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Everything you need to take into account before deeding a property - La Nacion Propiedades
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Todo lo que hay que tener en cuenta antes de escriturar una propiedad
Cuáles son los puntos claves a saber a la hora de comprar un inmueble
www.lanacion.com.ar
March 23, 2024
What are the key points to know when buying a property
By Candela Contreras
The costs, the required documentation and what is required when a purchase and sale operation is closed
The fact that you have the money to buy a property is not a sufficient reason to purchase it . There are important aspects that must be taken into account during the purchase and sale process and are essential to formalize the operation , such as: the deed of the property .
This is a necessary procedure to ensure that the property legally belongs to a person. This document provides legal security to the owner and is essential to comply with the tax obligations related to the possession of the property . “It is an essential and mandatory process to grant validity and legal security,” explains notary Martín Gutman, from the notary office that bears his last name.
This procedure is carried out through a notary, who can provide information and advice before signing any document and moving forward with the operation to avoid misunderstandings and future conflicts. In every buying and selling process, some doubts arise that are answered in these nine key questions:
1) What is the step prior to signing the deed?
The notary recommends that “when reserving a property, the term 'ad referendum' be included in the title study and background check to be carried out by the intervening notary since he will access the copy of the property title to carry out the analysis regarding the legal situation of the property in question,” he adds.Sellers must deliver the ownership title of the property sold, in addition to providing the notary with all the necessary documentation so that he can verify that the property is sold with its background titles in legal form, free of all taxes and fees (in CABA: tickets from ABL, Aysa, expenses and more). If the person selling is a legal entity, then the Statute or Social Contract must be delivered to the notary, and an act issued by the Governing Body (assembly of partners or shareholders) in which the sale is authorized, with the majorities established by the statute. of the property.
In this process, Enrique Luis Abatti (h), owner of the Abatti & Rocca Abogados Law Firm , lists the obstacles that may arise to be able to freely dispose of the property and how to resolve them :
- Existence of a mortgage : it must be raised and registered
- An embargo that encumbers the property : must also be lifted. This requires a judicial procedure before the court that decreed the measure, which involves paying the debt that originated said embargo.
- The seller is inhibited : he must cancel the existing debt
- The property has a usufruct in favor of a third party : in this case, it is necessary to manage the renunciation of that usufruct by the beneficiary
“ All this is found out through a request for domain reports and another for inhibitions , which should be managed when a property is offered for sale. In this way, surprises are avoided when starting the paperwork to deed, since judicial procedures can generate long delays, and even frustrate the possibility of sale,” adds Abatti.
Buyers and sellers must be present and sign the deed
2) Who must be present when signing the deed?
- At the time of signing the deed of sale, all parties to the contract must be present: the sellers (owners) and the buyers. It may happen that some of them are represented by a representative, in that case, they must display the original power at the time of writing, and in the event that it is a special power for that sale deed, the notary must clarify it in the document to sign.
- If the seller is a company, its legal representative must attend with the company's documentation .
- If the seller is married, the consent of his or her spouse must be obtained, granted by power of attorney or by being present at the deed. Otherwise, the latter could request the annulment of the act within six months of signing. This is in the event that “the property is marital (it was acquired during the marriage); or if it is one's own property (received by inheritance, legacy or donation, or acquired prior to marriage) but it is the seat of the family home," explains Beatriz Álvarez, secretary of the CECBA ( College of Notaries of the City of Buenos Aires ).
3) What documentation must the parties present?
At the time of signing the deed, the notary will have already reviewed the property's background , checked the identity of the people through the National Registry of Persons ( Renaper ) page and conducted an interview with the buyer to have a profile in depending on the current UIF regulations on the origin of funds, among other details.- The Tax and Expense obligations of a property are “Propter Rem”, that is, they pursue the thing and not the person. But, electricity, gas and telephone services are personal.
- If the value of the property exceeds a certain amount, the selling party must have obtained the COTI certificate (Property Transfer Offer Code), issued by AFIP, where the owner informs his intention to sell and other information that is required. This is processed in the case of sales greater than $9,400,000.
- The buyer, for his part, has to prove to the notary the origin of the money he uses to pay, in accordance with the requirements arising from the money laundering law. “As long as the deed exceeds 875 minimum vital and mobile salaries, we are currently talking about $177,450,000,” clarifies the CECBA secretary.
- Extra documents may be needed, such as if the parents purchased and died, probate is required for them.
- There is a legal alternative for cases known as “abbreviated tract” that is handled by the same notary and greatly speeds up the processes. It is a procedure through which a registration step is shortened, when the owner of the property dies, and the heir can sell without it being written in his name.
Consult a notary for advice before starting a purchase and sale operation
4) What is the real cost of writing?
Both the buyer and the seller must face the costs of the deed process . The first is responsible for paying all the expenses prior to the writing, while the second pays the subsequent expenses, as well as the notary's fees.Seller expenses:
The seller pays for all registration and administrative certificates . The sale of a property is subject to national and local taxes. “At the local level, in CABA, the Stamp tax is 3.5% of the price, valuation or VIR (Reference Real Estate Value), whichever is greater. This tax is paid in equal parts between buyer and seller, according to uses and customs,” reports notary Beatriz Álvarez.But also, the specialist explains that the sale is covered by national taxes , which can be profits if a legal entity (company) sells, in this case it is 3%; If a person who is covered by the ITI (Property Transfer Tax) sells, it is 1.5% -if the property they are selling was acquired before 2018-; On the other hand, if the property you are now selling was acquired after January 1, 2018, the sale is covered by the Scheduled Income Tax , which is not paid in the deed: the seller must subsequently declare the sale in AFIP.
A key fact to keep in mind is that the seller can request from the AFIP the certificate of non-withholding for housing replacement. This is the case in which “the property is destined for a residential home, and the person agrees to use the money received to buy another property in the next 12 months and give it the same purpose,” adds Álvarez.
Buyer's expenses:
The buyer is responsible for paying the notary's fees (the notarial fee of the College of Notaries establishes a suggested fee of 2% of the value of the property), and all the expenses generated by the subsequent registration: fees, contributions and stamping.If the buyer(s) acquires a property intended for a single, family home for permanent occupancy, an exemption is generated from the tax base of the stamp tax - today $24,889,350 -, that is, this sum is deducted from the price. and the 3.5% indicated above is paid for the balance. Reports from the Real Estate Registry are required stating that the buyers do not have properties in the City of Buenos Aires (if they have any property, the exemption cannot be used).
It should be noted that everything mentioned, due to the principle of autonomy of the will of the parties, can be modified contractually ; That is to say, if in a reservation (which is the first document signed in a real estate transaction) it is stipulated that all expenses, fees and taxes are the responsibility of the purchasing party, this will already be stipulated and thus the costs will be faced. bills; That is why it is always recommended to speak with your trusted notary before starting any type of property search, for correct advice.
5) What is the difference between deeding a used property and a brand new one?
The difference between deeding a brand new property and a used one is not so significant, but in the first case the costs are higher because expenses that are associated with the first deed must be paid. Furthermore, in this case, “the deeds are made before the notary designated by the construction company or the development company, which in many cases does not allow the parties to negotiate the fees,” adds Abatti.
You can pay in full for the property before signing the deed, but it is not recommended. The best thing is a simultaneous process in which you sign, pay, and hand over the keys to the property.
6) Can the purchase be paid in full before it is deeded?
“Yes, the entire purchase can be paid before the deed process, although it is not recommended ,” explains Abatti. And he adds that the usual thing is that a purchase and sale ticket is signed where around 30% is paid, and the balance is settled with the deed. In the event that the parties agree that the remaining balance is paid in installments, “what is done is to write and establish a mortgage on the property to ensure payment.”Although there may also be the case in which the buyer provides a deposit for the property for a minimum amount, "to confirm the operation and take the property off the market," the notary clarifies. Then, the parties agree whether to sign a deposit, a ticket or write it directly, paying the total value at the time of signing.
7) What key points should be detailed at the time of signing?
Martín Gutman points out the essential points that must be in the writing and in the act of signing:- Personal data of the parties
- Identification of the property according to the preceding title
- Price and method of payment, granting of receipt
- The non-existence of liens and precautionary measures
- The withholding of the taxes that levy the sale, for the payment to be made by the notary
There are key data that must appear in every writing
8) How long can the deed process take?
The duration of the deed process may vary according to various factors, such as: the complexity of the operation, the existence of outstanding debts, among others. But “in a relatively normal operation, the deed period is established within 30 days of the property being reserved,” concludes Gutman.9) When does possession of the property take place?
According to the secretary of the College of Notaries of CABA, possession must always be delivered at the time of signing the deed . “If for some reason the sellers need to stay a few days in the property, a bailment is signed for the necessary days, and the sellers will stay in the property with possession of it, but the possession will already belong to the buyers,” she reports.www.buysellba.com
