Writ of sale of a mortgaged property.
ONE of the ways that a judgment debt can be collected is through a writ of sale of the immovable property registered in the name of the debtor. The issue of such a writ requires the issue of a writ of movables against the debtor which must either be returned to the court without being executed or if it appears that the debtor has no movable property in his possession.
The immovable property which can be sold through the issue of a writ includes only the one registered in the name of the debtor and when it constitutes his residence, such property must be left which, according to the court, is necessary for his and his family's housing. When it comes to a debtor who is a farmer, the land which is absolutely necessary for his maintenance and his family is exempted from the sale. For the issue of a writ for sale of a property an application must be submitted to the court and the debtor notified.
Where a debtor claims that it is to his or to his creditors' benefit if a certain part of his immovable property is sold before any other part, he should inform the court promptly prior to the auction, so that the court to decide accordingly.There is a special provision in the Civil Procedure Law regarding immovable property burdened with a mortgage, giving protection to the mortgagee that the amount of the mortgage is secured.
Consequently, when the judgment debt has become due and payable, the judgment creditor may pay the mortgagee on behalf of the judgment debtor all the secured money by the mortgage and he will add the amount to the judgment debt; the court, if satisfied that the money secured by the mortgage has been paid, may order the sale of the property. However, if the mortgagee refuses the offer made to him by the judgment creditor, the court may, after an application by the creditor, order the sale of the property under such terms safeguarding payment or security of the mortgage debt by the judgment creditor.
The law gives the right to the creditor to inform the mortgagee of his intention to apply to the court for the issue of a writ of sale. In such an application, the creditor gives security to the court for the expenses which will be created from the sale or in connection with it and the court may issue the writ of sale and state the reserved offer for securing the money due under the mortgage; if such an offer is not made, the property is not sold. In the above case, the proceeds from the sale, if adequate, are used firstly for the payment of the mortgage debt, secondly for the payment of the sale expenses, thirdly for the payment of the judgment debt and any balance left belongs to the debtor.
However, if the proceeds are not adequate for the repayment of the whole mortgage debt and the expenses of the sale, the judgment creditor is liable for the shortfall; the court may order the shortfall to be added to the sum of the judgment debt as execution costs. There is a similar provision for the protection of the mortgagees when the property is burdened by two or more mortgages. The aforesaid provisions are suspended where a mortgaged debt is secured by a mortgage over an immovable property situated in the occupied areas.
Despite the provisions in the law protecting the residence of the judgement debtor and his family, the court may issue the writ of sale provided there will be an adequate amount left for the debtor to buy another residence to accommodate his family. A writ of sale is valid for one year. However, the court may renew it before it expires unless the relevant fees for the sale are not paid to the Land Registry and a year passes. The writ is a mode of execution of a judgment aiming the collection of the debt and the relevant costs through the sale of an immovable property of the debtor.
George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca, Tel: 24 818288, email@example.com, www.coucounislaw.com
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