February 2023

Decision of the Athens Single-Member Court of First Instance on the Impossibility of Seizure of Future Rentals in the Hand of a Third Party

The decision of the Athens Court of First Instance, No 274/2023, which rejected the opposition of a credit institution in special liquidation, was issued. In particular, the credit institution had imposed a conservative attachment, on the basis of a judgment at first instance, to satisfy its alleged claim against the debtor company and in favour of a third company, for the amount owed or to be owed by the latter to the debtor company - the respondent - by virtue of the property lease agreement concluded between them, with a monthly rent of 16. 500, for each outstanding and future rent arising from that relationship. Subsequently, the company which was the third party on whose behalf the conservative attachment was imposed did not make a declaration by a third party within the statutory eight-day time-limit, with the result that that omission was tantamount to a negative declaration, that is to say, that there was no claim on the debtor company which the debtor company should have retained in favour of the credit institution and not paid to the debtor company. 

The credit institution lodged an appeal against the third company's declaration, which was treated as a negative declaration, requesting that it be declared that the omission of the declaration, which is treated as a negative declaration under the law, is inaccurate, that the existence of the seized debt be acknowledged and that the existence of a business lease agreement between the company in whose favour it was imposed be recognised, as a third party, the seizure and the debtor company, and subsequently to require the third party to deposit with the Deposit and Loan Fund in favour of the credit institution the future monthly rent payments relating to the use of the lease. At the same time, the debtor company brought an additional intervention in the proceedings initiated by the opposition in favour of the third company, seeking the dismissal of the credit institution's opposition. 

The Court dismissed the opposition as indefinite, because it was considered that the opponent did not specify in the statement of defence whether there were already accrued rents until the opposition was discussed and how much they amounted to, since future (non-accrued) rents could not be seized as they were dependent on consideration. The Court of First Instance held, i.e, that the future rents cannot be seized, despite the fact that there is an active lease contract, on the grounds that Article 69 of the CCP (which describes the cases of preventive protection) cannot be applied, as the payment of the specific rents depends on the consideration of the defendant - the debtor of the opposing party, i.e. on its making the lease available to the third party (the leasing company) suitable for the use agreed upon at the relevant time.