When several legal instruments are approved, adaptations must be made, since changes are ordered for which additional preparation is required, which demands the need for training.
This is the case of the powers of the communal justices of the peace.
The Organic Law of Justice of Communal Peace (LOJPC, 2012) assigns judges to take on matters that - previously - they did not attend, being able to cite the example of actions in matters of civil registration: marriages, non-contentious divorces and without children in condition. of children and / or adolescents.
In the case of leases, the novelty consists in knowing the modifications to the legal system, which will allow them to delve into where they can mediate, conciliate or arbitrate - since they continue to be the basic tools of alternative justice - without invading those of a judicial type (traditional) or administrative.
Leasing in Venezuela is defined by the Venezuelan Civil Code (CCV, 1982) as a contract by which one of the contracting parties (landlord) is obliged to make the other (tenant, tenant) enjoy a movable or immovable thing for certain time and by means of a determined price (canon) that this one is forced to pay to the other.
Regarding what is leasable, the answer is provided by the CCV itself, indicating that it is a movable or immovable thing.
Things are portions of the outside world; to have legal significance, they must pass to the category of goods. One of the most widespread classifications and, therefore, of general application, is that which refers to property such as movable and immovable property.
Movable property is those that are moved by itself or by external force; an example would be a car, a pencil.
The properties are those - by interpretation to the contrary - that remain immobile or it is impossible to move them; Examples can be a built-in kitchen, a tree not felled, a house, an apartment.
This is where a great deal of controversy arises, since - in terms of real estate - the housing deficit at the national level is notorious, which is a long-standing historical process and this has given rise to State intervention on several occasions, where the procedures are impregnated with legal concepts of public law, more specifically, of Administrative Law and notions such as public order, public interest, general interest, contentious-administrative jurisdiction, among others predominate. Normative texts such as the Rent Regulation Law and its Regulations or the Legislative Decree on Housing Eviction are still remembered, since they were repealed by the Decree with the rank, value and force of the Real Estate Leases Law (2000), which continues in force,Except for the modifications to be studied today.
These instruments were applied - the first until its repeal at the beginning of the decade and the last until 2011 - both for residential uses (apartments, houses, rooms, tenement houses) or not (sheds, offices, industries), except for tourist, goodwill and agricultural that have their own legislation.
The first thing to note is that the jurisdiction in the matter of leases is attributed to the National Power, who exercises it through the Decree with rank, value and force of the Real Estate Leasing Law (DLAI, 2000), the Venezuelan Civil Code (CCV, 1982), the Organic Law of Administrative Procedures (LOPA, 1982), the Code of Civil Procedure (CPC1990), Law for the Regulation and Control of Housing Leases (2011) and its Regulations, Decree with rank, value and force of Law against Eviction and Arbitrary Vacancy of Homes (2011), among others.
In fact, the Constitution of the Bolivarian Republic of Venezuela (CRBV, 1999) when it refers at the municipal level to the competences assigns to the National Power the legislation on housing, spatial planning, wasteland regime, urban planning, unification of technical standards and procedures for engineering, architecture and urban planning; All these sectors are closely linked to the real estate sector. As for the Municipality, the CRBV establishes that it is responsible for the application of the policy regarding the tenant matter in accordance with the law that governs the matter.
For its part, the Organic Law of Municipal Public Power (LOPPM, 2010) reproduces the constitutional rule.
Likewise, the DLAI establishes that the "tenant administrative functions are the exclusive competence of the National Executive Power and the exercise of these functions may be delegated by this National Power to the Mayor's Offices…"; this is within the Republic because in the Capital they cannot be.
Those administrative functions are those where there is no intervention of the judges; for example, the maximum rental fixation, what is called in the environment as “regulation”. The rest, such as: reinstatement, fulfillment or resolutions of contracts, among others; correspond to the judges.
Corresponds to the occasion to study the situation from the year 2011, when by application of what is popularly known as the “Enabling Law”, normative texts were approved with the rank of law on urban real estate leases.
After the approval of the Law for the Regularization and Control of Housing Leases (LRCAV, 2011) it is necessary to reflect the new reality foreseen for the municipality with this legislative instrument and against the activity of real estate leases.
Competition in matters of leasing continues to be national in nature, since it is immersed within housing policies, where the local level performs specific tasks. In fact, the instrument in question indicates that its application is throughout the territory of the Republic.
The LRCAV creates a decentralized body for its execution called the National Housing Leasing Superintendency (SUNAVI), which is part of the ministry with competence in housing and habitat, this being the governing body in the matter.
SUNAVI will form a national housing coordination system, with a presence in state entities and will coordinate with municipalities.
As the LRCAV only refers to residential real estate, it expressly excludes urban and suburban non-built land, rural farms, goodwill, hotels, motels, inns, tourist, vacation, recreational, commercial, industrial, professional, and teaching inns.
The reason for this exception is that they are regulated by ordinary civil, agrarian, tourist, educational and commercial legislation, according to the nature of each one; all these cases are charged to national legislation.
Likewise, as the LRCAV indicates that an administrative procedure must be fulfilled prior to lawsuits before the courts, they will be carried out in housing cases, as established in the Decree with rank, value and force of law against eviction and unemployment arbitrary housing (2011) or what is popularly known as Decree 8190, which provides that the procedures will be heard before the SUNAVI before going to the ordinary judicial or administrative contentious route where the justices of the peace are not empowered expressly.
The LRCAV indicates that tenant procedures: regulation, reimbursement of rent or deposit, contract fulfillment, contract termination, preference, legal withdrawal, eviction, as well as “… actions derived from lease relationships on properties intended for housing,…, any process in which it could result from a judicial decision whose material practice entails the loss of possession or possession of a property intended for housing, room or pension, the landlord of the property that is claiming the claim must process before the Superintendency National Housing Lease the procedure… "
All this taken towards the jurisdiction of communal peace means that - apart from what is stated in the normative texts to which reference has been made - the Justice of the Peace may know as long as it does not correspond to the SUNAVI, the ordinary civil judges or the contentious administrative, so the definition of yesteryear is maintained about whether it is a problem of coexistence, which could also be known to the municipal police force, such as - for example - loud music outside appropriate hours, vehicles parked out of place, discussions that generate procedures - as the receiving body and primary instructor - of gender violence, people with disabilities, abuse of children, adolescents or pets; based on the LOJPC, the Organic Law for the Protection of Boys, Girls and Adolescents (LOPNNA 2007),the Law for the Protection of Domestic, Free and Captive Fauna (LPFDLC, 2009).
Hence, justices of the peace are recommended to be very cautious when hearing a complaint that contains elements outside the powers assigned by LOJPC, since it could give rise to legal actions of various kinds, including those for protection and constitutional review.
After the approval of an Enabling Law in 2013 to the President of the Republic by the National Assembly, the latter issued temporary legal guidelines that regulate leases for non-residential uses, while another instrument was published by the National Executive.
In effect, Decree No. 602 dated November 29, 2013, published in the Official Gazette of the Bolivarian Republic of Venezuela No. 40,305, dated November 29, 2013, contains regulations on this matter. Its purpose is to establish a transitional regime for the protection of tenants (tenants) of properties intended for the performance of commercial and industrial or production activities.
It modifies the norms contained in the Decree with the rank, value and force of the Real Estate Leasing Law (2000), which - in turn - transformed the residential leasing relationships upon approval of the Decree with the rank, value and force of law for the Regularization and Control of Housing Leases sanctioned (2011) and its Regulations (Decree No. 8,587, 2011), also product of another Enabling Law of 2010.
In the same sense, justices of the peace do not have jurisdiction to hear in matters of leases, since it is - in the first place - a national jurisdiction.
Then, they could only act in cases related to matters within their competence in this area provided for by the Organic Law of Justice of Communal Peace (LOJPC, 2012), since they are not empowered to set fees, decide on reimbursements, compliance or resolution of contracts, which are reserved for the administrative authority (SUNAVI) - in the first case - and for the traditional judges for the rest.
As indicated in the preceding delivery, the Justice of the Peace may know as long as there is a problem of citizen or neighborhood coexistence based on the LOJPC, the Organic Law for the Protection of Boys, Girls and Adolescents (LOPNNA 2007), the Law for the Protection of Domestic, Free and Captive Fauna (LPFDLC, 2009).
In fact, Decree 602 indicates the impossibility of using alternative means, such as arbitration, due to tenant public order. Now, it is striking that the former had not stipulated definitions of what they consider to be a “fair price”, only stating that the leases may not exceed the sum of Bolívares Two Hundred Fifty (Bs. 250, oo) per square meter and must be limited to this when it exceeds those already established.
Likewise, prohibit any possibility of royalty increases and limit the condominium payment; it eliminates any contractual sanction (fines) for opening or not opening stores in shopping centers, as well as criminal clauses.
Hence, justices of the peace are recommended to be very cautious when hearing a complaint that contains elements outside the powers assigned by LOJPC, since it could give rise to legal actions of various kinds, including those for protection and constitutional review.
On the occasion of the publication of the Decree with the rank, value and force of the Organic Law of Fair Prices in the Official Gazette of the Bolivarian Republic of Venezuela No. 40,340 of (2014), it is pertinent to briefly establish some notions from the beginning of the series.
In this regard, the President of the Republic, making use of the Law that Authorizes the President of the Republic to Issue Decrees with Rank, Value and Force of Law in the matters that are delegated from the year 2013, which is popularly known as the Enabling Law published that.
On the subject of leases, competence is assigned to the National Superintendency for the Defense of Socio-Economic Rights (SUNDDE), as a decentralized body with budgetary, administrative and financial management capacity, attached to the Economic Vice-presidency of the Government, the issuance of "… criteria to set fair lease fees for commercial premises…"
A Single Registry of People who Develop Economic Activities (RUPDAE) is also created, of a public nature and accessible to all individuals, being able to establish subcategories.
The SUNDDE - in turn - is made up of two Municipalities: the one for Costs, Profits and Fair Prices and another for the Protection of Socioeconomic Rights. Before that, the maximum margins of the lease fees of the commercial premises will be set. The National Superintendency for the Defense of Socio-Economic Rights (SUNDDE); It will be in charge of a Superintendent, whose appointment and removal is the responsibility of the President of the Republic.
On the other hand, the body in question is in charge of the exercise of the "… stewardship, supervision and inspection in the matter of study, analysis, control and regulation of costs and determination of profit margins and prices…"
All goods and services required to carry out the activities of production, manufacture, import, storage, transportation, distribution and marketing of goods and provision of services are declared of public utility and social interest.
It is pertinent to ratify what is indicated for the judges who are not assigned competences in this matter, for which they are prohibited from exercising them, having to comply with the provisions of the Organic Law of Communal Peace Justice, as has been expressed in the previous deliveries.
With the approval of the Decree with the rank, value and force of the Organic Law of Fair Prices, the Law of Fair Costs and Prices (2011) and the Law for the Defense of People in Access to Goods and Services (2010) are repealed, the personnel assigned to the executing agencies must pass to SUNDDE.
It should be clarified that this regulation is only applicable to non-residential properties, which has been dealt with in previous editions.
