The central concern of enforcement law is to strike a balanced line between the creditor’s interest in recovery and those interests of the debtor that merit protection. Although the attachment of assets is the most effective instrument of compulsory enforcement resorted to in the collection of a claim, that route is subject to the limits drawn by the understanding of the rule of law.
Turkish law does not permit a debt to be collected in an unlimited and disproportionate manner; the debtor’s constitutionally guaranteed right to live in dignity must be protected. That protection is secured by keeping certain property and rights that enable the debtor to maintain a minimum level of subsistence outside the scope of attachment.
In this note we set out which property and income may not be made the subject of an attachment, and examine in detail the points that give rise to the greatest uncertainty in practice, the approach of the Court of Cassation and the steps the debtor must take.
The Principle of Exemption from Attachment
Attachment is the seizure by state compulsion of the debtor’s property and rights, following enforcement proceedings that have become final, so that the creditor may recover its claim.
While ensuring that the creditor obtains what it is owed, the legislature has introduced a number of restrictions designed to prevent the process from being operated arbitrarily or without limit. The most important of those restrictions are the “exemption from attachment” provisions, which safeguard the debtor’s right to a minimum standard of living.
Articles 82 and 83 of the Enforcement and Bankruptcy Act No. 2004 set out expressly which assets fall outside attachment and to what extent, thereby narrowing the enforcement officer’s margin of discretion and protecting the debtor’s fundamental rights.
The Purpose of the Principle
The reason for the existence of exemption from attachment is to ensure that, notwithstanding the enforcement proceedings, the debtor and their family are able to maintain minimum conditions of living.
The legal order does not allow compulsory enforcement to impoverish the debtor entirely or to reduce them to a position in which they can no longer sustain their economic and social existence. The principle aims at protecting the dignity of the individual and the right to live in dignity even while a debt is being collected.
For that reason exemption from attachment is not regarded solely as a right of an individual character; it is at the same time treated as a guarantee relating to public order.
The Limits of the Principle
Exemption from attachment does not confer unlimited immunity on the debtor. The legislature has listed the assets to be immune from attachment in a specific and exhaustive manner. Behind that choice lies the idea of establishing a fair balance between the interests of the creditor and those of the debtor.
The subject is examined under two main headings: absolute exemption from attachment and partial exemption from attachment. In the sections that follow we explain both concepts in detail in the light of the statutory provisions and the decisions of the Court of Cassation.
Cases of Absolute Exemption from Attachment (Article 82 of the Enforcement and Bankruptcy Act)
Article 82 of the Enforcement and Bankruptcy Act No. 2004 provides that certain property and rights may not be made the subject of an attachment in any circumstances, with a view to protecting the fundamental right to life. The assets in question enjoy absolute and complete protection, irrespective of the amount of the claim.
Goods Essential for the Subsistence of the Debtor and the Family
Under Article 82(1)(3) of the Enforcement and Bankruptcy Act No. 2004, household goods used jointly by the debtor and their family may not be attached. The purpose of the provision is to secure the minimum conditions necessary for a life lived in dignity.
The Act exempts from attachment those goods that are appropriate to the debtor’s social and economic position, that is to say, goods befitting the debtor’s circumstances. The determining criterion is whether the item is a luxury or a necessity. On that basis the following essential items fall outside attachment:
- cooker, oven, refrigerator and heater;
- blankets, quilts and beds;
- curtains, carpets and washing machine;
- kitchen utensils such as pots, plates and cutlery;
- the television and the computer used by the debtor’s children in their education.
The Court of Cassation takes the view that, where there is more than one item of the same kind, only the quantity that meets the needs of the debtor and their family is protected, and that anything beyond that may be attached. If there are two televisions or two refrigerators in the home, only one of them remains within the scope of the protection.
In conclusion: goods regarded as indispensable to the conduct of daily life fall absolutely outside attachment under Art. 82(1)(3) of the Enforcement and Bankruptcy Act. That rule constitutes one of the fundamental guarantees protecting the right to life.
Tools and Equipment Necessary for a Profession or Craft
The tools and equipment used by the debtor in the profession or craft from which they earn their living may likewise not be made the subject of an attachment.
A mechanic’s toolbox, a tailor’s sewing machine, a lawyer’s law books or the instruments in a doctor’s consulting room may be counted within that scope.
This protection is connected with the right to work and with the freedom of the individual to preserve their economic existence. Since the debtor’s ability to continue in their profession is regarded as essential both to their own subsistence and to the social order, such tools are treated as falling within the scope of exemption from attachment.
Goods Essential for Production in Agriculture and Animal Husbandry
Under Art. 82 of the Enforcement and Bankruptcy Act, certain goods essential to the production of a debtor who earns a living from agriculture or animal husbandry are immune from attachment. Seed, agricultural implements, working animals and stocks of feed necessary for the subsistence of the family fall within that scope.
The purpose here is to enable a debtor who is a producer to remain within economic life, rather than bringing their activity to a complete halt.
Two Months’ Food and Fuel Requirements
The food and fuel may not be attached that are required for the debtor and their family to sustain themselves for two months. That provision protects the minimum standard of living and the right to live in conditions worthy of human dignity.
Basic foodstuffs and fuels such as coal or wood are counted within the scope of the article; having regard to modern living conditions, even the resources needed to meet natural gas or electricity costs are brought within that protection by way of interpretation.
Damages for Bodily Injury (Art. 82(11) of the Enforcement and Bankruptcy Act)
Compensation payments made to the debtor or to their family on account of bodily injury suffered by the debtor may not be attached, whether they are paid as a lump sum or granted as income in the form of an annuity.
Since these payments concern the health and the right to life of the injured party, their purpose is to provide for subsistence and to preserve the means of treatment. It is therefore not possible for creditors to seize such payments.
Protection of a Dwelling Befitting the Debtor’s Circumstances (Art. 82(12))
Under Art. 82(12) of the Enforcement and Bankruptcy Act, a dwelling befitting the debtor’s circumstances may not be attached. That provision, which secures the right to housing, is in the nature of a guarantee of minimum conditions of living.
The Value of the Dwelling and the Position of the Family
According to the approach of the Court of Cassation, in determining what constitutes a “dwelling befitting the debtor’s circumstances”, the debtor’s social position, the size of the household and their manner of living are assessed together.
If the debtor lives in a dwelling that may be regarded as a luxury by comparison with their level of income, that immovable may be attached; the portion of the proceeds of sale sufficient to enable them to acquire a suitable dwelling must, however, be left to them.
The Principle of Surrender Against Payment
According to the principle known by that name in practice, even where a dwelling befitting the debtor’s circumstances is attached and sold, an amount enabling the debtor to buy a new home is set aside out of the proceeds of sale. In that way the right to housing is protected while the creditor is afforded the possibility of recovery out of the remaining proceeds.
Student Grants Falling Outside Attachment (Art. 82(13))
Student grants are payments made without consideration in order to meet a student’s educational expenses and subsistence. By virtue of that character, grants paid to a debtor who is a student are treated as a minimum means of subsistence within the framework of Art. 82 of the Enforcement and Bankruptcy Act and may not be attached.
Retirement Pensions and Gratuities
Retirement Pensions
Retirement pensions and salaries are excluded from attachment by law. Under Article 93 of the Social Insurance and Universal Health Insurance Act No. 5510, retirement pensions may not be attached.
If the debtor consents to deductions being made from the pension, however, the attachment becomes valid. That consent must be express, in writing and given of free will; a declaration obtained under the pressure of enforcement is not treated as valid.
Retirement Gratuities
The retirement gratuity is paid as a lump sum to public officials, or to persons insured under the Republic of Türkiye Retirement Fund Act No. 5434, when they acquire the right to retire. That payment is in the nature of an extension of the retirement pension and serves to provide subsistence in old age.
Under Article 93 of Act No. 5510, gratuities therefore enjoy the same protection as pensions and may not be attached.
Since the Court of Cassation regards the gratuity as directly connected with the debtor’s means of subsistence, it treats its attachment in the absence of consent as unlawful.
Exceptional Situations in Which Attachment Is Possible
- Maintenance claims: since maintenance debts arising from family obligations are directly connected with the right to subsistence, an attachment may be placed on a retirement pension in respect of a maintenance claim.
- Public claims (taxes, SGK premiums, administrative fines): although retirement pensions fall outside attachment as a rule, where a public claim is concerned an attachment may be applied under the provisions of the Act on the Procedure for the Collection of Public Receivables (AATUHK).
Income That May Be Partly Attached and Is Protected Proportionally (Art. 83 of the Enforcement and Bankruptcy Act)
A portion of the regular income falling outside the cases of absolute exemption from attachment (Art. 82 of the Enforcement and Bankruptcy Act) has likewise been made immune from attachment by the legislature, so that the debtor and their family may provide for their subsistence. The headings most frequently encountered in practice, and those about which debtors most often enquire, are gathered in this category.
The Limit of Protection in Salary Attachment
The debtor’s wages, salary and allowances of every kind may be made the subject of an attachment not in their entirety but only in part (Art. 83 of the Enforcement and Bankruptcy Act). The purpose here is to secure the creditor’s right while ensuring that the debtor is not cut off from working life and that their basic subsistence is not obstructed.
- The rule: under the Act, only one quarter (1/4) of the debtor’s salary may be attached. The remaining three quarters (3/4) are absolutely protected for the subsistence of the debtor and their family.
- The exception: in respect of priority claims such as maintenance debts, the whole of that proportion or more may be made the subject of an attachment.
Partial Attachment of a Usufruct and Its Proceeds (Art. 83)
A usufruct is a limited right in rem which confers on its holder the power to use and derive benefit from property but does not extend to ownership. By virtue of that character, the usufruct itself may not be attached or converted into money.
The proceeds obtained by the rightholder from that right, on the other hand, are treated as income of a continuing nature and may accordingly be attached in part under Art. 83 of the Enforcement and Bankruptcy Act.
The Proportion and the Power of Assessment
No specific proportion is indicated in the Act. The enforcement directorate or the enforcement court therefore fixes an equitable proportion having regard to the features of the particular case. In practice, in parallel with the limit applicable to salary attachment, attachment is seen to be applied up to one quarter of the income.
The Position of the Debtor’s Maintenance Claims
If the debtor has a maintenance claim founded on a judgment, that income is exempt from attachment. Since maintenance is a sum paid in order to provide for a person’s subsistence, it is directly connected with the right to life. In other words, maintenance income founded on a court judgment may not be seized by creditors.
Maintenance income of the debtor that is not founded on a judgment, that is to say, that has not been ordered by a court decision but rests on a contract between the parties or on voluntary payment, may on the other hand be attached in part.
In that case the enforcement directorate treats payments that are not founded on a judgment, even if they are in the nature of maintenance, as having the same status as the debtor’s other income and may make them the subject of a partial attachment at an equitable proportion.
Contested Exemptions and Special Exceptions
While some property and rights are absolutely protected in enforcement law, others fall within that scope only where certain conditions are present. This section addresses the exceptional situations that give rise to the greatest uncertainty in practice.
Our aim is to set out in which situations attachment is possible, having regard to the practice of the Court of Cassation as much as to the statutory provisions.
Property Held in Common and Attachment of Shares
If the debtor holds a right of ownership in an immovable, whether in shares or jointly, that right too may be attached; the attachment is nevertheless confined to the share belonging to the debtor.
Co-ownership in Shares (Art. 688 et seq. of the Turkish Civil Code No. 4721)
Under co-ownership in shares the debtor may dispose only of their own share. The enforcement directorate may therefore place an attachment not on the whole of the immovable but only on the debtor’s share. The creditor may request the sale of the attached share and recover its claim out of the proceeds of that sale.
Joint Ownership (Ownership in Undivided Shares)
As in the community of heirs, the shares under joint ownership are not determined. For that reason the enforcement directorate may apply an attachment over the portion falling to the debtor once the community has been dissolved. Attachment under joint ownership is therefore possible not directly but indirectly.
Example: where one of four heirs to an immovable passing by inheritance is a debtor, the debtor’s share cannot be sold directly. The creditor must first request the dissolution of the joint ownership over the immovable. When the action for dissolution of the joint ownership is concluded, the creditor may recover its claim out of the money falling to the debtor’s share.
Exemption from Attachment in Insurance Payments
Insurance payments are generally made in order to make good the loss suffered by the injured party or to secure the life of the insured. Being directly connected with the individual’s right to life and security of subsistence, these payments benefit from the protection of exemption from attachment.
Compulsory Motor Insurance Payments
Payments arising under this insurance are directed at making good the pecuniary or bodily loss suffered by the injured party in an accident.
According to the Court of Cassation, such payments, being compensatory in character, may not be attached within the scope of enforcement proceedings.
The purpose here is to make good the victim’s loss; the payment is not in the nature of a gain over which the debtor may dispose as they please.
Life Insurance Payments
Under life insurance, payment is made to the beneficiaries in the event of the insured’s death and to the insured themselves if they survive. Since the purpose is to secure the subsistence of the debtor or of their family, these payments may not be attached under Art. 82 of the Enforcement and Bankruptcy Act.
The decisions of the Court of Cassation draw the following distinction:
- payments made on account of death may not be attached, since as regards the heirs they are treated as damages for loss of support;
- where the policy has been taken out for investment or savings purposes, that is to say, where it has the character of a savings account, the protection of exemption from attachment may be limited. In that case the assessment is made according to the purpose of the policy.
In short: life insurance may not be attached so long as it serves as personal security; where it becomes an investment vehicle it may be attached in part.
Personal Accident Insurance Payments
Payments made under personal accident insurance likewise aim at making good the bodily injury of the insured or, in the event of death, providing for the subsistence of their relatives. By virtue of their compensatory character, such payments may not be attached. Payments made in cases of occupational accident, injury or disability in particular are directly connected with the debtor’s right to life.
In the decisions of the 12th Civil Chamber of the Court of Cassation it has been stated that compensation of this kind serves to make good personal losses, and it has been emphasised that applying an attachment for the benefit of the creditor would be contrary to public order.
Private Pension System (BES) Payments
Private pension savings are funds accumulated in order to provide income during retirement. Article 17 of the Private Pension Savings and Investment System Act No. 4632 provides that savings held within the system may not be attached.
That protection too has its exceptions:
- where the participant has requested early exit from the system,
- or where the savings have been converted into cash and transferred to an unrestricted deposit account,
the exemption from attachment ceases to apply. In other words, the fund is protected so long as it remains within the system; the amount withdrawn may be attached, since it has by then taken on the character of savings.
General Assessment
In examining exemption from attachment in insurance payments, regard must always be had to the purpose of the payment:
- payments that make good a loss or provide security of life (such as death, disability or motor insurance compensation) may not be attached;
- payments serving a purpose of saving or investment (such as private pension savings transferred to an unrestricted deposit account) may be attached.
The Complaint of Exemption from Attachment: Procedure and Timing
The complaint of exemption from attachment is the legal route taken by the debtor, under Art. 16 of the Enforcement and Bankruptcy Act, against assets that the enforcement officer has made the subject of an attachment contrary to the law. The debtor may assert that the attached asset falls outside attachment under Art. 82 or Art. 83 of the Enforcement and Bankruptcy Act and request that the step be set aside or the attachment lifted.
The application is made to the enforcement court and the examination is for the most part conducted on the file. The court examines whether the asset made the subject of the attachment falls within the scope of the protection; if it finds the step unlawful, it orders the attachment to be lifted and the property to be returned to the debtor.
The Time Limit for Application
Under Article 16 of the Enforcement and Bankruptcy Act No. 2004, a complaint of exemption from attachment must be made within 7 days. The period begins on the date on which the debtor learns of the act of attachment. The day on which the attachment was actually carried out, or the date on which the record of attachment was served on the debtor, is taken as the starting point.
Where the period is allowed to elapse, the complaint is as a rule dismissed. The Court of Cassation nevertheless accepts that the seven-day period is not restrictive in respect of acts of attachment that are contrary to public order. In the following situations the debtor may take the route of complaint at any time:
- the attachment of essential household goods;
- the making of a dwelling befitting the debtor’s circumstances the subject of an attachment;
- the placing of an attachment on a retirement pension in the absence of consent.
In these situations no condition as to time applies, and the court may take note of the breach of public order of its own motion at every stage of the proceedings.
The Enforcement Court with Jurisdiction
A complaint of exemption from attachment is addressed to the enforcement court of the place in which the enforcement office that carried out the attachment is situated. That rule, expressly laid down in Art. 16 of the Enforcement and Bankruptcy Act, establishes that the forum for the complaint is the court to which the office carrying out the step is attached.
Independent Legal Assessment
In disputes over exemption from attachment, the argument turns most often not on the existence of the rule but on whether the particular asset falls within the scope of the protection. As regards the criterion of a dwelling befitting the debtor’s circumstances, the ratio between the debtor’s social position and the value of the immovable is decisive; as regards household goods, it is whether more than one item of the same kind is present. The file should therefore be assessed against these criteria before a complaint petition is drawn up.
As regards income, the source and purpose of the payment are taken as the basis. Whether the same amount is a pension saving held within the system or a saving transferred to an unrestricted deposit account can change the outcome entirely. In practice we recommend that the following matters be observed:
- determining at the outset whether the complaint is subject to no time limit or to the seven-day period;
- in attachments directed at a retirement pension, checking whether the declaration of consent was obtained in writing, expressly and free from pressure;
- in a claim that the property is the debtor’s dwelling, submitting to the file the data relating to the value of the immovable and to the structure of the debtor’s household;
- in insurance payments, establishing from the text of the policy whether it serves a purpose of security or of investment;
- in joint ownership, planning in advance the route of dissolution of the joint ownership;
- in maintenance income, distinguishing payments founded on a judgment from those that are not.
Independent Legal provides advisory services and conducts litigation in relation to the assessment of claims of exemption from attachment in enforcement proceedings and the conduct of complaint proceedings before the enforcement court.