Two separate stages of the procedure can be identified in the attachment of immovable assets:
- 1) service of the attachment order on the debtor;
- 2) the entry of the certified copy of the attachment order - notice of which has been duly served on the addressee - in the public property registers.
The service of the order is the point at which the effects of attachment start to run, whereas the purpose of transcription of the order in the public register is to make its enforcement effective against third parties.
In this E-note:
Transcription
Transcription becomes of decisive importance for the purpose of the attachment of real property, in that it gives rise to the lien of inalienability in favour of the creditor making the attachment and other creditors that are parties to the enforcement. Since it is in fact the essence of attachment that such inalienability is created, the function of transcription is constitutive and not merely declarative, with the effect that the attachment is finalised, including between the creditor and debtor, only at the moment of transcription and not at the earlier point of service of notice (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 immovable assets as the ground, springs and streams, trees, buildings and other constructions, including those attached to the ground temporarily, and in general anything which is naturally or artificially incorporated with 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 are assets deriving directly from another asset, 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
On expiry of a term of ten days from the attachment - and within ninety days - the creditor may apply for the attached immovable property to be sold.
The parties lodge all the documents specified by article 567 of the Code of Civil Procedure - within a term of one hundred and twenty days from the application for the sale, which may only be extended once and by no more than an additional one hundred and twenty days - the enforcement judge then nominates an expert, within thirty days of the documentation having been lodged, and fixes a date for the appearance of the parties for authorisation of the sale.
At that hearing the judge determines the procedures for the sale, if necessary after obtaining clarification from the expert; having heard the parties, he may delegate the sale transactions to a notary, lawyer or qualified accountant (non-auction sale). When delegating, the enforcement judge will consult the lists received from the president of the court based on the lists provided by the District Notarial Board, the Bar Council and Board of Chartered Accountants every three years, accompanied by appropriate information relating to relevant specific experience (179-b and 179-c of the enacting provisions of the Code of Civil Procedure).
The rules regulating the instituting of the immovable property sale make it clear that the first attempt must be a non-auction sale and if this is not successful then there shall be an auction sale;
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 the bids will be examined as well as where the bidding between bidders will take place;
- and indicates where the auction shall take place.
It should be pointed out that the assigned professional is not an assistant of the judge, but rather he carries out substitute tasks entrusted to the judicial authority, within the limitations of the delegation.
With regard to auction sales see that established by articles 576 et seq of the Code of Civil Procedure:
- The enforcement judge (484), having, where necessary, consulted an expert, when he orders the auction (569, 572, 573, 575, 587)), establishes (68; 161 of the enacting provisions);
- 1) whether the sale shall take the form of one or more lots (577, 578);
- 2) the base price of the auction determined according to article 568 of the Code of Civil Procedure;
- 3) the date and time of the auction;
- 4) the time period that must elapse between the completion of the forms of advertising and the auction, as well as any forms of exceptional advertising pursuant to art. 490, final paragraph;
- 5) the deposit amount (119, 580, 587; 86 of enacting provisions), which must not exceed a tenth of the auction base price and the deadline by which this amount must be provided by the bidders;
- 6) the minimum amount that must be given as bids (581);
- 7) the time limit, not exceeding sixty days from the awarding of the bid, within which the amount must be deposited and the methods of depositing (585).
- The order is published (490) by the court registry official.