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Division of Marital Property Under the New Argentinian Civil and Commercial Code

NEW CIVIL AND COMMERCIAL CODE OF ARGENTINA

Division of property under the new Code

As a result of all questions and doubts that have arisen from the enactment of the “new Code” (Civil and Commercial Code of Argentina, CCCN in Spanish), which came into force on August 1 this year, we will explain the effects of “Termination of the Community Property System”, mainly what we need to know when a couple decides to divorce, when one of the spouses dies, or when they decide to opt for a different property system and need to divide assets after the dissolution of marriage.

Nowadays the law allows us to choose the way in which we want to “administer” our matrimonial property so that couples can select what property system will govern their marriages by executing a marriage settlement.

Section 446 of the new Code expressly contemplates “Marriage Settlements” and provides that “before the celebration of marriage, prospective spouses may enter into settlements only for the following purposes: a) to designate and valuate the assets that each spouse brings into the marriage; b) to list debts; c) to list donations made to each other; d) to opt for any of the property systems provided under this Code.”

Although the Code provides that prospective spouses may sign marriage settlements, it also limits the scope of said settlements. As opposed to what most people imagine, the law stipulates a strict framework of what terms the parties may agree on. Outside this legal framework, spouses cannot dispose of property in any way. If they do so, the law states that such disposition will have no effect.

The principal amendment relates to the fact that now spouses can opt for a system of division of property, under which they keep the right to freely administer or dispose of their premarital property.

At this stage we may conclude that the most significant change not only relates to the possibility of choosing one system or another, but also to the right to agree to change it, whether choosing between the division of property system or the community property system. For this to be possible, two requirements must be met. First, spouses must have kept the adopted system for a period of at least one year. Second, the settlement must be made by a notarially recorded instrument. However, if the parties are silent, that is, in case spouses do not make any marriage settlement or do not agree on any property system in the settlement, the community property system will apply by operation of law, as the situation was before the new Code.

“In my view, the Commission correctly chose not to do what Italy implemented after the Code of 1942, when it changed the system in force at that time thus generating a strong opposition from the society, who was not accustomed. Here we thought that the same thing could happen. That’s why the community property system was chosen as a legal and suppletory system “, explained attorney Pedro Di Tella during a seminar held at University of Buenos Aires Law School (UBA).

Another relevant issue to point out is that spouses who got married before the new Code came into force have the right to change systems, as long as they meet the statutory requirements: time in the system (one year) and written settlement made by a notarially recorded instrument. Such change of system does not require any leave or acknowledgement from a court.

So far this is what the parties may “choose”. Nonetheless it is important to highlight, as we have mentioned before, that the freedom of choice is restricted by what is called Régimen Primario (Primary System) based on mandatory and unalterable rules which apply whatever system the parties may have adopted, and on the principle of joint and several liability, family responsibility, and protection of family and other persons. Consequently, any agreement to the contrary will be of no effect.

What we need to know is that despite the amendments made by the new Code and the property system adopted, in every marriage spouses must comply with the following:
– neither spouse may dispose of the matrimonial home, nor of moveable property and property used for work without the other spouse’s consent.
– they must contribute to support themselves, the home and their children in common, in proportion to their resources. If one of them fails to do so, he or she could be sued in court.
– they are jointly and severally liable for the obligations assumed by each of them to meet family common necessities and children’s maintenance and education.
Apart from these cases and except as otherwise provided by the marriage system law, none of the spouses is liable for the other’s obligations. Not only prospective spouses may choose a property system, but they may also specify in the settlements what assets they bring into the marriage, which debts are still due, and what donations they have made to each other.

To sum up, it is important to realize that all these amendments have not been made in a capricious way, just because a substantive reform of the code was needed. The reform of the Code represents and consolidates the solutions provided by case law and legal authors to the social and cultural changes of the last decades as a result of the absence of express rules.

Best Argentina Divorce Lawyer|Buenos Aires Top Divorce Lawyer|Expert Argentinian Family Law

Argentina Divorce Lawyer|Buenos Aires Divorce Lawyer|Argentinian Family Law Firm

Argentina Company Formation|Argentina Company Incorporation

Business and Company Formations in Buenos Aires, Argentina

Company law (US: Corporation law or Corporate law) is the law which deal with the creation and regulation of business entities. The most common forms of business entity are companies and partnerships.

A company (US: corporation) is a group of people which is treated as a legal person, with a separate identity from its shareholding members. It can own property, enter into contracts, sue others and be sued. This contrasts with partnership, which is not considered to be a legal person and it is not able to own property in tis own name.

Because of the limited liability of the members of a company for its debts, as well as its separate personality and tax treatment, the company has become the post popular form of business entity in most countries in the world.

Companies have an inherent flexibility which can let them grow; there is no legal reason why a company initially formed by a sole proprietor cannot eventually grow to be a publicly listed company, but a partnership will generally have a limited number of partners.

A company has shareholders (those who invest money in it and get shares in return), a board of directors (people who manage the affairs of the company) and creditors (those to whom the company owes money). Company law deals with the relationships between companies and their shareholders, creditors, regulators and third parties.

The process of registering a company is know as company formation (also company registration in UK and incorporation in US). Companies can be created by individuals, specialised agents, attorneys or accountants. In the UK, a certificate of incorporation is issued once the company’s constitutional documents and statutory forms have been filed (generally no official certificate is issued in US).

The constitution of company consist of two documents. The memorandum of association (US: articles of incorporation or certificate of incorporation) states the principal object of the company. The second document, the articles of association (US: bylaws), regulates the company’s internal management and administrative affairs, including matters such as the rights and obligation of shareholders and directors, conduct of meetings and corporate contracts.

 

Property Prices at Lowest Price Since the 2001 Crisis

Property Prices at Lowest Price Since the 2001 Crisis

Those looking to purchase property abroad would be wise to consider purchasing in Argentina at this moment, with the guidance of bilingual (Spanish/English) Argentine lawyers. Currently, Argentines are hesitant to spend before this year’s presidential elections, resulting in some of the lowest property prices in years. But while locals are holding back, foreigners without ties to the local economy can invest now at extraordinary prices. Kier Joffe is the premiere real estate law firm for foreigners in Buenos Aires, and with our expertise and guidance, the buying process is simple, direct and stress-free. We are proud to call ourselves the only bilingual Argentine lawyers with such expertise in the real estate industry.

In January 2015, only 1723 property units were sold in Buenos Aires – 15 percent less than were sold a year ago, serving as the worst numbers for the month in 12 years. The average price was $907,306 Argentine pesos.

The sale and purchasing of property is in a historic low in the City of Buenos Aires. 2014 ended with some of the lowest indicators in 30 years, and 2015 has started with a similar forecast.

2014’s numbers are the lowest since the months immediately following the economic, political and social crisis of 2001 in Argentina. In fact, during the years after the 2001 crisis, it was reported that 67 percent more units were sold than were sold in 2014.

For example, in 2001, 54,493 contracts were signed, in 2001, 56,293, and in 2014, only 33,690. The information comes from the College of Notaries in the city of Buenos Aires, which measures changes in the market. Real estate lawyers in Argentina have noted the same phenomenon, noting that Argentines are buying less than they have in recent years.

CONTEXT

Property prices are much lower than they were three years ago. Since the implementation of tight monetary restrictions, the price of properties in dollars fell between 10 and 15 percent, and remain low now, according to reports by the specialized consulting firm, Reporte Inmobiliario.

Analysts consulted by newspaper La Nacion agree that causes for the low level of activity in the sector are due to more than just the restrictions on dollars. There is an existing tendency for sellers to delay activity as they wait for the administration to change this year.

There are also difficulties accessing mortgages, a wider gap between salaries and prices, the recessive nature of the economy and consumers’ perception of high prices. At this time, the square meter in an apartment with two or three rooms costs US$ 1700, on average, while two years ago that price was US$ 1900.

Mortgage lending has practically disappeared from the market, and those that are available are not easily accessible. For example, to qualify for a credit of AR$ 500,000 pesos (or US$ 57,736.00 using the official exchange rate), paying the loan off in ten years requires monthly payments of AR$50,000.00. This type of capital is only enough to purchase half of a two-room unit.

While Argentines are experiencing difficulty obtaining the capital needed to buy a property, the climate is ideal for foreign investors looking for a beautiful property at an accessible price. But it is important to seek the assistance of an expert real estate law firm in Buenos Aires first. If you are interested in learning more about how to buy property in Argentina as a foreigner, contact us. Celebrating 75 years in the business, we are real estate attorneys that specialize in assuring that foreigners in Buenos Aires do not experience any of the headaches that come with working through a new and different legal system.

With an international reputation worthy of mention in The New York Times, Kier Joffe is your one-stop shop for information and legal services related to buying a property in Argentina as a foreigner. The first firm to specialize in providing services to international clients buying property in Argentina, we have assembled a top team of lawyers, accountants and notaries dedicated to making your buying experience as smooth as possible.

For more information, just fill out the Quick Contact Form on the right or give us a call today, and we will get back to you.

USA: +(1) 212.300.6377

ARG: +(54) 115.218.3100

Mendoza Argentina Lawyers|Mendoza Real Estate Attorneys|Mendoza Real Estate Law Firm

Skilled Real Estate Lawyers in Mendoza Argentina

Argentina has thrived in the international wine market for fifteen years. While the country was able to become the fifth-largest global producer of wines and world’s tenth-largest exporter, inflation and high production costs, a weak peso and restricted access to credit are affecting the winemakers sustaining the industry. La Nacion’s December 31 article, “Wine: The Crisis Obligates Us to Revise the Numbers,” explores the transformation that the Argentine wine industry is facing in the midst of economic turbulence at home. The Argentine wine industry is controlled and consumed by a small number of actors. Argentine winemakers depend on just a handful of companies that import supplies like bottles, boxes and cork, and 80 percent of exports are delivered to just five countries: The United States, the United Kingdom, Canada, Brazil and the Netherlands. Argentine wineries have paid the price of so little competition between providers:  the high price of supplies means production is expensive, which gives the advantage to bigger wineries that can find ways to make a profit through economies of scale. Meanwhile, smaller wineries that can’t compete have been gradually bought up by bigger players.

Mendoza Argentina: Experienced Real Estate Attorneys

In the United States, wines in the ten-dollar range are the big sellers, says Susan Balbo, President of Wines of Argentina, the organization that represents and supports local wine exporters and promotes Argentine wine abroad. And only bigger wineries can manage to export these less expensive bottles profitably. The result of this phenomenon is that only a small group of wineries have come to dominate the wine export market. Argentina became a big player in the international wine market in the 90s, when hundreds of millions of dollars were invested in transforming the quality of Argentine wine, which had traditionally been mostly generic and low-quality, with a focus on promoting Malbec in foreign markets. When the 2001 economic crisis occurred in Argentina, the country became extremely cheap for foreigners, and international investors poured in. With three unique wine varieties, Malbec, Bonarda and Torrontés, the Argentine wine market was booming.

Top-Notch Law Firm in Mendoza Argentina

But with the current state of affairs, the future of Argentine wine is changing. In 2013, profits from Argentine wine exports fell for the first time in a decade, and lately, countries like Chile, Australia, Italy and Spain have taken larger slices of market share that Malbec from Mendoza once enjoyed. Spain has high subsidies on wine exports to help winemakers make profits while charging low prices, and countries like Chile have free trade agreements with countries like the United States and China. These factors make it even more difficult for Argentine wine to compete internationally. It’s become expensive to produce that ten-dollar wine, as the cost of producing a box of wine often exceeds what can be made off of the bottles. Smaller wineries face two choices: A) convert themselves into large-scale productions focusing on lower-priced bottles or B) produce less, but charge more. It may be inevitable that the Argentine wine industry heads towards becoming a market dominated by a small group of big conglomerates in the next few years. This would not be a first, as in Chile, only four groups dominate wine production. Who will survive the transition, or the shape that smaller wineries will take, is yet to be determined. Kier Joffe has worked with international clients in Argentina for over 70 years, and our team members have become experts on the topic of buying and selling wineries in Mendoza, Argentina. Foreigners seeking advice or legal guidance on any matter related to Argentine wineries are encouraged to contact us for more information about our services.

Why is critical to retain a skilled Attorney when Buying Real Estate in Argentina

Argentina’s cities and landscapes offer foreign investors limitless possibilities when it comes to property. Here, there’s something for everyone, as Argentineans are passionate about everything from literature, theater and sport to fine cuisine and design. With an international reputation worthy of mention in The New York Times, Kier Joffe is your one-stop shop for information and legal services related to buying a property in Argentina as a foreigner. The first firm to specialize in providing services to international clients buying property in Argentina, we have assembled a top team of lawyers, accountants and notaries dedicated to making your buying experience as smooth as possible.

Whether you’re seeking a vacation property in Buenos Aires, an estancia in the pampas or a mountain cabin in Patagonia, foreign currency goes a long way in Argentina, where many homes are undervalued as much as 30%. The only legal restrictions on foreign property investment are on property near Argentine borders, where the government must approve transactions. Under the Argentine constitution, foreigners also have the same property rights as Argentines. Furthermore, since the value of properties is measured in dollars, and since all purchases must go through a notary, who tracks the history of the property and spots existing liens, Argentina is an attractive and safe place to buy if you find the right advisors to assist you.

Quick Facts about Buying Property in Argentina

Every country has its own complex set of property laws, which means that it is even more important to make these purchases with the help of a local expert who is fluent in your language and knows what foreign buyers struggle with the most. When it comes to buying in Argentina, there are a few simple concepts investors should understand before shopping for a property.

-The process of purchasing property involves a lawyer and a notary, and the costs of all this usually make up about 3 percent of the sale price of the property.

– Payments are usually conducted via wire transfer to a foreign bank account, and financing must be arranged through a foreign bank, as mortgages are not available in Argentina.

– A property owner who spends at least six months out of the year in Argentina is considered a resident for tax purposes.

– Buenos Aires has no property tax.

– Outside of Buenos Aires, tax rates depend on the value of the property, but will rarely cost you more than US$500 a year.

–  In Buenos Aires, rental properties are taxed at a rate between 10 and 30%, depending on the value of the property.

That said, it is common for lawyers or those sellers to cheat foreign buyers in certain aspects of the transaction, which makes it even more important to find a trustworthy lawyer. For example, there is a 3.6% tax on all property purchases in Buenos Aires, which is usually split between the buyer and seller. Dishonest sellers may be able to convince buyers that they need to pay that tax in full, which is why our team makes sure to stay involved in all aspects of the transaction. It is important not to make the mistake of closing the deal before hiring an independent and highly-reputed lawyer, because realtors’ real motivation is their own commission, not the sellers’ needs.

Where to Buy

Foreigners are increasingly attracted to the wide variety of landscapes and scenery that Argentina offers at an affordable price.

Buenos Aires is beloved for its European-style architecture and rich, vibrant culture, not to mention the fact that the per-foot cost of apartments will be between one-third and one-tenth the cost of properties in European cities. Apartments are spacious and well-constructed, and both older, turn-of-the-century and modern architecture is prevalent throughout the city.  Neighborhoods like Recoleta, Puerto Madero, Palermo y Las Cañitas are comfortable and full of spacious, beautiful apartments.

To the north of Buenos Aires are conveniently located suburbs, where buyers can make long-term investments on the family-style houses in neighborhoods like Nordelta, where there are many gated communities with 24/7 security. These homes are built for big families, and are often equipped with pools, large grills and spacious yards. Apartments of approximately 50-70 square meters, and more spacious homes in the northern suburbs, go for around US$100-250,000.

Investors looking for a less traditional property surrounded by scenic landscape can head far from Buenos Aires, to the regions of Mendoza in the Northwest, or Patagonia in the South. In the wine country of Mendoza, 40 acres of land with a view of the Andes can sell for less than US$ 100,000. Down South, mountain homes nestled amongst the mountains and lakes near Bariloche, one of Argentina’s ski capitals, are available for around US$ 100,000 as well. Both Mendoza and Bariloche are ideal for foreigners, with easy access to airports, active and bustling city centers and limitless outdoor activities for the adventurous spirit.

Kier Joffe’s 70 years of experience have placed us as the go-to firm for foreigners seeking to buy property in Argentina. Our expertise in Argentine property law, as well as our understanding of foreigners’ taste and needs, greatly simplifies what can be an intimidating process for a buyer, and we’d love to talk to you if you are looking to make a purchase in the lovely country we call home. For more information, just fill out the Quick Contact Form on the right or give us a call today, and we will get back to you.” 

USA: +(1) 212.300.6377
ARG: +(54) 115.218.3100