The institute is an innovation of the Registry Law No. 16,871. It seeks to create the enforceability of an act to be granted in the future, avoiding or reducing the uncertainty of the simultaneity of registrations with respect to the same asset or the same person. As there is a priority reservation admitted by the registry, we have the assurance that by registering the act within a period of 30 days, it will be unenforceable from the date of the reservation and not only from the date of granting.
It is expressly regulated by art. 55 et seq. of the same law, in addition to this and with respect to the unenforceability of a diversity of doctrinal opinions and even registry criteria, by law n ° 17.296 (arts. 288 et seq.) an authentic interpretation of the aforementioned institute was made.
The priority reservation is made by request in duplicate form expressing the corresponding data that the same consigns. The reservation can be requested for one act or several simultaneous acts (for example, Sale and Mortgage). The term that covers the reservation is 30 calendar days.
Regulations: (Law 16,871, Dec. 99/998 and Law 17,296)
Article 55. (Priority reservation).
For the granting of legal acts or businesses that imply the transfer, constitution, modification or assignment of real rights and use credit related to real estate and motor vehicles, or for the granting of promises of sale of real estate or commercial establishments, and their assignments, the Registered holders of the rights or the appointed Notary Public may register a priority reservation.
This reservation will be valid for thirty calendar days, counted from its presentation. If, during the said term, the act for which it was requested is granted and registered, it will take effect with respect to third parties from the date of its granting and will have priority over any act or legal business subject to registered publicity registered after the presentation of the application. backup.
The authorizing Notary Public may state in the corresponding deed in detail, the legal basis that in his opinion justifies the displacement of the registration position of an inscription with respect to the reserved act.
The application of this article will be carried out in accordance with what is established by the regulations.
Law 17.296 Art.298
"The legal acts and businesses that are granted with priority reserved according to this law, must be submitted to be registered within the term of validity of the priority reservation."
Once the aforementioned extremes have been fulfilled, that is, when the acts and legal businesses for which it was requested are granted and presented for registration within the term of the same, the Priority Reserve produces 2 effects:
1) Regarding the act granted, it will take effect with respect to third parties from the date of its granting, the effects against third parties go back to the date of granting.
2) Regarding the other acts, the act protected by the Reserve would have "priority" over any act or legal business subject to publicity in the registry registered after the presentation of the Reserve request.
When there is a priority reservation registered, the legal acts and businesses that are registered in the real estate section of the property registry will be registered:
A) conditionally, pending the granting and registration within the term, of the act or legal business for which the reservation was requested, or
B) conditionally and provisionally, when, in addition to waiting for the granting and registration of the act covered by the Reserve, the act registered conditionally warrants the Registrar observations to proceed with its definitive registration.
Likewise, said conditional acts may be discarded by notarial certification under the responsibility of the acting Notary Public, establishing the basis.
Art.55 inc. 2 Dec.
Regulations: “The Registries will cancel said conditional registrations once the acts covered by the priority reservation have been definitively registered.
When a conditional registration becomes firm and definitive, the Registrar will consign the respective certificates ”.
When there is a reservation of registered priority, the registrations that result from the certificate issued by the national registry of personal acts, will not hinder the granting of the act, and the authorizing notary may state in the corresponding deed the legal basis to displace said registrations.
Art. 55 Inc. 5 Law 16871:
When the legal acts and businesses for which the priority reservation was requested are not presented within the term of validity of the same, or are granted within the term of validity but are not registered within it, there will also be 2 effects:
1) Regarding the act granted, the effects against third parties are counted from the registration, from the presentation to the Registry, that is, the principle of
priority is applied to its full extent;
2) Regarding the acts registered in a conditional or provisional conditional form, these will remain firm and definitive.
Art. 55 inc. 4:
"The conditionally registered acts will remain firm and definitive, if after the term of the reservation has expired, the act for which priority was reserved has not been presented to register."
characteristics
- The rank of the Reserve cannot be negotiated (Art.60 inc. 3 Law 16871).
- It can be withdrawn with the agreement of all its beneficiaries. (Art.86 inc. Final Law 16871).
- It can be requested for more than one act, if they are simultaneous.
Art. 63 inc. 4 Law 16871:
- It does not admit re-registration.
- The reservation has an expiration period and does not expire the next business day, and therefore article 65 of the Reg. Dec. is illegal.
Art. 65 Dec. Reg.
Effects of the registration of disposition, declarative and subsequent assessment acts, after the registration of the jurisdictional measures.
According to art. 61 of the Law, in the case of disposition, encumbrance or declarative acts registered after the generic embargo, they will not cause any alteration in the order of the trials or their results; These continue regardless of the registered acts.
- The judges will order to cancel the inscriptions that oppose, summoning the people who are affected by the cancellation.
- The only opposition that is admitted is a registration certificate, erroneous, from which no "seizure" will result at the date of the alienation or encumbrance.
- The registration of these acts, after the registration of the seizure, is unenforceable, ineffective with respect to the creditor, although the norm does not expressly say so, which if it was established by the 380.6 of the CGP, for the process of enforcement by way of urgency referred to acts of disposition or encumbrance subsequent to the registration of the embargo.
Art. 61 Law 16,871
(Effects of limitations). “The measures referred to in numerals 8) and 9) of article 17 of this law indissolubly bind the properties registered in the name of the owner affected to the process in which they were issued.
According to the legal text, would the embargoes be displaced by the Priority Reserve?
There are those who maintain that they would not be displaced, because art. When establishing the effects of this measure, it does not say anything about what happens to the businesses covered by the reserve, as if it expressly does so inc. 2 of art. 59 of Law 16871.
Others understand that it is an article that is within the chapter on the effects of registration publicity, a chapter in which the Reserve and its effects are also regulated and therefore it would not be necessary to establish it expressly.
On the other hand, the budget law (17,296) establishes that:
Article 304. “It is established as an authentic interpretation, that the acts, legal transactions, and judicial or administrative decisions registered in the Public Registries, during the term of the priority reservation, provided for in Article 55 of Law No. 16,871, of September 28, 1997, the act for which the reservation was requested is unenforceable, provided that the requirements established in said law are met, and that the criterion for resolving conflicts between them is the priority of registration ”.
When the law says "cancellation of registrations", this cancellation operates with respect to all third parties and not only with respect to the creditor, that is, it removes the enforceability against everyone in a business that is valid between the parties.
If the creditor does not succeed, is that act re-registered? With the aggravation that it is enforceable against third parties from the new date.
If there are other registrations when registering this act again, it will be postponed by other registrations, by virtue of the principle of priority.
Nor does it result from art. How is it cited, how, where, when, term. Arts. 76 and following of the CGP.
Normative
Law 16871 and its Regulatory Decree 99/98.
