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New rentals and a looming problem: How to agree on changes and adjustments during the contract - Infobae
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Nuevos alquileres y un problema que asoma: cómo acordar cambios y ajustes durante el contrato
La actual libertad en los nuevos acuerdos de alquiler permite emplear diversas opciones de actualización a lo largo del pacto, siempre y cuando queden debidamente documentadas por escrito
www.infobae.com
January 25, 2024
The current freedom in new rental agreements allows for various update options to be used throughout their term, as long as they are duly documented in writing.
By José Luis Cieri
To conclude agreements and for everything to work well while the contractual relationship lasts, it is key to leave everything well established in the contract that is signed in writing (Photo: Getty)
In the background of the new post-DNU legislation that repealed the Rental Law, a debate emerges that, despite its importance, usually remains in the background. This reform, which came into effect on December 29, provided notable flexibility in the negotiation of rental contracts, eliminating the obligation to apply a specific index, either by the Lease Contract Index (ICL), Consumer Price Index (IPC) or Casa Propia, previously established by the previous government.
This freedom of contract, based on the will of the parties, not only applies to the initial signing of the contract, but also extends to the possibility of renegotiating terms in an ongoing contract. If issues arise, such as disagreements over the adjustment rate applied, the parties have the discretion to re-agree and adjust future terms, whether through a new rate, fixed amounts, or other mutually agreed upon arrangements.
Alberto Loyarte, real estate expert and real estate broker, highlighted to Infobae that “the crucial thing is that the possibility of establishing different types of adjustments during the term of the contract is duly documented in writing. Currently, once the parties meet and agree on a new adjustment mechanism, an addendum to the original contract is made. This document, a type of amendment that is used to modify the original content of the agreement, is signed by the parties and certifies the future conditions.”
In the new scenario of freedom of the rental market, experts advise caution and the importance of clarifying all the details beforehand with the idea of avoiding problems during the contractual relationship (according to Article 1198 of the Civil and Commercial Code of the Nation, CCyC, It is established that in the event that the parties have not established a term, this will be two years, but in no case is the term that the parties can freely set limited).
“Now it is possible to establish that the first six months of the contract are governed by one index and the next six by another. However, despite the freedom to mix and match, it is crucial to understand that a contract is not an experiment. Clear rules should be established wherever possible, providing certainty to both landlords and tenants about the conditions that will prevail throughout the duration of the agreement. It is advisable to avoid monthly changes in the update rates and the need to define stable rules for the entire duration of the contract,” highlighted Mariano Esper , lawyer and professor specialized in real estate and business issues.
As long as an inflationary process like the current one prevails, the most appropriate thing would be to establish clear guidelines from the beginning. In case of opting for the application of a single index, experts consider it vital to include a clause in which both parties agree to sit down to negotiate after six months.
“At that time it will be evaluated whether the market value adjusts appropriately, if the index used is ideal and other aspects,” Esper added.
What items enable
In the legal framework of rental agreements, the CCyC clearly establishes the bases that govern contractual relationships.According to article 958, the parties enjoy complete freedom to enter into and define the content of a contract, always within the legal limits and public order. It is highlighted that legal norms act as supplementary to the will of the parties expressed in the contract, except when the law is expressly imperative, and in all cases, the interpretation must be carried out in a restrictive manner.
Several clauses in new contracts, although legally viable if drafted reasonably, offer predictability
Accordingly, article 960 establishes the limitations of judges in relation to contractual stipulations. According to this rule, judges have no power to modify the terms of contracts, unless authorized by law and requested by one of the parties. These legal provisions clearly outline the principle of freedom of contract, granting the parties the ability to define their agreements, always respecting the limits established by law.
The initial choice of the form or index in a rental contract is not decisive; The crucial thing lies in the flexibility offered by the possibility of change over time, if the parties so agree.
Loyarte highlighted this new flexibility by stating that, in a free contract context, owners have the opportunity to renegotiate contract conditions in specific situations, such as delayed salary adjustments. “This process, always documented in writing and signed by all parties involved, results in a potential increase in the offer,” he said.
Other key aspects
Within the framework of the new rental regime promoted by the DNU, clarity in contracts becomes essential, focusing on four or five fundamental aspects.- The term of the contract must be established precisely, clearly defining its beginning and end.
- The price and how it is updated are essential, covering aspects such as currency, amount, frequency, payment method, among others, constituting standard clauses of indisputable importance.
- Another relevant aspect is the regime of separation of responsibilities regarding repairs. “It must be clearly specified who assumes the repairs and under what conditions, considering possible compensation regimes. Linked to this issue is the state of conservation, use and hygiene of the property, defining aspects such as the paint and the conditions in which it is delivered,” Esper explained.
- Early termination, according to article 1021 of the CCyC, requires special attention. It is essential how the termination is communicated, with what notice and the conditions for its effectiveness. “Finally, it is necessary to determine the situations in which the tenant can terminate early, either for personal reasons or for some situation that affects the habitability of the property,” Esper concluded.
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