Enforcement against property

Enforcement against property means an enforcement measure whereby a creditor has property belonging to the debtor placed under the control of a court so that it can be sold and he can have the price paid to him.

1. Definition

Enforcement against property means an enforcement measure whereby a creditor has property belonging to the debtor placed under the control of a court so that it can be sold and he can have the price paid to him.

2. Conditions for implementing an enforcement against property

To have recourse to this enforcement procedure under civil law, certain conditions must be met:

• The claimant creditor must possess a writ of enforcement confirming an established, liquid and matured debt (cf. File No. 2);
• The claimant creditor must have capacity to take action and to bring proceedings at law;
• Enforcement must apply to real estate.

3. Enforcement

Enforcement against property proceeds as follows:

Service of the payment order entitling enforcement

This enforcement procedure under civil law is initiated by serving a payment order permitting enforcement.

Enforcement on property may be made against the debtor or against a third party in possession of the property. The payment order permitting enforcement is then served on the debtor or on the third party in possession depending on the circumstances.

However, it must be stressed that if proceedings concern a third party in possession, service of the payment order permitting enforcement is not sufficient. In fact, an ordinary payment order must also be issued to the debtor, the order being otherwise null and void.

In either case, service of the payment order permitting enforcement will in particular have the effect of:

• A notice to pay (the property may not be abandoned or used to secure an entitlement);
• Rendering the property non-disposable;
• Rendering the accruals from the property non-disposable.

The payment order permitting enforcement must therefore be published for it to be made enforceable on third parties.

Discharge of formalities prior to sale

A sale, whether amicable or compulsory, can take place only if the following steps have been taken:

• Issue of a descriptive report on the premises by the process-server in charge of the action;
• Summoning of the debtor to a fact-finding hearing and a registered creditors meeting;
• Preparation by the claimant creditor's lawyer of the conditions of sale, indicating the terms and conditions for sale of the property;
• Statement of sums owed to registered creditors.

Fact-finding hearing

The outcome of this hearing will decide whether the property will be subject to amicable sale or compulsory sale. In addition, the enforcement court will take this opportunity to verify whether the conditions for proceeding with enforcement have been met and it will consider any objections and incidental requests.

Sale of the property

Sale of the property may be amicable or compulsory:

Amicable sale of the property

the attached debtor will take the necessary steps to conclude the sale. The property will otherwise be subject to compulsory sale.

Compulsory sale of the property (adjudication):

in practice this means selling the property by public auction.

Compulsory sale requires prior notice. Sales will take place at the bar of the Regional Court (see file No. 2). The vendor must have instructed his lawyer. Representation by a lawyer is in fact obligatory.

On completion of the sale, an adjudication judgement is given which the claimant creditor must serve on the debtor, registered creditors, the purchaser and any person who has raised an objection settled by the decision.

It should be noted that adjudication may be upset by a higher bid (situation if a person puts forward a price higher than the adjudicated price) or by a repeat auction (applicable in cases where the auction is annulled).