice.

Custody measures over attached property:

1- As concerns movables:

Article 88 - (Amended: 2/7/2012-6352 Article 17)

The enforcement office takes custody of attached coins, banknotes, bearer notes, bonds and other negotiable instruments along with gold, silver and other valuables.

Other movables are taken into custody with the cost collected in advance from the obligee. If the obligee consents, they may be left in the temporary custody of the obligor or with a third party so as so be surrendered on demand. With the attachment of immovables in the possession of third parties, they may be left with the third party as custodian should the third party so consent. (Amended sentence: 24/11/2021 – 7343 Article 7) On application for sale, goods that have been attached but not taken into custody are taken into custody or prepared for delivery to the sale purchaser, otherwise the sale may not be conducted. (Additional sentence: 24/11/2021 – 7343 Article 7) The provision of Article 106 is reserved with respect to land motor vehicles recorded in the register.

Without prejudice to international treaties to which Turkey is party, means of transport conveying foreign heads of state, parliamentary speakers, heads of government or members of government may not be taken into custody or left with a custodian for as long as such persons are in Turkey.

The enforcement office may also take custody of property pledged to a third party. As to movables forming part of a commercial enterprise pledge, these may be taken into custody by the enforcement office until their sale is ordered. Such property is returned if not liquidated.

Attached property is kept in custody at licensed custodial warehouses owned by natural and juristic persons authorized by the Ministry of Justice. With the approval of the Ministry of Justice, authorized natural or judicial persons may transfer the authority so vested in them to sub-operators provided they maintain the same standards. Such transfer does not absolve authorizing natural or judicial persons of their liability. Such warehouses are issued with an operating certificate by the Ministry of Justice following determination of their compliance with the properties and conditions laid down in the directions. Principles and procedures concerning custody procedures of the attached property, the establishing of licensed custodial warehouses, the minimum properties such warehouses must exhibit, the guarantee that is to be obtained for the warehouse, the insurance to be taken out in respect of possible risks to the property, qualifications for being an operator, the operator’s licence, the granting of this licence by the Ministry of Justice, the duties and powers of the Ministry of Justice over licensed operations, such administrative measures and acts as halting or annulling activities, inspection of such warehouses and other matters are regulated in the directive issued by the Ministry of Justice. Fees for attached goods at the custodial stage are set out in a tariff to be compiled by the Ministry of Justice.

(Repealed paragraph: 28/3/2023-7445 Article 42)

Vehicles apprehended by the law-enforcement agencies at enforcement offices’ behest are delivered to the nearest enforcement office within three working days at the latest. The director of enforcement who takes delivery of the vehicle shall notify the enforcement office that sought apprehension of the vehicle.

2 – As concerns receivables and attached property in the possession of third parties:

Liquidation of assets that no longer need storing

Article 88/a - (Appended: 28/3/2023-7445 Article 4)

Assets that are in storage on the basis of attachment that has terminated and are in the possession of a custodian are liquidated of its own motion by the enforcement office in the place where the executory action was undertaken.

Details of assets to be liquidated are announced on the National Judiciary Informatics System by the enforcement office.

The enforcement office serves notice on the obligor advising him that he may collect the assets on payment of the scheduled custodianship fee within ten days from the date of service, otherwise the asset will be liquidated pursuant to the following paragraphs.

If the obligor fails to collect the asset, the enforcement office serves notice on a pledgee advising him that he may realize the pledge right within ten days from the date of service and he must notify the enforcement office to this effect, otherwise the asset will be liquidated pursuant to the following paragraphs.

With regard to registered assets, if the asset is not collected by the obligor or pledge rights are not realized, the enforcement office of its own motion conducts their sale pursuant to the provisions herein on sale by electronic auction provided the assets have not previously been put up for sale.

If the asset cannot be liquidated pursuant to the above paragraphs, the enforcement office immediately serves notice on the custodian advising him that the transfer of ownership to him will be ordered on payment of the balance following deduction of the scheduled custodianship fee from forty per cent of the appraised value the asset within the past two years, if any, or else that estimated by the enforcement office, otherwise the procedures as per the following paragraphs will be taken. The enforcement office, having determined that the conditions set out in this paragraph have been fulfilled and the balance, if any, has been paid by the custodian, remits the file to the enforcement court so that transfer of ownership of the asset to the custodian be ordered.

With regard to registered assets, if the custodian declines to take transfer of ownership of the asset, the enforcement office serves notice on the Mechanical and Chemical Industry Corporation giving notification that it is to pay the scrap price stipulated by virtue of paragraph four of Article 4 of the Law on the Mechanical and Chemical Industry Corporation number 7330 of 30/6/2021 within one month from the date of service and advising it that the transfer of ownership to it will be ordered on payment of the scrap price within three months from the date on which it was notified. The enforcement office, having determined that the conditions set out in this paragraph have been fulfilled and the scrap price has been paid, completes the scrappage procedures and remits the file to the enforcement court so that transfer of ownership of the asset to the Corporation be ordered.

If the asset cannot be liquidated pursuant to the above paragraphs, the enforcement office remits the file to the enforcement court so that transfer of ownership of the asset to the Turkish Red Crescent Society be ordered free of charge.

Following the examination it makes on the record, the enforcement court rules with finality within no more than ten days to grant or dismiss the application on files remitted for transfer of ownership. On a positive ruling, ownership of the asset passes to the concerned party and transfer and delivery procedures are undertaken with all attachments and pledges annulled.

Obligations such as taxes, fines and premiums of the liquidated asset burden the obligor and ownership passes to the concerned party free of all obligations and encumbrances. Transfer and registration procedures are exempt from all manner of taxes, fees and dues

No lien right may be exercised over transfer procedures in respect of custodianship dues. The existence of a custodianship fee serves as no obstacle to the transfer of ownership and related procedures.

If the asset undergoing liquidation is subject to attachment pursuant to Law number 6183, the enforcement office serves notice on the revenue administration prior to serving notice on the obligor and notifies it that it must collect the asset to conduct storage and/or sales procedures within one month from the date of service, otherwise the asset will be liquidated pursuant to this article.

If the asset undergoing liquidation is not in free circulation under the Customs Law number 4458 of 27/10/1999, the enforcement office serves notice on the customs administration prior to serving notice on the obligor and notifies it that it must collect the asset to conduct customs procedures within one month, otherwise the asset will be liquidated pursuant to this article.

Costs of liquidation are met initially from the advance payment in the case and, in the absence of an advance payment, from the budget of the Ministry of Justice.

In order of priority, costs met from the advance payment, costs met from the budget of the Ministry of Justice and amounts due to the state that attach to the asset such as taxes, fees and dues are paid out of receipts taken under the case during liquidation. The remainder is kept with yield procured from banks pursuant to Article 9 and paid along with the yield to entitled parties on demand.

If receipts taken under the case do not suffice to meet expenses made from the budget of the Ministry of Justice, the enforcement office notifies the revenue administration so that the outstanding amount be collected from the obligor pursuant to Law number 6183.

The procedural and substantive rules governing the application of this article are to be set out in a rulebook brought into force by the Ministry of Justice.

Article 89 - (Amended: 18/2/1965-538 Article 49) If a receivable or any other right of claim not based on a note payable to bearer or order or an immovable of the obligor in the possession of a third party is attached, the enforcement officer shall notify the obligor natural or juristic person that they may henceforth only fulfil their obligation to the enforcement office and payments made to the obligor in the executory action are void or the third party who is in possession of the object that they may henceforth only surrender the movable to the enforcement office and should not give the object to the obligor in the executory action otherwise they will be required to pay the cost of the property to the enforcement office (attachment notice). The provisions of paragraphs two, three and four will also be notified to the third party in this attachment notice.

If the third party has an assertion such as that he owes no obligation or the property is not in his possession or he has fulfilled the obligation prior to service of the attachment notice or the property has been consumed or destroyed while in flawless condition or the property is not owned by the obligor or the property has been pledged to him or the receivable has been paid to the obligor or his order, he must notify the enforcement office accordingly orally or in writing within seven days of service on him of the attachment notice.

(Amended third paragraph: 17/7/2003-4949 Article 22) If the third party fails to object within seven days of service on him of the attachment notice, the property is deemed to be in his possession or the obligation to be vested in him and he is notified in a second notice sent to him that he failed to make timely objection and thus the property is deemed to be in his possession or the obligation to be vested in him. He will also be requested in this second notice to make objection for the reasons set out in the second paragraph within seven days of service on him and, if he fails to do so, to fulfil the obligation deemed vested in him or deliver the property deemed in his possession to the enforcement office. A third party who fails to make timely objection to the second notice and fulfil the obligation deemed vested in him or deliver the property deemed in his possession to the enforcement office is notified that he should make the monetary payment to the enforcement office or deliver the property deemed in his possession within fifteen days or bring negative declaratory action within the same time period, or he will be compelled to fulfil the obligation deemed vested in him or deliver the property deemed in his possession. If the third party who receives this notice furnishes the enforcement office in question within twenty days of the date on which notification was made with a document attesting to the timely bringing of negative declaratory action at the court local to the place where the exectutory action is pending or his domicile, the compulsory enforcement procedures pending against him are stayed until finalization of the ruling passed at the conclusion of the negative declaratory action. The time periods laid down in Article 106 do not run during this period. The third party must prove in this action that he is not obligated to the obligor in the executory action or that the property is not owned by the obligor in the executory action. If the third party loses this action he brings, he is sentenced to a penalty of not less than twenty per cent of the subject matter of the action. Negative declaratory action brought under this paragraph is subject to the lump-sum fee.
(Footnote: The wording, “Forty per cent” contained in this paragraph was amended to, “Twenty per cent” under Article 18 of Law number 6352 of 2/7/2012.)

If the third party makes timely objection to the attachment notice, the obligee may, having proved the contrary of the reply the third party makes to the enforcement court, seek the third party’s punishment as per the provision of paragraph one of Article 338 and also his being sentenced to a penalty. The enforcement court shall adjudicate the action for a penalty in accordance with general provisions.

If the third party does not make timely objection to the attachment notice except by reason of impediment for which he is not at fault, the provision of Article 65 is implemented. (Amended final sentence: 17/7/2003-4949 Article 22) In all events, the third party may seek the return of the funds he is required to pay or the property he surrenders by bringing proceedings against the obligor and a bad-faith obligee.

If delivery of the property is impossible, the obligee has the right to require payment of its worth by the third party through application to the enforcement court.

(Amended seventh paragraph: 2/7/2012-6352 Article 18) The attachment notice is served on the branch of a juristic person or entity where the obligor’s rights or receivables may be located or its head office so as to encapsulate all its branches or units. The head office on which the attachment notice is served must make statement so as to encapsulate all its branches or units.

The third party’s statement is not subject to any fee or due.

The provision of this article is also applied to officers who make untrue statement in the capacity of officer.

(Additional paragraph: 6/12/2018-7155 Article 12) Notification of attachment notices pursuant to this article and replies given to these notices may also be made over the National Judicial Network Informatics System and the informatics systems integrated into this system by use of secure electronic signature. Notification made under this procedure takes the place of service.

3 – In respect of other rights:

Article 90 - The enforcement office shall attempt to conserve attached rights and collect those receivables that fall due and may require advance payment of costs that are necessarily incurred.

4- As concerns immovables:

Article 91 - (Amended: 18/2/1965-538 Article 50)

(Amended: 9/11/1988-3494 Article 10) Under attachment of an immovable, the right of disposal is subject to the limitation in the meaning of Article 920 of the Civil Code. The land registry office is notified by the enforcement office of the matter of attachment, the amount in respect of which it has been placed along with the name and serviceable address of the obligee for entry into the register. An obligee who changes address must request notification of the new address to the land registry office by the enforcement office thereby furnishing the cost entailed.

If new obligees intervene in attachment or attachment is released, the land registry office is also informed accordingly.
(Footnote: The wording in the first paragraph of this article, “Land registry office and, if the attached object is a ship, the office where it is registered” was amended to, ”Land registry office” and the wording in the second paragraph, “The aforementioned offices” to “Land registry office” under Article 41 of Law nuumber 6103 of 14/1/2011.)

(Additional paragraph: 17/7/2003-4949 Article 23) If the attached immovable changes ownership, Article 148/a is applied.

I – Inclusion within attachment of immovables

II – Reserved rights of obligees with pledge-secured claims

III – Administration and operation

Article 92 - (Amended: 18/2/1965-538 Article 51)

The attachment of an immovable also includes its fruits and interests. Attachment does not prejudice the rights of obligees to whom the immovable is pledged.

The enforcement office shall give prior notice of attachment to obligees to whom the immovable is pledged and lessees.

(Amended third paragraph: 17/7/2003-4949 Article 24) The office shall take the necessary measures for the administration and operation of the immovable and preservation of its appurtenances. As part of these measures, if there is a lessee in the immovable, the enforcement office shall order payment of the applicable rent to the enforcement office. Appurtenances at risk of suffering damage are taken into custody at the request of the pledgee such that this will not hamper the facility’s operations. Administration and operation costs are paid out of the proceeds of sale with priority.

Harvesting, obligor’s entitlement:

Article 93 - The enforcement office shall take the necessary measures for harvesting crops.

If the obligor has no means of upkeep, a sufficient amount of the crop or a suitable amount of the proceeds if sold is ceded to him for his and his family’s upkeep.

Property owned in common:

Article 94 - (Amended: 18/2/1965-538 Article 52)

If a usufructuary right or an undivided inheritance or a company or a share in property under common ownership is attached, the enforcement office shall notify interested third parties with known domiciles accordingly. If in this way the obligor’s post-dissolution share in a specific immovable is attached, the enforcement officer shall issue a communication to the land registry office for the entering of an attachment notation in the immovable’s record. (Additional sentences: 17/7/2003-4949 Article 25) If share certificates or share warrants have not been issued for shares in joint-stock companies, the obligor’s share in the company is attached through the issuing of a communication to the company by the enforcement office. This attachment must be processed in the company’s share ledger; however, even if attachment is not processed in the company’s share ledger, it is deemed to have been placed on the date communication was made to the company. The Commercial Registry is notified of the attachment by the enforcement office for registration purposes. Transfer of the attached shares under such circumstances is void to the extent the obligee’s rights are violated. The sale of attached shares is subject to the procedure for the sale of movables. With other movables, the enforcement office shall take measures to prevent transfer to others. (Repealed third sentence: 17/7/2003-4949 Article 25)

Registration in the obligor’s name may be requested by the obligee of an inheritance not disclaimed by the obligor or property or other in-rem rights acquired for another cause and not yet registered in the land register or ship register. On such request, the enforcement office shall notify the land or ship registry office and, if need be, the court that the obligee may undertake such procedure.

In the event of attachment of the obligor’s right to demand acquisition through extraordinary prescription of an immovable in his possession, the enforcement office shall take measures to prevent transfer of possession to another and shall authorize the obligee to bring action within one month for registering the immovable in the obligor’s name. On the court ordering registration, the immovable is deemed to be attached in favour of the obligee.

The provision of paragraph two is applied through notifying the competent authority to persons who fail to present themselves as required to obtain the pension or orphan’s benefit to which they are entitled or which they draw.

Statutory costs the obligee incurs for such reasons are collected from the obligor by the office with no need for separate executory action or a judgment.

Costs of custody of attached property:

Article 95 - The obligee must make outright payment on demand of the costs of custody, administration and operation of the attached property.

Objection to claim of ownership:

A- Obligor’s possession:

1 – Preparatory stage:

Article 96 - (Amended: 18/2/1965-538 Article 53)

If the obligor points to property in his possession as being another’s property or pledge or there is an assertion of ownership of or a pledge right over that property by a third party, the enforcement office shall enter this into the attachment and enforcement records and inform both parties accordingly.

The enforcement office shall at the same time provide the obligee and obligor with a period of three days to state whether they object to the claim of ownership. If they are silent, they are deemed to have consented to the claim of ownership.

If the obligor or a third party who are aware of the attachment fail to make claim of ownership within seven days of the date of such awareness, they forfeit the right to raise this claim in the same executory action. Those who reside together with the claimant of ownership or such persons’ business partners on the date the claim of ownership was made or claim of ownership action was brought are deemed to have gained awareness of attachment of the property on the date the assertion is made or the action is filed if claim of ownership action is brought pursuant to paragraph nine of Article 97.

II – Third party’s claim of ownership:

Article 97 - (Amended: 18/2/1965-538 Article 54)

If the obligee or obligor object to the claim of ownership, the enforcement office shall immediately remit the case to the enforcement court. The enforcement court shall order continuation or stay of the recovery action in line with the opinion it reaches following examination based on the pleadings or, if it sees fit, through a hearing having called the parties.

The enforcement court shall dismiss the application for stay of recovery action if serious grounds exist for deeming that the claim of ownership action is being abused purely to delay sale.

If the executory action is stayed, the security provided for in Article 36 is obtained from the claimant in respect of the obligee’s potential losses should the former’s claim be lost.

The kind and amount of security is determined in accordance with the state of the existing evidence.

(Amended fifth paragraph: 2/3/2005-5311 Article 9) The enforcement court’s ruling ordering continuation of the executory action is final.

The third party must bring claim of ownership action before the enforcement court within seven days of announcement or service of the enforcement court’s ruling. If he does not bring action within this time period, the third party is deemed to have relinquished his claim against the obligee.

Stay may not be ordered unless claim of ownership action over goods subject to the right of retention at leased immovables or on ships conforms to the provisions set out in paragraph one of Article 268 of the Code of Obligations.
(Footnote: The wording “At leased premises or on ships entered into the register” was amended to, “At leased immovables or on ships” under Article 41 of Law number 6103 of 14/1/2011.)

The time periods in Article 106 do not run for the duration of the action.

A third party who has been denied the possibility of asserting ownership under the above provisions may bring claim of ownership action before the enforcement court within seven days of awareness of the attachment over the attached object or, if sold without the proceeds having yet been rendered to the obligee, over the proceeds. Otherwise, he forfeits the right to raise this claim in the same executory action. In such case, on the claimant’s application, the enforcement judge must speedily rule as per the above provisions as to whether execution be stayed. This ruling may also be made ex parte.

If the attached object is liquidated prior to the conclusion of the claim of ownership action, the enforcement judge shall rule separately as to whether payment of the proceeds thereof be withheld until the conclusion of the proceedings or be rendered immediately to the obligee with the furnishing of security, or without this if circumstances so dictate.

The claim of ownership action is heard under general provisions and through simplified proceedings.

The unity of the third party and obligor in the assertion made to the enforcement officer in respect of the attached object is not binding on the obligee. The third party must prove this assertion. However, the obligor’s acknowledgment of the third party’s claim to be the owner or pledgee of the attached object constitutes evidence against the former and he may not make any future statement contrary to this acknowledgement.

(Amended: 9/11/1988-3494 Article 11) If stay of execution is ordered pending claim of ownership action and the case ends in dismissal, the claimant is penalized in an amount not less than twenty per cent of the amount whose receipt by the obligee was delayed due to this action.
(Footnote: The wording, “Forty per cent” contained in this paragraph was amended to “Twenty per cent” under Article 19 of Law number 6352 of 2/7/2012.)

(Amended paragraph fourteen: 2/3/2005-5311 Article 9) A claimant of ownership who takes recourse to appeal or cassation against an adverse ruling may apply to the enforcement office for a delay in accordance with Article 36.

If the claim of ownership is substantiated and it emerges that the obligee or obligor who objected to the assertion of ownership pursuant to paragraph one were in bad faith, the objector is penalized in an amount not less than fifteen per cent of the value of the attached object in conjunction with the principal action.

In attachment placed on the husband, a wife may herself pursue her rights to personal property without being subject to Article 160 of the Civil Code.

An attaching obligee may bring counteraction for nullity against the claim of ownership action based on the provisions of Chapter 11 of this statute without requirement to present an interim or final certificate of shortfall. The judge shall freely assess all evidence the parties adduce in the action and counteraction.

Claim of ownership action is adjudicated speedily and heard prior to the other actions.

Presumption of ownership in claim of ownership actions:

Article 97/a - (Added: 18/2/1965-538 Article 55)

The person in possession of a movable is deemed to be its owner. Even if the movable is in the joint possession of the obligor and third parties, the property is deemed to be in the obligor’s possession. (Additional third and fourth sentence: 24/11/2021-7343 Article 8) Under such circumstances, such property is not taken into custody if the third-party agrees to act as custodian. However, the property may be taken into custody if the continuation of recovery action is ordered pursuant to the first paragraph of Article 97. Where there is coresidence, those objects that are clearly determinable by their nature or are dictated by usage and custom, trade, profession or occupation as belonging to men, women or children are assumed to be theirs. The burden of proof falls to the one who rebuts this presumption.

The claimant of ownership must demonstrate how he acquired the object and the legal and actual reasons and facts necessitating its being in the obligor’s possession, and prove this.

Lost and stolen things:

Article 98 - The provisions of Articles 902, 903 and 904 of the Civil Code concerning stolen and lost objects remain unprejudiced.

Sales made through bargaining by the enforcement office have the status of official auction as mentioned Article 902 of the Civil Code.

B - Third party’s possession:

Article 99 - (Amended: 2/7/2012-6352 Article 20)

If the attached object is not in the obligor’s possession but is with a third party who asserts ownership of or another in rem right over it, such object is not taken into custody if this person consents to being custodian. The director of enforcement shall grant the obligee seven days in which to bring claim of ownership action against the third party before the enforcement court. If claim of ownership action is not brought before the enforcement court within this time period, the third party’s claim is deemed to have been granted. Sale may not be made of the attached object until the conclusion of timely action brought by the obligee. The provision of this paragraph is also applied if attachment is placed in the absence of the third party and a claim of ownership is raised in favour of the third party.

Ranking interventions in attachment:

Article 100 - Obligees who, on initial attachment, may intervene in the attachment at the same rank until the proceeds of sold property reach the cashier’s office:

Obligees under:

1 – Certificates of shortfall obtained from executory action conducted, if the initial attachment was based on executory action without a judgment, prior to application for executory action or, if it was based on a judgment, prior to institution of the lawsuit,

2 – Judgments obtained in actions brought prior to the dates laid down in the above paragraph,

3 –Official promissory notes or those whose dates and signatures are certified that predate the same dates, or

4 – Receipts or documents duly issued within their competence by official offices or competent authorities that predate the same dates.

In the event of such intervention, the enforcement office shall on application place supplementary attachment sufficient to satisfy all equally ranked obligees.

Apart from these, obligees may only intervene in the attachment in respect of senior-ranking amounts outstanding.

Intervention without need for the prerequisite formalities:

Article 101- (Amended: 3/7/1940-3890 Article 1)

Persons who are the obligor’s spouse and children and guardian or deputy may, on initial attachment, intervene in the attachment at the same rank without need for the prerequisite executory formalities until the proceeds of sold property reach the cashier’s office in respect of claims arising out of marriage, parenthood or guardianship. This is with the proviso that this right may only be exercised if attachment is placed while guardianship, parenthood or marriage are in continuation or within one year of their ending. The period in which a lawsuit or executory action pends is not included in the calculation. The obligor’s adult children may at all times intervene in the attachment at the same rank without need for the prerequisite executory formalities in respect of claims arising under Article 321 of the Civil Code. Courts of the peace may also intervene in attachment in the same manner on behalf of minors and those under guardianship or to whom deputies have been appointed.

(Amended: 18/2/1965-538 Article 56)

The enforcement office shall notify the obligor and obligee of applications to intervene. It shall grant a period of seven days for them to object. In the event of objection, the would-be intervenor’s intervention in the attachment is temporarily granted and he is notified of the requirement to bring action within seven days. If he fails to bring action within this time, the right of intervention extinguishes. The consequent action is heard through simplified proceedings.

An obligor based on a maintenance order may at all times intervene in the attachment at the same rank without need for prior executory formalities. The existence of bad faith constitutes an exception.

Compilation of the attachment record:

Article 102- A record is compiled on-site with the attachment of movables. The obligee’s and obligor’s names and cognomens, amount of the claim, date and time at which attachment was placed, attached objects, appraised values and, if applicable, third-party claims are entered into the record and it is signed by the officer who executes attachment.

If the property whose attachment is applied for is immovable, the enforcement office sends a communication pursuant to Article 91 to the office on which attachment is incumbent and the type and nature and boundaries and necessary features of the immovable are included in a record to be compiled on-site.

Where enforcement attachment is placed on objects previously attached interimly, the interim attachment obligee’s right of intervention is also indicated in the record.

If there are insufficient attachable objects or none are found, this situation is entered into the record.

Invitation:

Article 103- (Amended: 9/11/1988-3494 Article 12)

While compiling the record, the obligee and obligor or, if no person authorized to take service on their behalves as per the provisions of the Notification Law is found, the absent obligee and obligor are invited to attend at the enforcement office within three days to inspect the record and, if they have anything to say, to do so. Periods that by law must be added remain unprejudiced. If a person authorized to take service on behalf of the obligor or obligee as per the provisions of the Notification Law is found during attachment, a copy of the attachment record is given to the person found. Separate notification is not made to the obligor or obligee.

Invitation in the event of intervention in attachment:

Article 104 Intervention by new obligees and consequent new supplementary attachments are indicated beneath the record.

Each new obligee who intervenes in the attachment may, if he wishes, obtain a full copy of the record.

The invitation pursuant to Article 103 is also made to previous placers of attachment and obligors for them to be notified of new intervenors and supplementary attachment.

Certificate of shortfall on non-payment of debt:

Article 105 If attachable objects are not found, the attachment record has the force of a certificate of shortfall in Article 143.

Where the attachable objects are determined to fall short of the amount appraised by the enforcement office, the record takes the place of an interim certificate of shortfall and affords the obligee the rights set out in Article 277.