Escribanía - 13/09 - Parte 2

Introduction and Greetings

Initial Interactions

• The speaker greets the audience, expressing happiness to see them and inquiring about their well-being.

• Acknowledges a change in plans regarding travel, indicating that personal investments have taken precedence this year.

Class Updates

Virtual Class Arrangements

• The speaker mentions Malvina Boni will conduct a virtual class despite her preference for in-person teaching.

• Gabriela has informed students about the recording of the class, allowing flexibility for viewing at a later time.

Today's Agenda

Discussion on Registrations

• The original plan was to discuss enrollment issues but is postponed for the next in-person class.

• Instead, real cases related to public deed registrations will be examined today.

Case Study: Inheritance Registration

Overview of Inheritance Issues

• A case involving the registration of an inheritance partition is introduced; it involves multiple heirs after the death of a registrant.

• Heirs can report their respective shares independently or request accumulation of cases from older files to streamline processing.

Legal Procedures for Partitioning

Accumulation and Processing

• Discusses using legal connections between cases to manage them as one file, facilitating easier resolution and registration.

• Once accumulated, courts can issue orders for registering declarations of heirs efficiently.

Implications of Non-partitioned Estates

Selling Property Without Partition

• If no partition occurs, an heir may sell property with registered declarations; this emphasizes managing records effectively during sales.

Open Discussion on Cases

Engaging Participants

• The speaker invites participants to share any relevant cases they have encountered or seek clarification on discussed topics.

Practical Example: Sale Deed Authorization

Steps in Sale Deed Process

• An example is provided regarding authorizing a sale deed; necessary certificates are obtained confirming ownership and absence of encumbrances.

Discussion on Provisional and Definitive Registrations

Issues with Provisional Registration

• The third lot is registered provisionally, raising questions about the lack of documentation regarding this provisionality in the records.

• There is no mention of the provisional status in the notary's documentation; only two lots are definitively registered without reference to the third lot's provisional status.

• It is assumed that if nothing is stated, it should indicate a provisional registration, but there should be an observation note accompanying it.

Importance of Documentation

• The absence of an observation note or any indication of whether the registration was rejected or conditional creates confusion regarding the status of the third lot.

• Notaries must ensure clarity when authorizing deeds involving multiple lots to avoid misunderstandings about their registration statuses.

Registration Process Insights

• Each property should have a unique registration number; thus, three properties sold should result in three distinct registrations.

• The discussion contrasts current practices with older systems where multiple entries could exist under one volume but were clearly delineated.

Discovering Registration Issues

• The notary learns about issues related to the third lot only after eight years when attempting to register its definitive status.

• A provisional entry exists for this lot, but its cause remains unspecified, complicating matters for both clients and notaries.

Examination of Legal Complications

• An analysis reveals potential complications due to an existing mortgage on the property that was not disclosed at initial registration.

• Additionally, there was a general inhibition against assets belonging to the seller that also went unreported during registration processes.

Responsibilities and Observations by Notaries

• The notary documented that the buyer accepted responsibility for an existing mortgage within the deed itself.

• A request for lifting a general inhibition was submitted shortly before signing; however, formal issues led to complications in processing this request.

Conclusion on Communication Gaps

• Miscommunication between parties has led to significant misunderstandings regarding property registrations and obligations tied to them.

Discussion on Property Registration Issues

Examination of Public Deed and Inhibition

• The discussion revolves around the concept of lifting an inhibition solely for the purpose of executing a specific public deed, questioning the rationale behind it.

• It is noted that the consideration of a mortgage taken by the buyer was overlooked, which should have been a barrier for all three properties involved.

• There is concern regarding whether proper documentation was provided before the sale, as no record indicated prior submission of relevant information about general property inhibitions.

Observations on Registration Process

• Questions arise about whether the registrar's actions were appropriate in observing and processing registrations related to one lot amidst existing inhibitions.

• Clarification is sought on how the request for taking charge of a mortgage was documented during the sale process, emphasizing its importance in registration verification.

Provisional Registration Challenges

• The provisional nature of registration is discussed, highlighting that if there are existing inhibitions not addressed properly, they can complicate future transactions.

• The conversation points out that while some issues may have been resolved regarding mortgages, general property inhibitions still pose significant challenges.

Implications of Procedural Errors

• A question arises about why certain documents were not rejected despite indications that procedural requirements were not fully met.

• The necessity for formal compliance in submitting requests for lifting divisions or other legal processes is emphasized to avoid complications in property transfers.

Final Considerations and Practical Insights

• The discussion highlights how registrars must navigate complex situations where existing inhibitions affect property transferability and availability.

• An example illustrates how misunderstandings can occur when clients attempt to sell properties without clear records or understanding of their registration status.

Discussion on Notarial Security Folio

Issues with Notarial Security Folio

• The notarial security folio records seals, indicating discrepancies such as having two seals instead of three, which raises concerns about the registration process.

• Although the chronological system is digitalized, it lacks a comprehensive historical view of properties compared to the Real Folio system, limiting visibility into property history.

Challenges in Registration and Observability

• The absence of observability in registrations complicates qualification processes; without clear documentation, legal pathways for provisionality are hindered.

• There is a need to explore administrative reconsideration routes when no observations have been made regarding property lots.

Administrative Reconsideration Process

• A reconsideration can be proposed administratively within the registry if an error occurs; this aligns with standard administrative procedures.

• If no observations were made by the registry concerning a lot, it complicates potential legal recourse since there’s nothing to contest.

Handling Delays and Inquiries

• Considerations arise when an eight-year delay occurs before noticing discrepancies in property registrations; proactive inquiries may be necessary.

• Informal consultations at the registry can clarify issues regarding unregistered lots and help defend rights through proper documentation.

Clarifying Lot Registrations

• Presenting formal written requests can prompt registries to clarify statuses on unregistered lots or provide justifications for their provisional status.

• Understanding responses from registries about rejected or conditionally registered lots is crucial for determining next steps in legal proceedings.

Legal Implications of Inhibitions

• Discussions around why certain lots are registered while others are not highlight potential inconsistencies that require justification from registries.

Understanding Legal Inhibition and Registration Issues

The Importance of Protection in Legal Acts

• The act emphasizes the protection of parties involved, highlighting a social interest in safeguarding legal transactions.

• There is a discussion on why an inhibition (a legal restriction) may not have been communicated, suggesting potential errors by the registrar.

Challenges with Provisional Registrations

• Concerns arise regarding the lack of clarity about the provisional nature of certain registrations, particularly related to a third lot that was not properly documented.

• It is noted that if issues were overlooked for two lots, they should have been addressed similarly for all three lots involved.

Consequences of Oversight

• The registrar's oversight led to complications; despite an official lifting of inhibition being filed after eight years, it raises questions about due diligence.

• A scenario unfolds where a client approaches their notary to sell property only to discover it wasn't registered correctly due to previous oversights.

Procedural Missteps and Delays

• After eight years, the notary seeks registration but faces challenges because prior inhibitions may still be unresolved.

• The discussion highlights procedural delays and how they affect clients' ability to register properties effectively.

Recourse and Registration Process

• The notary contemplates transforming provisional registrations into definitive ones but faces rejection due to timing issues—eight years had passed without action.

• The registrar dismissed the recourse as untimely since no extensions were requested during the provisional period.

Recommendations for Notaries

• It is suggested that notaries should verify property conditions before proceeding with registrations to avoid future complications.

• Emphasis is placed on understanding registration processes thoroughly to prevent similar situations from arising in practice.

Discussion on Future Cases

• Participants are encouraged to engage in discussions about procedural improvements and share insights based on experiences with similar cases.

• A shift occurs towards discussing another case involving hereditary rights sessions, indicating ongoing complexities within property law.

Certificado de Medidas Cautelares en Sucesiones

Contexto y Proceso de Inscripción

• Se discute la necesidad de un certificado de medidas cautelares en el contexto de sucesiones, donde se menciona que el informe sobre la inexistencia de tales medidas debe ser emitido dentro del expediente judicial.

• Se establece que los plazos para otorgar certificados son similares a los utilizados en compraventas, con un registro provisional por 180 días.

• Se hace referencia a una disposición técnica registral del año 85 que permite la inscripción de sesiones sobre derechos y acciones hereditarias, destacando su relevancia actual.

Exclusión y Descripción de Bienes

• El escribano detalla en la escritura que cede derechos y acciones correspondientes a una sucesión, excluyendo un inmueble específico y un automóvil.

• La escritura aclara que la sesión se realiza sobre un inmueble determinado, lo cual es importante para efectos fiscales.

Análisis del Accionar Registral

• Se plantea si el accionar del registrador fue correcto al anotar provisionalmente la escritura; se invita a los participantes a compartir sus opiniones sobre este tema.

• La discusión incluye si es posible excluir más de un bien al ceder derechos; se enfatiza que no solo se puede excluir uno, sino varios bienes dentro del patrimonio cedido.

Observaciones Técnicas

• Se menciona que la disposición técnica registral permite describir inmuebles para efectos fiscales, lo cual podría haber influido en cómo el registrador observó la escritura presentada.

• La conversación gira en torno a si el registrador actuó correctamente al observar las exclusiones mencionadas por el escribano.

Resolución y Conclusiones

• Se reitera que aunque hay exclusión de ciertos bienes, esto no impide transferir otros derechos relacionados con la sucesión.

• La importancia de describir adecuadamente los inmuebles para efectos fiscales es subrayada como crucial para evitar malentendidos durante el proceso registral.

Discussion on Legal Registrations and Instruments

Overview of Registration Procedures

• The speaker discusses the variability in registration processes, referencing a specific regulation (Technical Registration Provision No. 3 from 1985) that outlines how registrars should approach each case individually rather than applying rules automatically.

• Emphasis is placed on the need for registrars to carefully examine each instrument presented for registration, highlighting the importance of terminology used within these documents.

Classification of Legal Instruments

• The discussion includes differentiating between types of legal instruments, particularly focusing on whether they pertain to a universal legal entity or specific parts thereof.

• It is noted that even if an instrument specifies exclusions of certain assets, it can still be classified as transferring a universal legal entity based on its content.

Reconsideration and Qualification Processes

• The speaker mentions that understanding key guidelines allows for reconsideration in cases where initial assessments may have been incorrect, stressing the role of notaries in this process.

• A question arises regarding the clarity of observations made during qualification processes, indicating that there are established articles within their code addressing sessions over specific assets.

National Context and Variability

• There is a recognition that not all jurisdictions register sessions related to rights and hereditary actions uniformly; Santa Fe is highlighted as one of the few regions doing so.

• The speaker recalls previous discussions about potential issues with registering sessions over specific assets when final adjudications occur through judicial processes versus notarial partitions.

Recent Legislative Changes

• A recent legislative change (from either 2022 or 2023) has addressed the non-registration issue concerning sessions over specified assets, allowing for more flexibility in registrations post-declaration.

• Clarification is provided regarding how registrations can now occur directly after declarations have been inscribed, which was previously restricted under older regulations.

Case Study: Hypothecary Instrument Registration

• An example involving a hypothecary instrument illustrates proper procedures followed by obtaining necessary certificates and timely submissions to the registry within stipulated deadlines.

Discussion on Simplified Property Transfer Procedures

Overview of Article 16 and Its Implications

• The discussion begins with a reference to Article 16 of the national law, which states that pre-registration is not necessary when heirs or their successors transfer inherited properties registered in the name of the deceased or their spouse.

• A critical examination arises regarding whether there is an actual transmission or cession of property, as the case presented involves establishing a lien rather than transferring ownership.

Observations from the Registry

• The registry's provisional annotation was deemed incorrect; it raised questions about how to resolve these issues effectively.

• It was noted that certain cases may require waiting for proper domain registration before proceeding with abbreviated procedures.

National Directors' Meeting Insights

• A national meeting among directors established that Article 16's enumeration should be interpreted as limitative rather than restrictive, allowing various acts to benefit from simplified processes.

• The incisos (clauses) do not specify particular acts but rather categories of actions eligible for procedural simplification under abbreviated transfer methods.

Impact on Property Registration

• The resolution indicates that applying abbreviated procedures does not disrupt normal property registration functions nor affect the continuity of successive transfers.

• This approach aims to prevent unnecessary formal entries that are temporary in nature, enhancing transaction efficiency.

Legal Framework and Heirship Clarifications

• The resolution emphasizes that it benefits individuals by recognizing the legitimacy of heirs during property transactions.

• It clarifies that declarations must be registered properly, distinguishing between mere declarations and actual adjudications in favor of heirs.

Misunderstandings Regarding Inheritance Transfers

• There has been confusion within Santa Fe province regarding whether declaratory transfers constitute true transfers to heirs; they are often misinterpreted as final adjudications leading to indivision status.

• Requests were made for formal documentation from courts ordering transfers to ensure clarity in inheritance matters and avoid misconceptions about community publicity versus actual ownership rights.

Interpretation Challenges and Registry Responses

• The registry expressed concerns over requests for domain transfer without proper acknowledgment of community interests among heirs, emphasizing a need for clear legal interpretations.

• Discussions highlighted that neither interpretation should be seen as restrictive but rather limitative, ensuring fair treatment in property registrations based on established guidelines.

Discussion on the Principle of Convalidation in Property Law

Overview of Convalidation and Property Transactions

• The discussion begins with observations regarding the absence of the principle of convalidation in relation to mortgage law, particularly concerning property sales. It is noted that one can sell a property owned by another if they acquire it from the rightful owner.

• The current code expands beyond mere sales to include mortgages, referencing Article 1885 which emphasizes the principle of convalidation. This article states that transactions are validated if conducted by the true owner.

• A distinction is made between real rights and ownership; even if a right is acquired later, its constitution or transfer remains valid under this principle.

Implications for Heirs and Ownership

• The conversation shifts to heirs who inherit property but may not be considered owners themselves. Even without formal adjudication, their rights are recognized under convalidation principles.

• In cases where heirs do not hold ownership but receive property due to inheritance, their position is still validated as they act on behalf of the deceased owner (causante).

Role of Registrars and Legal Procedures

• The principle of convalidation enhances registration processes, allowing for more permissive registrations when heirs are involved.

• Discussion highlights the role of registrars in self-assessing their authority to intervene in transactions based on legal provisions. They must determine whether they can validate or challenge registrations.

• Concerns arise about registrars who may refuse to acknowledge mistakes due to personal biases, impacting third-party protections within legal frameworks.

Class Structure and Future Sessions

• A transition occurs towards class logistics; students are reminded about upcoming virtual classes and adherence to established schedules despite changes in teaching formats.

• Students are informed about future sessions with different instructors focusing on corporate law topics, emphasizing engagement with knowledgeable faculty members.

Student Engagement and Attendance

• The instructor encourages student participation during virtual classes while addressing attendance protocols amidst logistical challenges faced by students traveling long distances for physical classes.

• A collaborative decision-making process among students leads to opting for virtual classes when travel becomes impractical due to early notifications received before class time.

Attendance and Personal Updates

Attendance Check

• The speaker checks attendance, noting that Patricia and Claudia are present while Aranza is absent.

• The speaker reflects on their recent absence, mentioning they were away for three days but have been keeping up with recorded classes.

Travel Experiences

• Discussion about travel experiences; the speaker mentions a trip to Dubai last year and expresses disappointment at not being able to visit Egypt this year due to expenses.

• The speaker recommends Turkey as a beautiful travel destination for those who can go.

Class Participation

Class Engagement

• A roll call continues with various names mentioned, confirming presence or absence of students like Valentín Merlo, Mariela, Ana Soledad Molina, and others.

Celebratory Moments