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The
'déclaration d'insaisissabilité'
The
law number 2003-721 of 1st August 2003 brought in a new measure designed
to enable a self-employed person to declare that his or her principal
residence cannot be seized by creditors. The intention of the law is to
encourage private enterprise by enabling individuals to protect their home
in the event that the activity is unsuccessful or encounters difficulties.
The
declaration is to be made in front of a notaire in order that it can be
published in the requisite form.
The
law states that a physical person (a company cannot do this) registered on
a legal public register for a professional activity or exercising an
agricultural activity or independent activity can declare that his or her
rights over the property where the principal residence is established
cannot be seized. This means that creditors cannot seize the principal
residence in the event of bankruptcy or failure to pay.
It
should be noted that it only applies to those creditors whose rights arise
post publication in relation to the individual's professional activity.
Therefore, existing creditors may retain a right to seize the main
residence as may those whose rights do not arise from the actual activity
(e.g. personal debts).
When
the property is for mixed commercial and dwelling use, the part used as
the main residence can only be the object of the declaration if it is
designated in a descriptive division document. This would involve drawing
up a separate act, with the intervention of a surveyor, specifying which
parts of the property are for commercial and residential use (thus leading
to additional cost).
24/09/2004
- Legal update
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