Escribanía - 07/06 - Parte 2

Name: Escribanía - 07/06 - Parte 2
Uploaded: 2024-08-08T22:24:08.000Z
Duration: 3 h 34 min 59 s

Introduction and Class Overview

Opening Remarks

The instructor greets the participants, noting some appear sleepy and encourages engagement.

The session will focus on "declaratoria de herederos" (declaration of heirs) and related topics such as registration and rights assignment.

Session Focus

Discussion shifts to the topic of rights assignment, with a mention that previous classes covered this in depth.

The instructor asks for feedback on whether to proceed with the planned topic or revisit previously covered material.

Legal Framework for Rights Assignment

Registration of Rights Assignment

The discussion highlights that not all provinces have provisions for registering hereditary rights assignments.

Reference is made to national law (Law 17801), which allows registration of hereditary rights assignments under certain conditions.

Key Articles in National Law

Article 30 emphasizes that registries must document personal registrations as mandated by national or provincial laws.

The importance of maintaining clear communication during discussions is noted, especially regarding legal terminology.

Provincial Law Insights

Specific Provisions in Provincial Law

Provincial Law 6435 contains specific articles addressing hereditary rights assignments, particularly Articles 4 and 51.

Article 51 states that assignments can be registered even if they occur before the declaration of heirs is registered.

Changes in Registration Requirements

A technical regulation from 2022 altered previous requirements, allowing registrations regardless of prior declarations.

Conceptual Understanding of Rights Assignment

Definition and Context

The concept of rights assignment involves transferring a portion or entirety of an heir's legal entitlement to another party (the assignee).

Legal References

Cited author Mario Antonio Cini defines this transfer process within legal frameworks, emphasizing its contractual nature.

Practical Considerations in Rights Assignment

Contractual Nature and Formalities

Current civil code stipulates that contracts involving rights assignment should follow rules akin to those governing sales or donations.

Historical Context

Discussion on the Formalities of Rights Assignment

Legal Framework for Rights Assignment

The discussion centers around Article 1184, section six of the code, which specifically addresses the assignment of hereditary rights and takes precedence over general rules regarding the assignment of litigated rights.

The importance of public deed form is emphasized, particularly in relation to Article 1618, which mandates that assignments of hereditary rights must be executed through a public deed.

Requirements for Litigated Rights Assignment

An example is provided regarding litigated rights during an adverse possession trial where a party may assign their rights to another individual to continue the litigation.

The legal framework established by Law 1459 categorizes such trials as adversarial, necessitating a legitimate opposing party; if no defense is presented by the defendant, a public defender may be appointed.

Public Deed vs. Judicial Act

The code stipulates that while assignments involving real estate must be formalized through a public deed, judicial acts can suffice when real estate rights are not involved.

It is reiterated that any assignment stemming from an act documented via public deed requires subsequent assignments to also be executed in this manner.

Implications of Non-compliance with Formalities

Article 969 states that contracts requiring specific forms for validity are null if those formalities are not met; this includes contracts concerning dubious or litigated rights over real estate.

A notable case highlights how courts generally require public deeds for property auctions but allows exceptions under certain conditions where judicial acts may suffice.

Effects and Registration of Assignments

Article 2302 clarifies that effects between contracting parties arise upon celebration; however, third-party enforceability often depends on registration within judicial proceedings.

Technical Registration Provisions and Their Implications

Overview of Technical Registration Provision No. 3 of 1985

The provision established that the registration of rights and possessory actions was halted, as possession itself is a fact with legal consequences.

Public deeds previously included both titled properties and those without titles, indicating their relationship in terms of ownership.

Following the 1985 provision, only titled properties could be registered, while possessory rights ceased to be inscribed.

Changes in Rights Transfer Documentation

The technical registration provision clarified that documents related to hereditary rights or usufruct reservations were modified under the new code.

It allowed for specific property identification within rights transfers to facilitate tax obligations despite general claims over all hereditary rights.

Article 2309: Specific Rights Assignment

Article 2309 discusses the assignment of specific rights but states it does not adhere to standard assignment rules.

Criticism arises regarding its placement within the title on rights assignment; it raises questions about its relevance and application.

Legal Effectiveness in Succession Processes

The effectiveness of assignments depends on how they are treated during partition processes, particularly if they involve judicial adjudication.

If a property is assigned to a transferor during succession, it becomes effective upon adjudication within either judicial or notarial processes.

Clarification on Inheritance Declarations

Discussions shifted towards inheritance declarations as per Article 2337, which grants heirs full legal status from the date of succession among direct relatives.

There was an emphasis on ensuring clarity regarding previous discussions about registrations and measures taken concerning sessions.

Understanding the Process of Declaratory Judgments in Inheritance

The Role of Judicial Declarations in Inheritance

The discussion begins with the mention of the death of the "causante" (the deceased), emphasizing that there is no formal requirement or judicial intervention needed at this stage.

Article 2337 highlights that heirs are recognized by law from the moment of the causante's death, regardless of their awareness about succession proceedings.

Heirs can exercise all transmissible rights belonging to the causante, but a judicial declaration is necessary for transferring registrable assets.

Legal Framework for Registration

The conversation shifts to extrajudicial succession and emphasizes the need for a court resolution regarding declarations of heirs.

Questions arise about whether national registration laws allow for such declarations, referencing Article 2 which outlines documents eligible for registration under national or provincial laws.

Specific articles from Santa Fe's provincial law are cited, indicating provisions related to heir declarations when there are estate assets.

Types of Registrations: Autonomous vs. Linked

The speaker explains that while not all provinces have uniform practices, national laws support registering these declarations as long as they comply with local regulations.

Fernando López de Zavalía’s classification introduces two types of registrations: autonomous and linked; autonomous registration pertains to direct heir declarations without property ties.

Implications and Historical Context

Autonomous registration requires establishing ownership over specific real estate; thus, it cannot exist independently without reference to an asset.

The distinction between autonomous and linked registrations is further clarified; linked registrations occur when property acquisition results from a specific transaction involving an estate asset.

Challenges in Historical Practices

A request is made for slower explanations due to information density; this reflects on how quickly legal concepts can be overwhelming without practical experience.

Historical practices reveal that earlier registrations often lacked property references, leading to complications when multiple properties were involved post-declaration.

Understanding the Legal Framework of Property Transfers

The Role of Registration in Property Transfers

The registration of property transfers often lacks clarity, with some assets not included in the official declaration. This absence complicates the regulation of fees and taxes associated with these properties.

There is a historical context regarding oversight by Caja Forense, which has been criticized for requiring substantial contributions but previously allowed many transactions to occur without proper documentation.

Caja Forense's control mechanisms ensure that all properties are accounted for within legal proceedings, impacting how declarations are registered and subsequently verified.

Importance of Certificates in Real Estate Transactions

When heirs sell property to third parties, it is essential to obtain a certificate confirming the existence and validity of their inheritance declaration, ensuring it is recorded publicly.

Article 31 of Law 17801 emphasizes that annotations related to heir declarations must be linked to the corresponding property folio, reinforcing the need for accurate recordkeeping.

Transfer by Declaration: Conceptual Clarifications

The term "transfer by declaration" refers to public acknowledgment of an inherited community rather than an actual transfer; this distinction highlights procedural nuances in inheritance law.

Documentation such as chronological folios provides evidence of inheritance through formal seals indicating ownership transitions following a death.

Practical Implications for Notaries

Notaries may encounter situations where heirs present documents claiming ownership based on inherited titles. They must verify these claims against existing records before proceeding with sales.

If a title indicates a transfer by declaration, no further proof of ownership from the deceased is necessary; this simplifies transactions but requires careful scrutiny from notaries.

Challenges in Establishing Ownership Rights

The lack of formal adjudication or condominium establishment can lead to confusion about ownership rights among heirs; clear resolutions are needed for effective property management post-inheritance.

Understanding the Process of Inheritance and Property Division

The Nature of Inheritance and Partitioning

Discussion on the registration process within inheritance, emphasizing that once a declaration is made, it can lead to potential sales to third parties, which may be considered partition acts.

Clarification that if all heirs are present, they can reference the act as a partitioning act. It’s noted that post-declaration, partitioning and adjudication of assets can still occur.

Historical context provided about how property certificates were previously issued directly in the names of heirs during community inheritance situations.

Legal Framework and Judicial Consensus

Explanation of judicial rulings in Buenos Aires regarding condominium divisions versus hereditary partitions; highlights differences in legal interpretations based on location.

Mention of specific practices in Ciudad Autónoma where declarations were inscribed directly into property titles without a separate registry for declarations.

Challenges with Registration Processes

Discussion on how heirs can proceed with property division despite existing registrations; emphasizes the need for court clarification regarding community inheritance status.

Details on how to address registration issues when an inscription exists; outlines steps for rectifying records at the registry office.

Digitalization and Record Keeping Issues

Overview of Article 52 from Law 6435 concerning alphabetical personal folios; stresses the importance of digitalizing heir declarations alongside property domains.

Critique of current search patterns for locating heir declarations, suggesting improvements could enhance efficiency in finding relevant documents.

Implications of Multiple Registrations

Insight into complications arising from multiple inscriptions of heir declarations due to lack of control mechanisms within registries prior to digitalization efforts.

Acknowledgment that while there have been challenges with duplicate registrations, digitalization has positively impacted record management over time.

Current Practices and Future Directions

Description of current systems requiring lawyers to be registered with their respective bar associations before interacting with inheritance registries; highlights procedural changes over time regarding document submissions.

Discussion on the Registration of Declarations

Introduction to Digital Systems and Forms

The initial approach was to implement a digital system for registering declarations, but it shifted to using a continuously modified form due to limited data inclusion.

There were calls to include the full resolution of the declaration in the form, reflecting ongoing discussions with relevant authorities.

Importance of Complete Documentation

The necessity of including comprehensive judicial resolutions is emphasized; this aids in understanding the rationale behind procedural changes.

While civil law does not mandate registration, provincial laws do require it, linking back to national registral articles that address archival integrity.

Archival Integrity and Legal Framework

In cases where original records are lost or destroyed, certified copies serve as foundational documents for obtaining supplementary titles.

A complete declaration resolution ensures all necessary information is available for reconstructing legal ownership claims.

Practical Implications of Record Keeping

An analogy is drawn regarding potential disasters (e.g., fire destroying records), highlighting how certified copies can facilitate recovery processes.

Clarifications were invited from participants about previous discussions before moving on to new topics like abbreviated procedures.

Transitioning Topics: Abbreviated Procedures

Previous works related to protective instruments and precautionary measures were mentioned; further resources will be shared later.

Upcoming sessions will feature Dr. Sofía Mercol discussing practical mechanics related to registral certificates and reports.

Principles of Registral Mechanics

The principle of "tracto sucesivo" (successive tract), which governs how registrations should proceed without interruption, was introduced.

This principle emphasizes continuity in both spatial and temporal contexts during registration processes.

Priority and Preference in Registration

Understanding Property Registration and Rights

The Nature of Property Registration

The priority of a domain is established upon registration; the document is entered, and the registration remains static unless modified consensually or otherwise.

In cases of compatible rights, such as two mortgages, they can be registered with different ranks unless there is a reservation of rank.

A previously static domain may become a condominium if the owner transfers part ownership (e.g., 50%) to another person.

Changes in Ownership and Rights

Ownership can also change through division or dismemberment, where full ownership is split into bare ownership and usufruct.

Cautionary measures can restrict full ownership; while the property remains under one name, its availability for use may be limited by legal actions.

Legal Modifications and Their Implications

Real rights originate outside the registry but are perfected upon registration; disputes regarding validity may lead to judicial resolutions affecting registrations.

If a sale contract is declared null, it results in modifications to the registry that revert to prior conditions.

Principles Governing Registration

The principle of continuous tract (tracto continuo) ensures that changes in ownership must reflect accurately in the registry without discrepancies.

Priority in registration is determined by submission number and date; this prevents conflicting rights from being registered simultaneously.

Preventing Conflicts in Property Rights

Priority helps avoid situations where one property could be sold to multiple parties; only one valid transaction will prevail based on timing.

Continuous tract opposes accepting external realities that conflict with registered information, ensuring consistency between documents and registries.

Ensuring Accurate Representation of Ownership

There must be alignment between documented owners and those recorded in previous registrations to maintain integrity within property records.

The system distinguishes between registered reality and extraregistral reality, emphasizing accurate documentation throughout transactions.

Addressing Multiple Registrations Issues

Both principles of priority and continuous tract aim to prevent double or multiple registrations of properties under different names.

Property Registration Issues and Legal Procedures

Understanding Property Ownership Discrepancies

The speaker discusses a situation where an individual discovers they are not listed as the property owner in the land registry, leading to confusion and concern.

An administrative file is initiated to investigate the discrepancy, which involves checking records at the property registry for potential registration errors.

Historical context is provided, indicating that this issue arose during a time when property registration was less digitized and more prone to errors due to manual processes.

Complications in Property Transactions

The discussion highlights how multiple lines of ownership can exist if proper registrations were not maintained, complicating future transactions.

A thorough title study over 20 years reveals various issues including registration errors and lapses in oversight regarding title studies.

Legal Principles in Property Registration

The speaker notes that legal principles such as priority and continuous succession are crucial for preventing double or multiple registrations of properties.

There is mention of limited instances where judicial intervention has occurred due to these discrepancies, emphasizing the importance of evidence in resolving such cases.

Importance of Proper Documentation

The principle of continuous succession does not only apply to definitive registrations but also includes provisional ones; all must be properly documented for clarity.

It’s essential for third parties to be aware of any extensions or observations related to property domains through appropriate annotations on the registry.

Navigating Complex Registrations

The speaker emphasizes that understanding property rights requires both vertical (ownership transfers) and horizontal (other real rights like mortgages) perspectives within registries.

Discussion on "desistimiento registral" (registration withdrawal), highlighting that reverting back to previous states requires adherence to civil formalities similar to those needed for initial registrations.

Historical Context and Changes in Law

The term "distracto" is introduced, referring historically to reverting situations back before certain transactions occurred, particularly relevant in donation contexts.

Changes in civil codes have altered how these concepts are applied today compared with past practices involving donations and their implications on current sales.

Discussion on Registration and Withdrawal of Documents

Overview of Registration Process

The discussion revolves around the registration process, focusing on whether a specific document can be requested not to be registered.

Historical context is provided regarding a national meeting where the feasibility of withdrawing from the registration process was discussed.

Legal Framework for Withdrawal

The concept of "desistimiento" (withdrawal) from registration is introduced, emphasizing that it must be explicitly stated and within a certain timeframe.

The withdrawal request must occur between the presentation entry and its actual registration; once registered, withdrawal is no longer possible.

Requirements for Valid Withdrawal

Details about how documents are recorded in the registry system are explained, including priority principles established by law.

It is clarified that only the withdrawal of registration can be requested without needing to provide another document.

Types of Withdrawals

Different types of withdrawals are mentioned: judicial, notarial, or administrative. Each type requires legitimate representation.

For judicial documents, only the court can initiate withdrawal; for notarial documents, both the notary and rights holder must participate.

Legitimacy and Local Regulations

Article 6 of Law 17801 outlines who has standing to request modifications in registrations.

Emphasis is placed on ensuring that all necessary parties are involved in requests to enhance security in transactions.

Observations on Local Practices

There appears to be a lack of specific local regulations regarding these processes in Santa Fe as noted by the speaker.

A historical example involving third-party donations highlights practical implications related to claims against heirs.

Introduction to Successive Tract Principle

Conceptual Understanding

Understanding the Continuity of Property Registration

The Importance of Continuous Registration

The regular order of successive registrants ensures a perfect continuity of all recorded acquisition acts, emphasizing the need for no gaps in registration.

Any event impacting the registry must result in a specific annotation; there cannot be any discontinuities between entries, reflecting a continuous legal history.

Analyzing Historical Registrations

A thorough examination of property titles allows one to understand the complete legal history of an asset over 20 years, which is feasible in certain provinces.

When analyzing a property for sale, it is essential to review its registration history meticulously from the present back at least 20 years.

Systems and Exceptions in Registration

There are two systems in place: a chronological personal system and a partially digitized matriculation system that began in 1993.

The principle of successive tracto has exceptions; notably, properties newly registered may not reflect their entire historical context prior to registration.

Understanding Matriculation and First Registration

Matriculation can be viewed from formal and substantive angles; it represents both new registrations and the first entry into public records.

The first registration signifies that prior to this point, there was no official record for the property, marking an exception to continuous registration principles.

Jurisprudence on Public Domain Properties

Legal precedents indicate that public domain properties do not require registration within private property registries; they remain noted but unregistered when transferred to public ownership.

If a property is expropriated by the state and designated as public domain, it will cease being registered under private ownership rules.

Usucapion as an Exception

Another exception arises with usucapion (adverse possession), where there may be no direct relationship between current registrants and those claiming ownership through possession.

A potential scenario involves an unregistered property being claimed through usucapion after more than 20 years of possession by another individual.

Legal Registration Process and Obligations

Overview of Legal Obligations in Property Registration

The discussion begins with the clarification that there are two obligations involved in property registration, which may not always be fulfilled. An attorney can request information from the registry if a property is not registered.

It is noted that properties can be subject to prescription, meaning they can become legally recognized after a certain period. This involves notifying national, provincial, or municipal authorities about their interest in the property.

If no issues arise during this process, a court ruling for usucapion (acquisition of ownership through possession) will lead to the first official registration of the property.

Understanding Withdrawal from Registration

A participant raises a question regarding when one can withdraw from registering a document. The speaker mentions that while they have not seen strict withdrawal practices in practice, it is possible to nullify documents outside of registration.

The specific moment for withdrawal must occur between document submission and actual registration; once registered, withdrawal is no longer an option.

The timeframe for this process varies but typically spans several days to weeks. Delays may occur due to external factors like strikes affecting processing times.

Timeframes and Practical Considerations

There are no formal deadlines established by law for these processes; however, practical timelines often depend on the efficiency of the registry office handling submissions.

Registries do not consistently adhere to legal timeframes due to operational variances across different regions. This inconsistency affects how stakeholders perceive document validity and opposability within the system.

Attendance and Class Management

The speaker shifts focus towards taking attendance for participants present in class. Various names are called out as attendees confirm their presence.

Clarifications are made regarding students who have left early or those whose attendance needs confirmation based on previous classes attended.

Addressing Student Concerns

A student expresses confusion about their attendance status due to missing classes earlier in the term. The instructor reassures them about addressing any discrepancies with administrative records.

Understanding the Impact of Climate Change

Introduction to Climate Change

The speaker introduces climate change as a pressing global issue, emphasizing its widespread effects on ecosystems and human societies.

Key statistics are presented, highlighting rising global temperatures and increasing frequency of extreme weather events.

The importance of addressing climate change is underscored, with references to potential future scenarios if current trends continue.

Causes of Climate Change

Human activities, particularly fossil fuel combustion, are identified as primary contributors to greenhouse gas emissions.

Deforestation and land-use changes are discussed as significant factors exacerbating climate change.

The role of industrial processes in releasing pollutants is highlighted, stressing the need for sustainable practices.

Effects on Ecosystems

The impact of climate change on biodiversity is examined, noting species extinction risks due to habitat loss.

Ocean acidification and its detrimental effects on marine life are explained in detail.

Changes in migration patterns among wildlife due to shifting climates are discussed.

Societal Implications

The speaker outlines how climate change affects food security through altered agricultural productivity.

Health risks associated with increased heatwaves and vector-borne diseases are emphasized.

Economic consequences such as damage from natural disasters and infrastructure strain are addressed.

Solutions and Mitigation Strategies

Renewable energy sources like solar and wind power are proposed as viable alternatives to fossil fuels.

Policy measures such as carbon pricing and international agreements (e.g., Paris Agreement) are discussed for effective mitigation efforts.