This section deals with legal action at the Bailiff's office to enforce judgments via or concerning real estate.
Consequences of ‘Freezing’ Order on Real Estate
Question:
What are the implications of a ‘freezing’ order on real estate ?
Answer:
A ‘freezing’ order on real estate prevents any deed or act concerning it being made or registered without court permission. In other words, the real estate cannot be sold or mortgaged. It is still permissible to pay off any mortgage loan taken out on the property without getting court permission. A note may be made on the register about the freezing order on the real estate.
Cancelling 'Freezing Order' on Real Estate
Question:
How can a ‘freezing’ order put on a divorced man's home at the Bailiff's following action taken by his ex-wife for unpaid maintenance be challenged ?
Answer:
A debtor is entitled to make a reasoned application for the cancellation of the order put on his/her real estate . The other side is entitled to react to the application within 7 days and the Chief Bailiff can invite the parties to a hearing. If the other party does not react in writing the Chief Bailiff can decide to cancel the order.
Bailiff’s Option – Husband Refuses To Vacate Home
Question:
What can a wife do when a husband refuses to vacate the family home, as ordered in legal proceedings at the family court ?
Answer:
A wife who has a judgment ordering the eviction of her husband from their home can initiate proceedings to enforce the judgment at the Bailiff’s Office. As the 1967 Bailiff’s Law permits a judgment like this by the family court to be enforced at the Bailiff’s Office, then the option of filing for contempt of court is not available. The Chief Bailiff can appoint bailiffs who can actually ensure that the husband vacates the property.
Limits of Family Home Protection
Question:
Could a family have less protection under law against aims by creditors to force the sale of their home via the Bailiff's to cover their debt, because they have rented it out, and live in other rented accommodation ?
Answer:
Not necessarily. The Bailiff’s Act of 1967 offers certain protection against the sale of the property and eviction where it ‘is used’ as a home by the debtor and his family. In a decision in April 2002 the Chief Bailiff in Beersheva held that this protection can apply even when the debtor and the family do not actually physically live in the apartment. ‘Use’ can cover the situation where the debtor rents out the home and leases another for him/herself and the family with the money received, depending on the particular circumstances. In the actual case before him, the Chief Bailiff held that a debtor whose husband had committed suicide was still entitled to the protection afforded by the act although she and her daughters did not live in the apartment which the creditor bank had asked to be sold to cover large debts. He accepted her argument that because of the tragedy it was impossible for them to live in the apartment and that she leased another with the money she received from renting it out.
Wife’s Action Re Freezing Order on Home
Question:
If the family home, registered in both the husband's and wife's names, is subject to a freezing order because of action taken against the husband and wife at the bailiff’s office for gambling debts he ran up, what is the best course of action for the wife, if they have young children ?
Answer:
The wife should act to try and narrow the freezing order, so that it only relates to her husband’s part of the house. In addition to that the wife can file the husband for maintenance for herself and her children , and within this to file for their accommodation. Within the framework of the plea a freezing order can be put on the husband’s part of the home to guarantee the payment of maintenance.
Proving Who Real Property Owner Is
Question :
What happens when proceedings are taken at the bailiff’s to force a debtor who is a spouse or ex-spouse to sell real estate he owns to pay off an upaid debt according to a court judgment – but it has been transferred into someone else’s name as a cover to avoid paying up ?
Answer:
The person owed money can apply to court for a declaratory judgment stating that property which is not registered in the debtor’s name actually belongs to him, according to the 1967 Bailiff’s Law. The burden of proof is on the person owed money.
Property Transfer – “Badges of Fraud”
Question :
Are there factors that the court will look out for when it is claimed that property registered in someone’s name really belongs to a debtor – and title was transferred as a trick to them to save it from proceedings at the bailiff’s taken to recover a debt ?
Answer:
Yes ! A court facing an application for a declaratory judgment about whether a particular piece of real estate belongs to the debtor or not will look out for what is termed “Badges of Fraud” in Anglo-American law. Tel Aviv Family Court gave examples of “Badges of Fraud” in July 2003 – insolvency, connection between the person transferring and recipient ,secrecy, digression from normal business customs, transfer of all the debtor’s property and continued occupation of real estate by the debtor who supposedly transferred it .
Cancellation of Property Transfer
Question :
Can the family court cancel a property transfer which is in the pipeline if the evidence shows that it was only done to block proceedings against a debtor’s property at the
Bailiff’s ?
Answer:
Yes ! In July 2003 the Tel Aviv Family Court erased a warning note in favour of the debtor’s brother at the Lands Registry. Evidence brought showed that the ‘transfer’ process to the brother had been made in bad faith, to frustrate proceedings taken against the debtor husband - and declared it cancelled. The wife, it held, was entitled to take action to force the sale of the husband’s apartment – which he owned from before their marriage – to guarantee payment of the substantial maintenance debt that had built up against him.
Action Against Property in Debtor’s Daughter’s Name
Question:
Are creditors entitled to get a freezing order from the bailiff’s on property belonging to the debtor’s daughter ?
Answer:
If the daughter is an adult , then the creditor is not entitled to such a ‘freezing order’, because she is not the debtor . If, for example , the adult daughter lives with the debtor-father, it may be necessary to get a declaratory judgment from the district court concerning her ownership of the property in question, before or after a freezing order is actually put on it, depending on the circumstances. If the property belonging to the daughter has actually been frozen, then she will have to prove ownership before the order can be cancelled.
If, however, the debtor’s daughter is a minor and the creditor suspects that the property was put in her name to evade payment of debts, then the appropriate action on the part of creditors would be to obtain an order to prevent an dispositions being made concerning it, rather than a freezing order.
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