Is it possible to attach my principal residence?

Question

José Manuel Alburquerque · Accepted Answer

Yes. A principal residence is not exempt from attachment and there is no minimum debt that has to be reached before it can be attached. But the law requires attachment to start with what is easiest to sell and least harmful to the debtor, so for a small debt the process normally starts with bank accounts and salary. Attachment does not mean losing it either, because you remain the owner and can live in it until it is auctioned. If the debt is the mortgage itself, the bank does not need to attach it, because it can apply directly for it to be auctioned. When attachment reaches the home The law does not protect the principal residence against attachment, whatever the debt. What it does do is set an order and a limit. The court clerk (“letrado de la Administración de Justicia”), who is in charge of enforcement at the court, has to choose the assets that are easiest to sell and least burdensome for the debtor, which are usually the money in bank accounts and the attachable part of the salary. In addition, the clerk cannot attach assets whose value exceeds the amount claimed if the debtor has others of lower value. That is why a home is attached above all when there are not enough other assets or the debt is substantial. If you bought it in equal shares with another person, only your half can be attached. If you are married under the “sociedad de gananciales”, the community-property regime, which is the most common one in the greater part of the rest of Spain, special rules apply. What attachment involves The attachment is entered in the “Registro de la Propiedad”, the Land Registry, where it can be seen by anyone who looks up the property. You remain the owner and can go on living in the home as normal. You can also sell it, but the buyer acquires it subject to the attachment, so the usual course is to pay off the debt out of part of the price to have the attachment discharged. If you pay the debt, with interest and costs, the court orders the attachment to be lifted. If it goes to auction If the debt is not paid, the creditor can ask for the home to be valued and put up for auction. Until the sale is approved, you can still avoid it by paying everything you owe. The proceeds are used to pay the creditor and whatever is left over, after paying any other creditors entitled to payment, goes to you. Once the home has been awarded, the new owner can ask the court to give them possession. The law also has some special rules that protect the debtor's principal residence at auction.