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Rentals: Ley Bases consolidated DNU - Reporte Inmobiliario
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Alquileres: Ley Bases consolidó DNU, noticias sobre ALQUILER Y RENTA en Reporte Inmobiliario
La reciente aprobación de la Ley Bases consolidó definitivamente DNU que derogó leyes de alquileres. El de renta ya es un mercado mucho más previsible y confiable. Por Abatti-Rocca-Abatti (h).
www.reporteinmobiliario.com
July 22, 2024
The recent approval of the Ley Bases definitively consolidated DNU that repealed rental laws. The rental market is now a much more predictable and reliable market. By Abatti-Rocca-Abatti (h).
The recent legislative approval of the so-called Basic Law consolidates the provisions relating to urban leasing of DNU 70/2023, in force since 12/29/2023, which have produced a true Copernican change, which has benefited both landlords, tenants and real estate brokers by establishing principles of contractual freedom that never before existed in inter-party leasing relationships.
There is no doubt about the excellent result generated by DNU 70/2023 by having repealed the disastrous laws 27,551 and 27,737, demonstrating that when contractual freedom prevails, the rental offer increases and tenants can choose and negotiate the rental price, encouraging investments that develop the real estate market and, we refer to the evidence by simply observing the data from the rental housing offer portals and of course the statistics published in Reporte Inmobiliario, if we take as an example the City of Buenos Aires, where before July 1, 2020, the date on which the disastrous law 27,551 came into force, there was an average offer of between 15,000 and 20,000 units and then it decreased dramatically to about 1,300 in June 2023, but with the sanction of law 27,737 in October 2023, which supposedly would solve the mistakes of the previous one, it was like throwing more gasoline on the fire and in November the offer reached zero (barely about 80 properties), but as of December 28, 2023, the date of entry into force of DNU 70/2023, everything changed and in just six months we reached about 17,000 homes offered for lease. All this corroborates the advantages of contractual freedom and the elimination of State interference in private contractual relations.
Let us remember that laws 27,551 and 27,737 modified the provisions of the Civil and Commercial Code in force since August 1, 2015, causing, with excessive protection of the tenant's rights, the opposite effect to that intended, exponentially depleting the housing rental market. DNU 70/2023, whose regulations on rental matters came to balance the reciprocal rights and obligations between landlord and tenant and provide a framework of greater legal certainty, which ultimately benefits all parties, especially the tenant, who, given the increase in rental supply, can choose and negotiate the price on an equal footing (Abatti, Enrique and Rocca, Ival (h), Rental Manual according to DNU 70/2023 and the Civil and Commercial Code, Abacacía collection, García Alonso Publishing House, Buenos Aires 2024, p. 30).
Main modifications established by DNU 70/2023.
Term
Art. 256 of Decree 70/2023 modified art. 1198 CCyC, eliminating the minimum rental period for all purposes, giving the parties broad freedom, since previously they had to be subject to the minimum public order period of three years, except for the exceptions contemplated in art. 1199, such as the rental of embassy, consulate and foreign diplomatic personnel headquarters, tourist, storage or deposit of things, garages, stalls in markets and fairs and those intended to fulfill a specific purpose.
The maximum rental period of 20 years for residential purposes and 50 years for the remaining purposes is maintained.
Rental price
It constitutes the consideration that the tenant owes to the landlord for the use and enjoyment of the property and must be determined in money (art. 1187 CCyC), therefore, since the reform of art. 765 and 766 of the CCyC by DNU 70/2023, foreign currency is equated for cancellation purposes to national currency. To the lease contract, the provisions regarding consent, price and object of the sales contract apply in subsidy (art. 1187 CCyC).
In leases, whatever their purpose, rent may only be charged for monthly periods (art. 1196, in fine CCyC), except in the case of tourist leases, where due to uses, practices and customs they are binding when the parties refer to them (art. 1º CCyC) and in practice, rents are paid in advance for the entire period (daily, biweekly, monthly, quarterly).
When the rental price is comprised – if so agreed in the contract in accordance with art. 1208 CCyC – of the PH expenses, rates, taxes, etc., that are levied on the property, it is called “rental fee”, as provided for in art. 1208 CCyC. The non-payment of any of them will have the consequences of non-payment of the rent – eviction and collection – and the sole payment of the rents, excluding the other items, does not cancel the obligation, as it would be partial payment.
PROVISIONS INTRODUCED BY DNU 70/2023 RELATING TO THE ADJUSTMENT OF RENTS
Article 257, DNU 70/2023.- Article 1199 of the Civil and Commercial Code of the Nation approved by Law No. 26,994 and its amendments shall be substituted with the following: Rents may be established in legal tender or in foreign currency, at the discretion of the parties. The tenant may not demand that payment be accepted in a currency other than that established in the contract. The parties may agree to adjust the value of the rents. The use of any index agreed upon by the parties, public or private, expressed in the same currency in which the rents were agreed upon shall be valid. If the chosen index ceases to be published during the term of the contract, an official index with similar characteristics published by the National Institute of Statistics and Censuses shall be used if the price is set in national currency, or the one that performs the same functions in the country that issues the agreed payment currency. Article 10 of Law No. 23,928 shall not apply to the contracts included in this Chapter.
REPEAL OF THE LEGAL PROHIBITION OF INDEXING
Article 14 of Law 27,551 in its first paragraph had already excluded all purposes, both residential and non-residential, from the prohibition of indexing rents instituted by Law 23,928 on Convertibility and Deindexation, and DNU 70/2023 ratifies such repeal in the new text of Article 1199 of the CCyC.
For years now, jurisprudence has ruled against the indexing prohibition. “In view of the emergency that led to the “pesification” of unpaid rents originally agreed in dollars, both parties must bear its harmful effects - it was ordered, based on the circumstances of the lawsuit, that the debtor assume 70% of the difference between the peso-dollar parity and the free exchange rate of the latter currency on the day of actual payment - in order to guarantee the right of ownership both with respect to the creditor, for whom the “pesification” would mean receiving a significantly depreciated asset, and the debtor, given the existence of a different and unforeseeable context in relation to that of the contract” (CNCiv. sala K, Gaita, Carmelo and Another v. Servifood Argentina SA and Another, 05/06/2003, LL 2003-D, 694; (Abatti, Enrique and Rocca, Ival (h), Rental Manual according to DNU 70/2023 and Civil and Commercial Code, Abacacía colec., The new regulations allow the parties to freely choose the adjustment indices (INDEC, provincial and any public or private entity) and the frequency of their application (monthly, quarterly, four-monthly, half-yearly, etc.), which will depend on the magnitude of inflation. This does not prevent the parties from agreeing on adjustments based on the value of products (gasoline, coffee, olive oil, etc.) in accordance with art. 1133 of the CCyC or the determination by third parties, e.g. real estate brokers (usually three, one chosen by the landlord, another by the tenant and the third by mutual agreement between the parties) based on art. 1134 of the CCyC.
RENTALS IN FOREIGN CURRENCY
By equating the legal currency in the country with the foreign currency through the reform of arts. 765, 766 and 1199 of the CCyC by DNU 70/2023, it is now possible to set rents in foreign currency.
Article 765 CCyC.- Concept. The obligation is to give money if the debtor owes a certain amount of currency, determined or determinable, at the time of the establishment of the obligation, whether or not it is legal tender in the country. The debtor is only released if he delivers the committed amounts in the agreed currency. Judges cannot modify the form of payment or the currency agreed by the parties.
The new wording of this article equates the cancellation effects of the legal currency in the country with the foreign currency and clearly determines that the only way for the debtor - in this case the tenant - to comply with the rent payment is with the currency agreed in the contract, whether national or foreign. Before the reform, the possibility of agreeing rents in foreign currency was prohibited because it was considered a "thing" and not currency. This new narrative simplifies the intricate wording of the previous article, making it clear that the debtor only fulfills his obligation by delivering the agreed currency, regardless of whether or not it is legal tender; and the debtor cannot seek shelter in judicial resolutions that try to twist the letter of what is written in the contract. The final provision, which prohibits judges from modifying the form of payment or the currency agreed upon by the parties, is very important, because this prevents judges from becoming legislators through the usual interpretations tinged with “guarantor” biases that are far removed from the will freely expressed by the parties in the contract, generating legal uncertainty. In turn, art. 766 CCyC in its new wording reaffirms 765 in relation to foreign currency, by providing that “The debtor must deliver the corresponding amount of the designated species, whether the currency is legal tender in the Republic or not.” This is a public order rule, because it says that the debtor “must” deliver the currency agreed upon in the contract and that and no other is his possibility of cancelling the obligation (rentals), unless the lessor accepts another currency.
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