Escribanía - 24/05 - Parte 2

Name: Escribanía - 24/05 - Parte 2
Uploaded: 2024-08-07T15:46:52.000Z
Duration: 3 h 24 min 58 s

Introduction and Class Overview

Opening Remarks

The speaker greets the class, discussing the weather and its impact on their mood.

The speaker confirms that 16 participants have connected to the session, indicating a good turnout.

Review of Previous Class

The last class covered the principle of rogation and principles of instance; confirmation is sought from students about this topic.

Today's focus will be on "documents registrables," specifically which documents can be registered in real estate records.

Documents Registrables

Types of Documents

Discussion includes notarial, judicial, and administrative documents relevant for registration.

Legal Framework

Reference to Article 2 of the National Registration Law (Law 17801), highlighting changes since previous codes like Articles 2505 and 3135 related to mortgage registration.

Key Articles Explained

Emphasis on Articles 1886 and 1893:

Article 1886 discusses rights of pursuit (us persecu) and preference (us preferendi).

Article 1893 addresses inoponibility, stating that certain rights are not enforceable against third parties without sufficient publicity.

Understanding Publicity in Rights

Importance of Publicity

Publicity is crucial for enforcing real or personal rights; it ensures that these rights are recognized by others.

Conditions for Enforceability

Rights must have sufficient publicity to be enforceable against third parties. This includes proper registration or possession as forms of publicity.

Sufficient Publicity Criteria

Definition of Sufficient Publicity

Sufficient publicity can either be through registration or possession depending on the context, such as in sales transactions.

Practical Examples

In cases like property acquisition via prescriptive ownership (usucapión), possession serves as adequate publicity even without formal registration.

Legal Implications Regarding Non-registration

Limitations on Invoking Non-registration

Legal Framework of Document Registration

Overview of Article 20 of the National Registry Law

The speaker references Article 20 of the National Registry Law, which addresses rights related to document registration and emphasizes its historical context dating back to 1868.

Implications for Parties Involved in Document Formalization

The law states that parties involved in a document's formalization, including heirs and witnesses, cannot claim lack of registration as a defense if they participated in the process.

It is highlighted that individuals who have intervened (e.g., authorized officials or witnesses) cannot argue against the enforceability of documented rights due to non-registration.

Expansive Nature of Legal Provisions

The discussion points out that the provisions are broad, indicating that all participants in legal acts cannot invoke lack of publicity as a defense.

This expansive interpretation includes those who should have known about the existence of real rights, reinforcing accountability among involved parties.

Importance of Document Registration

All documents eligible for registration must be registered; once registered, they become enforceable against third parties. Certain third parties cannot use lack of registration as an excuse not to comply with documented rights.

Distinction Between Material and Formal Titles

The speaker distinguishes between material titles (the actual legal act causing a change in property status) and formal titles (documents meeting public criteria).

A material title refers to actions producing legal effects while formal titles are defined by their compliance with established legal requirements for public documentation.

Role and Requirements for Public Documents

Public documents are essential for registration; only exceptional private instruments may be recorded. Compliance with specific legal standards is necessary for these documents.

Examples Illustrating Title Concepts

An example provided involves testamentary succession where both judicial resolution and prior testamentary documents serve as complementary evidence fulfilling formal title requirements.

Impact on Registration Practices

The discussion concludes by emphasizing how proper understanding and application of these concepts affect how registrations are processed within legal frameworks.

Understanding Article 1886 and Its Implications

Overview of Article 1886

Article 1886, specifically subsection (a), discusses the registration of documents that establish, transfer, declare, modify, or extinguish real rights. The majority of these documents are notarial.

It also mentions a second subsection (b) that refers to precautionary measures such as documents related to attachments and other legal restrictions.

Registration Systems

The method of action for registering documents can vary; it may be within a chronological personal system or a real folio system. Each document must be registered appropriately regardless of the system used.

Before digitalization, physical records were maintained where one could see annotations like attachments directly on property titles.

Distinctions in Registration Types

In personal registration systems, inhibitions are recorded as they relate to the property itself. Conversely, in the real folio system, specific categories identify various aspects related to property ownership and transactions.

For example, in Santa Fe's registry system, different rubrics categorize acquisitions and transfers while another rubric addresses rights such as usufruct or habitation.

Practical Application of Registration

Visualizing Real Folio System

An example from the real folio system is presented to illustrate how registrations appear visually. This aids understanding by providing context for theoretical discussions.

The speaker emphasizes that recognizing errors in documentation is crucial for accurate registration processes.

Understanding Rubric Designations

Each rubric within the registry has specific identifiers; for instance, the first two numbers indicate department affiliation while subsequent numbers are assigned automatically by the registry upon document entry.

The importance of correct nomenclature is highlighted; it should match what is stated in official documents like deeds and tax certificates to ensure clarity in property descriptions.

Key Components of Property Documentation

Essential Information Included

Key details such as lot designation, block number, surface area measurements, and survey plans are included under specific rubrics within property registries.

Understanding Property Registration

Overview of Property Registration Process

The discussion begins with the importance of verifying whether a property plan is still valid for use or if it needs to be updated. This includes checking linear measurements and directions.

The speaker explains that properties are registered within an electronic real folio, specifically mentioning "Fray" in the second jurisdiction, emphasizing the significance of electronic records in property registration.

The concept of "antecedente dominial" (previous ownership record) is introduced, highlighting its role in documenting prior registrations before current ownership.

Key details such as document presentation numbers and dates are crucial for establishing registration priority. These elements differentiate between document entry numbers and assigned folio numbers.

The importance of identifying the notary involved in transactions is discussed, along with how their local registry affects legal timelines related to property certificates.

Legal Timelines and Priorities

It’s emphasized that a deed must be authorized within the coverage period of a certificate (e.g., 15 days), which protects its validity upon registration.

The law stipulates that documents must be submitted to the registry within 45 days to ensure retroactive priority effects are recognized legally.

Two types of priorities are defined: direct priority occurs when a document enters the registry; reserved priority relates to documents protected by certificates during their validity period.

Document Protection Mechanisms

A distinction is made regarding oponibility (third-party enforceability): without a registral certificate, enforceability starts at document entry; with one, it begins at documentation time if all conditions are met.

The legal framework aims to protect both the act being executed and its corresponding registry entry through established procedures and requirements.

Details on Registrant Information

Essential information about buyers in transactions includes personal details like surname, nationality, birth date, marital status, and residence—critical for accurate registral entries.

Historical practices regarding registral entries are mentioned; previously handwritten notes were used before transitioning to digital systems requiring official signatures from responsible registrars.

Digital Transition in Registrations

With digitization, previous manual annotations have evolved into systematic digital entries while maintaining essential legal protections through modern technology.

A mention is made about secondary entries related to certification requests for donations involving properties. This highlights ongoing changes in property transfer processes under new regulations.

Understanding Embargoes and Legal Restrictions

Overview of Embargo Recognition

The discussion begins with the concept of embargo recognition, which is essentially an acknowledgment of the existence of an embargo on a property.

It is noted that one can acquire a property under embargo, implying that purchasing such a property involves assuming responsibility for the existing embargo.

Legal Framework and Jurisprudence

There are ongoing discussions regarding whether the amount publicized in relation to an embargo reflects its true value; jurisprudence supports both perspectives.

A prior certificate serves as evidence in actions taken against third parties concerning the property, illustrating how legal documentation plays a crucial role in real estate transactions.

Cautionary Measures and Registration Practices

The speaker references various precautionary measures, highlighting changes made in 2018 where physical registration certificates were replaced by digital records.

Article 4 of Law 6435 outlines required documents for registration, specifically mentioning those related to embargos and other judicial restrictions.

Types of Judicial Restrictions

The law distinguishes between judicial and voluntary restrictions on asset disposition, emphasizing their implications for ownership rights.

Annotations regarding litigation are discussed, particularly how they relate to acquiring properties under certain conditions.

Practical Implications of Embargoes

The text explains how voluntary restrictions can manifest as embargos or inhibitions when securing payments for taxes or contributions.

Public deeds serve as clear evidence for voluntary restrictions; however, judicial documents require careful consideration due to their nature as voluntary jurisdiction cases.

Conceptual Understanding of Embargoes

The definition and implications of embargos are explored through legal doctrine and case law from 2010 that clarifies their impact on property rights.

It is emphasized that individuals cannot self-limit their rights without proper authorization; this principle is reinforced by civil codes governing such matters.

Discussion on Preventive and Executive Embargoes

Overview of Embargoes

The discussion centers around ensuring payment for potential legal judgments, particularly in the context of preventive embargoes as a preliminary step before forced execution of assets.

It is noted that while a specific amount is usually indicated when an embargo is imposed, there is no legal requirement to register the embargo for a predetermined amount.

Priority and Registration Issues

A debate arises regarding whether a specified amount must be recorded to establish priority over other precautionary measures.

The necessity of having an assigned amount for establishing priority among different precautionary measures is emphasized, suggesting that without it, determining preference becomes problematic.

Legal Framework and Theories

Discussion includes Article 506 of the procedural code which addresses priorities related to inhibitions and embargoes.

Two theories emerge: one advocating for the registered amount as a maximum limit (theory registral), while another suggests that the actual limit should derive from documentation within the case file (tesis procesalista).

Types of Embargoes

Three types of embargoes are identified: preventive, executive, and executory. Each serves distinct functions based on their legal basis.

Preventive embargoes aim to secure compliance with potential court rulings by immobilizing assets before or during litigation.

Legislative Context

Reference is made to Article 20 of provincial registration law concerning property sales under embargo conditions.

The article stipulates that no definitive document can be registered if it references existing encumbrances without explicit cancellation or assumption by the buyer.

Comparative Analysis

Similar discussions about embargos have arisen in Spain, highlighting ongoing debates between registral and proceduralist perspectives.

Discussion on Horizontal Property and Executive Title

Legal Framework for Executive Titles

The topic of executive titles in horizontal property has been frequently discussed, with courts generally supporting the need for adjustments to invoke an executive title.

This discussion relates to procedural stages during the execution of a judgment or compliance with a sentence, emphasizing the extreme nature of post-sentencing embargoes.

Implications of Judicial Embargoes

The doctrine suggests that certain types of embargoes represent jurisdictional acts of dispossession, impacting interpretations related to Article 20 concerning property acquisition under embargo.

A distinction is made between preventive and executive embargoes; preventive embargoes do not imply recognition of rights, while executive ones indicate a confirmed judgment.

Court Involvement in Embargo Processes

For an executive embargo, court intervention is deemed necessary due to its implications on property dispossession following a condemnatory sentence.

If a preventive embargo exists prior to sentencing, it must be converted into an executive one post-sentence for proper legal standing.

Consequences for Property Acquisition

Potential buyers must consider the procedural status of any existing embargos when attempting to acquire encumbered properties.

The necessity for court authorization arises if converting a preventive embargo into an executive one after a condemnatory ruling.

Auction Procedures and Legal Documentation

During auctions, specific articles in procedural codes (e.g., Article 491 in Santa Fe's code) mandate obtaining reports from property registries regarding ownership and encumbrances.

The auctioneer acts as a judicial delegate, ensuring that comprehensive information about property titles and existing liens is disclosed before proceeding with sales.

Jurisdictional Certificates and Their Role

Distinction between registral certificates (for public deeds) and jurisdictional certificates (used within judicial contexts), highlighting their importance in legal processes like inheritance declarations or partitioning.

Article 41 allows for jurisdictional certificates' use within judicial proceedings, enhancing transparency regarding property status during executions.

Stages of Publicity in Auctions

Understanding the Process of Auction Registration

Key Stages in the Auction Process

The auction process begins with a request for a provisional certificate, followed by the auction record. The auction record is crucial as it documents the sale price and other details.

A jurisdictional certification is requested by the auctioneer, which is essential for legal acknowledgment. This step precedes the preventive annotation of the auction, which informs third parties about the property being auctioned.

The possession phase follows where a possession order is issued. This marks an important transition from mere documentation to actual control over the property.

There are three main stages in this process: registration of the auction, judicial copies submission, and eventual transfer to the buyer. Each stage has specific requirements that must be met.

The registration process can involve various methods such as judicial copies or prior protocolization. It’s recommended to use judicial annotations for better security and traceability.

Legal Framework and Normative Guidelines

Protocolization not only includes elements related to auctions but also ensures that registration details are preserved securely against potential loss of documents.

Article 506 introduces parity between liens and attachments regarding preference rights in auctions. This article emphasizes timely notification to petitioners about existing encumbrances on properties before proceeding with sales.

In cases where there are pre-existing liens or attachments, judges are encouraged to notify claimants within ten days so they can assert their claims during an ongoing auction process.

Priority Rights Among Liens

Article 506 establishes that priority among liens or attachments is determined by their date of registration; earlier registrations take precedence over later ones unless otherwise specified by law.

If an attachment exists before a lien, executing agents must respect this hierarchy when enforcing claims on properties involved in auctions.

When an attachment precedes a lien, it retains its priority even if subsequent actions occur; thus ensuring fairness in execution processes across competing claims.

Conversion Between Attachments and Liens

Should a party wish to execute based on an attachment rather than a lien, they must formally convert their attachment into a lien while maintaining its original priority status established at registration time.

The conversion process requires explicit requests from parties involved and must be documented properly through court orders to ensure clarity in enforcement actions post-conversion.

Understanding Embargoes and Inhibitions in Legal Context

Distinction Between Embargo and Inhibition

An embargo is a general prohibition on registrable assets, while an inhibition specifically addresses a particular asset. The party best positioned to contest the embargo is typically the defendant.

Substitution of Inhibition with Embargo

If a defendant wishes to lift an inhibition, they may offer an asset under embargo as a substitute. It’s crucial that this substitution maintains the same priority as the original inhibition.

Importance of Monetary Value in Legal Measures

Both embargoes and inhibitions must specify a monetary amount. Courts have ruled that without a specified amount, establishing priority becomes illogical.

Estimating Amount for Priority

Even if uncertain about the exact amount, parties should estimate a value to establish preference and facilitate substitution of legal measures.

Objective of Legal Measures: Securing Payment

The primary goal of these legal measures is to ensure payment collection. Discussions around who assumes responsibility for an embargo have evolved significantly since 2001.

Changes in Judicial Interpretation Post-2001

A landmark ruling in 2001 shifted perspectives on how embargos are handled, particularly regarding their limits based on advertised amounts during property transactions.

Responsibilities Upon Acquiring Encumbered Property

New interpretations state that acquiring property under embargo requires addressing not just the advertised amount but also any additional financial obligations related to interest or costs from ongoing litigation.

Consequences Beyond Advertised Amount

Recent rulings indicate that buyers must consider all consequences from litigation when assuming responsibility for an embargo, raising concerns about potential liabilities beyond initial expectations.

Historical Context and Precedents

Previous rulings established that third-party purchasers do not need to cover total debts if increases were not registered; however, they still bear responsibility for existing encumbrances at the time of purchase.

Legislative Framework Influencing Current Practices

Priority of Creditors in Legal Proceedings

Rights of the First Creditor

The first creditor who obtains an attachment on a debtor's assets has the right to collect their credit, including interest and costs, with preference over other creditors.

Subsequent attachments should only affect the surplus after the first creditor's claims are satisfied.

Legal Theory and Practice Discrepancies

The discussion suggests that legal theory does not recognize a limit based on publicized amounts for attachments; it extends to all claims made by the creditor.

Concerns arise regarding potential fraud when debtors increase claim amounts while selling properties under attachment, impacting initial creditors' rights.

Responsibilities of Creditors and Notaries

The debate centers around who is negligent: the third party or the creditor.

According to registral theory, if a creditor fails to publicize changes in claims, they must accept that their property may be acquired at only the initially registered amount.

Judicial Procedures and Practical Challenges

There is no explicit law stating that an attachment must specify an amount; this creates practical challenges in judicial processes.

In practice, delays in judicial proceedings complicate accurate registration of attachments due to inflation and changing values.

Duration and Expiration of Attachments

Registral validity lasts five years unless renewed; this expiration can lead to complications as many cases exceed this duration.

Judicial Lifting and Cautionary Measures

Understanding Judicial Lifting and Timeframes

The judicial lifting process is discussed, emphasizing that in most cases, the time limit is five years unless rewritten. The timeframe for counting begins from the date of registration.

Clarifications on Cautionary Measures

Article 65 bis clarifies that the expiration of cautionary measures will be calculated from the original registration date, particularly concerning attachments.

Duration and Expiration of Attachments

If an attachment has been recorded for two years before a new buyer assumes it, this assumption lasts three years. The expiration does not reset based on the new registration but follows the original timeline.

Modifications to Cautionary Measures

Any modifications to existing cautionary measures will follow similar rules regarding expiration as those applied to initial registrations. This includes considerations for monetary increases rather than property additions.

Priority and Preference in Attachments

When expanding an attachment amount, it does not supersede the original attachment's priority; instead, it ranks lower in terms of preference during collection processes.

Caducity and Priority Issues

Caducity Explained

Caducity refers to when a measure expires after five years from its first registration. Modifications do not affect this primary timeline but may influence how priorities are established among multiple attachments.

Impact of Multiple Attachments

In scenarios with multiple attachments, if a second one arises after an initial one, it ranks third in priority despite potentially being for a larger amount.

Clarifying Registration Impacts

The discussion emphasizes that once registered, changes cannot alter priority rankings unless specific conditions apply (e.g., replacing an inhibition with an attachment).

National vs Provincial Justice Systems

Differences Between Justice Systems

In national justice systems under Articles 228 and 208, inhibitions do not grant preference; only attachments can secure priority over properties during collections.

Importance of Attachment for Priority

To ensure priority in collections against specific properties within national jurisdictions, one must utilize attachments rather than relying solely on inhibitions which merely restrict property disposition without establishing collection rights.

Theoretical Considerations on Embargoes

Processual Theory Application

The speaker discusses adhering to procedural theory where initial embargoes maintain their priority even if subsequent expansions occur later or other creditors enter into play.

Final Thoughts on Registration Dynamics

Discussion on Real Amounts and Negotiations

Key Insights on Compraventa and Embargos

The conversation revolves around the real amount emerging from a file, which is crucial for consolidating a sale to a third party. This indicates the importance of documentation in legal transactions.

There is mention of another embargo that complicates negotiations, suggesting that multiple legal claims can affect the outcome of property sales.

The speaker hints at potential issues regarding the authenticity of claims, indicating that not all situations may be straightforward or credible.

Acknowledgment of participants' attention and engagement in the subject matter reflects an appreciation for collaborative learning.