Understanding Real Estate Foreclosure and Prevention

The Complete Guide to Real Estate Seizure

Seizure, which can be real estate, movable or third party, is the tool that initiates the forced expropriation of a specific asset owned by the debtor; its function is to bind these assets to the satisfaction of the credit right of the prior creditor, as well as all other creditors who may intervene later in the enforcement process.

Among the assets that can be seized to satisfy a creditor’s credit, there is the homeowner’s property.
For the complete or partial extinction of a debt, indeed, the judge can proceed with a real estate seizure, ordering the forced sale of one or more properties owned by the debtor.

What is Real Estate Seizure and What Does the Law Say?

Real estate seizure is a legal act through which a creditor requests the forced expropriation of a property owned by the debtor to satisfy an unpaid credit.

How is real estate seizure regulated? The code of civil procedure governs it from article 555 to article 598.
These articles establish the methods, times, and procedures to be followed to make the seizure valid.
Although an exact definition is not found, it can certainly be said to fall among the generic forms of forced execution, which allow the creditor to recover the credit against the debtor’s will.

Notification and Notification Timing for Real Estate Seizure

Real estate seizure is notified when a debtor fails to satisfy a credit to a creditor.
Before reaching the seizure, the creditor must obtain an enforceable title.
Once this title is obtained, the creditor can proceed with the notification of the seizure deed to the debtor.

Real estate seizure concerns all real estate indicated by article 812 of the civil code, therefore not only buildings or other constructions but also land (as well as springs, watercourses, trees, mills, etc.).
It can take place only in the presence of an enforceable title attesting the existence of a creditor’s certain, liquid, and enforceable right, such as a judgment condemning the debtor to pay a sum to the creditor, an injunction issued by a judge, bills of exchange or checks, deeds received from a notary or other public official specifying money obligations against a subject.

How Real Estate Seizure Works: The Complete Procedure

Real estate seizure has a lengthy and expensive procedure, to the point that in many cases it is advisable to avoid it, especially when both parties are individuals (citizens) and not legal entities (banks, companies, etc.).
The creditor can request the seizure within ninety days from the expiration of the ten days following the notification of the injunction deed.

The start of the procedure is given by the seizure deed to be delivered directly to the debtor or, together with a copy for transcription, to the judicial officer who will then notify it to the debtor: it must contain the precise indication of the claimed credit, the description of the property to be seized – including the cadastral details – and the injunction to the debtor to refrain from any act that may diminish the value of the asset.

Timing and Duration of Real Estate Seizure

The entire procedure’s timing can vary from a minimum of 7-8 months from the seizure deed to the sale of the property (rare cases in reality) up to even exceeding 15 years: on average, it likely oscillates between 18-24 months and 5-6 years.

A different matter is the effectiveness of the transcription of the seizure deed, which lasts 20 years, beyond which it is considered null according to some interpretations.
It must be said that for each step of the procedural process, if the legal deadlines are not met, the seizure is no longer enforceable, but even in these cases, in reality, it almost never happens.