Apartment Rental New legal tool: how can a “family asset” be used as collateral in a rental contract? - Infobae

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New legal tool: how can a “family asset” be used as collateral in a rental contract? - Infobae​

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Nueva herramienta jurídica: de qué manera se puede usar un “bien de familia” como garantía en un contrato de alquiler

Gracias a un trabajo académico de tres escribanas porteñas, propietarios e inquilinos en nuevos acuerdos ahora pueden poner en garantía propiedades afectadas bajo el régimen de protección de vivienda

www.infobae.com

November 26, 2024

Thanks to academic work by three Buenos Aires notaries, owners and tenants in new agreements can now put up as collateral properties affected by the housing protection regime

By Jose Luis Cieri


The problem of guarantees in rental contracts in Argentina is a recurring obstacle, particularly when the properties are protected under the regime previously known as “family property” (Illustrative Image Infobae)


Renting in Argentina presents numerous problems. High costs, the possibility of dollarizing the contract, access requirements and the difficulty of finding a home that fits the budget are just some of the factors that complicate the process.


In addition to all this, there is another point that often arises at the end of the negotiation: the guarantee that ensures compliance with the contract .


Frequently, the required guarantee is a property, and it often happens that said property is affected by the Housing Protection Regime (previously known as “Family Property”), which causes its rejection as a guarantee, unless it is released in order to sign the lease contract.


Faced with this situation, an innovative academic work proposes a concrete solution to alleviate this problem and facilitate access to the location.


In a context of significant changes in the Argentine real estate market after the DNU that repealed the Rental Law , a group of notaries from the city of Buenos Aires developed an innovative legal tool that allows the use of properties under the Housing Protection Regime as collateral in rental contracts.

Access to housing​

This measure seeks to facilitate access to housing for tenants and owners, avoiding the need to remove the property from said regime, according to the notaries María Magdalena Tato , Vanesa P. Sepliarsky and Eloísa A. Baca Martínez , who were recognized for their work at the Argentine Notarial Conference , who presented this innovative approach.

It is common for a child to want to live alone and the only guarantee available is his or her parents' house. The problem is that they must de-secure the property, leaving it unprotected. With this new tool, it will no longer be necessary to “unprotect” the home.

Traditionally, to offer a property as collateral , it was necessary to remove it from this regime, which left the property vulnerable to other creditors. “However, with the new tool, this protection will not be opposed in the event of judicial or extrajudicial claims related to the lease agreement,” explained Sepliarsky.

The proposal covers cases in which a person wants to be a guarantor and the property they own is affected by the housing protection regime.

It is common, Sepliarsky added, that “a child wants to live alone and the only guarantee available is his parents’ house. In these circumstances, the problem lies in the fact that they must remove the property from the property, leaving it unprotected. With this new tool, it is no longer necessary to remove it from the Housing Protection Regime.”

The concept of inapplicability, key in this solution, implies that the owner of the property declares, by means of a public deed, that he will not use the protection of the housing regime against specific claims of the rental contract.



From left to right: Pablo Abbatángelo (from the Buenos Aires Real Estate Association), together with the notaries Magdalena Tato, Eloísa Baca Martínez and Vanesa Sepliarsky, who created a tool that is key to promoting new rental contracts
Tato, secretary of the College of Notaries of Buenos Aires , clarified that “this allows the property to remain protected against other creditors, thus guaranteeing security for both the landlord and the tenant.”

Advantages​

The three notaries agree that this tool has several advantages. The owner of the property avoids leaving his property unprotected, which prevents other creditors from attacking it. The tenant , for his part, obtains the guarantee to access the property.

Furthermore, it is a benefit for the landlord because it guarantees, with the continued protection of the property given as collateral, that no other creditor will be able to collect from that property, only him if necessary.

It also benefits real estate agencies, as it increases the number of properties that can be offered as a guarantee of compliance in lease contracts.

How does it benefit the landlord?​

In the speed of the process and also in that the property remains protected against any other debts other than those arising from the lease agreement.

In addition, it benefits the owner by guaranteeing that no other creditor will be able to claim the property, except in the case of breach of the lease agreement.

"The guarantee is protected against other creditors," Baca Martínez stressed .

The processing takes approximately one week. It can be done more quickly by means of a request for urgent information to the Real Estate Registry . Otherwise, with a simple request for information, one week is enough to sign and issue the certificate that will be delivered in original to the landlord.

Tato clarified: “In the event of having to execute the guarantee, the landlord will present this statement to prevent the owner of the property from opposing the affectation to the protection regime in order to avoid being responsible for his obligations as guarantor.”


The fact that the property is protected is no longer an impediment to its being presented as a guarantee to sign a new rental contract (Illustrative Image Infobae)

This procedure does not imply a delay in the signing of the contract, since it can be done even before or together with the signing of the lease agreement. As for the costs, they amount to approximately $250,000 and are valid for a renewal of that lease agreement.

Transparency​

That the declaration of inapplicability be granted by means of a declaration in a public deed. Also that the protected asset be identified and the details of the affectation to the housing protection regime.

Baca Martínez recommended: “In the process, we suggest requesting a report of the declarant's inhibition and a report of ownership of the property in the Real Estate Registry . In addition, it is important to have the consent of the spouse or cohabitant, if applicable.”

Other uses​

Among other possible schemes, the notaries pointed out that another example applicable to the situation raised could be the need for any individual to start an SME or a commercial venture, which implies, in most cases, renting a place to develop it.

"In this context, the house in which the entrepreneur lives, even though it is protected under the housing protection regime , could serve as a guarantee without the need to deregister it, thus allowing the rental of the space necessary for the development of the company that supports the family ," concluded Tato .


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