Attachment (haciz)

Scope

In enforcement through the general attachment route, once the period in the payment order has passed or, if the debtor objected, once the objection has been removed, the creditor may request attachment (Law No. 2004 on Enforcement and Bankruptcy (İİK) Art. 78). This right is, as a rule, exercised within one year from service of the payment order; in the cases listed in the statute, this period does not run. The attachment cannot exceed the amount sufficient for the claim, including principal, interest and costs (Art. 85). Certain property listed in the statute is, as a rule, exempt from attachment; however, this protection does not apply if the debt arises from the price of that property itself, and property such as a house or professional tools whose value exceeds the need may be sold with a portion appropriate to the debtor’s circumstances being left to the debtor from the proceeds (Art. 82). From salaries and wages, the portion deemed necessary by the enforcement officer for the subsistence of the debtor and the debtor’s family is set aside; the portion to be attached cannot be less than one quarter of the salary or wages (Art. 83). For employees subject to the Labor Law, however, no more than one quarter of the monthly wage may be attached, subject to maintenance claims (Law No. 4857, Labor Law, Art. 35); income and pensions awarded by the Social Security Institution (SGK) may also, as a rule, be attached only for maintenance claims and claims of the Institution or with the debtor’s consent (Law No. 5510, Art. 93).

Practical significance

Attachment alone does not produce a sale: if a sale is not requested within, as a rule, one year of the attachment, the attachment is lifted (Arts. 106, 110). Attachment of immovable property is notified to the land registry (Art. 91); when a debtor’s receivable from a third party (for example, money in a bank account) is attached, an attachment notice is sent to that person, and from then on that person can validly pay the debt only to the enforcement office, and payment to the debtor is not valid (Art. 89). A third party who claims that the attached property belongs to that party has the claim-of-ownership procedure (istihkak) (Art. 96 et seq.). Because attachments on bank accounts and on property entered in registers can directly affect commercial activity, monitoring the time limits in the enforcement file is important.

Concepts often confused

Attachment is a compulsory enforcement measure applied by the enforcement office in enforcement proceedings after the payment period has passed (and, in the general attachment route, additionally if the objection has been removed). Precautionary attachment, on the other hand, is a temporary protective measure imposed, as a rule, for a monetary claim that is due and not secured by a pledge, before or during proceedings or a lawsuit, by court decision (Art. 257 et seq.); if imposed before the proceedings or lawsuit, it places on the creditor the burden of submitting an enforcement request or filing a lawsuit within a short period. If the debtor does not object to the payment order in time, or the objection is removed or annulled, the precautionary attachment turns automatically into executory attachment (Art. 264). For claims secured by a pledge, too, as a rule one first proceeds by realization of the pledge (Art. 45).