Section IV. Execution against Immovables
Sub-section I. Scope of “immovable”, execution organs, method of execution,
method of attachment, and means of public notice
417. (Scope and method of execution against immovables)
1. In this section, the term "immovable" refers to land, registered building, shares of
those, registered perpetual leases and usufructs and jointly held shares in the
foregoing rights.
2. Execution against immovables shall be effected using the method of compulsory
sale.
3. A motion for execution against immovables shall be accompanied by an
enforceable exemplification of the title of execution, together with:
(a) a certified copy of the register in the case of registered immovable, and if a
person other than the debtor in execution is noted in the register, a document
proving the immovable is owned by the debtor in execution; or
(b) in the case of an immovable that is not registered, a document proving that
the immovable is owned by the debtor in execution.
418. (Execution court)
The courts described below shall have jurisdiction as the execution court in respect of
compulsory execution against immovables:
(a) where the subject of the execution is land or registered building, the court of
first instance having jurisdiction over the location of the immovable; and
(b) where the subject of the execution is a jointly held share of land or registered
building, a registered perpetual lease or usufruct, or a share in the foregoing
rights, the court having jurisdiction over the place of registration of such
rights.
419. (Ruling of commencement of compulsory sale, etc.)
1. In order to commence compulsory sale proceedings, the execution court shall
issue a ruling of commencement of compulsory sale and include in such ruling an
order for attachment of the immovable for the benefit of the creditor in execution.
2. The ruling of commencement under Paragraph 1 shall be served on the debtor in
execution.
3. A Chomtoah appeal may be made against a ruling dismissing a motion for
execution against immovables.
420. (Instruction for registration of attachment, etc.)
1. Upon the issue of a ruling of commencement of compulsory sale, the court clerk
shall immediately instruct the registrar to record the attachment under such ruling.
2. Upon registration of attachment pursuant to an instruction under paragraph 1, the
registrar shall send a certified copy of the register to the court clerk.
421. (Effect of attachment)
1. In addition to the immovable, the effect of attachment shall extend to objects that
form a single entity with the immovable, together with accessories and accessory
rights thereof.
2. The effect of the attachment shall arise upon service of the ruling of
commencement of compulsory sale on the debtor in execution, provided that if
registration of the attachment is carried out prior to the issue of the ruling of
commencement of compulsory sale, the said effect shall arise at the time of such
registration.
3. Attachment shall not preclude the debtor in execution from using in the normal
manner and profiting from the immovable, provided that this shall not apply in a
case where the claim attached is one having the objective of payment of rental for
immovable prescribed in Article 516 (Attachment of claim for rental from
immovable), or in a case where preservative disposition has been ordered pursuant
to Article 429 (Preservative disposition).
422. (Final date for demands for distribution and its changes)
1. In a case where attachment has come into effect under a ruling of commencement
of compulsory sale, then except in cases where a double ruling of commencement
of compulsory sale has been made under Article 424 (Double ruling of
commencement) Paragraph 1, the execution court shall determine the final date for
submission of demands for distribution, taking into consideration the period
required to prepare specifications of the property.
2. Once the final date for submission of demands for distribution is fixed, the
execution court must give public notice of the fact that a ruling of commencement
has been made and of the final date for submission of demands, and must call on
the following persons to file notice with the execution court by said final date as to
whether they have a claim, the grounds of such claim and the amount thereof:
(a) a provisional attachment creditor who was registered prior to the registration
of the attachment based on the first ruling of commencement of compulsory
sale concerning the immovable;
(b) a creditor holding a real security interest that was registered prior to the
registration of the attachment based on the first ruling of commencement of
compulsory sale concerning the immovable; and/or
(c) government organs having jurisdiction over taxes or other public imposts.
3. In cases stated in Paragraph 2, the execution court must call on the persons stated
in Paragraph 2 to do following items:
(a) to report whether or not the person has an intention to foreclose security
interests by the final date for submission of demands for distribution; and/or
(b) in case where the person has an intention to foreclose his/her security
interests, to file an application for foreclosure of security interests by the
final date for submission of demands for distribution.
4. If no ruling permitting sale has been made within 3 months following the final
date for submission of demands for distribution, the execution court may change
such final date.
5. The execution court shall give public notice of any change of the final date for
submission of demands for distribution under paragraph 4.
423. (Duty to give notice of claim)
1. Persons listed in Items (a), (b) or (c) of Paragraph 2 of Article 422 (Final date for
demands for distribution and its changes) who have been served with a notice
under the said paragraph or Paragraph 3 of the said article must file the particulars
specified in such notice by the final date for demands for distribution.
2. If there is a change in the principal amount of the claim filed under Paragraph 1,
the person who filed such notice must file notice of said change.
3. If a person required to file a notice under Paragraphs 1 or 2 intentionally or
negligently fails to file such notice or files a false notice, he shall be liable to
compensate any damage incurred thereby.
424. (Double ruling of commencement)
1. If an additional motion for compulsory sale is filed in respect of an immovable in
respect of which a ruling of commencement has been issued, and such additional
motion is accepted, the execution court shall issue another ruling of
commencement of compulsory sale. In such a case, the court must send a notice to
this effect to the creditor in execution under the earlier ruling of commencement.
2. If the motion for compulsory sale in the earlier case is withdrawn, or the earlier
procedure is cancelled, the execution court shall continue the proceedings on the
basis of the later ruling of commencement of compulsory sale.
3. If in a case under paragraph 2 the later ruling of commencement of compulsory
sale is based on a motion that was filed after the final date for demands for
distribution, the execution court shall determine a new final date. In such a case,
notice to file particulars of demand under Paragraph 2 of Article 422 (Final date
for demands for distribution and its changes) does not need to be given to persons
who have already filed such particulars under Article 423 (Duty to give notice of
claim).
4. If the compulsory sale procedure based on the earlier ruling of commencement has
been stayed, the execution court must give notice to this effect to the creditor in
execution under the later ruling of commencement. In such a case, upon motion,
the execution court may make a ruling that the procedure shall continue based on
the later ruling of commencement for which a motion was filed by the final date
for demands for distribution. However, this shall not apply in cases where if the
compulsory sale under the earlier ruling of commencement were cancelled, there
would be a change in a matter described in Paragraphs 1 to 3 of Article 431
(Rights which remain in existence after sale and rights which are extinguished).
5. If a ruling is made under Paragraph 4, the execution court shall give notice to this
effect to the debtor in execution.
6. A Chomtoah appeal may be made against a ruling dismissing a motion under
Paragraph 4.
425. (Double ruling of commencement concerning immovable where ruling of
commencement has already been issued in enforcement of security)
Paragraphs 1 to 3 of Article 424 (Double ruling of commencement) shall apply mutatis
mutandis if in a case where a motion for compulsory execution is filed in respect of an
immovable in respect of which a ruling of commencement of compulsory sale has
already been issued in enforcement of security.
426. (Demand for distribution)
1. The persons listed below are entitled to make a demand for distribution:
(a) creditors holding an exemplification of a title of execution who are entitled
to effect execution in accordance with Paragraph 1 of Article 354
(Requirement for execution clause and which organs grant such clause),
provided that this shall not apply to creditors holding real security that will
remain in effect even after the sale of the immovable pursuant to Paragraph 1
of Article 431 (Rights which remain in existence after sale and rights which
are extinguished);
(b) creditors who have registered provisional attachment after registration of
attachment based on a ruling of commencement of compulsory sale; and/or
(c) persons with documentary evidence of general preferential rights.
2. A demand for distribution shall be in writing and shall include the grounds and the
amount of the claim, including interest and other ancillary claims.
3. If a demand for distribution is made, the execution court shall notify the creditor in
execution and the debtor in execution to this effect.
4. A Chomtoah appeal may be filed against a ruling dismissing a demand for
distribution.
427. (Cancellation of compulsory sale proceedings by reason such as destruction
or loss of the immovable)
The execution court shall cancel the compulsory sale proceedings in the event of
destruction or loss of the immovable or other circumstances that prevent the transfer of
the immovable by sale are found.
428. (Entrustment for striking out of registration of attachment)
1. If a motion for compulsory sale is withdrawn, or a ruling canceling compulsory
sale proceedings comes into effect, the court clerk shall entrust the registrar to
strike out the registration of the attachment under such ruling.
2. The expense of the entrustment under Paragraph 1 shall be borne by the creditor in
execution who withdraws the motion or by the creditor in execution who is subject
to the ruling of cancellation, as the case may be.
429. (Preservative disposition)
1. If the debtor in execution or an occupant of an immovable is committing or is
likely to commit an act which will severely reduce the value of the immovable or
render the sale or delivery of the immovable difficult, then upon motion by the
attachment creditor, highest bidder or purchaser, the execution court, with or
without requiring the posting of security, may, by ruling, prohibit such person
from committing such act or order such person to carry out a certain act or order
the occupancy of the immovable to be transferred to the custody of the bailiff,
provided that custody can only be transferred to the bailiff in cases where the
occupant of the immovable cannot assert its title to the occupancy against the
purchaser.
2. If it makes a ruling under Paragraph 1 against an occupant other than the debtor in
execution, the execution court shall examine such person, except in cases of
urgency.
3. If circumstances change, the execution court upon motion may cancel or vary an
order under Paragraph 1.
4. A Chomtoah appeal may be made against an order made under Paragraphs 1 or 3.
5. An order made under Paragraph 1 may be enforced even before it is served on the
other party.
6. The costs of any motion or ruling under Paragraph 1 shall be treated as common
benefit costs in the compulsory sale proceedings against such immovable.
Loading...
Subscribe to:
Post Comments (Atom)
EmoticonEmoticon