Escribanía - 24/05 - Parte 3

Name: Escribanía - 24/05 - Parte 3
Uploaded: 2024-08-07T15:46:29.000Z
Duration: 3 h 16 min 42 s

Introduction and Greetings

Opening Remarks

The speaker expresses joy in seeing the audience, noting that it seems to be an all-female gathering today.

Acknowledges a previous absence and shares feelings of missing the group, emphasizing the importance of physical presence despite virtual advantages.

Personal Connections

The speaker greets various attendees by name, indicating familiarity and personal connection with them.

A humorous exchange occurs regarding attendance at classes, highlighting camaraderie among participants.

Recent Activities and Engagement

Updates on Recent Events

The speaker discusses their efforts to stay connected with the group despite recent absences due to attending preparatory national civil law events in Chaco.

Mentions giving a talk alongside colleagues at these events, showcasing professional engagement within the legal community.

Reflections on Absence

Reflecting on missed interactions during their absence, the speaker humorously considers what attendees might have been doing without them.

Upcoming Discussions and Themes

Focus for Today's Session

The session will focus on topics previously discussed while also introducing new legal concepts related to housing.

References past discussions about "vices of will" and public instruments as foundational knowledge for today's topic.

Legal Concepts Exploration

Plans to delve into notarial acts linked to housing that require specific information from legal professionals for proper execution.

Emphasizes a structured approach towards understanding housing laws while acknowledging prior discussions on protective regimes related to housing.

Engagement with Participants

Interaction with Attendees

The speaker acknowledges having watched recorded sessions, ensuring they are up-to-date with class discussions even when absent.

Welcoming New Participants

Understanding Notarial Impact on Housing Rights

Focus on Notarial Institutions

The speaker emphasizes the importance of working with specific institutions that have a significant notarial impact, rather than covering all housing protection institutions.

Acknowledges varying levels of interest in deepening legal knowledge among participants, particularly regarding notarial practices.

Legal Aspects of Family Housing Rights

Discusses the legal implications surrounding the attribution of family housing use, which is crucial for both separated partners and divorced spouses but falls outside notarial jurisdiction as it requires judicial decisions.

The speaker intends to focus on matters directly involving notarial activities instead of broader legal issues.

Right to Housing: Definition and Importance

Introduces the concept of the right to habitation as a real right that can be established through contracts or testamentary dispositions, highlighting its relevance in notarial practice.

Stresses that this right must be formalized through public deeds due to its nature as a property right over real estate, which necessitates compliance with legal requirements for validity.

Legal Framework and Conditions

Refers to Article 2158 in the Civil Code concerning habitation rights, inviting participants to follow along for deeper understanding while providing preliminary insights into this legal phenomenon.

Clarifies that habitation rights are classified as real rights with specific characteristics such as public order and enforceability against third parties. This classification is essential for understanding their application in practice.

Nature and Limitations of Habitation Rights

Explains that habitation rights pertain to someone else's property (real estate) and outlines how establishing such a right results in an imperfect ownership structure where the original owner retains bare ownership while granting usage rights to another party.

Understanding the Concept of Usufruct and Related Rights

The Nature of Possession and Rights

The discussion begins with the idea that a person who enjoys something belonging to another becomes a legitimate possessor, which carries various legal consequences such as rights to fruits and obligations for improvements.

The speaker introduces the concept of "Cuarteto," referring to a quartet of rights related to enjoyment over someone else's property, specifically mentioning usufruct as a foundational right.

Components of the Cuarteto

The "Cuarteto" consists of four main rights: usufruct (the elder brother), use, servitude, and habitation. Usufruct is highlighted as the primary right that sets rules applicable to other figures.

While usufruct, use, and habitation are closely linked, servitude is noted as distinct because it does not involve possession but still represents a right of enjoyment.

Legal Framework Surrounding Habitation

When discussing habitation, it's emphasized that its regulations are subsidiary to those governing use and usufruct. This means that principles from these rights can apply when dealing with habitation issues.

Usufruct is recognized as a more developed legal concept compared to habitation; however, both share similarities in their application within property law.

Characteristics of Real Rights

A real right over immovable property must meet specific characteristics. For instance, if one grants their house for habitation while retaining ownership title, they create a limited form of ownership for themselves.

It’s clarified that any real right over someone else's property imposes burdens on the owner; thus, granting rights like habitation limits full ownership privileges.

Distinctions Between Usufruct and Habitation

The owner must tolerate third-party rights (like habitation), which restrict their ability to fully utilize or enjoy their property—similar logic applies in cases involving usufruct.

Unlike usufruct where both individuals (natural or legal persons) can hold rights, only natural persons can be granted habitation rights. This limitation emphasizes personal occupancy rather than commercial or corporate interests.

Implications of Granting Habitation Rights

It's important to note that while granting habitation may seem straightforward legally, it has unique stipulations regarding who can benefit from such arrangements—only human beings qualify under this framework.

Unlike statutory provisions for surviving spouses which mandate free access (gratuitous), voluntary habitations established through contracts or wills may be either gratuitous or onerous depending on explicit terms agreed upon by parties involved.

Presumptions Regarding Habitational Rights

Generally presumed gratuitous unless stated otherwise in documentation; this presumption allows flexibility in agreements concerning whether compensation is required for usage rights granted through contracts or wills.

In contrast with usufruct—which is typically presumed onerous—the nature of voluntary habitations leans towards being free due to protective intentions behind such arrangements aimed at ensuring shelter provision without financial burden on beneficiaries.

Recent Changes in Civil Code

Understanding the Right to Habitation in Property Law

Key Concepts of Right to Habitation

The law now allows for the right to habitation not only on an entire property but also on a material part of it, which is a significant update in property rights.

Previously, the right could only be established over an entire house or apartment; now, it can apply to specific parts, enhancing flexibility in property management.

Practical Examples and Implications

An example illustrates that one can designate a smaller structure (like a back house) as habitable without affecting the main residence, showcasing how this law benefits family arrangements.

This change allows individuals to support family members (e.g., siblings) by granting them habitation rights while maintaining their own living space unaffected.

Legal Framework and Ownership Rights

The new legal framework permits establishing habitation rights through formal documentation for either the whole property or just a designated area.

Properties with multiple living spaces (e.g., duplexes) can have distinct areas assigned for habitation without compromising ownership of other sections.

Addressing Challenges and Benefits

This development addresses challenges faced by individuals who possess limited real estate but wish to provide housing benefits to others without losing control over their primary residence.

It resolves dilemmas where owners had to choose between supporting relatives or retaining their family's living situation.

Sale and Transfer of Property with Habitation Rights

When selling a property with established habitation rights, owners retain ownership while transferring imperfect dominion—similar to selling mortgaged land.

The process ensures that if proper steps are taken (like registering titles), third parties will respect these habitation rights during transactions.

Nature of Habitation Rights

Habitation can be either onerous or gratuitous; however, it is presumed gratuitous unless stated otherwise.

These rights may be subject to conditions like duration; typically presumed vital unless specified differently in documentation.

Duration and Extinction of Rights

If no duration is mentioned in the title deed, the right is considered lifelong. However, it extinguishes upon the death of the beneficiary regardless of any stipulated time frame.

Understanding the Right of Habitation

Overview of Rights and Conditions

The right of habitation can last for 20 years, but it ceases upon the death of the holder, regardless of any remaining time. This indicates that such rights are inherently linked to the individual's life.

There is a distinction between indefinite terms and resolutory conditions in legal contexts. While the right exists as long as the individual lives, its nature is uncertain due to the unpredictability of life.

Upon death, rights cannot be transferred to heirs, even if they are minors or incapacitated. This emphasizes that certain benefits cannot be inherited under these circumstances.

Legal Framework for Spousal Rights

The concept of "viudal" (widow's right) differs from other forms of habitation; it is granted by law rather than through a written agreement. The judge plays a role in evaluating claims made by cohabiting partners.

For spouses, their rights are automatically lifelong and cannot be limited by agreement. In contrast, cohabitants may have their rights restricted to a maximum duration set by judicial evaluation.

Establishing Habitation Rights

A notarial act can establish habitation rights with specific terms; once those terms expire, so does the right itself. This highlights that such rights can be voluntarily created and terminated.

Factors influencing whether to impose a term on habitation include family structure, beneficiary age, and whether there are financial obligations associated with the right.

Financial Obligations Under Habitation

Even though habitation may be considered free (gratuito), beneficiaries must still cover taxes and maintenance costs associated with property ownership.

The absence of rent does not equate to no financial responsibility; legitimate possessors must fulfill all obligatory payments related to property upkeep.

Consequences of Abuse in Habitation Rights

If an inhabitant abuses their right (e.g., neglecting property), owners may seek termination based on evidence of misuse—similar principles apply as seen in usufruct agreements.

Abusive actions could include significant alterations or deterioration of property which ultimately harms owners' interests. Understanding these responsibilities is crucial for inhabitants.

Class Interaction Dynamics

As class discussions progress, engagement levels fluctuate with students expressing curiosity about ongoing topics while navigating technical issues during virtual sessions.

Understanding the Rights of Habitants

Key Concepts of Habitational Rights

The concept of habitation emphasizes that a habitant cannot establish any real rights over the residential property, highlighting limitations in their legal authority.

Unlike usufructuaries, who can exercise certain disposal rights, habitants are restricted from creating either real or personal rights concerning the property.

An example illustrates that if a field is granted in usufruct to someone, they may mortgage it but not as an owner; this distinction underscores the limited powers of a habitant compared to other rights holders.

Limitations on Habitants' Rights

Under new regulations, usufructuaries can now transfer their rights more freely than before, which contrasts with the strict limitations placed on habitants regarding their inability to transmit rights.

If a right holder dies or if there’s an abusive use of habitation, these situations lead to extinguishing the right. This highlights how fragile these rights can be under specific circumstances.

A practical scenario is presented where a sister cannot rent out her room because she lacks the authority to create personal or real rights as a habitant.

Nature and Purpose of Habitation Rights

The nature of habitation is tied closely to human needs for shelter; thus, it is designed specifically for individuals rather than entities. This reflects its protective purpose within housing law.

The right of habitation allows usage but prohibits establishing any form of ownership or transmission. This limitation ensures that habitation remains strictly personal and non-transferable.

Legal Framework Governing Habitation

Relevant articles (starting from 2158) outline the specifics governing habitation and clarify that many rules applicable to usufruct also apply here due to legal provisions.

Although no explicit causes for termination are mentioned in current laws, principles from usufruct laws provide guidance on potential causes such as death or abuse leading to termination.

Extinction Causes and Revocation Questions

Various extinction causes include abusive use requiring judicial review and voluntary renunciation by the habitant since it's inherently part of their right structure.

Consolidation occurs when a habitant becomes an owner; this results in automatic termination of their habitation right due to overlapping legal statuses—an essential aspect for understanding property law dynamics.

Understanding the Legal Concept of "Habitación" and Its Implications

The Nature of "Habitación" and Revocation

The speaker clarifies that the denial by the occupant is not a revocation but rather a resolution due to non-compliance, emphasizing that it must be legally proven.

It is highlighted that even if "habitación" (a form of property right) is granted for free, it does not equate to a unilateral act of retraction; legal implications still apply.

Rights and Ownership in "Habitación"

Once a right of property is established in favor of another through "habitación," it cannot be easily revoked; the occupant gains rights that can oppose even the original owner.

The distinction between being an actual owner versus merely having possession is made clear; the occupant has legitimate rights against potential claims from the original owner.

Causals for Resolution

The discussion shifts to causals for resolution, such as abusive use or failure to pay rent, which are necessary for legal proceedings regarding termination.

Reference to Article 2158 indicates that occupants cannot alter the substance or purpose of the property without facing potential legal consequences.

Judicial Debates on Causals

Non-objective causals may lead to judicial debates, necessitating third-party arbitration when conflicts arise over usage terms or conditions.

Objective causes like death or explicit time limits are straightforward compared to subjective causes which can lead to disputes.

Extinction Due to Non-use

Another causal factor discussed is extinction due to non-use; prolonged absence (at least 10 years) can justify terminating rights associated with "habitación."

This principle underscores that long-term non-use suggests a lack of necessity for occupancy, prioritizing property rights over individual claims.

Protection Against Creditors

A significant point raised is that creditors cannot execute claims against an occupant's right under "habitación," unlike usufructuaries whose rights are vulnerable.

This distinction emphasizes strategic advantages in choosing "habitación" over usufruct when advising clients on property matters.

Understanding the Rights of Property Owners and Creditors

The Protection of Property from Creditors

Third parties cannot execute claims against a property owner’s residence, as it is not owned by them. This protection extends to creditors who cannot pursue the home for debts.

There are limitations on how subsequent creditors can affect the right to habitation, particularly in cases where abusive use of rights must be demonstrated.

Distinction Between Portions and Material Parts

It is clarified that one cannot affect a percentage of a property; rather, it must be a material part that meets specific conditions for habitation.

An example is given regarding two-story houses where each floor can represent separate living units. This does not necessitate subjecting the property to any specific regime.

Rights and Limitations of Habitation

Establishing a right of habitation allows continued ownership while granting enjoyment rights over the property. This right cannot be transferred upon death or through living acts.

The discussion emphasizes that creditors cannot extinguish the right of habitation, which protects individuals from being dispossessed by their creditors.

Creditor Hierarchy and Timing

A distinction is made between prior and subsequent creditors concerning rights established after debts were incurred. Previous creditors have priority over newly established rights.

If an individual grants habitation to another after incurring debts, previous creditors can still pursue claims against that property since they hold precedence in timing (prior tempore).

Implications for Subsequent Creditors

Subsequent creditors may not evict occupants with established rights but can still claim against the property's value as it remains part of the debtor's estate.

When properties are auctioned with existing occupants or usufruct holders, buyers must respect these arrangements, understanding they acquire properties with encumbrances attached.

Conclusion on Property Rights Dynamics

The dynamics between ownership, creditor claims, and occupancy highlight complex legal protections surrounding housing rights. Understanding these nuances is crucial for navigating potential disputes effectively.

Understanding the Legal Framework of Housing Rights

The Purpose of Housing and Legal Considerations

Discussion begins on the purpose of housing, inviting questions and comments from participants.

Silence is interpreted as agreement; the speaker transitions to discussing family law and its relevance to housing rights.

Notarial Acts and Housing Protection

Emphasis on the necessity for consent in property transactions involving a residence, highlighting legal requirements for protection.

The law mandates that consent must be obtained from either the spouse or cohabitant before any disposition of the property can occur.

Consent Requirements in Property Disposition

Article 456 outlines that no spouse can dispose of rights over a home without mutual consent, extending beyond mere sale to include other forms like donation or mortgage.

Clarification that acts of disposition encompass various actions, not limited to selling but including all significant changes regarding ownership.

Scope of Protection Under Family Law

Article specifies that both spouses must agree on any act concerning their shared residence, reinforcing mutual rights over property.

The prohibition extends to essential furnishings necessary for maintaining a residential function, indicating broader protective measures.

Judicial Oversight and Exceptions

In cases where consent is not given, judicial intervention may substitute this requirement under specific circumstances outlined in Article 458.

Notably interesting is the provision allowing judicial approval if one spouse's refusal is deemed unjustified or capricious.

Protecting Against Fraudulent Actions

The law aims to prevent potential fraud by ensuring both parties are involved in decisions affecting their shared living space.

This legal framework serves as a safeguard against one partner exerting undue influence over property matters.

Implications for Nullity Actions Post-Divorce

A spouse who did not provide consent has up to six months post-divorce to challenge any transaction made without their agreement through nullity actions.

Conclusion: Balancing Rights within Marriage

Understanding Property Rights in Argentina

Limitations on Autonomy in Property Disposition

The Argentine legal framework imposes restrictions on the autonomy of individuals regarding the disposition of their estate, particularly when forced heirs are involved.

Consent from a spouse is required for any act of disposition that risks property, which includes not only sales but also encumbrances like mortgages or liens.

Notaries must be aware of these requirements to avoid complications arising from cohabitation agreements and property transactions.

Changes in Cohabitation Regulations

Recent regulations have introduced clearer guidelines for cohabiting couples, similar to those governing marriage, particularly concerning consent for property transactions.

For acts of disposition involving registered cohabitation, consent from the non-disposing partner is mandatory; unregistered relationships do not afford this protection.

Implications of Registered Cohabitation

Registered cohabitation grants rights to partners regarding property decisions; one partner can block the other's attempts to dispose of shared family housing without consent.

This regulation extends limitations on private property rights even in non-marital relationships, emphasizing legal recognition over mere factual living arrangements.

Legal Protections Against Creditors

In both marriage and registered cohabitation, creditors cannot execute claims against the family home if debts were incurred solely by one partner without mutual consent.

The law aims to prevent fraudulent dispossession by requiring spousal or partner consent for significant financial obligations affecting shared properties.

Good Faith and Due Diligence

It is crucial for parties involved in real estate transactions to verify registered cohabitations through civil registry checks to ensure good faith dealings.

Failure to conduct such due diligence may result in losing protections against existing rights recorded prior to acquisition.

Nulity Claims Post-Breakup

A non-consenting partner has up to six months post-breakup to claim nullity on any transaction made without their agreement; however, this period starts upon separation rather than after divorce proceedings as seen in marriages.

Understanding Legal Rights in Cohabitation

Legitimacy and Legal Action in Cohabitation

The speaker discusses the difference between marriage and cohabitation, emphasizing that a cohabitant has six months to request annulment from the moment they become aware of the act, provided that the cohabitation continues.

It is highlighted that there are significant legal implications for those who choose not to marry, including issues related to inheritance rights and living arrangements.

Implications of Cohabitation Regulations

The speaker notes resistance to regulating cohabitation within legal frameworks, arguing that it can limit personal freedom by imposing legal consequences on non-marital relationships.

There is a discussion about how progressive systems may inadvertently impose legal effects on couples who choose not to marry but live together.

Private Agreements and Economic Compensation

The necessity for private agreements or regulatory conventions in both marriage and cohabitation is emphasized, particularly regarding economic compensation when relationships end.

The concept of using housing as a negotiation tool during relationship dynamics is introduced, with emphasis on its role in establishing financial agreements upon separation.

Judicial vs. Private Resolution of Economic Claims

The distinction between judicially imposed economic compensation versus privately negotiated agreements among partners is discussed, highlighting the importance of mutual consent in resolving such matters.

Succession Law Considerations

A transition into discussing succession law indicates potential complexities arising from testamentary matters or property partitioning after death.

The speaker mentions various reasons why understanding these topics is crucial for individuals involved in real estate transactions or inheritance discussions.

Reflections on Personal Happiness and Relationships

A personal anecdote about balancing professional commitments with social interactions illustrates broader themes of human connection amidst busy schedules.

The speaker reflects on indigenous land ownership concepts versus private property laws, indicating ongoing tensions between collective rights and individual ownership models.

Philosophical Insights on Happiness

An important reminder about focusing on present happiness rather than future uncertainties encourages listeners to appreciate current relationships without dependency on others' actions.

Understanding Happiness and Dependency

The Nature of Happiness

Happiness is described as a personal construction, influenced by the actions of others within a community context.

Relying on external validation (like messages or affirmations from others) can create vulnerability and dependency in individuals.

Personal Agency and Vulnerability

The speaker references Gloria Trevi's song "Me Solté el Cabello" to emphasize living freely without societal constraints, particularly regarding gender roles.

Discussion shifts to legal aspects of inheritance, specifically focusing on the implications of spousal rights in property division after death.

Legal Framework Surrounding Inheritance

Spousal Rights in Property Division

Article 232 outlines that a surviving spouse can oppose including the marital home in estate partition if it was their residence at the time of death.

The opposition is valid only if the property was acquired with joint funds, highlighting the importance of financial contributions in determining ownership rights.

Implications for Survivors

Legal distinctions are made between personal and communal property; understanding these nuances is crucial for navigating inheritance issues.

If a surviving spouse has sufficient funds to secure alternative housing, they may lose their right to oppose inclusion of the marital home in estate division.

Protection of Housing Rights

Legal Protections for Housing

Argentine law provides multiple avenues for protecting housing rights, ensuring that individuals benefit from their living situations even before death occurs.

Article 499 allows spouses to request preferential attribution of the family home during community property division, emphasizing protection over mere partitioning.

Conclusion on Housing Rights

Understanding the Rights of Surviving Spouses

The Context of Gender and Rights

The speaker reflects on addressing a group of women, emphasizing their role in discussing gender rights without needing to conform strictly to traditional definitions.

They assert their experience in advocating for gender rights, highlighting that their history predates many present attendees.

Legal Framework for Surviving Spouses

The discussion shifts to the legal concept of "habitación" (right of habitation) for surviving spouses or partners, noting its relevance in notarial acts.

This right was introduced into Argentine law after significant reforms, allowing widows/widowers to live in the marital home indefinitely and at no cost if they lack other habitable properties.

Changes Over Time

Historical context is provided regarding how this right has evolved since the 1970s, with current laws being more inclusive than previous regulations.

Article 2383 outlines that this right is now granted automatically upon the death of a spouse, contrasting with earlier requirements where it had to be requested formally.

Implications of Current Laws

The modern interpretation allows both heterosexual and same-sex couples equal rights concerning habitation after one partner's death.

It emphasizes maintaining emotional ties by allowing surviving spouses to remain in homes filled with memories regardless of additional properties they may own.

Legal Protections and Considerations

The speaker notes that even if a surviving spouse remarries, they retain their right to inhabit the original marital home—this marks a shift from past societal expectations.

There are discussions about potential uncertainties regarding when this right can be exercised until property division occurs post-death.

Practical Advice for Notaries

Notaries are advised to consider these rights during transactions involving deceased estates as they cannot easily override these legal protections anymore.

Changes in Legal Perspective on Surviving Partners

Overview of Legal Changes for Surviving Partners

The legal perspective regarding surviving partners has shifted significantly, particularly concerning the rights of a surviving cohabitant, which were not previously recognized in earlier codes.

The law now allows a surviving partner to request housing rights but requires proof of need, such as lack of other assets or means to secure accommodation.

Conditions and Limitations

Unlike heirs, the surviving partner's benefits are limited; they do not inherit but receive transitional support for up to two years, akin to social assistance.

If the deceased's property was co-owned at the time of death, the right to housing cannot be enforced against other co-owners unless it arose from their death.

Case Study: Family Dynamics and Property Rights

An example illustrates that if a sibling lives in a family home while caring for parents until their passing, their partner cannot claim housing rights if the property was jointly owned by siblings at that time.

In contrast, if there are children from a previous marriage involved with new marriages affecting property ownership post-death, those claims can be valid due to changes in ownership status.

Importance of Timing and Ownership

The distinction between pre-existing ownership and newly created joint ownership upon death is crucial; timing affects enforceability of housing rights.

Conclusion and Closing Remarks

The speaker concludes with light-hearted remarks about technology challenges during class interactions and expresses appreciation for participants' engagement.

Understanding the Mysteries of Realities

The Nature of Requests and Responses

The speaker emphasizes the importance of genuine requests, stating that individuals must "ask" or "clamor" for something to receive a response from the system.

There is an acknowledgment of a mysterious element in the interaction, suggesting that not all aspects can be revealed or explained.

The speaker mentions a character named Gustavo, hinting at a deeper connection or relevance to the discussion but refrains from elaborating on it.

A sense of urgency is conveyed as the speaker prepares to leave, indicating they are awaited elsewhere, which adds a layer of importance to their message.