Экзамен зачет учебный год 2023 / 01 Argentina

Argentina

cthe subdivision and landscaping of plots;

dpotential building sites (areas where buildings can be erected);

eurban design;

fconservation (preservation) of historical areas;

garchitectural projects;

hlandscape design; and

iall those aspects connected with the use of land within the jurisdiction of the municipality.

ii Environment

Under the Constitution, all Argentine inhabitants have both the right to an undamaged environment and a duty to protect it. The primary obligation of any person held liable for environmental damage is to rectify the damage according to and within the scope of the applicable law. The federal government sets minimum standards for the protection of the environment9 and the provinces and municipalities establish specific standards and implementing regulations.

Law No. 25,675 provides the minimum standards for adequate and sustainable management of the environment, the preservation and protection of different species and sustainable development. This law sets out the objectives of the national environmental policy and creates a federal environmental system to coordinate the environmental policies of the federal government, the provinces and the City of Buenos Aires.

According to Law No. 25,675, where environmental damages have a collective impact, any affected person, the ombudsman, non-governmental environmental organisations and the federal, provincial and municipal agencies are entitled to request before a court that any damages be remedied. This law entitles individuals to request before a court the cessation of any activities which cause collective environmental damage.

iii Tax

In general, the provincial tax codes and the City of Buenos Aires Tax Code provide that stamp tax applies to the purchase of immoveable property throughout the country and is customarily shared between the seller and the purchaser equally. In the City of Buenos Aires, the stamp tax applicable to the purchase of real property is levied at a rate of 2.5 per cent of the amount of the transaction.

iv Finance and security

Mortgages

A mortgage is the most commonly used security in relation to immoveable property. Under Argentine law a mortgage is an encumbrance over a piece of immoveable property secured to guarantee the satisfaction of an obligation owed by the debtor (the mortgagor) to the creditor (the mortgagee). The mortgaged property, however, remains in the possession of the mortgagor (i.e., its owner).

9 Law No. 25,675 on National Environmental Policy.

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A mortgage will generally secure the principal amount, accrued interest and other related expenses owed by the debtor to the creditor. The mortgage must cover a specific property, and the amount and the obligation secured by the mortgage must also be certain and determined.

Mortgages over immoveable property must be in writing and be created by means of a public deed executed before a notary public and registered with the Land Registry of the jurisdiction where the property is located in order to perfect the mortgage and produce effects against third parties. Upon registration of a mortgage with the Land Registry, the mortgagee is granted a right of first priority over the underlying immoveable property. Second mortgages are permitted but are subject to the Land Registry’s system of priority.

A mortgage remains in full force and effect until all amounts secured by the mortgage have been paid in full or the mortgage is otherwise cancelled by mutual agreement of the parties or by a court order.

In the event of default by the debtor, the creditor is entitled to enforce its security, not by means of acquiring title to or possession of the property, but by exercising its right of foreclosure of the mortgage. Foreclosure is carried out by means of special summary court proceedings that provides for the sale of the property by public auction.

Trust in guarantee

Law No. 24,441 has enabled the trust concept to be utilised as an alternative when taking security over both moveable and immoveable property. The terms of a trust in guarantee, and the procedure by which it is exercised, in the event of default must be carefully regulated in trust agreement.

In no case may the trustee appropriate the property in trust, and in the event of a default, the property must be sold in accordance with the provisions of the trust agreement. After the sale is completed, the trustee must hand over to the creditor the net proceeds of the sale up to the amount necessary to cover the amount secured. If there is any balance remaining it must be paid over to the debtor. A trust in guarantee may be used instead of a mortgage and is particularly useful for building projects where the creditor is seeking to obtain security for loans granted during the period of construction.

Anticresis

The Civil Code provides for a further encumbrance over immoveable property, known as ‘anticresis’, which, although infrequently used nowadays, consists of a debt collateral pursuant to which the creditor is granted possession of the property over which the debt is secured. This provides the creditor with the right to use and enjoy the property, and the profits arising from such property become payable to the creditor as payments on account of interest accruing on and the principal amount of the debt. Rents from leases of urban property would be considered profits for these purposes.

An anticresis is created by the owner of immoveable property by contract, formalised by way of public deed before a notary, and should be registered at the Land Registry in order for it to have effects against third parties. Furthermore, possession of the property must be transferred to the creditor in order for the anticresis to be effective at law.

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Owing to the fact that an anticresis constitutes security for payment of a debt, if such debt is not repaid upon its expiry date, the creditor has similar rights to those of a mortgagee, which includes a right to foreclose and request a judicial sale of the property.

VII LEASES OF BUSINESS PREMISES

Urban leases are governed by the Urban Rental Act (‘the LLU’) of October 1984, as amended, together with the general rules of the Civil Code. Section 29 of the LLU provides that the regulations it contains relate to ‘public policy’ and thus cannot be altered by a contrary agreement of the parties. Insofar as form is concerned urban leases need only be in writing; there are no notarial or registration requirements for leases.

The LLU provides for a minimum term of three years for urban leases of commercial property, whereas residential leases must have a duration of at least two years.

Any lease agreement entered into for a shorter term than the legal minimum will be considered as executed for the minimum term irrespective of its actual provisions. Either party is consequently able to invoke the corresponding minimum term should it so wish. Judicial opinion considers that the minimum term requirement should apply only to the initial lease contract, and not to an extension or variation of the lease, nor to successive lease contracts.

These minimum term requirements, do not apply to certain types of leases such as parking spaces, or stalls at markets or fairs.

A lease contract, whether for residential or commercial purposes, is also subject, under Argentine Law, to a maximum term of 10 years. The consequence of this is that any lease agreed for a longer term will automatically terminate upon the expiry of 10 years. To overcome this restriction – mostly in case of commercial leases that require a longer period of amortisation of the investment – the parties may request the courts to issue a decision allowing an extension or structure the transaction by using alternative institutions such as usufructs or trusts.

Notwithstanding the minimum terms indicated above, after the first six months of the lease have expired, the tenant has a legal right to terminate the lease prior to the expiry of the minimum contractual term.

In order to benefit from this right, the tenant must give the landlord proper notification of its decision to terminate the lease at least 60 days prior to the date upon which it intends to vacate the property.

Should the tenant avail itself of this right during the first year of the tenancy it must (in addition to giving notice) compensate the landlord in the amount of one-and- a-half months’ rent. This compensatory payment is reduced to one month’s rent after the expiry of one year of the tenancy.

The tenant usually pays rent in advance; it is not, however, lawful for the landlord to require the payment of more than one month’s rent in advance. The parties are free to fix a figure for the rent payable, which can be – and frequently is – agreed in US dollars.

Argentine law prohibits all indexation of contractual debts. The technique most frequently used is to provide for periodical increases of the monthly rent.

Although the regulation of repairs and maintenance is generally left to the agreement of the parties, the general principle reflected in the Civil Code is that the

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tenant shall be responsible for carrying out minor repairs and regular maintenance of the leased property. The tenant is also responsible for those repairs that, although not minor, result from some fault or wilful act of the tenant. Any defects in the structure of the property or more serious repair works are, however, the responsibility of the landlord.

Improvements to the property is also an area in which the parties are free to agree their own terms. In most Argentine commercial property leases, improvements to the property of any sort are generally prohibited in the absence of express authorisation from the landlord. The parties usually, however, agree that should the tenant carry out improvements, the landlord may choose to retain such improvements upon expiry of the lease or instruct the tenant to demolish such improvements restoring the property to the condition in which it was received.

The reimbursement of costs incurred in carrying out these improvements is also left to the agreement of the parties. Normally, a landlord will only agree to improvements, if the tenant bears the cost of same.

VIII OUTLOOK AND CONCLUSIONS

It remains uncertain whether the Argentine commercial and residential real estate market will be able to repeat its 2011 performance in 2012.

It is expected that Argentinians will continue to invest in real estate as a safeguard for their private savings. In Argentina, prices of real property are generally in US dollars, but considering that construction costs are in Argentine pesos, it could represent a particular opportunity for developers and investors should the US dollar be revalued.

In the farming and agribusiness sector, the passing of Law No. 26,737, which imposes limits to the ownership of rural land by foreigners, will probably have an impact on the activity and prices of farmland that still remains to be seen.

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Appendix 1

About the Authors

Hernán Slemenson

Marval, O’Farrell & Mairal

Hernán Slemenson joined Marval, O’Farrell & Mairal in July 1997 and became a partner in 2005. From June 2000 to May 2005, he has managed the firm’s New York office. Prior to joining the New York office of Marval, O’Farrell & Mairal, Mr Slemenson was a foreign associate at Cleary, Gottlieb, Steen & Hamilton in New York.

He has participated as legal adviser in a broad range of cross-border transactions including debt offerings and restructuring, securitisation, M&A, project finance, derivatives, loans and real estate transactions.

Mr Slemenson received his law degree from the Universidad de Buenos Aires in 1992 and his master of laws (LLM) degree from the American University Washington College of Law in 1996. He has published various articles in his field of expertise.

He is a member of the American Bar Association – where he acted as council member and division chair in the Section of International Law (2005 to 2007) and cochair of the 2004 Spring Meeting and the Foreign Legal Consultants Committee – the Bar Association of the City of Buenos Aires, the Association of the Bar of the City of New York and the New York State Bar Association, where he chaired the Council of Licensed Legal Consultants.

MARVAL, O’FARRELL & MAIRAL

Av. Leandro N Alem 928, 7th floor Buenos Aires

Argentina

Tel: +54 11 4310 0100

Fax: +54 11 4310 0200 www.marval.com.ar hs@marval.com.ar

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