Qış bağçasına əlavə: onu nə vaxt qaldıra bilərsiniz?

You can have a conservatory attachment (conservatoir beslag) lifted by starting summary proceedings (kort geding). The court will lift it if formal requirements were breached, if the claim or the need for the attachment appears summarily to be unfounded, or if you provide sufficient security; but where there is real doubt about the claim, the court usually maintains the attachment.

The rules are in Article 705 of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, Rv). Below we explain what a conservatory attachment is, the grounds for lifting it, how the court weighs the interests of both parties, what recent judgments show and what you can do in the first days after an attachment has been levied.

What is a conservatory attachment?

A conservatory attachment is a provisional measure that freezes assets of a debtor before a court has decided on the claim. It protects the creditor against the risk that the debtor makes assets disappear in the meantime.

A creditor who wants to levy a conservatory attachment needs leave (verlof) from the preliminary relief judge (voorzieningenrechter) under Article 700 Rv. The request is made in writing and is usually granted within a few days, without hearing the debtor. That speed is what makes the instrument effective. It is also what makes it open to misuse: a bank account, a car, a property or shares can be frozen before you have had any chance to respond.

The request must state the nature of the claim and, for a claim for money, the amount or an estimate of it. The courts have laid down additional requirements in a national guideline, the Attachment Syllabus (Beslagsyllabus). One important requirement is that the creditor mentions in the request the defences the debtor has raised against the claim, as far as the creditor knows them. A creditor who withholds such information runs the risk that the attachment will later be lifted.

Under Article 700(3) Rv, leave is granted on condition that the creditor starts the main proceedings on the claim within a period set by the judge, unless those proceedings have already started. In practice that period is usually fourteen days after the attachment. If the creditor fails to start in time, the attachment lapses.

Conservatory attachment is possible on almost all assets: bank accounts (as an attachment in the hands of a third party, derdenbeslag), movable property such as cars and inventory, real estate, shares and claims. For attachment of shares, see our article on səhmlərin əlavə edilməsi.

Why the attachment can hit hard

For the person whose assets are attached, the consequences can be serious. A frozen bank account can make it impossible to pay salaries, suppliers or rent, an attachment on a home or shares can block a sale or financing, and banks and business partners often suspend cooperation. That is why Article 705 Rv offers a quick route to the court.

On which grounds will the court lift the attachment?

Article 705(2) Rv names four grounds: formal defects, the summary invalidity of the claim, the unnecessary nature of the attachment and the provision of sufficient security. The list is not exhaustive; the court can also lift an attachment on other grounds after weighing the interests of both parties.

Under Article 705(1) Rv, the preliminary relief judge who granted leave can lift the attachment in summary proceedings at the request of any interested party. This is usually the debtor, but it can also be a third party, for example a bank in whose hands the attachment was levied, or someone who claims that the attached asset belongs to him. The judge in the main proceedings on the claim also has the power to lift the attachment.

Formal defects

The attachment is lifted if formal requirements prescribed on pain of nullity were not observed. Examples are an attachment levied without leave where leave was required, a writ of attachment (beslagexploot) that lacks essential elements, or failure to serve documents on the debtor within the statutory period. Not every irregularity leads to lifting. The defect must concern a requirement that the law prescribes on pain of nullity, and courts are reluctant to lift an attachment over minor defects that have not harmed anyone.

Failing to start the main proceedings within the period set in the leave is a separate problem: in that case the attachment lapses by operation of law. If the creditor nevertheless maintains it, you can ask the court to order that the attachment be removed.

The claim is summarily invalid

This is the ground invoked most often. The court lifts the attachment if it appears summarily that the right on which the creditor relies is invalid. The judge does not carry out a full investigation into the claim, as that is for the main proceedings. The question is whether, on a first assessment, the claim is clearly untenable.

Examples are a claim that has already been paid, which you can show with bank statements; a claim based on a contract that was never concluded, where the creditor itself acknowledged this in earlier correspondence; or a claim that is obviously time-barred. If the dispute depends on the interpretation of a contract or on contested facts that require witnesses or an expert, the court will usually not find the claim summarily invalid.

The attachment is unnecessary

Even if the claim may well exist, the court lifts the attachment if it appears summarily that the attachment is unnecessary. This is the case if there is no real risk that the creditor will not be able to recover, or if the attachment goes much further than needed to protect the claim.

Consider an attachment on a property worth many times the claim, while there are other, easily accessible assets that offer the creditor enough security. Or an attachment on all bank accounts of a solvent company with a stable history, which makes it impossible to pay staff, while a limited attachment would have been sufficient. The court may then lift the attachment in full or in part. The fact that the creditor already has other security, such as a right of pledge or a guarantee, can also make the attachment unnecessary.

You provide sufficient security

For a claim for money, the attachment is lifted if sufficient security is provided for that claim. Security is sufficient if it gives the creditor at least the same certainty of payment as the attachment, should the claim be awarded in the main proceedings. Common forms are:

• a bank guarantee from a reputable Dutch or European bank;
• depositing the amount in the third-party account (derdengeldenrekening) of a notary or a bailiff, with an escrow arrangement;
• a guarantee from a creditworthy third party, if the creditor accepts it;
• a right of pledge on other assets.

The security must usually cover the principal, interest and costs stated in the leave, and specify when the creditor can call on it, typically after a final or enforceable judgment. The creditor cannot refuse reasonable security without good reason, which makes offering security often the fastest way to regain access to a bank account.

Kim nəyi sübut etməlidir?

The party that wants the attachment lifted must make its grounds plausible. The court then weighs the interests of both parties on the basis of what they put forward.

According to settled Supreme Court case law, it is for the party whose assets have been attached to make it plausible that the claim is invalid or the attachment unnecessary. Merely disputing the claim is not enough. You must support your position with concrete facts and documents: payment evidence, correspondence, contracts, financial information showing that you are solvent, or evidence of the damage the attachment causes.

The creditor cannot remain passive either. Once you put forward a well-supported defence, the creditor must respond with facts that make its claim plausible, so the outcome depends mainly on the quality of each party’s file.

Məhkəmə maraqları necə qiymətləndirir?

In almost every case, the judge weighs the creditor’s interest in keeping its security against your interest in being able to use your assets. The attachment is maintained if the creditor’s interest prevails.

The creditor’s interest weighs heavily if there are signs that the debtor is moving assets out of reach, if there are few other assets to recover from, if the value of the assets may fall quickly, or if the main proceedings will take a long time. Your interest weighs heavily if the attachment causes serious financial problems, blocks business operations, concerns your only home, or is out of proportion to the claim.

The court also considers that an attachment always carries a risk for the creditor: under settled Supreme Court case law, a creditor whose claim is later rejected is liable for the damage caused by the attachment, regardless of good faith.

What does case law show?

Case law confirms that the court only makes a provisional assessment and that it is cautious about lifting an attachment while the claim is still disputed.

Rejection in first instance does not automatically lead to lifting

In a judgment of 17 April 2015 (ECLI:NL:HR:2015:1074), the Supreme Court held that a rejection of the claim in first instance does not in itself justify lifting the attachment if an appeal has been lodged; the court must weigh the interests of both parties. The judge may also take into account grounds for the attachment that emerge only in the lifting proceedings.

The Midden-Nederland District Court applied this on 23 July 2024 (ECLI:NL:RBMNE:2024:4461). Although the claim had been rejected in first instance, it refused to lift attachments on bank accounts and real estate, because the claimed damage was large, the assets could be moved, and the creditor remains liable if the claim ultimately fails.

Doubt about the claim works in favour of maintaining the attachment

The Arnhem-Leeuwarden Court of Appeal ruled on 21 May 2024 in a dispute between former spouses (ECLI:NL:GHARL:2024:3510). The former husband wanted conservatory attachments lifted that his former wife had levied for a claim relating to pension rights. Because that claim was still disputed in other proceedings and could be substantial, and there was no sign of abuse of rights or disproportionality, the court of appeal maintained the attachments and reversed the decision of the lower court.

The Zeeland-West-Brabant District Court reached a similar result in summary proceedings on 18 December 2020 (ECLI:NL:RBZWB:2020:6455). Attachments had been levied on a home and bank accounts to secure a claim for repayment of a transfer of EUR 100,000 from an elderly person. The court found no formal defects and could not conclude that the claim was clearly unfounded. The creditor’s interest in keeping its security prevailed.

These judgments show a consistent line: as long as the claim is seriously disputed and can only be decided in the main proceedings, the court will generally not lift the attachment on the ground that the claim is invalid. Your best chances then usually lie in showing that the attachment is unnecessary or in offering security.

Costs of the attachment

The creditor’s costs of levying the attachment can only be recovered from the debtor if the creditor’s claim is awarded. The Supreme Court confirmed this in a judgment of 19 February 2021 (ECLI:NL:HR:2021:273), in a case involving an attachment for the purpose of preserving evidence (bewijsbeslag). As long as the main proceedings have not been decided, the debtor cannot be ordered to pay those costs.

How do you ask the court to lift an attachment?

You start summary proceedings by having a writ of summons (dagvaarding) served on the creditor, or, in some courts, by filing an application. In summary proceedings at the district court, you need a lawyer.

The competent judge is the preliminary relief judge of the court that granted leave for the attachment. Summary proceedings require an urgent interest, but in lifting cases that interest is usually assumed. A hearing can often be scheduled within a few weeks, and in urgent cases sooner. The judgment is usually given within one to two weeks after the hearing. Both parties can appeal to the court of appeal.

A request to lift the attachment can also be made in the main proceedings on the claim, if those are already pending. That can be useful if the judge in the main proceedings already has a good picture of the case.

What should you check as the party whose assets are attached?

Act quickly but carefully: a poorly supported request that is rejected strengthens the creditor’s position. Check these points:

• Do you have a copy of the leave, the request for leave and the writ of attachment, showing the claim, the amount and the grounds?
• Were the formal requirements met: was the attachment served on time, and did the creditor start the main proceedings within the period set under Article 700(3) Rv?
• Do you have documents that undermine the claim, such as payment evidence, the contract and correspondence?
• Have you quantified the consequences: which payments cannot be made, which contracts are at risk, what a blocked sale costs?
• Can you offer security, such as a bank guarantee or a deposit with a notary, and at what cost?
• Is a partial lifting an alternative, for example releasing the operating account while a savings account or property stays attached?

It is often worth contacting the creditor or its lawyer first: many attachments are lifted voluntarily once suitable security is offered or payment is shown.

Borc verən şəxs kimi nəyi yoxlamalısınız?

An attachment carries risk for you as well. Check these points:

• Did you mention in the request the defences the debtor has raised, as the Attachment Syllabus (Beslagsyllabus) requires?
• Will you start the main proceedings within the period set in the leave?
• Is the attachment proportionate to the claim, or does other security already cover it?
• Have you considered security offered by the debtor? You cannot refuse reasonable security without good reason.
• Are you prepared for liability if the claim is rejected in the main proceedings, regardless of your good faith?

Are there special rules for certain attachments?

Yes. Some attachments follow their own rules, although the grounds for lifting in Article 705 Rv generally apply as well.

In divorce and the dissolution of a registered partnership, Articles 768 to 770c Rv provide a specific attachment to protect a spouse’s share in community property (maritaal beslag). The Tax and Customs Administration (Belastingdienst) has its own recovery powers and often needs no leave from a court. Attachment to preserve evidence (bewijsbeslag), for example in intellectual property disputes, has its own requirements.

If the attached asset does not belong to the debtor, the owner can object as a third party and ask for the attachment to be lifted. The same applies to a bank or other third party in whose hands an attachment was levied, if it has an interest in lifting.

What can we do for you with a conservatory attachment?

Bizim hüquqşünaslar assist companies and individuals with attachments, from checking the leave to summary proceedings and negotiating security. In practice we:

• review the leave, the request and the writ of attachment for formal defects within one working day of receiving them;
• assess whether the claim is summarily invalid or the attachment unnecessary under Article 705(2) Rv;
• negotiate a bank guarantee or escrow arrangement so that the attachment can be lifted voluntarily;
• start summary proceedings before the preliminary relief judge to have the attachment lifted in full or in part;
• prepare requests for leave for creditors that meet the Attachment Syllabus;
• claim or defend damages for a wrongful attachment.

xülasə

• A conservatory attachment is levied quickly, with leave from the preliminary relief judge and without hearing the debtor (Article 700 Rv).
• The court lifts it in summary proceedings for formal defects, a summarily invalid claim, an unnecessary attachment or sufficient security (Article 705 Rv).
• You must make your grounds plausible; the court then weighs the interests of both parties.
• Rejection of the claim in first instance does not automatically lead to lifting if an appeal is pending.
• Offering security is often the fastest route, and a creditor whose claim fails is liable for the damage caused by the attachment.

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