25 January 2018

The updating of the right of lien: what you need to know

As well as containing various modernising measures, the new legislation on the right of lien harmonises all security rights in rem to movable property: the lien, the reservation of title and the right of retention.

A lienee who holds a non-possessory lien or reservation of title or exercises a right of retention will be able to prove his or her right to the secured property to other creditors, because the right in rem concerned will be registered in an IT system developed for the purpose.

A legal basis for the conditions and the use of this IT system was recently worked out. The so-called ‘National Lien Register’ is a public electronic register organised within the FPS Finance. It is freely accessible subject to authentication by means of the electronic identity card and payment of an access fee, both for looking up and for entering data.

From 1 January 2018, it will be possible to prove the existence of a lien to anyone simply by virtue of its inclusion in an electronic register. A non-possessory lien will therefore be known as a ‘register lien’. Second, from 1 January 2018, creditors can consult the National Lien Register to determine whether the movable property they wish to acquire or to which they want to exercise a right is encumbered with a right in rem.

This makes it possible to establish a lien on any existing or future tangible or intangible movable property without dispossession. The register lien is established through a private agreement between the parties, although some legally required wording must be included in the agreement. The parties can then register the lien themselves in the National Lien Register to make it enforceable in respect of third parties.

One important consequence of the existence of the register lien is that the lien on a commercial business will disappear, because the law of 25 October 1919 has been repealed. From now on, the lien on a business falls under the rules on the register lien.

Furthermore, the difference between the civil lien and the commercial lien has also been abolished. Consequently, any creditor will be able to establish a non-possessory lien, regardless of whether the lienor/debtor is a business or a consumer. The only element to which the lienee’s status is relevant is the execution of the lien. The creditors can now execute the lien themselves, unless the lienee is a consumer; in this case, the exercise of the security right is subject to judicial control.

The current rules on the lien on a debt claim remain unchanged. The existence of a lien on a claim will therefore be demonstrable simply by notifying the debtor, and does not require registration in the National Lien Register. If a creditor transfers his claim to a third party as a security (fiduciary transfer), the transfer will be automatically converted into a lien on a debt claim.

The lien on shares and other dematerialised securities also remains unchanged. It is governed by the Law on Financial Securities (Law of 15 December 2004).

A fee is payable for the registration of the security right in rem in the National Lien Register. The amount of this fee (between EUR 20 and EUR 500) is determined on the basis of a nominal tariff, depending on the amount guaranteed. The registration tax of 0.5% for the lien on a commercial business is therefore abolished.

The registration of the lien must be removed by the lienee as soon as the secured debt has been paid. Likewise the seller who has registered a reservation of title should remove this registration as soon as the buyer has paid the price of the goods. 

Legal

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