Escribanía - 10/05 - Parte 2

Discussion on Civil Code and Real Estate Law

Introduction and Context

• The speaker greets the audience, indicating a casual atmosphere and readiness to continue discussions.

• The speaker humorously mentions the discomfort caused by mosquitoes, contrasting rural life with urban settings.

Overview of Legal Norms

• A review of civil code norms related to real estate law is introduced, emphasizing that this will expand upon previous discussions rather than repeat them.

• Focus is placed on the registration of sales agreements in Santa Fe province, specifically referencing Article 4 of Law 6435 regarding immediate possession transfer.

Registration Challenges

• The discussion highlights that not only private sale agreements but also public instruments can be registered without fulfilling all traditional requirements.

• There’s an acknowledgment that discrepancies may exist between registered reality and actual possession due to incomplete legal processes.

Legislative Framework

• The speaker notes that while the goal is to publicize documents carrying real rights, there are situations where rights may be claimed even if they haven't been fully established yet.

• Reference is made to a provincial registration law from 1968 which allows for the registration of sales agreements; however, few such registrations occur due to various reasons.

Legal Implications and Sanctions

• The absence of sanctions for failing to register a sales agreement raises questions about legal enforcement and implications for parties involved.

• A presumption of good faith compliance with publicity requirements under provincial law is discussed as a potential safeguard.

Judicial Interpretations

• Article 1170 introduces significant concepts regarding buyer rights in good faith without replacing public deed requirements; it reflects judicial decisions over time.

• Emphasis on good faith as a primary requirement for buyers seeking priority over third-party claims like liens or attachments against properties sold via private contracts.

Buyer Rights and Priorities

• Article 1170 establishes that buyers acting in good faith have preferential rights over third parties who may have imposed legal restrictions on properties sold through private agreements.

• Specific conditions are outlined: buyers must contract directly with the registered titleholder, ensuring clarity in ownership transitions among successive purchasers.

Understanding the Legal Framework of Purchase Agreements

Key Elements of Validating Purchase Agreements

• The discussion begins with the importance of good faith and the necessity for a direct contractual relationship to validate purchase agreements.

• Article 1185 is referenced, emphasizing that a minimum payment of 25% must be made prior to any legal encumbrance (cautelar).

• The requirement for proof of payment before the imposition of legal restrictions is reiterated, highlighting its significance in establishing priority rights.

Documentation Requirements

• Article 1170 outlines that a purchase agreement must have a certain date, which serves as evidence for the payment made.

• The need for proper documentation is stressed; it should confirm that payments were made before any legal claims were established.

Registration and Publicity in Purchase Agreements

• The conversation shifts to registration laws, particularly how provincial regulations require private contracts to be registered, enhancing their enforceability.

• Article 8 from provincial law mandates registration for all documents mentioned in Article 4, linking this back to the validity of purchase agreements.

Implications of Registration on Rights

• There’s an emphasis on how registered agreements can invoke preference rights under specific conditions outlined in Article 1170.

• The concept of sufficient publicity—either through registration or possession—is discussed as crucial for asserting rights over property.

Legal Protections and Obligations

• A summary is provided regarding how these elements collectively allow buyers to assert their rights effectively against third parties or during bankruptcy proceedings.

• It’s noted that having a registered agreement strengthens one’s position legally when contesting ownership or claims against property.

Additional Considerations Regarding Bankruptcy

• Article 1171 introduces considerations about how certain agreements are treated during bankruptcy proceedings if they meet specified criteria.

• Emphasis is placed on ensuring that at least 25% has been paid upfront to maintain oponibility against seller's bankruptcy claims.

Mortgage Provisions Related to Purchases

• New provisions allow buyers who have paid part of the price to establish a first-degree mortgage on the property as security until full payment is completed.

Changes in Property Law Context

• Discussion transitions towards changes introduced by Law 1494 concerning family properties and their current status under new regulations.

Understanding Property Value and Legal Protections

Discussion on Property Valuation

• The conversation begins with the valuation of properties, particularly those situated outside major urban areas, often built on multiple lots. An example is given where a swimming pool is located on one of these lots.

• The discussion highlights that property value can be affected by various factors, including the percentage of land involved rather than just physical portions of the property.

• It is emphasized that the valuation pertains to the entire property and not merely a fraction of its worth. This has implications for individuals seeking credit or loans against their property.

Implications for Credit and Mortgages

• The speaker notes that if a businessperson needs credit, they may leverage their property's value as collateral, contingent upon bank approval.

• A significant point raised is that this protection does not negate other legal provisions regarding inalienability clauses which are crucial in mortgage agreements.

Inalienability Clauses Explained

• The concept of inalienability clauses is introduced, which protect debtors from losing their homes despite having taken out mortgages. These clauses were historically designed to safeguard creditors but have evolved to protect borrowers as well.

• Historical context is provided about how these protections were initially framed within laws governing mortgage credits and how they relate to civil codes.

Changes in Legal Interpretation

• A landmark ruling by the Supreme Court altered interpretations surrounding these protections, emphasizing borrower rights even after mortgage cancellation.

• It’s noted that even post-cancellation of a mortgage, certain protections remain intact for families who originally secured loans under these terms.

Practical Considerations for Borrowers

• The speaker discusses practical scenarios where individuals might still retain protective measures over their properties despite having canceled mortgages or loans.

• Examples are provided illustrating how changes in legal interpretation can affect real estate transactions and borrower rights significantly.

Conclusion: Navigating Legal Protections

• The discussion concludes with advice on understanding legal documents related to mortgages and ensuring clarity around any existing protections before proceeding with transactions involving properties under such clauses.

• A case study illustrates potential pitfalls when relying solely on registry information without considering underlying legal protections tied to previous agreements or cancellations.

Additional Resources

Discussion on Legal Protections and Mortgage Terms

Understanding the Context of Legal Protections

• The speaker emphasizes the importance of being aware of surrounding situations, acknowledging that humans may not always have complete knowledge at all times.

• Discussion about historical mortgage terms reveals that some mortgages had durations as long as 40 years, contrasting with more common terms of 20 or 35 years in recent times.

Changes in Mortgage Legislation

• The speaker references conversations with Luis Andorno regarding national laws that modified certain aspects of mortgages after the civil code was established.

• A question arises about what happens if a mortgage is registered until its cancellation; this could lead to applying a 35-year expiration period.

Judicial Proceedings and Registral Cancellation

• The speaker mentions judicial cases where the cancellation of a mortgage was contested, highlighting the need for clarity on how long these registrations last.

• There are advantages and disadvantages to virtual meetings (Zoom), such as connectivity issues but also flexibility in participation from various locations.

Passion for Law and Its Challenges

• The speaker expresses a deep passion for law, stating they cannot imagine pursuing any other profession. They reflect on colleagues who might feel differently.

• Emphasizes that practicing law can be exciting when one delves deeper into legal research beyond daily tasks, discovering unique insights.

Registration Effects and Family Property Laws

• Discusses how property registration affects family homes, noting that registration creates a constitutive effect before reaching formal registral status.

• Clarifies distinctions between different forms of property affectation under local laws compared to previous provincial laws concerning family properties.

Priority Principles in Real Estate Registration

• Introduces the principle of temporal priority in real estate registration, which is determined by document submission dates according to national regulations.

Legal Principles of Property Registration

Priority and Protection in Property Registration

• The principle of priority is established when a document enters the registry, providing certain protections, including the so-called "reservation of priority."

• Most provinces continue to apply the same principles as Law 1494, particularly regarding housing protection.

• Housing protection begins at the moment a document impacts the registry through various means such as administrative actions or notarial processes.

Technical Provisions in Autonomous City

• In Ciudad Autónoma, a technical registration provision allows notaries to request registral certificates that protect property during their validity period.

• This changes the criterion of opposability concerning how documents impact registration, similar to motor vehicle registrations where rights arise upon registration.

Nature of Real Rights and Registral Certificates

• The national registration law presents registral certificates as protective measures for document authorization rather than merely for creating documents.

• Real rights are established before entering the registry; however, housing-related rights emerge with registral impact.

Unique Ownership and Family Protection

• In Santa Fe province, similar criteria apply: housing protection starts when a document is registered.

• A unique owner with multiple properties must choose one for family protection within a timeframe set by authorities; no specific deadline exists.

Implications for Co-owned Properties

• If an individual owns two or more properties but is only a co-owner in one, they can affect both properties but must ensure family protection applies solely to their own property.

• Clarification on ownership status indicates that if someone is a sole owner of one property and co-owner of another, they must opt for one under family protection laws.

Historical Context and Changes in Legislation

• Previous laws (like Law 1494 and others related to family assets in Santa Fe) had limits on property value affecting family asset designation.

• New regulations removed these caps; now it’s necessary to demonstrate that exceeding fiscal values meets familial needs without arbitrary limits imposed by previous legislation.

Current Obligations Regarding Property Registration

• There was previously an obligation for applicants seeking family asset designation to provide proof of property tax payments; this has changed post-code revisions.

• The current legal framework does not impose limits on property value but requires evidence that any claim exceeds familial needs.

Discussion on Property Registration and Family Protection

Importance of Property Registration

• The necessity for properties to be registered in the cadastre to qualify for tax benefits is emphasized, highlighting the requirement for municipal reports to confirm property existence.

Legal Standing of Co-owners

• Article 245 allows registered owners to request family protection; if a property is co-owned, all co-owners must jointly apply. This has been a significant issue in Santa Fe province.

Historical Context of Family Protection Laws

• Previous rulings indicated that co-owners did not need to be related by blood or marriage under law 1494, which previously required such relationships for family protection claims.

Recent Developments in Law

• A court ruling allowed non-related cohabitants with common descendants to claim family protection, marking a shift in legal interpretation regarding familial ties among co-owners.

Judicial Authority in Property Matters

• Judges can order property registration based on requests from beneficiaries or public prosecutors, including cases involving individuals with restricted capacity.

Implications of Divorce on Property Rights

• In divorce proceedings, judges may assign housing rights as part of the settlement process, particularly when determining living arrangements post-separation.

Broader Perspectives on Beneficiaries and Protections

Understanding Beneficiary Definitions

• The new code expands definitions around beneficiaries compared to previous laws. It emphasizes that those who establish protections should also be recognized as primary beneficiaries.

Subrogation Real: Key Concept Explained

• The concept of "subrogation real" allows for the transfer of protective status from one property to another when acquiring a new home while maintaining family protection rights.

Practical Applications and Precedents

• Historical precedents in Santa Fe have established guidelines for transferring protective measures between properties prior to the enactment of current codes.

Discussion on Property Rights and Legal Interpretations

The Concept of Embargo in Property Transactions

• The speaker discusses the implications of having an embargo on a property, emphasizing that it must be resolved before acquiring another property.

• There is a mention of the need to cancel the embargo or take responsibility for it when transferring rights to a new property.

Interpretation of Article 248

• The speaker explains that Article 248 requires selling one property to buy another, but this interpretation may not align with practical scenarios where individuals own multiple properties.

• It is noted that the law does not specify when the acquired residence must have been purchased, allowing for broader interpretations regarding ownership transfer.

Broader Legal Context in Santa Fe Province

• The discussion highlights how legal interpretations in Santa Fe allow for more flexibility than what Article 248 suggests, avoiding unnecessary complications in property transfers.

• The speaker argues that strict adherence to Article 248 could lead to absurd situations requiring simulated sales just to comply with its literal wording.

Recent Changes Post-2017 Legislation

• A shift in legal requirements since 2017 mandates public deeds for contracts involving real estate transactions, aligning with civil code principles while introducing new stipulations.

• Contracts related to acquisition or modification of real estate rights now require formalization through public deeds unless exceptions apply (e.g., administrative auctions).

Handling Litigious Property Rights

• When initiating litigation over property rights, there are specific procedures outlined for handling disputes and ensuring proper representation during trials.

Session of Rights and Legal Framework

Overview of Hereditary Rights Assignment

• The discussion begins with the assignment of hereditary rights, emphasizing that subsequent assignments must be independent of whether the session is public or private.

• Article 1614 is referenced, which pertains to the session of rights, while Article 1618 clarifies when a session must occur through public deed.

Legal Requirements in Santa Fe Province

• In Santa Fe province, particularly in the second jurisdiction, there has been a longstanding requirement for hereditary rights sessions to be executed via public deed since 1985.

• The speaker notes that litigated rights can also be assigned through judicial act if they do not involve real estate rights.

Implications for Real Estate Transactions

• For real estate transactions, it is mandated that assignments derived from an instrument must also be conducted through a public deed.

• Article discussions highlight that contracts related to fiduciary agreements (Fideicomiso) need registration and may require either private or public instruments depending on asset type.

Registration and Extinction of Fiduciary Contracts

• Article 1706 discusses the extinction of fiduciary contracts and how this affects possession by fiduciaries upon registration.

• Emphasis is placed on the necessity for proper registration processes to ensure legal validity.

Certificates and Public Instruments

• Article 289 serves as a foundation for justifying registral certificates used by notaries in authorizing public deeds.

• The distinction between various types of testimonies (authorized vs. registered testimony) is clarified within legal contexts.

Conjugal Consent in Property Transactions

• Article 456 addresses acts requiring spousal consent; neither spouse can dispose of family home rights without mutual agreement.

• Provisional registrations are discussed where lack of spousal consent leads to potential nullification claims within six months post-discovery.

Protection Against Debt Execution

• It’s noted that family homes cannot be executed against debts incurred after marriage unless both spouses jointly agree on such debts.

Understanding Co-Habitation Agreements and Rights

Registration of Co-Habitation

• The registration indicates the existence of a co-habitation agreement, its termination, and the pacts made by the couple. This registration is essential for local jurisdiction and is recorded in the civil registry for evidentiary purposes.

• Article 522 addresses family housing rights within co-habitation agreements. If registered, neither partner can dispose of rights to the family home without mutual consent.

Rights Related to Family Housing

• When a co-habitation agreement is registered, both partners must agree before either can sell or transfer rights related to their shared residence.

• A judge may authorize property disposition if it does not compromise familial interests, emphasizing the importance of protecting shared living arrangements.

Legal Protections for Surviving Partners

• Article 2383 introduces protections that were previously unaddressed regarding co-habitants. It grants surviving partners a real right to habitation over properties owned by deceased partners.

• This right allows surviving partners to occupy property without opposition from heirs until partitioning occurs, marking a shift in how these rights are handled post-death.

Changes in Property Law

• The real right of habitation now operates as an automatic entitlement rather than requiring prior claims before asset distribution among heirs.

• The survival partner's rights remain intact regardless of whether they have children together; this aspect has been debated but remains crucial for legal clarity.

Implications of Horizontal Property Law

• Article 207 discusses changes brought about by new property laws affecting horizontal ownership structures. Previous regulations under law 19724 have been repealed but still influence current practices.

• Contracts established before horizontal property laws are acknowledged under new provisions, ensuring continuity and protection through mandatory insurance for constructed or projected units.

Conclusion on Property Ownership Dynamics

• The transition from previous laws emphasizes securing buyer interests through insurance mechanisms when purchasing properties that may not yet be visible or completed.

Discussion on Property Rights and Registration

Overview of Acquirer Insurance

• The concept of insurance favoring the acquirer is introduced, aimed at mitigating risks associated with transaction failures as per agreed terms, including reimbursement of fees.

Challenges in Horizontal Property Registration

• A technical registration provision similar to a previous law has been established in the Autonomous City, allowing for the registration of contracts related to property not yet under horizontal property regime.

Transition to Real Folio System

• The transition to a real folio system for property registration took approximately ten years, highlighting challenges faced during this incorporation process.

Legal Framework for Real Estate Complexes

• The legal framework surrounding real estate complexes is discussed, noting that many were created under older local regulations leading to a mix of legal frameworks being applied.

Interrelation Between Real and Personal Rights

• There exists a complex relationship between real rights (ownership) and personal rights (shares in corporations), complicating ownership structures within these complexes.

Servitudes and Usufruct Rights

• The discussion includes servitudes that resemble usufruct rights, emphasizing the need for clarity in distinguishing between individual interests and communal responsibilities.

Adequacy of Existing Legal Structures

• Article 2075 addresses existing real estate complexes established under personal rights or mixed rights, mandating compliance with new regulatory frameworks while raising questions about what "adequate" means legally.

Formal vs. Functional Adaptation Debate

• A debate arises regarding whether adaptation should be formal (requiring national legislation) or functional (incremental changes), reflecting differing opinions on how best to align existing properties with new laws.

Practical Challenges in Owner Agreement

Current Real Estate and Cemetery Regulations in Buenos Aires

Overview of Real Estate Developments

• Discussion on the status of real estate developments, including country clubs and shopping centers in Buenos Aires, indicating that many could be adapted but have not been proposed for such changes.

Private Cemeteries Regulations

• Introduction to private cemeteries as a topic of discussion, emphasizing the importance of understanding current regulations related to property registration.

Key Articles on Private Cemeteries

• Reference to Article 2103 regarding private cemeteries; highlights that there is currently no impact on private cemeteries concerning real estate developments.

• Mention of technical provisions from the Santa Fe real estate registry about how private cemeteries should be registered.

Registration Requirements

• Article 2104 discusses the necessity for a deed of dedication for a property intended as a private cemetery, which must be recorded in the property registry.

• The need for an administrative regulation alongside the dedication deed is emphasized, noting that this differs from previous practices where regulations were included with registration requests.

Municipal Approval and Inembargability

• Importance of municipal approval before altering cemetery designations or encumbering them with rights; emphasizes that without this approval, properties cannot change their designated use.

• Article 2110 addresses inembargability; it states that burial plots are generally protected from seizure except under specific financial obligations related to their purchase or construction.

Challenges in Registration Practices

• Discussion on how registrars are adapting electronic dispositions to accommodate these new requirements while considering potential future registrations.

• Consideration of how measures like cautions and possible third-party acquisitions complicate registration processes; registrars must find ways to document these effectively.

Conclusion and Future Topics

• Acknowledgment of the complexity involved in discussing these topics; suggests pausing discussions until next class to cover surface rights and usufruct issues.

Understanding Key Concepts in Registration

Importance of Knowledge in Registration

• The speaker emphasizes the necessity of being aware of various topics related to registration, even if one does not memorize them. This awareness aids in knowing where to find information when needed.

• It is highlighted that all discussed topics eventually relate back to registration, indicating their significance in practical applications and future reference.

• The speaker expresses gratitude for the audience's attention and patience, reinforcing a positive learning environment while also mentioning the importance of attendance and engagement.

Future Engagement

• A reminder is given about an upcoming meeting scheduled for the following Friday, encouraging continued participation and connection among attendees.