Seizure: how can you use this legal tool strategically as an entrepreneur?
As an entrepreneur, you know how frustrating it is: an invoice that just won’t get paid, a counterparty stalling, or worse — someone threatening to siphon off their assets before you can do anything about it. Recently, I have arranged seizures on several occasions for clients in precisely such situations. And time and again, I am reminded of just how effective this tool is. It is swift, targeted and has an immediate impact on the debtor.
In this article, I explain exactly what attachment entails, the different forms it takes, how the procedure works and when you can use this tool strategically to secure your claim — or to enforce payment.
What is attachment and why is it so powerful?
Attachment is a legal measure by which you ‘freeze’ a debtor’s assets. In practical terms, this means: the debtor can no longer freely use, sell or otherwise dispose of those assets as long as the attachment is in force.
What is unique about Dutch law is that, as a creditor, you can already place a seizure before the court has officially recognised your claim. You are, as it were, laying claim to the debtor’s assets whilst the main proceedings are still ongoing.
As soon as the court later awards your claim, the protective seizure automatically converts into an enforcement seizure — and you can actually recover your debt.
Practical example: A debtor is about to sell his home, which has significant equity, whilst he has an outstanding invoice to you. By having a provisional attachment placed on that property in good time, you secure the proceeds — even if the sale goes ahead.
What assets can you attach?
The scope of attachment is broad. As a creditor, you can in principle attach all of the debtor’s assets:
● Movable property — such as vehicles, business equipment or (under strict conditions) trading stock
● Immovable property — such as a residential property or commercial premises
● Bank balances — legally speaking, a bank balance is a claim by the account holder against the bank; you can also attach these
● Claims against third parties — money that a customer still owes your debtor
● Recurring income — such as rental income or salary
It is precisely this breadth that makes attachment so versatile. Where others get stuck, you, as the attaching party, have multiple points of leverage.
Tip: Before seizing assets, identify which assets the debtor holds. Targeted seizure is more effective than seizing random assets.
Seizure as a strategic means of pressure
Many business owners view seizure solely as security for recovery. But seizure has a second, equally important function: it is a powerful means of pressure.
Timing is also crucial when seizing assets. If a bank account or a claim (which a major client owes to your debtor) is seized at the right moment, this can immediately bring the debtor’s business operations to a standstill. Ongoing payments stop, liquidity dries up — and the incentive to reach a solution quickly suddenly becomes much greater.
In practice, I see that debtors regularly proceed to make payment or reach a settlement following a strategic attachment, simply to limit further damage. I have witnessed this on several occasions in recent months, and it confirms how effective this tool is when used correctly.
Tip: Choose the asset to be attached strategically. Attachment of a business account or outstanding receivables usually has a more immediate impact than attachment of immovable property.
How does the attachment procedure work?
The procedure for obtaining an attachment order is relatively quick and straightforward — provided it is well prepared.
Step 1 — Application to the judge in summary proceedings
As your solicitor, I will submit an application on your behalf to the judge in summary proceedings at the court. This application explains:
● what your claim is and how it arose
● which assets you wish to attach
● why the need for urgent attachment is justified
The application must be properly substantiated. This is not merely a formal requirement — a well-founded application also reduces the risk that the attachment will later be set aside by the debtor through summary proceedings for annulment.
Step 2 — Authorisation within hours or days
In virtually all cases, the debtor is not heard during the authorisation proceedings. The court usually decides within a few hours to a few days. With the authorisation in hand, the bailiff can often seize the assets on the very same day.
Step 3 — Seizure by the bailiff
The bailiff carries out the seizure by means of an exploot (official deed). From that moment on, the seized goods are frozen. Legal acts subsequently performed by the debtor in respect of those goods cannot, in principle, further prejudice your rights as the party seizing the goods.
Please note: Anyone who deliberately removes or destroys assets subject to attachment is liable to prosecution. The law expressly protects the attaching party against such abuse.
Step 4 — Commencing proceedings
The court makes the imposition of the attachment conditional upon proceedings being commenced within a specified period – often 14 days.
From protective to enforcement: the execution
If the court upholds your claim in the proceedings on the merits, the protective attachment automatically becomes an enforcement attachment. To proceed with actual enforcement, you will need the grosse: an official copy of the judgment bearing the words ‘In the name of the King’ at the top.
That certified copy must first be served on the judgment debtor. This formally informs the debtor of the content of the judgment and grants them a (usually short) period in which to pay voluntarily. If that period expires without payment, the bailiff may enforce the judgment.
Third-party attachment: attachment against a third party
A special and frequently used form in practice is the third-party attachment. In this case, you do not attach goods in the debtor’s own possession, but funds or assets that a third party still owes the debtor. Examples include a bank (bank account) or a major client (outstanding invoice).
The third-party attachment is effected by serving the writ on that third party. The following then applies:
● The writ must also be served on the debtor themselves within 8 days
● Four weeks after the attachment, the third party is obliged to make a third-party declaration: a statement of all claims and assets affected by the attachment
The third party has a statutory duty to provide information in this regard and cannot evade it. Furthermore, the law imposes substantive requirements on this statement.
Wage attachment: effective for claims against private individuals
The most common form of third-party attachment is wage attachment: attachment of the debtor’s wages through the employer. The Supreme Court has ruled that this also covers future wage payments made after the attachment has been imposed. After all, the employment contract itself forms the basis for the obligation to pay.
Please note: In the case of wage garnishment, the statutory minimum wage threshold applies — a minimum amount that the debtor must retain in any event in order to live on. Please bear this in mind when estimating the proceeds.
Multiple creditors? Then the order of priority applies
Does your debtor also owe money to others, and are there multiple creditors? In that case, the order of priority determines the sequence in which creditors are paid from the proceeds of the seized assets. As the enforcing party, you are free to choose which assets to seize — but the distribution of the proceeds is regulated by law.
Conclusion: acting promptly pays off
Seizure is one of the most powerful tools that civil law offers you as an entrepreneur. Whether it is to secure recourse, exert pressure or prevent assets from being siphoned off — a well-timed seizure makes the difference between getting paid and missing out.
My own recent experiences confirm this. Engage a solicitor in good time to ensure the strategy is sound, the application is sufficiently robust, and you select the correct asset for attachment. Then this instrument will be as effective as it is meant to be.
Frequently asked questions about attachment
What is the difference between a protective attachment and an enforcement attachment?
A protective attachment is imposed before the court’s ruling, as a precautionary measure to secure assets. An enforcement attachment is imposed after a judgment, to actually enforce the obligation.
Can I have an attachment imposed without a court order?
No. For a protective attachment, you always need prior leave from the judge in charge of interim relief. However, this procedure is quick — often completed within a few hours or days.
What does it cost to have an attachment made?
The costs consist of solicitors’ fees (for the application), court fees and bailiff’s fees. If the claim is successful, these costs can usually be recovered from the debtor.
Can the debtor have the attachment lifted?
Yes, through summary proceedings to lift the attachment. That is why a well-substantiated petition is essential — it reduces the likelihood that the attachment will be successfully challenged.
What assets cannot be attached?
Assets that fall outside the debtor’s estate (such as assets belonging to a third party) and certain protected items, such as the exempt portion of wages in the case of wage attachment.
How quickly can an attachment be made?
Very quickly. Once the judge in summary proceedings has granted leave, the bailiff can often attach the assets on the very same day.
What is a third-party declaration?
A legally required declaration from the party against whom the attachment has been made (e.g. a bank or employer), in which that party states which claims and assets have been affected by the attachment.
Questions?
Do you have any questions regarding this article or employment law in general? Please feel free to contact our specialized attorneys.
