If the Attached Property Is Yours: Third-Party Ownership Claims

Author: Att. Ahmet Bertuğ Dönmez Date: 19 June 20262 min read

When property is attached in enforcement proceedings against a debtor, it may be claimed that the property actually belongs to someone else. A third party's claim of ownership or a pledge over attached property is called an istihkak claim and is governed by Articles 96 to 99 of Enforcement and Bankruptcy Law No. 2004 (İİK).

First, the claim is notified to the enforcement office

During or after the attachment, the third party's right is notified to the enforcement office; the enforcement officer informs the creditor and the debtor and takes their views (İİK Art. 96). The notification should be made as soon as possible; delay may have consequences against the third party.

Who holds the property? The burden to sue depends on it

• Property in the debtor's possession (Art. 97): If the creditor objects to the claim, the burden to sue lies with the third party. If no case is filed within seven days of the pronouncement or service of the enforcement court's decision, the claim is deemed waived.
• Property in the third party's possession (Art. 99): The enforcement officer gives the creditor seven days to sue the third party. If no case is filed within that period, the third party's claim is deemed accepted; until a case filed in time is decided, the property cannot be sold.

Presumption of ownership (Art. 97/a)

If the attached property is in the debtor's possession, it is presumed to belong to the debtor; in joint possession it is also deemed to be in the debtor's possession. A third party suing against this presumption must prove how they acquired the property and why it was in the debtor's possession.

What to watch out for

• Keep documents showing ownership ready: invoices, sales contracts, bank receipts, registration documents.
• If you live or work at the same address as the debtor, the presumption works against you, which makes documents even more important.
• The seven-day periods are short; note the date of service or pronouncement.

Sources

• Enforcement and Bankruptcy Law No. 2004, Arts. 96, 97, 97/a, 99