Property and rights not seized – Employment and HR
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According to the law of enforcement, it is possible to seize all the assets and rights of the debtor so that the creditor collects his claims. But in certain exceptional cases, all or part of the debtor’s assets cannot be subject to foreclosure. The executive board has the power to determine which assets of the debtor will or will not be seized. In the last paragraph of article 82 of the law on forced execution and bankruptcy, the judicial officer is endowed with a discretionary power of non-seizure.
There are some exceptions to the discretion mentioned above. For example, with regard to real estate, a letter of seizure is sent to the land registry office by the bailiff with the request for seizure of the creditor and the debtor makes a request for exemption from seizure. The claim for exemption from seizure is 7 days from the date on which the debtor became aware of the seizure. We will also consider whether the debtor’s house can be foreclosed or not.
Unseizable property and rights are governed by Article 82 of the Execution and Bankruptcy Act (this issue was discussed under the title Exempt property and rights). In addition to these, in many special laws, property and rights that cannot be joined are stipulated. We will talk about this briefly below.
ALL GOODS AND UNFORCED RIGHTS
Property and rights which cannot be transferred to others in accordance with substantive law
The rights which are firmly attached to the person cannot be confiscated. If one should give an example of these rights, the right of the parents to usufruct over the property of the children, the right of the creditor to care until death are non-transferable rights and cannot be confiscated because the transmission cannot be confiscated. is not possible.
The assets of the public administration with general and private budgets cannot be confiscated because they do not come under private property.
All kinds of objects necessary for the debtor to continue his profession, whose economic activity is based on the work of his body
After the amendment of Law No. 6352 in 2012, it was regulated that all kinds of property necessary for the exercise of his profession by the debtor cannot be confiscated. For example, the tailor’s sewing machine cannot be confiscated. But the important point here is that capital does not prevent the body from working.
Items needed for family members living in the same household as the debtor
For family members living in the same house as the debtor, which is one of the most common considerations in daily life, necessary items cannot be confiscated. These items, such as seats, beds, refrigerators or ovens, cannot be confiscated. But; if there is more than one item used for the same purpose, other items except one may be confiscated. For example, if there are two refrigerators, one or if there are two televisions, one may be confiscated. We would like to stress again; money, valuable documents, gold, silver, precious stones, piano, stereo sound system, antiques or decorative items, such as items may be confiscated and are not included in the class of products required.
If the debtor is a farmer, the land and animals necessary for his subsistence and that of his family, as well as agricultural vehicles and tools, if the debtor is not a farmer, the tools necessary for art and the profession, books, objects which ensure the subsistence of a small specialist in transport, such as a coachman porter, can not be confiscated.
For example, finding a medicine cabinet so that a pharmacist can continue his profession is mandatory; foreclosure is not possible.
House adapted to the state of the debtor
As we mentioned at the beginning of the article, whether the borrower’s house can be foreclosed or how to follow the path if the borrower has more than one house is one of the most curious questions in our mind. everyday life. 82 of the Enforcement and Bankruptcy Code. Article 1. paragraph 12. In my opinion, the domicile of the debtor cannot be seized. But if the home’s value is excessive, an appropriate portion of that price can be seized by leaving it to the borrower.
As to the concept of a suitable house, the Supreme Court ruled that the debtor cannot live in a house larger than what is sufficient for him. To determine the appropriate accommodation for the debtor, the social situation of dependents living under the same roof as the debtor is studied. In this study, occupations, assets, monthly income of the debtor and his dependents, if they have any illnesses are examined. After this research, an expertise is carried out to determine the value of the house, and according to the result of the social situation survey, the value of the house suitable for what the borrower can obtain in more modest areas is determined. If the value of the borrower’s house is less than or equal to the value of the house suitable for purchasing a house in a more modest neighborhood, then the foreclosure complaint is accepted by the court and it is decided to abolish the foreclosure. But if the value of the debtor’s house is greater than the value of the appropriate house, then the court decides that the cost required by the borrower to purchase the appropriate house by selling the foreclosed property, and the increase is paid to the borrower. creditor as well as the sale is not less than the amount that the borrower can buy the appropriate home.
Another question is whether there is a right to seek foreclosure, which is called a residence complaint in practice, if there is more than one real estate. The Supreme Court is of the opinion that the presence of several goods does not prevent the debtor from filing a complaint against the residence, but it should be specified which of these goods files a complaint against the residence.
In order for the borrower to file a foreclosure complaint called a residence complaint, it is also not necessary to personally reside in that property. The rental of real estate also does not have obstacles to claiming housing.
The residence complaint can only be made by the debtor and the complaint must be filed with the Enforcement Court within 7 days from the date of receipt of the foreclosure.
In accordance with the law on enforcement and bankruptcy, the property and rights mentioned below cannot be confiscated;
- An Ox or a dairy cow or three goats or sheep and their three-month feed cannot be confiscated if it is obligatory for the borrower and his family to come to an agreement.
- If the debtor is a winegrower, a gardener or a producer of fruits and vegetables, the necessary vineyard or garden and the necessary tools cannot be seized for his subsistence and that of his family.
- Pensions and certain salaries, allowances and bonuses awarded to disabled persons in the army and law enforcement agencies.
- Salaries linked by a charitable fund or association in the event of illness or death
- Money given or to be given as a lump sum or as income to the injured party as restitution or to their family.
OWNERSHIP AND RIGHTS PART OF WHICH WILL NOT BE SEIZED
Salary and salaries
Part of the borrower’s wages and salaries cannot be garnished. The amount to be confiscated cannot be less than a quarter. Although the Enforcement and Bankruptcy Law stipulates that the amount required by the Executive Directorate for the subsistence of the debtor and his family can be garnished after being issued, in practice a quarter of the wages and salaries are garnished.
By the Executive Directorate, the employer is informed in writing that a quarter of the borrower’s salary has been garnished and what is the amount of the borrower’s salary. It is credited to the general manager by deduction from the borrower’s salary by the employer. If not deposited by the employer, the amount of wages confiscated by the Executive Management is deducted from the employer according to IIK. If there is more than one lien on the salary, they must be placed in the queue.
Again, all bonuses and overtime charges paid to the borrower, as well as severance pay, notice pay and retirement benefits, are all items that can be forfeited.
Pensions can also be partially reimbursed. According to the decisions of the Supreme Court, in order for the pension to be garnished, the consent of the debtor to the attachment of the pension is required. If there is no consent, the foreclosure request is rejected by the Executive Directorate. Again, the consent obtained before the completion of the enforcement proceedings is invalid. It is possible that more than a quarter of the pension will be forfeited if the consent given after the follow-up is completed. In alimony debts; it is possible to confiscate a quarter of the pension for the monthly operating alimony and everything for the accumulated alimony.
Some of the property and rights mentioned below cannot be confiscated;
- In usufruct rights and income
- Naf alimony without obligation
UNFORCED GOODS AND RIGHTS REGULATED BY SPECIAL LAWS
In addition to the non-seized property and rights governed by the executive bankruptcy law, it is regulated that the property and rights cannot be seized by certain special laws. We can briefly talk about some of them.
In accordance with Turkish Mining Law No. 3213;
40. equipment necessary for the operation of the mine, Shafts, galleries, quarries and machines, buildings, all kinds of transport vehicles used for the removal, cleaning and cleaning of above-ground and underground mines and installations for the smelting ore and mining tools for a year of supplies to be valued must be a lien on. But the mining license is not within this framework, but can be confiscated.
In accordance with Turkish Animal Welfare Law No. 5199
5 of the law. a house which is maintained in a house and garden without commercial purpose and the ornamental animals cannot be confiscated due to the debt of their owners.
In accordance with Law No. 6112 on the establishment and services of radio and television broadcasting;
34 of the law. in accordance with the article, the property of the Supreme Council falls under the financial power of the State and cannot be confiscated.
In accordance with the Law on Military Service No. 7179;
47 of the law. according to the article, those who have military service obligations, recruits, reserve officers and non-commissioned officers due to injury or death; widows and orphans of Oden claims will not be paid any tax except stamp duty and the deduction cannot be forfeited.
In accordance with Law No. 4632 on the Private Pension Savings and Investment System;
17 of the law. according to the article, the amount of savings corresponding to the multiplication of the amount of the minimum wage by the number of months of membership of the participant and the amount of annual income insurance contributions paid to retirees of the individual plan amount of salary minimum, excluding alimony, cannot be confiscated.
As briefly mentioned above, there are provisions in the Enforcement and Bankruptcy Act and in many special laws relating to unseized property and rights.
As a result, the legislator has included rules of impoverishment in many laws because of the protection of fundamental rights and freedoms and the maintenance of human living conditions.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.