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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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Foreigners own 6% of rural land in Argentina, equivalent to 15.8 million hectares

A total of 5.93% of rural land in Argentina is foreign-owned President Cristina Fernández announced which amounts to 15.8 million hectares. During a speech at Government House, Justice Secretary Julián Alvarez presented a survey that is a prelude to the full implementation of the Law 26,737 on Rural Lands (Ley de Tierras Rurales) passed in 2011 to place a 15% limit on foreign ownership of rural land in Argentina.

Catamarca, San Juan, Salta, Corrientes and Misiones were identified as the only provinces with 10% of their lands in foreign hands. Rural lands were reported to account for 95.8% of the total Argentine territory that is estimated at 277 million hectares. Neighbouring Uruguay is estimated to have 16 million hectares of rural land.

The top foreign owners were from the United States (3 million hectares), Spain (2.3 million) and Italy (2.1 million). A special mention was reserved for the British, who posses 1 million hectares, which Julian Alvarez attributed in part to firms, based in “tax havens”.

The survey was carried out through cooperation between Argentine municipal, provincial and national authorities, and the law will also be implemented at those levels.

That is, although no provinces were found to exceed the 15% limit, ten “subdivisions,” or departments, out of 569 were above the ceiling.

The Articles 8 and 9 of the law state that within each department, each foreign individual or entity will not be able to acquire more than 30% of land within the allowed 15% of the total land of the subdivision.

Alvarez, who said the aim of the law is to “protect our territorial sovereignty,” denied “legislative overacting” from the government and emphasized that the law is in “full force,” criticizing the opposition for having considered the law impossible to apply.

Cristina Fernandez who spoke after Alvarez pinpointed to the alleged contradiction of the opposition, which mostly abstained from voting the bill in 2011.

The law was passed with 153 votes for, 26 against, 1 abstention and 77 absentee members of Congress, with the president accusing the opposition of not having voted for the law because it was promoted by the Victory Front (FpV).

Cristina Fernandez said that “our land” is a “non-renewable resource,” and “this is why I wanted to use the instrument of the national broadcast, so all Argentines” can “be informed about the effort we have made to fulfil a law.”

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Cadastral Registration of the Rights on Real Estate in Argentina

SUMMARY

The present paper tends to give information on territorial cadastre, as well as of the cadastral registración of the rights on the real estate, and theirs essential documents in Argentina. The land registration is carried out by the Territorial Cadastre and Land Registry, taking to the parcel as the unit of registration. They are managed by the respective provincial rules. In the Territorial Cadastre the parcels are registered with reference to the state of right contained in the public document or possession exercised. To that end surveyors have determined for each parcel the application and extend of a real right or possession over the land, through acts of parceling and/or territorial survey; and they have identified that parcels on the cadastral map and alphanumeric registry; this show evidence of parcels registered have physical existence. In provinces argentine there aren’t equals territorial cadastres. Each of them have their own aspects and functional structures, but with all its strength and weakness support the system of registration of the real estate in the land registry and in the transactions between individuals. Both the Land Registry and Territorial Cadastre, tend to give publicity to all entries of its registries, to provide legal security to land traffic. This is the unique form to assure the purchaser that real estate exists and is real. The territorial cadastre performs a activity referred to measurement, registration and identification of parcels, thus the Land Registry has the aim the of inscription of acts referred to domain and other right on real estate. The cadastral survey also are carried out by the particular surveyors while the tasks of cadastral registration e identification of parcels are exclusively of the Territorial Cadastre. The real rights considered in the Civil Code are eight, but only some of them have application in the land. There are other right on real estate create by law which are not incorporated in the civil code; it is the case of horizontal property, registered frequently in the big urban centers of provinces argentine. It’s used for to register the division of building, but also for to register others special cases. The importance to determinate precisely the parcels through acts of parceling survey, and to register it in the cadastral map and folio, constitute the base to register the real rights in real folio in the land registry. In this way the principle of specialty will be in force.

1. INTRODUCTION

The registration of the real estate in Argentina was begun in the nineteenth century. In 1824 in the Province of Buenos Aires is elaborated the topographic map of the province, and it is organized a cadastral map and alphanumeric registry of the real estate. In the country is instituted a cadastre with civil effects, setting up the procedure of survey and demarcation. For historical reasons the Republic Argentina has a legal regime of the real estate inherited of the Spaniard legislation. Some provincial cadastres have been organized, when there wasn’t a Civil Code. The Civil Code is sanctioned, in 1871. It was not introduced the registral publicity. The author of the Civil Code makes mention to the difficulties of executing in the country a parceling cadastre that permits the individualization of the real estate, as the cause for which did not introduce the registral publicity among the arrangements of the Code. About 1881, Buenos Aires and other provinces organized its respective Land Registry. The laws that instituted them have imposed the requirement of the registration for the transmission of the real rights, to effects of the opposition to third parties, requirement not envisaged in the Civil Code. Logically this gave rise to constitutional conflicts order, inasmuch as do not agree with the arrangements of the Code, but in practice continued registering the titles, therefore until the sanction of the Law 17.711/68 was registered an important proportion of the real estate of the country. Since then have been made several attempts to reform the Civil Code, trying of surpassing the deficiencies of the system, concerning the constitution and publicity of the real rights. Was indispensable the existence of the Territorial Cadastre, and in those times very few provinces had begun the execution process of the cadastre. The situation of empty registral legislation is extended until 1968, when is modified the Civil Code and it is instituted the record of acquisition or transmission titles of real rights on real estate, to the effects of the opposition to third parties. Introduced the publicity registral in the argentine legal system, it was necessary the organization of the Land Registries. Thus, in the year 1968 was sanctioned the National Law N° 17.801 of the Land Registry that establishes the regime which will remain subject all the Land Registry of the country, and introduces the registration system in real folio, which is currently outstanding in all the provinces.

2. CADASTRAL LEGISLATION

As indispensable complement of the publicity of the state to right that prescribes the Law 17.801, in 1973 is sanctioned the National Law of Cadastre N° 20.440, that was incorporated into Civil Code. Among the principal arrangements, this law incorporated into argentine legal regime the publicity of the fact state of real estate. Regulate the parceling state of the real estates and its determination, the cadastral registration, and establishes the obligation of the notaries, judges and other authorities to have in sight and to relate to the documents that authorize, the cadastral certification. But this law, that establishes cadastral rules of uniform procedure for all the country, has had very few years in force, since in 1980 remained discontinued the validity of its articles 5 to 57 inclusive. Since then the institutions involved with the cadastral topics, have elaborated various projects of law, but of to date there is not a national law of cadastre. Referring to the Law 20.440 are in force the first four articles, that reflect the basic concepts of the cadastral rules, in base to which will operate the provincial cadastres. The first article establishes that the provincial Territorial Cadastres “will gather, register and order the information related to the real estate thing with the following purposes”: a) to determine the correct location, limits, dimensions, surface and boundaries of the real estate, with reference to the legal titles or to the exercised possession; b) to establish the parceling state of the real estate and manage its development; c) to know the territorial wealth and its distribution; d) to elaborate economic and statistic data of base for the legislation tax and the action of planning of the local and national public authorities”. These four articles provide the essence of the cadastres, given by the identification and ordering of the parcel. The provincial laws have full autonomy in cadastral matter. Due to the fact that the power of cadastral policeman is an attribution of the provinces and has not been delegated to the nation, the procedures are from local jurisdiction. Consequently the provincial laws act with property and competence in its respective jurisdictions. The Provincial Cadastres fulfill mainly fiscal functions, but also fulfill the important function of complementing to the Land Registry of the respective jurisdiction through a common element the parcel, informing its real existence, through the physical characteristic, location, possession state, every time that the land registry has to register documents that contains legal acts with real transcendence. There are not equal Provincial Cadastres, each one has its own aspects, functional structure and special functions, but with all the strengths and weaknesses, support the registration system of the real estate and to the land transactions among particular.

In the last decade most of the provinces were in process of implementation of development cadastral and registral programs, with financial agencies assistance such as the World Bank and the Inter-American Development Bank, to change the organizational structure of some Provincial Cadastres, update and computerization of the cadastral information, implementation of a territorial information system, development of geodesics standards for the georreferenciation appropriate, measurement to produce cadastral cartography, rural and urban cadastral survey, computerization of the Land Registry, creation of integrated data bases, etc.

3. THE CADASTRAL REGISTERS

The Territorial Cadastre can be considered as the institution that establishes the existence of the parcel, to which registers graph and analytically. The cadastral registration unit, is the defined parcel as the thing of territorial extension continuous, on which is exercised a right to property or possession. That parcel must be defined and represented in a cartographic document registered in the Territorial Cadastre. Due to the fact that the provincial laws have full autonomy in cadastral matter, the territorial cadastres are different in the several argentine provinces. An essential element of the cadastral registration is the cadastral map; this constitutes a basic element to support to the real-estate registration .

3.1. Classification of the Cadastral Registers

All the parcels of a given jurisdiction, are registered in the territorial cadastre in two ways. One of them in form graphic on a map, in which directly can be visualized the represented parcel; and the other in analytical form, the information of each one of parcels, is incorporated to other record, different from the graphic, in which can be recovered information in many and different ways. This two types of records, are named the cadastral map and the cadastral alphanumeric record, and they contain: 1. The cadastral map, contains the geometric description of the parcels in different scales, that depend on the density on the contents in the map, in this are represented the results of all the surveys of the parcels. In some provinces the parcels are represented in the cadastral map by a math description, normally based on a coordinates system. Cadastral maps that contain the graphic data of the parcels, answer to different constructive characteristics and content according to the provinces. Also, they can be computerized. 2. The cadastral alphanumeric record, sometimes called analytical record or cadastral file, contains the textual information of the parcels, such as linear survey, surface, form, use of the land, improvements, name of the proprietary or owning and identity data; data of the property title and of registration in the Land Registry, such as number and deed date, notary, number of domain or real folio, etc., that normally it is annotated in specially designed forms in each territorial cadastre.

The graph information acquires a great relevancy; in addition to define the form, position and the dimensions of the parcels to the effects of consult and publicity, it is linked to the analytical data, generally through identification code of the parcels. Some provinces of our country, are attempting to achieve computerized cadastral maps, while others are in process of integrating of their graphics and alphanumeric cadastral data base, in a statal territorial information system, formed by some data bases mainly referred to the Land Registry.

3.1.1. The Cadastral Map

Probably the first cadastral map existing in the country, may have been the Cartography Buenos Aires Province of, published by the Topographic Department of the Province in 1864. It was called Graphic Record, in which were set the existing rural properties within the zone limited by the frontiers of the aboriginals. Until the sanction of the first Law of Parceling Cadastre of the country in 1935, there were a few cadastral maps. This law ruled the formation of the parceling cadastre of Buenos Aires Province. The other provinces have not developed cadastral map in the same way as Buenos Aires, but they have had some kinds of cartography that has served to the cadastral purpose. Only after the decade of the 60’s in some provinces, begun the cadastral projects tending to achieve comprehensive cadastral maps of all the provincial territory. Currently still exist various provinces that have not developed graphic records in the whole of its jurisdictions, though it has been preoccupation by strengthening the Provincial Cadastres, so that represent all the parcels of its respective jurisdictions in cadastral maps. The action of planning of the provincial and national public authorities needs territorial base information to achieve the economic development and the optimum environmental administration of its jurisdictions, and until the moment the information which account most of cadastres of the country is not enough for the end of planning. Generally it is spoken of the cadastral map as an unique element in all jurisdiction, but being its purpose to represent graphically to all the parcels, the term cadastral map, is employed as an expression of the whole. The cadastral map is normally divided into leaves, and in the generality of the cases those leaves answer to a hierarchic relationship. The division in leaves is a logic consequence of the need of describing graphically to the parcels of all the jurisdiction, within them exist cities, centers populated in rural zones, country house and farm intended for the agricultural development, etc., in those which the parcels have different size, that they can vary from a few square metres until thousands of hectares. For example, as the smallest parcels in urban zones need large scales so that they could be described graphically, it is not possible to represent all the city in one leaf, but the cadastral map necessarily it must be divided to make possible the graph representation of each one of the parcels.

This implies that they are divided progressively in different detail levels, continuing usually the political division. This has been the modality used by the provinces that count on its own cadastral map that is divided successively in departments, districts, and sections cadastral. So that the different provinces of our country count on a variable quantity of leaves of the cadastral map. All the parcels should be represented in the cadastral graphic record. Above the cadastral section plan, it should be to appreciate graphically the form and the linear survey of the parcels, and its location respect to its frontier and to the topographic and natural accidents existing. This indicates us the importance of the fact that cadastral map represent various elements, in addition to the parcels, to a scale that permit that all the elements and details will be clearly visible, since what is being representing are territorial facts of legal character. Each leaf of the cadastral map is a graph expression of the parceling legal situation of the zone that represents. The confection of the leaves of the cadastral map, is carried out according to the provincial regulation. Also, can be found variations within a same jurisdiction, due to that each zone has its own characteristics. What is important is that each leaf supplies all the possible information in an adequate scale, with appropriate clarity in reading. As a rule each leaf in which is divided the graphic record constitutes a cadastral section plan, that represents a given area according to the existing parceling in a scale that permit to individualize the registered parcels and to visualize the size and form of the same. It has been adopted the projection Gauss-Krügger for the confection of the cadastral cartography, what has allowed to get will with the cadastral map with the general cartography of the country. Some provinces have elaborated cadastral maps of reduced areas, generally urban, or suburban and of populated centers, without support to a coordinates system, or have adopted the cartography elaborated by other institutions with other aims to the territorial cadastre, such as the cartography of the irrigation areas, to the effects of counting on some cartographic element that allows to individualize the parcels. In other provinces the cadastral map are originated from the previous survey of the territory through a cadastral survey of integral character. This task involves mainly the survey of all the parcels in its physical, legal and economic aspects, the determination of support points for the subsequent cadastral surveys, and the execution of the cadastral map from different provincial jurisdictions, and its division in leaves, so that all the parcels are represented precisely and clarity in each leaf of the cadastral map. Some provinces that have developed its cadastral map in base to the survey integral of the territory and census of parcels through acts of territorial survey performed by contracted companies by the cadastral organization.

The cadastral map originating from these acts are perfected with the registration of acts of parceling survey practiced by the land-surveyors. In Appendix are shown two leaves of cadastral section plans, the first corresponds to a urban area and the second to a rural area.

4. ACTS OF TERRITORIAL AND PARCELING SURVEY

In our country can be distinguished two types of cadastral survey, that the cadastral laws define as acts of territorial survey and acts of parceling survey. The cadastral surveys are carried out with a specific purpose, mainly to establish the limits of parcels, of areas of public domain and of the political jurisdictions; also they can be executed to establish the limit among different destination zones, for example with the purpose of the cadastral valuation. The principal purpose of the cadastral survey is to determine for each parcel its precisely location in a place, locality, city and country, the extension of its limits and surface, to register them in a cadastral map, in which furthermore will be shown all the subsequent modifications that occur in the original parcels by partition or unification, of the way and time this occur. The acts of territorial survey have been defined by the National Law of Cadastre N° 20.440, as those that have as purpose to recognize, to determine and to survey the territorial space and its characteristic. The same national law establishes that are acts of parceling survey those acts of territorial survey practiced in order to constitute the parceling state of a real estate, to modify it or to verify its subsistence. The same norm has expressed that the essential elements of the parcel constitute the parceling state of a real estate, and establish a differentiation among the acts of territorial survey and the acts of parceling survey, but at the same time includes the acts of parceling survey within the first.

The essential elements of the parcel are: a) The location of the real estate and its adjoining. b) The limits of the real estate in relationship to legal title or the exercised possession. c) The linear surveys, angle and of surface of the parcel. They constitute the parceling state of a real estate. The acts of territorial survey generally are associated to the cadastral survey of a set of parcels, with the aim of incorporating them into cadastral map and record. The acts of parceling survey involves a particular operation, that focus to determine mainly the geometric and legal conditions, and in some jurisdictions the economic conditions, of a certain parcel. Through these acts are determined with accuracy the limits of that parcel, the order to its cadastral registration. In both cases the individualization of the parcels is achieved through the operations of character geodesic, topographic, legal and cartographic, in a general way in the acts territorial survey, and particular in the acts of parceling survey. The National Law of Cadastre N° 20.440 also has established that the acts of territorial survey that aim to constitute or modify the parceling state of a parcel will be made by survey, with adjoining citation and its essential documents will be the act, the survey’plan and the report. Consequently the parceling state of a real estate is constituted when a surveyor engineer determines by survey the essential elements of that parcel. The constitution of the parceling state, is not an indicator of that parcel have acquired parceling state, because the acquisition of the parceling state is achieved through act of enrollment, through which the Territorial Cadastres incorporate a real estate into its records. The modification of the parceling state, is interpreted that is referred to change the parceling state of a real estate, already acquired through the enrollment, for example if is practiced the partition of a parcel, or the unification of two or more parcels belonging to the same proprietor. The verify of the parceling state implies to prove the subsistence of the parceling state of a real estate, determined by survey and registered in the Territorial Cadastre. The acts of parceling survey are ruled in the various provinces by own norm dictated by the provincial cadastres, for the execution, demarcation and registration of the survey‘s plans. As a rule, the essential document of the acts of parceling survey intended for to constitute and to modify the parceling state is the survey‘s plan.

4.1. Territorial Application of the Rights

The Civil Code recognizes the following real rights: 1) the domain and the condominium, 2) the usufruct, 3) the use and room; 4) the active servitudes, 5) the right to mortgage; 6) the pledge, 7) the antichresis, 8) the forest surface. Originally the real rights were seven, the right to forest surface is created by law in the year 2001 and there are still any provinces that have not experimented this type of special registration. Of the existing real rights only some have application to the territory. The bigger proportion of the survey’s plans that are presented to registration, are referred to the domain and condominium. In addition to the real rights, also are presented to register the survey’s plans by the horizontal property regime, for which results divided a building. This special regime combines in only one right the exclusive property on some parts of the building, and the common property on others that are accessories to the first. The exercise of this regime is regulated by the National Law N° 13.512 and a joint ownership and administration regulation, elaborated to each particular building.. The horizontal property regime, also is employed for the registration of special cases, such as industrial parks, park cemeteries, field clubs, closed neighborhoods, etc. The survey’s plans are elaborated exclusively for surveyors engineer. These plans have different objects, they can be executed on real estate of the private domain of State or particulars. Among the objects of work more frequent are found the plans referred to survey of one parcel, subdivision, unification, condominium division, subdivision by the horizontal property regime, subdivision for annexation, prescription of domain and for expropriation. In all the cases, the surveyors engineer determine which will be the parceling state of the real estate, and then through the cadastral registration, that parcel acquires the parceling state through a designated act “enrollment”. The enrollment consists in the assignment of a number to each parcel for its identification, and the creation cadastral folio that complements to the real folio.

5. RELATION AMONG THE TERRITORIAL CADASTRE AND THE LAND REGISTRY

The Land Registry and the Territorial Cadastre are two independent institutions, organized by each provincial State. These contribute to the exercise of the real rights on real estate, in the way established in the respective law. The territorial cadastre organizes its cadastral records taking as a base to the parcel, defined as the territorial unit, delimited by the limits that mark the extension on which is applied the same right. Instead the land registry is organized in function of the technique of the “real folio”, of obligatory application in all the provinces. Among these two institutions there is a necessary correlation that is manifested of different way in the various provinces, but also there is a common element, the parcel, which is the basic material element or object of real rights, and it is furthermore the registration unit in both institutions. Both institutions fulfil the same objective, that is, to register aspects of the parcel, should be intimately related. The Territorial Cadastre is the one that provides the material element, the parcel and its physical and economic characteristics, and the possession state, while the land registry provides the legal state. The land registry inform to the territorial cadastre the real rights that could to be invoked on the parcels which existence arises from documents registered in the territorial cadastre.

There is a link among these two organizations, constituted by the specialty o determination principle of the parcel. That link makes to the legal safety, since the buyer is assured not only the legal protection, but also what acquires exists and it is real. The registration of the real estate in the land registry is carried out in function of the content of the property title, that is, is registered the state of right with reference to the parceling state of real estate registered in the Territorial Cadastre. In the land registry, the opening of the real folio is carried out only with the information on the existence of the parcel contained in the cadastral folio.

CONCLUSION

The lasts decades the provincial governments have invested no only money but also effort in order to get a full development of its Territorial Cadastres, but they still haven’t completed that. Thus the provincial governments should be urged to go on working on this direction.

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Buenos Aires Lawyer Argentina: Offers Advise Gay Marriage to Foreigners

BUENOS AIRES, May 18 2012 (IPS) – Foreign non-residents, gay or straight, can now get married in the Argentine capital, thanks to a resolution that removed bureaucratic obstacles and streamlined the procedure.

Since same-sex marriage was approved in Argentina in July 2010, many homosexual couples from abroad have sought information about travelling to the city – not to settle here, but to legalise their bond and later push for official recognition of their new marriage certificate in their countries of origin.

But the process was bogged down in red tape, and civil registry regulations had to be modified to make it possible to meet the new level of demand. That was first done in the eastern province of Santa Fe, which in March authorised the marriage of foreigners who had spent a minimum of just 96 hours in the country.

A gay Paraguayan couple, Simón Cazal and Sergio López Centurión, immediately travelled to Rosario, the main city in that province, to get married. To indicate her support for the measure, socialist Mayor Mónica Fein was one of the witnesses to the wedding.

Cazal and López Centurión are gay activists who are trying to get their marriage legally recognised in their country.

Next to follow suit was Tierra del Fuego, Argentina’s southernmost province, which also eliminated the requisite that a couple must be permanent residents in the country. The eastern province of Buenos Aires then did the same.

Alex Greenwich of Australia and Victor Hoeld of Germany are gay rights activists who live in Sydney, Australia and wanted to get married in Buenos Aires. However, the authorities required an identity document for foreigners, which takes at least three months to obtain.

After running up against that hurdle, they applied for a marriage licence in La Plata, the capital of the province of Buenos Aires, where a resolution was adopted allowing foreign couples to marry without an Argentine identity card.

Their wedding was attended by some 40 family members and friends from Australia, Germany and the United States, and received broad coverage from the local press and from the media in Australia, where it has fuelled a lively debate.

In response to these precedents and to pressure from local activists, the city of Buenos Aires agreed to adopt the same changes. Now foreign non-residents can marry simply by presenting their passports and the address where they are staying in the country.

The new regulations also instruct civil servants to schedule the marriage ceremonies of foreign couples quickly, so that they do not have to wait more than five days after applying for the licence, in order not to “undermine the spirit” of the same-sex marriage law.

“Before this, we were already receiving inquiries from foreigners every week. But now with this Buenos Aires resolution, requests are going to rain down on us,” activist Alejandro Nasif, with the Argentine Federation of Lesbians, Gays, Bisexuals and Transsexuals (LGBT), told IPS.

The Federation has worked hard to expand these rights in Argentina, and to foreign couples as well, seeing the law as an instrument that can be used to force changes in the national legislation of other countries.

A report presented this week in Geneva by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) indicates that same-sex marriage is legal in only 10 countries around the world: Argentina, Belgium, Canada, Iceland, Netherlands, Norway, Portugal, South Africa, Spain and Sweden.

The report was presented on the occasion of International Day Against Homophobia and Transphobia, which is celebrated on May 17 because homosexuality was removed from the International Classification of Diseases of the World Health Organization (WHO) on that date in 1990.

The report also reveals that same-sex couples are allowed to adopt children in just 12 countries in the world – including Argentina. By contrast, 78 countries still have legislation criminalising same-sex consensual sexual acts between adults. In five countries – Iran, Mauritania, Saudi Arabia, Sudan and Yemen – such acts are punishable by death.

Since the law on same-sex marriage was passed in 2010, more than 4,000 same-sex couples have married in Argentina.

Bills on same-sex civil unions or marriage are being debated in other countries in the region, while progress towards equality is advancing along other lines in yet others.

In Brazil, the Supreme Court ruled in favour of recognising the same rights for same-sex civil unions as for marriages. Nasif explained that a constitutional amendment would be needed to legalise same-sex marriage in Brazil.

“In Uruguay (where same-sex civil unions are legal), Bolivia, Paraguay and Chile there are bills on same-sex marriage that have varied levels of support. And in Colombia, some progress has been made in the courts. That’s why we receive constant inquiries from couples who want to come and get married in Argentina,” he said.

But in the few countries in the world where same-sex marriage is legal, foreigners must be permanent residents in order to qualify. The new regulations in several provinces make Argentina the first country in the world to eliminate that requisite.

“It’s very likely that because Buenos Aires is such an accessible, attractive city, this resolution will draw many couples to come and get married here; not only homosexuals but heterosexuals as well,” Nasif said.

In the Argentine capital, the authorities had refused to allow that possibility, arguing that it would foment gay marriage tours to the city. But they finally understood that they had to stop resisting, the activist said.

“What’s the problem if a tourist market opens up for foreign couples who want to come and get married in Buenos Aires, Rosario or Tierra del Fuego? A tourist niche will emerge, but we don’t see that as a bad thing,” he said.

The proven Buenos Aires – Argentina same sex marriage lawyer professionals at the Kier Joffe  law firm have experience working with foreign clients involved in gay marriage  in Argentina. Buenos Aires Argentina attorney professionals are knowledgeable in all areas of family law, including but not limited to same sex marriage cases in Buenos Aires Argentina. International clients will have the confidence of knowing that the case is being handled by an experienced and knowledgeable Buenos Aires gay marriage lawyer in Argentina.

www.kierjoffe.com

Same Sex Marriage Attorney Buenos Aires Lawyer Argentina Law Firm

Can my partner and I marry in Argentina?

Yes, in some places (see “residency requirement”). Marriage equality has existed in Argentina since 2010. The same application process applies to gay and lesbian couples as does to different-sex couples.

Is there a citizenship requirement?

There is no citizenship requirement to get married in Argentina.

Is there a residency requirement?

In order to get married in Argentina, the civil marriage ceremony must be held at the Civil Registry Office of the province where at least one of the partners is domiciled. In principle, this requirement bars two foreign nationals without residency from getting married in Argentina. However, certain provinces (the city of Buenos Aires, and the provinces of Buenos Aires, Santa Fe, and Tierra del Fuego) now allow couples to marry without residency or citizenship after only 96 hours within their borders (arguing that a residency requirement for marriage is unconstitutional).

Nonetheless, foreign nationals wishing to marry in Argentina must be lawfully present, i.e. as tourists and/or travelling with an appropriate visa (although they do not need a specific visa to get married in Argentina).

How can we apply?

The process to arrange a civil marriage differs from province to province. Thus, in the city of Buenos Aires (which has the same status as a province), at least one partner must go to the Civil Registry Office in person at least 30 business days before the intended date of marriage in order to schedule the date of the marriage. Alternatively, both partners may go to the court 10 days before the intended date of the marriage, but in this case the ceremony will be subject to availability. The scheduling may also be performed online.

Which documents must be provided?

The following documents must be presented when scheduling the marriage:

1. Identification documents of both parties must be provided as originals, and submitted as photocopies. Non-residents must show passports proving lawful presence;

2. Certificates of death or divorce in case one or both partners is/are divorced or widowed. If the certificates are from another country, they should be “legalized” at an Argentine consulate abroad or under the “apostille” procedure (a simplified international certification procedure for public documents). If the prior marriage or divorce was decreed outside of Argentina, then the marriage certificate and/or divorce decree should first be registered with an Argentine Civil Registry Office through a court procedure. If both marriage and divorce were decreed outside of Argentina, then the new marriage is subject to prior authorization by the city of Buenos Aires Civil Registry Office;

3. There are further requirements for minors (under 20): they must show identification documents, birth certificates, identification documents of parents, and authorization for marriage granted by both parents, a guardian, or by an Argentine court. If the birth certificate is foreign, it should be “legalized” in the country of issuance (by means of “apostille” or at an Argentine consulate).

Is there a fee?

A fee will be payable, depending on the province where the marriage will be celebrated.

Are there medical requirements?

After having scheduled the marriage, both partners must go to a public hospital within seven days before the intended date of marriage in order to perform a blood test. If either or both partners are found to have a venereal disease, the marriage will not be allowed. It however seems that HIV does not count as a venereal disease for this purpose, since the both members of the first gay couple to get married in Argentina were HIV-positive.

What does the wedding ceremony look like?

At the ceremony, applicants stand in line and will be married on a first come-first served basis. There must be two witnesses over the age of 18 present at the ceremony (but regulations on who may be a witness vary from province to province). If one or both of the partners does/do not understand Spanish, they are legally required to be assisted by a locally chartered translator.

Which parental rights does an Argentine marriage confer?

The Argentine marriage equality law grants all the rights also granted to different-sex couples, including the right to adopt children. Thus both joint adoption as well as step-parent adoption are possible.

Since all the same rights are granted, you should also expect your partner’s children to become your step-children, since Argentina, though still holding traditional views of family roles, is one of the few countries that has developed legal precedents for legitimizing the stepparent-stepchild relationship while retaining all parental rights and responsibilities. However, in order to find out the extent of legal rights and responsibilities granted, you should always check with the relevant authorities.

GAY MARRIAGE IN ARGENTINA

To be married in Argentina, one or both parties must be a resident of the country. No marriage can be performed if both parties are tourists in Argentina. 1. Application forms for permission to marry must be picked up at the district civil registry office no less than 30 days prior to the date the marriage is to take place. Normally the district of residence of the bride or groom will determine which district civil registry office will be used. 2. Medical examination forms are picked up at the same time at the same office. A doctor will be specified. There is a for the marriage book. The interested parties will pick up the results of the examination. 3. Either party may request the civil registry office in the area of residence to perform the marriage. 4. Proof of previous marriages must show legal termination either by death or divorce. Death certificates or divorce decrees issued in the United States must be authenticated by apostille from the office of the Secretary of State in the state where the divorce decree was issued. This apostille process is accepted by the government of Argentina under the Hague Convention. 5. Applicants stand in line on the appointed date at the Civil Registry Office on a first come-first serve basis. The ceremony will last only a few minutes. Two witnesses must be in attendance at the ceremony. 6. Minors: Brides from 16 to 20 years old, and grooms from 18 to 20 years old. Birth certificate and parents’ IDs, plus a parental authorization must be presented (death certificate is needed if one of the parents is deceased). If the parents do not issue their consent, a judicial authorization will be needed. If one of the parents is absent, the one who is present must submit an ID and an authorization from the absent parent, authenticated by the nearest Argentine Consulate and subsequently authenticated by the Ministry of Foreign Affairs and Worship, Buenos Aires.

Documents

When scheduling the ceremony, the couple should pay the applicable fee and provide the following documentation:

1. Identification documents of both parties: non-residents must show a passport (showing appropriate legal immigration status in the country); residents must show their National Identity Document (Documento Nacional de Identidad – DNI). A photocopy of such identification documents shown must be submitted;

2. If either member of the couple has been divorced or widowed he or she should supply a certified copy of the divorce decree or death certificate, as the case may be. If the copy has been certified outside of Argentina, it should be legalised in its country of issuance (either with an “Apostille” or at an Argentine consulate). In the case of divorced persons, if the prior marriage was celebrated or the divorce has been decreed outside of Argentina, the foreign marriage certificate and/or divorce decree should first be registered with an Argentine Civil Registry Office, through a court procedure. If both the prior marriage and the divorce were celebrated and decreed, respectively, outside of Argentina, the new marriage is subject to prior authorisation by the city of Buenos Aires Civil Registry Office;

3. Minors (any person aged less than 18): identification documents, birth certificate, identification documents of parents, and authorisation for marriage granted by both parents, the minor’s guardian, or by an Argentine court. In case of foreign birth certificates, they should be legalised in their country of issuance (either with an “Apostille” or at an Argentine consulate);

Medical tests

After scheduling the date for the marriage, the couple must appear for a blood test at a public hospital within seven days prior to the intended date of marriage. This test can also be performed at certain designated private hospitals, and it is aimed at screening the couple for venereal diseases. If, as a result of this test, any member of the couple is found to have a venereal disease during contagion period, the couple will not be allowed to marry.

The proven Buenos Aires – Argentina same sex marriage lawyer professionals at the Kier Joffe  law firm have experience working with foreign clients involved in gay marriage  in Argentina. Buenos Aires Argentina attorney professionals are knowledgeable in all areas of family law, including but not limited to same sex marriage cases in Buenos Aires Argentina. International clients will have the confidence of knowing that the case is being handled by an experienced and knowledgeable Buenos Aires gay marriage lawyer in Argentina.

www.kierjoffe.com