Notice of attachment to a debt due to a judicial claim
1. Does your national system admit such restriction?
This land register system envisages this kind of notice or includes the possibility of registering a notice as such.
2. In your system, once registered this restriction, does it block or freeze subsequent registrations (mostly the ones promoted by the owner of the property) until being removed?
Once registered this restriction, it does not block or freeze subsequent registrations.
3. In your system, in principle, will the registration of this restriction be temporary (under a deadline) or indefinitely (it will be in force until being removed)?
In this system the duration of the registration of this restriction will be indefinite (until removed or deleted).
4. Indicate the national legal sources about this judicial restriction
Art. 109 -111 the Act on Land Mortgage Register and on Mortgage of 6th July 1982 (O.J. 2019, p. 2204)
5. Please, give us an idea about the characteristics of the registration of this restriction in your system
We understand here the concept of forced mortgage, and it is a situation regulated by art. 109 LMRM when a creditor whose claim is ascertained by an enforceable title specified in the provisions on enforcement proceedings may, on the basis of in this respect, obtain a mortgage on all the debtor’s real estate (forced mortgage). If the property is owned by the State Treasury, a forced mortgage may be established in the cases provided for by statutory provisions. According to art. 110 LMRM forced mortgage can also be obtained on the basis of:
- court order granting security;
- decisions of the prosecutor;
- an administrative decision, in so far as specific provisions so provide, even if the decision is not final;
- the security document referred to in art. 3 principle of presumption of conformity of the state of the books with the actual state, point 1 of the Act of 11 October 2013 on mutual assistance in the recovery of taxes, customs duties and other monetary claims (O.J.2018, 425 and 2019,730);
- ordering security specified in the provisions on enforcement proceedings in administration or ordering security set out in the act referred to in point 4.The registration is regulated by the Code of Civil Procedure (art. 626 1 – 626 13 ) and is initiated by application of a creditor and has constitutive effect. There is a rank of forced mortgages in one landbook, according to date of the application.
What is specific the creditor may request the entry of a forced mortgage for an amount not higher than that resulting from the content of the document constituting the basis for its entry in the land and mortgage register. If the document does not show the amount of the mortgage sum, the sum of the mortgage may not exceed by more than half the secured claim together with claims for side benefits specified in the document constituting the basis for the mortgage entry as at the date of submitting the application for mortgage entry.
The total encumbrance of several properties with a forced mortgage is unacceptable, unless these properties are already encumbered with another joint mortgage or are the property of joint and several debtors. The distribution of collateral between individual properties depends on the creditor’s discretion.
