Seizure of real estate and rents: realm of freedom for third-party attachments?

One of the consequences of an executive attachment on a leased property is that the rent and lease payments change in nature. From the notification of the writ of attachment, these movable goods are regarded as immovable (art. 1576, first paragraph Judicial Code). The rent and lease payments become, as it were, part of the immovable property. As a result, an attachment by third parties in the hands of the tenant or lessee is no longer possible.

After the executory immovable property, the tenant or lessee may, in principle, continue to pay the rent and lease payments to the attached lessor. The latter may therefore continue to receive these funds, but will be liable for them as a judicial sequester. He will have to account for the sums received (art. 1576, paragraph 3 of the Judiciary Code). The monies must be handed over by the attachmentee to be distributed during the ranking together with the price of the real estate. In practice, this obligation is often not observed.

A creditor who wishes to prevent the attached debtor from continuing to collect and receive the rent and lease payments after the writ of attachment may object to the tenants and lessees paying these monies any longer to the attached debtor. This can be done by serving an ordinary deed of opposition in the hands of the tenants or tenants (art. 1576, second paragraph of the Judicial Code). As a result of the opposition, the tenant and the lessee must make a statement of third-party garnishee in accordance with art. 1452 Ger.W. If this is not done (timely or accurately), then, according to a certain tenor, the tenant or tenant can be convicted as a co-debtor for all or part of the debt of the seized landlord. That amount can be high.

However, the Court of Appeal in Ghent ruled in a judgment of 8 October 2019 that this strict sanction is not apparent from art. 1576 Ger.W. and therefore cannot be imposed if a tenant or lessee does not make a (timely or accurate) statement from third-party garnishee.

On the basis of the legal history, it can nevertheless be argued that an opposition to the rent has the same consequences as an executive attachment against third parties and that the tenant or lessee can therefore be sentenced to co-debtor in the absence of a (timely or accurate) statement of third-shouldered. If not, the effectiveness of the resistance on rent and lease payments risks being affected.

An analysis by Mr. Cedric Haspeslagh of the judgment of the Court of Appeal in Ghent has appeared in the Legal Weekly (2021-22, ep. 15, 597-601).