The declaration of exemption from seizure offers the self-employed essential legal protection for their principal residence, shielding it from professional creditors. Introduced by the law of 25 April 2007, this measure is designed to protect the private assets of the self-employed against the financial risks associated with their professional activity.
Scope of protection
This protection applies to any self-employed person engaged in a professional activity, whether they are traders, self-employed professionals or company directors. It applies to real rights such as ownership, usufruct, emphyteusis or surface area over the property used as a principal residence. Property that is rented or occupied free of charge is not eligible for this measure.
Procedure to follow
To benefit from this exemption from seizure, the self-employed person must make a declaration before a notary. This notarial deed must contain a detailed description of the property concerned and specify the rights held by the declarant. If the self-employed person is married, the consent of the spouse is required, regardless of the matrimonial property regime. Once the declaration has been drawn up, the notary will transcribe it at the mortgage registry office for the place where the property is located, thereby making the protection enforceable against third parties.
Mixed use of the residence
When the main residence is used for both private and professional purposes, protection varies according to the proportion of professional use:
– Less than 30% professional use: the entire property is exempt from seizure.
– 30% or more of the property is used for business purposes: only the part used for private purposes is protected. In this case, it is necessary to draw up co-ownership statutes to clearly distinguish between private and business use.
Receivables concerned
The declaration of exemption from seizure protects the principal residence against business debts arising after the declaration has been transcribed. This includes debts owed to suppliers and credit institutions, as well as social security and tax debts relating to the professional activity. However, certain debts are not covered by this protection, in particular those resulting from offences, mixed debts (both business and private) or linked to serious mismanagement.
Effects in the event of bankruptcy or cessation of business
The protection afforded by the declaration of exemption from seizure remains effective even if the self-employed person goes bankrupt or ceases trading. In this way, the main residence remains protected from professional creditors, ensuring a degree of stability for the self-employed person’s private assets.
Renunciation and termination of protection
The self-employed person may waive the protection afforded by the declaration of exemption from seizure at any time. This waiver must be made by notarial deed and will be enforceable against creditors as soon as it has been registered with the mortgage office. In the event of the death of the self-employed person, the protection automatically ceases, allowing creditors to seize the property as part of the succession.
Advantages and disadvantages
The declaration of exemption from seizure has a number of advantages for the self-employed, including securing their private assets in the event of financial difficulties and deterring potential creditors. However, there can also be disadvantages, such as reduced access to business credit, complications when refinancing or mortgaging the property, and the cost of drawing up the declaration, which is generally between €1,500 and €2,000.
Relevance of the measure
The declaration of exemption from seizure is particularly relevant for self-employed people likely to make personal commitments, in particular by providing guarantees or sureties. It is a judicious preventive measure in the event of potential financial difficulties for the business. However, it is essential to compare this protection with other existing arrangements, such as liability insurance, in order to determine the most appropriate solution for each specific situation.
In conclusion, The declaration of exemption from seizure of the home offers the self-employed significant protection of their principal residence against business creditors. Although this measure has certain disadvantages, it is an important guarantee for safeguarding the private assets of the self-employed against the risks inherent in their professional activity.
