When a person, natural or legal, fails to meet their payment obligations -such as non-payment to suppliers or a mortgage- their assets may be seized. Thus, for example, a bank can seize a home for non-payment of the mortgage loan. However, within current regulations, and based on the Civil Procedure Law, there are a number of assets that are considered unattachable and cannot be disposed of.
There are two types of assets that cannot be disposed of and on which creditors cannot request their seizure as a result of non-payment. These are absolutely unattachable assets and those unattachable in relation to the executed. Both are defined by articles 605 and 606 of the Law of Civil Procedure.
Absolutely unattachable assets are those whose transmission has no legal validity. This section would include public goods, such as the National Heritage. Those that do not have a patrimonial value and that are not useful to satisfy the payment are also considered unattachable. At the same time, common elements that are horizontal property are also unattachable. Lastly, within this category are also those that cannot be seized by legal provision.
On the other hand, there are the so-called unattachable assets in relation to the executed. This category includes, for example, the furniture and household items of a house. Neither can the goods that are necessary for the development of a profession be seized, such as a computer used for productive purposes. Lastly, sacred property found in places of worship, such as Church property, is also included here. In addition, any property that has been considered unattachable by treaty is also unattachable. For example, in the case of Spain, a salary that is below the Minimum Interprofessional Salary cannot be seized.
Based on what is dictated by the Civil Procedure Law (LEC), the aforementioned assets cannot be seized in any case. Moreover, in the event that an embargo is issued on an asset considered unattachable, the affected party may appeal to obtain the annulment. In other words, if, for example, a person receives an embargo order on a tool that he uses to carry out his profession, he can appeal the order. In the case of a farmer, he might receive a lien on his car, but not on his tractor.
In addition, if an attachment order has been received on an unseizable asset and it has been disposed of, it must subsequently be restored to the owner of the asset, since the nullity is retroactive. One of the most common cases occurs on salaries that do not exceed the SMI. Sometimes the Administration seizes all or part of it and after a series of appeals it must return what it had alienated.
The truth is that the person who is affected by an attachment order previously receives a communication and, subsequently, a judicial or administrative procedure must be developed to confirm the attachment. That is, before the order is executed, the affected party will know what assets are going to be seized. Thus, in case of receiving an order on assets that cannot be disposed of, he may file an appeal so that said embargo does not materialize.
