Property and Income Exempt from Attachment — Main Categories and Legal Basis

Property exempt from attachment is regulated in art. 82 of the Enforcement and Bankruptcy Law. Learn the rules on the salary attachment limit, retirement pensions, household goods and bank accounts.

In enforcement law, attaching the debtor's property is the basic means by which a creditor recovers a claim. The legislature has, however, exempted certain property and income from attachment in order to protect the minimum standard of living of the debtor and their family. Enforcement and Bankruptcy Law no. 2004, together with Social Insurance and General Health Insurance Law no. 5510 and the related legislation, governs the property and income exempt from attachment. This article examines the main categories of exemption, the limits on salary attachment, the attachment of retirement pensions and social benefits, the protection of household goods, and the route of complaint.

What Property Is Exempt from Attachment?

Article 82 of the Enforcement and Bankruptcy Law and special statutes create exceptions preventing the unlimited attachment of all the debtor's property. The main items in the current article are: State property and property protected by special statute; the equipment necessary for the occupation of a debtor whose economic activity rests on their physical labour; household goods necessary for the debtor and the family members living under the same roof; the land, animals, vehicles and agricultural implements essential for the livelihood of a farmer and their family; two months' food and fuel and the seed a farmer needs for the coming harvest; certain revenues and benefits; compensation for bodily injury or death; maintenance claims; student grants; and a dwelling appropriate to the debtor's circumstances.

Protection is determined not merely by the name of the property but by its purpose of use, the needs of the debtor and their family, their source of livelihood, its value and the type of claim. Where several household items serve the same purpose, one of them is protected; money, negotiable instruments, gold, silver, precious stones, antiques and ornaments do not fall within this protection of household goods. For occupational equipment, it is required that the economic activity rest on physical labour and that the item be necessary. If the value of a dwelling appropriate to the debtor's circumstances exceeds their needs, it may be sold and the amount enabling the debtor to acquire a suitable dwelling left to them. Special exceptions may exist in cases such as a secured claim, a claim arising from the price of the item itself, and public claims. For that reason a “complete list” must be read together with the current consolidated art. 82 and the relevant special statutes.

What Is the Limit on Salary Attachment?

Article 83 of the Enforcement and Bankruptcy Law governs the attachment of salaries and similar income after deducting the part necessary for the livelihood of the debtor and their family, and states that the amount attached may not be less than one quarter. This provision does not mean “at most one quarter of every salary may be attached”.

Article 35 of the Labour Law, for its part, provides that no more than one quarter of an employee's monthly wage may be attached; the rights of maintenance creditors are reserved. No rate should be fixed without examining the personnel statute and the special rules governing the income. Where there is more than one wage attachment, they are placed in order of priority.

Gross and net wages, fringe benefits, bonuses, severance pay and payment in lieu of notice may be of different characters. For that reason no calculation can be made on a fixed example amount or on a single attachment rate for all heads of income.

May a Retirement Pension Be Attached?

Under art. 93 of Law no. 5510, income, pensions and allowances awarded under that Law may not be attached, apart from maintenance debts and Social Security Institution claims to be pursued and collected under art. 88. If the debtor has not consented to the attachment, the enforcement director refuses the request. A general waiver given before the proceedings does not have the same effect; a free and specific consent given during the proceedings is required.

The payment of a retirement pension into a bank account raises the question of protection. Other money in the account, amounts accumulated over a long period, set-off provisions in a credit agreement and the debtor's express instructions are assessed separately. A bank's unilateral set-off is not the same as an enforcement attachment.

Maintenance debts form the exception to the prohibition on attaching a retirement pension. A maintenance creditor may seek attachment of the debtor's retirement pension in order to collect the maintenance debt. In that case a deduction equal to the monthly maintenance amount is made from the pension.

May Household Goods Be Attached?

Household goods necessary for the debtor and the family members living under the same roof are protected under art. 82 of the Enforcement and Bankruptcy Law. Where several items serve the same purpose, one of them is protected; money, negotiable instruments, gold, silver, precious stones, antiques and ornaments are excluded from the protection.

For a refrigerator, washing machine, bed or seating, the outcome is determined by the size of the family, their state of health and the concrete need for use. There is no fixed list providing that for a television or similar item “the first is always protected and the second is always attached”. An attachment may be challenged by complaint to the enforcement court.

How Is a Bank Account Attached and Is a Salary Account Protected?

A bank account may be attached by sending the bank an electronic attachment order or an attachment notice under art. 89 of the Enforcement and Bankruptcy Law. The scope of the attachment is determined by the type and content of the notice and by the bank's existing or determinable debt to the debtor at the moment of notification.

If the money in the account derives from wages, a retirement pension, a social benefit or another payment exempt from attachment, the debtor must show the source by an account statement, a payslip and a letter from the institution. The payment of wages into a bank does not remove the protection in every case; but other money and savings in the account, the type of payment and any special statute affect the result.

The general income rule in art. 83 of the Enforcement and Bankruptcy Law must be distinguished from the wage ceiling in art. 35 of the Labour Law. Where the bank blocks the whole account, the authority to apply to and the seven-day period for complaint are determined by whether the act is an enforcement attachment or a contractual block or set-off.

The debtor may document the source as wages, a retirement pension or a social benefit by a payslip, a letter from the institution and account movements and ask the enforcement office to act; if the office's act is unlawful, they may complain to the enforcement court. The scope of protection is determined by the type of income and the special statute; there is no automatic rule that three quarters is returned in every salary account.

What Social Benefits and Other Income Are Exempt from Attachment?

To which payments the protection of art. 93 of Law no. 5510, explained above for retirement pensions, applies is determined by the statutory basis of the income. For widow's, orphan's, invalidity and permanent incapacity payments, the statute on which the payment rests must always be identified.

The exemption from attachment of a social benefit, a grant, a care payment, a fund pension or any other income is not governed by a single rule for all payments. The prohibition on attachment in the special statute creating the payment, arts. 82-83 of the Enforcement and Bankruptcy Law and Law no. 6183 are examined together. Payments by social solidarity foundations, disability pensions and care allowances should not all be given the same legal treatment merely on the basis of their name.

Severance pay, payment in lieu of notice and compensation for failure to reinstate are not the same as wages; the scope of attachment is assessed according to the character of the claim and any special limits. Nor does the mere fact that immovable property is pasture land, a cultural asset or foundation property give rise in every case to a uniform prohibition on attachment; the ownership and allocation regime of the relevant special statute is examined.

Different prohibitions on attachment may apply to public property, social payments protected by special statute and property devoted to a particular purpose. However, the registration of immovable property as a cultural asset or its being described as “foundation property” does not on its own give rise to exemption in every case; ownership, allocation and the special statutory provision must be examined separately.

How Is a Complaint of Exemption Made and What Is the Time Limit?

A complaint against the enforcement director's attachment decision is made, as a rule, to the enforcement court within seven days of the attachment coming to the complainant's knowledge, under art. 16 of the Enforcement and Bankruptcy Law. A complaint concerning a dwelling appropriate to the debtor's circumstances is as a rule also subject to this period; the assertion that “it is a matter of public order and may be raised at any time” is not reliable.

The exceptions allowing a complaint without a time limit are construed narrowly and do not cover every ground of exemption. The attachment record, the dates of service and of knowledge, the purpose of use of the property, the housing and family situation, and documents showing the source of income must be submitted.

In proceedings for a public claim, the list of exemptions in art. 70 of Law no. 6183 and the administrative judicial routes apply; not all the exceptions in the Enforcement and Bankruptcy Law carry over unchanged to public enforcement. The complaint petition must state the character of the property or income attached, the date of knowledge, the unlawfulness and the supporting documents. The enforcement court may set the act aside or dismiss the complaint. Whether an appeal lies is determined by art. 363 of the Enforcement and Bankruptcy Law, the type of decision and the current monetary threshold of finality; not every decision dismissing or allowing a complaint may automatically be appealed.

Is Waiver of Exemption Possible?

Under art. 83a of the Enforcement and Bankruptcy Law, an agreement waiving exemption made before the attachment is invalid. After the attachment, the debtor may decide whether or not to complain within the time limit; but the effect of silence and of express consent varies with the basis of the protection.

Article 93 of Law no. 5510 separately governs the debtor's consent in respect of income and pensions awarded under that Law. A general waiver written into a credit or guarantee agreement before the proceedings is not the same as an express consent given during specific proceedings. The scope of consent and the effect of its withdrawal should not be stated in absolute terms without examining the particular proceedings and the current case law.

The invalidity of a waiver applies to consents given before the attachment is made. After an attachment, the debtor has the right not to make a complaint of exemption; that is, the debtor is free to exercise or not to exercise this right. A debtor's failure to make such a complaint may be treated as an implied waiver.

What Are the Debtor's Rights During an Attachment?

During an attachment the debtor has many rights, and knowing them is of great importance for their protection. The debtor has the right to inform the enforcement officer of property that should not be attached, and the officer must record those statements.

When a valuation is served, the debtor and other interested persons may complain to the enforcement court in respect of immovable property, subject to the seven-day period and the requirement to pay costs in art. 128/a of the Enforcement and Bankruptcy Law. Because the applicable provision and the start of the period may differ for movable and immovable property, no general calculation of the period should be made without examining the service document and the sale file. The debtor also has the right to have a lawyer present during the attachment. The lawyer may take part in the attachment in order to protect the debtor's rights, have objections concerning property that should not be attached recorded, and complain immediately against irregular acts.

The debtor may also raise the plea of a dwelling appropriate to their circumstances. The assertion that the immovable property attached is such a dwelling may be raised in the enforcement court. The court carries out a site inspection and expert examination to assess whether the property is appropriate to the debtor's circumstances and decides accordingly whether to lift or maintain the attachment.

• Final note: This content is for general information and does not constitute legal advice. For specific legal problems you are advised to obtain professional support from a lawyer.

Official sources: Enforcement and Bankruptcy Law no. 2004, Labour Law no. 4857, Social Insurance and General Health Insurance Law no. 5510, Law no. 6183 on the Procedure for the Collection of Public Claims