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Real Estate: Summary and Critique of Argentina’s “Rural Land Law”

Argentina’s Rural Land Law

Last week, in an extraordinary session before summer recess, the Argentine Congress enacted a controversial law to restrict foreign ownership of rural lands. Law 26,737, introduced by the Executive Branch, passed with almost no floor debate. According to statements made by public officials, the law protects national sovereignty over natural resources by, among other things, limiting foreign ownership of rural lands to 1,000 hectares (approximately 2,500 acres) for each foreign person. Supporters of the law point to the massive holdings of Benetton and Ted Turner (Patagonia) and Douglas

Tompkins (northern Argentina wetlands) as examples of foreign wealth locking up sovereign resources. Read on for more about these restrictions and the disquieting uncertainties prompted by the law.

Summary of the Rural Land Law

The Rural Land Law restricts ownership and possession of rural land by natural and legal foreign persons. “Rural land” is broadly defined as “all land outside the urban area,” regardless of its location or use. While the Rural Land Law does not affect already acquired property and rights, it would affect future investments such as the acquisition of companies with rural land holdings.

Restrictions

The law imposes three restrictions on foreign ownership:

–      Foreign persons may not own more than 15% of all rural land in Argentina.

–      Of that 15%, no more than 30% may be owned by foreign persons of the same nationality.

–      Any one foreign person may not own more than 1,000 hectares (roughly 2,50 acres) in any “cluster” (zona núcleo) (a term that is not defined by the law). The Rural Land Law bans outright all foreign persons from owning coastal lands or other land adjacent to significant bodies of water. The law further prohibits foreign ownership of land within “border security zones,” absent consent from the Ministry of Internal Affairs, consistent with the exceptions and procedures established by law.

To implement its restrictions, the Rural Land Law calls for the creation of a “National Rural Land Registry,” a subdivision of the Ministry of Justice, and an Inter- Governmental Council of Rural Lands. The National Registry will be charged with

creating a database of rural lands owned by foreign persons. Current rural land owners subject to the “foreign person” definition are required to notify the National Registry within 180 days of the release of implementing regulations by the Executive Branch (which has not occurred yet). Any change in the ownership of a legal entity holding rural land must also be notified to the National Registry within 30 days of its occurrence.

Defining Foreign Persons

Foreign natural persons are not defined by the law but presumably the term excludes both natural-born and naturalized Argentine citizens. The law exempts three categories of foreign natural persons from its restrictions:

–      Those with 10 years or more of permanent and continuous residence in Argentina;

–      Those having Argentine children and at least five years of permanent and continuous residence in Argentina; and

–      Those married to an Argentine citizen for at least five years before acquiring the rural land (or interest in a legal person holding the land) and five years or more of permanent and continuous residence in Argentina.

As to legal persons domiciled in Argentina, the law defines them as “foreign” when:

–      Foreign natural or legal persons own more than 51% of its capital;

–      They are effectively controlled by any foreign legal person (which is presumed when foreign ownership exceeds 25%);

–      They have issued negotiable obligations or debentures, which allow a foreign holder to convert the instrument into equity representing more than 25% of the company’s capital stock; or

–      In the case of a trust holding rural land, when foreign beneficiaries have an interest in excess of 25%.

The law further declares rural land as a “non-renewable natural resource,” the acquisition of which will not be considered a protected investment under any Bilateral Investment Treaty to which Argentina is a party.

Commentary: Whose Interest is Being Protected?

The Rural Land Law is fraught with uncertainty, making it hard to assess its application. The law is patently contradictory in defining foreign legal persons (e.g., does a 51% or a 25% ownership threshold apply?). The law prompts obvious questions (e.g., would a foreign secured creditor be barred from foreclosing on a rural land mortgage? What is the

consequence of exceeding a nationality threshold? If a quota system, does a perspective buyer await an opening? How are natural persons with dual nationality to be considered?). Some or even all of these questions may be answered by the Executive Branch when it releases regulations. Nonetheless, it is unclear when this will be done.

The absence of meaningful debate only adds to the confusion prompted by the Rural Land Law. While a government may rightly assure that a country’s natural resources be available to its citizens, it would appear that the legislators have confused sovereignty with nationality. The owner’s nationality does not affect the State’s power to tax, to regulate, to condemn or even to expropriate in the public interest. It is hard to understand

the Rural Land Law as upholding any national interest, unless one accepts that the law will rightfully keep Argentine rural lands from being a world market commodity, thereby protecting the ability of Argentine citizens to acquire large landholdings without competing with foreign wealth. If so, it is hard to imagine the Argentine landed gentry as a class requiring the State’s protection.

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