Entrepreneurship sometimes involves risks. Entrepreneurs therefore want to separate their private assets as much as possible and protect them against possible professional debts. One of the ways to do this is to set up a company so that professional creditors can only recover from the company's assets. However, for self-employed people who do not wish to set up a company, the question often remains how their private assets can be better protected against professional debts. The declaration of unseizability of the family home is one of these.
Who can enjoy this protection?
Any natural person exercising a professional activity on a self-employed basis (including, consequently, liberal professionals and natural persons exercising a managerial function in a company) may have a declaration of non-attachment made, irrespective of whether the activity is exercised as a main or secondary occupation. Those who exercise a self-employed activity after retirement may also make this declaration.
The declaration of unseizability ensures that the rights in rem, which the entrepreneur holds on the real estate where he/she has his/her main residence, are protected from enforcement by pure professional creditors. However, the declaration does not apply to mixed debts, debts arising from a crime or resulting from a managerial error that led to the bankruptcy. In addition, the unseizability only applies to new debts after the registration date of the declaration of unseizability in the mortgage office.
If the self-employed person also carries on a professional activity in the dwelling where he has his main residence, this must be taken into account in the declaration. If the surface area used for professional activities is less than 30%, the entire dwelling will be declared exempt from seizure. If it exceeds 30%, then the protection only applies to the private part and not to the professional part.
If one is married as an entrepreneur, the declaration must be co-signed by the spouse, regardless of the marriage system.
The declaration of nonattachment can only be made before a notary. This is followed by an entry in the mortgage office so that this declaration is opposable to third parties.
What to do when selling your own home?
When selling one's own home to purchase a new home, a few rules apply to remain in compliance with the owner-occupied home's non-seizability. These are quite strict:
- The funds from the sale of the first home must be kept at the notary's office. These monies are then also unattachable.
- The purchase of the new home must take place within one year of the deed of sale of the first home.
- The deed to the new home must state that it is a reinvestment.
When does the unseizability end?
Unseizability ends in a number of cases:
- When at the time of the sale of the owner-occupied home the conditions are not met to continue to enjoy the protection;
- When the self-employed person dies;
- When the self-employed person waives the declaration;
Attention: you cannot make a distinction between the creditors in this respect. If you waive this declaration against 1 creditor, then this also applies to the other creditors.
Effective but not sanctified
The protection of the family home against professional debts can thus be achieved for natural persons exercising a self-employed activity by means of a declaration of non-seizability. However, this declaration also has its limitations: the declaration will not provide relief for all debts, and as an entrepreneur, one must be mindful of the fact that some banks will be less inclined to grant professional loans since the home can no longer be used as a guarantee. In this case, other guarantees must be provided to the bank.