When Seized Property Belongs to Someone Else: Third-Party Ownership Claim and Action (Enforcement Code Arts. 96–99)

When an asset attached in enforcement belongs not to the debtor but to someone else, the law provides a special route for the real owner: the ownership claim (istihkak iddiası) and then the ownership action (istihkak davası). This article summarises the time limits, procedure and proof under Articles 96, 97 and 99 of the Enforcement and Bankruptcy Code (İİK).

1. What is an ownership claim?

If the debtor says that an asset in the debtor's hands belongs to, or is pledged to, someone else, or a third person claims ownership or a pledge over it, this is called an ownership claim. The enforcement office records the claim in the attachment and enforcement minutes and notifies both parties (Art. 96/1).

2. Preparation stage and first time limits (Art. 96)

• The enforcement office gives the creditor and the debtor three days to state whether they object to the claim. If they stay silent, they are deemed to have accepted it.
• A debtor or third party who learns of the attachment and does not make an ownership claim within seven days of learning loses the right to raise it in the same proceeding.
• Persons living with the claimant, or their business partners, are deemed to have learned of the attachment on the date the claim is made.

3. Review by the enforcement court and the ownership action (Art. 97)

If the creditor or the debtor objects to the claim, the enforcement officer immediately sends the file to the enforcement court. After reviewing the file, or summoning those concerned if needed, the court decides whether the proceeding continues or is suspended.

• If there are serious grounds to believe that the action is being abused merely to delay the sale, the request to suspend the proceeding is rejected.
• If suspension is ordered, security under İİK Art. 36 is taken from the claimant against the creditor's probable loss.
• A court decision that the proceeding continues is final.
• The third party must file an ownership action in the enforcement court within seven days of the announcement or service of the court's decision. If no action is filed in this period, the third party is deemed to have waived the claim against the creditor.
• During the action, the time limits in İİK Art. 106 do not run; the action is heard under the general provisions and the simple trial procedure.
• Ownership actions are decided promptly and ahead of other cases.

A joint position of the third party and the debtor in the claim made to the enforcement officer is not effective against the creditor, and the third party must prove the claim. If the attached asset is converted into money before the action ends, the enforcement judge separately decides whether the proceeds are withheld until the end of the trial or paid to the creditor against security or, depending on the case, without security.

4. If the asset is attached in the hands of a third person (Art. 99)

If the asset is not in the debtor's hands but in the hands of a third person who claims ownership or another real right over it, and that person accepts to act as custodian, the asset is not taken into custody. In this case the burden of filing an action passes to the creditor:

• The enforcement director gives the creditor seven days to file an ownership action against the third person in the enforcement court.
• If no action is filed in this period, the third person's claim is deemed accepted.
• The attached asset cannot be sold until the action filed in time by the creditor is concluded.
• This also applies if the attachment is made in the absence of the third person and an ownership claim is made in the third person's favour.

In other words, whether the asset was attached in the debtor's hands or in the third person's hands determines who must file the action.

5. Presumption of ownership and proof

In its decision of 22.03.2023 the 12th Civil Chamber of the Court of Cassation considered a case where the attachment was not made at the address where the payment order was served to the debtor nor at a place where the debtor was present, and the attachment site was the third person's business. It held that the asset must be treated as attached in the third person's hands, that the presumption of ownership then favours the third person, and that the fact that the action is filed by the third person under Art. 96 does not shift the burden of proof. The creditor must prove the contrary with convincing and strong evidence (E.2022/12039, K.2023/1930).

6. Consequences of the action

• If the proceeding was suspended because of the ownership action and the action is dismissed, the claimant is ordered to pay the creditor compensation of not less than twenty per cent of the amount whose collection was delayed.
• If the ownership action succeeds and the bad faith of the creditor or debtor who objected to the claim is established, compensation of not less than fifteen per cent of the value of the attached asset is awarded against the objector together with the main action.
• A claimant who appeals a dismissal may ask the enforcement office for an extension under İİK Art. 36.
• Against the ownership action, the creditor may bring a counter-action under the provisions on the annulment of transactions, without having to present a certificate of insolvency.

Whether the attached asset is among those that cannot lawfully be attached, such as salary or household goods, is a separate matter; see our article on assets exempt from attachment. For attachment of receivables held by third parties see our article on the notice of attachment, and for objections and their time limits see objecting to enforcement proceedings.

7. What to do

• Obtain the attachment minutes and note the date you learned of the attachment; the seven-day period runs from it.
• Gather documents showing the asset is yours (invoices, contracts, payment records, title or registration); who bears the burden of proof can depend on where the attachment was made.
• When you receive the enforcement court's decision, note the date it was announced or served; a new seven-day period for the ownership action starts.
• If you would like your file assessed, you can book an appointment or reach us on the contact page.

This article is prepared for general information and does not replace legal advice. Every file is different, and rights can be lost if time limits are missed.