The expression "property title to a property" refers to the document or set of documents that prove or demonstrate that a certain person is the owner of a certain property.
Its practical utility is that it constitutes proof of mastery, namely:
a) judicially: when an action is attempted whose legitimacy supposes the existence of that right in the actor (claim),
b) at the private level: in notarial practice, it is the demonstration that the owner makes before the notary public, to be able to dispose in a valid and effective way.
The file of documents that is called “title deed” is generally made up of the first copies of the public deeds, which provide documentary evidence of the transfer of ownership of the property since the last thirty or forty-five years, as appropriate; until today, the date on which it will act.
However, materially we can have a single document or, as happens in most cases, a set or file made up of several documents. Some of the aforementioned documents are not intended to prove the transfer of property, but for example the geographical demonstration of the property, in the case of the measurement plans and the registration certificate or to prove compliance with obligations, as would be the case. of municipal certificates. (1 RUBBO, Horacio. Study of titles. Page 11)
CAUSAL TITLE
The technical legal meaning of "property titles", in civil law, is related to the efficient cause for the acquisition of a right.
In legal technical sense, title; It is equivalent to a legally protected cause (efficient legal cause), which serves as a legal basis both for the acquisition of a personal right and for the judicial action that emerges from the right and that enables an effective attempt to claim and fulfill the due provision.
Title is equivalent to "efficient legal cause" to demand a benefit (art. 1246 Civil Code) and when we speak of Title as "efficient cause" to claim and acquire ownership of the thing, we are in the presence of the "title to acquire", cause efficient to acquire the domain (Art. 705 inc. 2 of the Civil Code).
"Causal title" and "title to acquire" are not synonymous, but between the two concepts, there is a relationship from gender to species. The causal title is not only that of acquisition, but also that of the creditor, the borrower, the lessee, etc. (art. 772 of the Civil Code), from which the legal aptitude to acquire is not derived. The species is identified with what the law calls "fair title", in article 1208 subsection 1 of the Civil Code.
The difference between the technical meaning of the word title and the ordinary meaning of title or property title is clearly perceived when, for example in practice, the testimony of the declarative judgment of acquisitive prescription is presented, as the only document to prove ownership of a property.
Said document satisfies the requirement to prove ownership, and in this sense, it is considered property title. But from it, no title arises, in a technical legal sense (causal title), since the property acquired by usucapion (original way of acquiring) does not require causal title (article 1211 of the Civil Code). (RUBBO, Horacio, Ob. Cited. P. 12-13)
PURPOSE OF THE TITLE STUDY
The study of the documentation that makes up the property title of a property has two specific purposes:
Verify that whoever claims to be the owner, is so in fact and in law, since their legitimacy depends on it to transmit the domain validly and effectively to the acquirer, our client (art. 769 number 1, and 775 section 1 of the Civil Code).
Verify that the property right is free of defects. This
It means that there is no possibility that third parties usefully try actions that disturb the peaceful possession of the future buyer or that expose him to pay sums of money, in his capacity as current owner of the property.
The need to verify that "the titles are good" is imposed by the law itself, since the domain is transmitted to the acquirer just as the transferor had it (art. 775 subsection 1 of the Civil Code).3 RUBBO, Horacio. Ob. Cited. P. fifteen
TASKS INCLUDED IN THE TITLE STUDY
With the study of the property, it is sought to verify that it has legal autonomy, that is, that it is suitable to be a specific object of a device business. For example, an apartment that integrates a building of common property may be the subject of a lease (art. 77 subsection 3 Decree Law 14.219), but it will not be suitable to be the subject of a business arrangement, as long as said building is not governed by the horizontal property system.
The art. 1261 of the Civil Code requires for the contract to be valid, the existence of a "lawful and sufficiently determined" object that serves as the subject of the obligation (art. 1261, numeral 3).
The legal autonomy of a good or its aptitude to be the object of a device business, requires that the good itself be “its own unit”; that is to say that this endowed with independence.
Once the aptitude of the property to be the object of compulsory businesses and devices has been demonstrated, it is necessary to verify that the documents that make up the property title are free of formal defects and that the solemnities required by law for the validity of certain acts have been fulfilled. or contracts (Art. 1261 final paragraph of the Civil Code).
The absence of solemnity (eg public deed), in the acts or contracts in which the law has imposed it implies that said acts or contracts are considered as not celebrated (article 1578 of the Civil Code), they are sanctioned by the law with the absolute nullity (art. 1560 subsection 1 of the Civil Code).
The breach of the solemnity of granting in public deed, vitiates the contract and the title. This defect cannot be remedied by the passage of time (30 years), in accordance with article 1561 of the Civil Code. The title can also be flawed if the deed is null, even if it exists. The invalidity may be caused by incompetence of the official or by inaccuracy in the form (art. 1578 of the Civil Code).
Such is the case of the deed authorized by a Notary Public suspended in the exercise of the profession; in a Protocol not initialed by the Supreme Court of Justice or by a Notary Public inhibited for kinship reasons (art. 1574 of the Civil Code, art. 25 of Agreed 7533, Notarial Regulations and arts. 24 and 65 of Decree Law 1421).
It also implies nullity the lack of the signature of the Notary Public, of any of the parties or of any of the witnesses when their intervention is mandatory (art. 32 of Decree Law 1421).
In any of the listed cases, the property title must be observed and rejected. Failure to do so will expose the client (purchaser) to eventually being deprived of the property purchased, as a consequence of the claim made by the owner, part of the void business or their heirs (article 1565 final paragraph of the Civil Code).
The degree is made up of copies of the public deed and it could happen that the defect was caused when the copy was issued (for example, the omission of a signature); in this case, it is necessary to consult the matrix and be at what results from it (art. 1592 of the Civil Code).
This aspect is currently legislated with respect to the lands of fiscal origin in article 1194 of the Civil Code and in articles 121 to 124 of Law number 12,802 of November 30, 1960. With respect to the lands of municipal origin in articles 524 and 525 of Law 13,892 of October 19, 1970.
These laws declare extinguished the rights of the Treasury or the Municipality over the lands, if the current possessor proves by authentic documents that he owned by himself or by his cause the number of years indicated in those laws.
To protect our client from any fiscal or municipal claim, it will be enough to verify that the property title contains authentic documents that prove the transfer of ownership between individuals, for thirty years or more, in relation to the lands of fiscal origin or for forty-five years or more, with respect to land of municipal origin.
Tax exit
Historically, the State granted public lands to individuals, by donation or sale. The individual's purchasing title configures the "fiscal exit".
Article 1194 of the Civil Code provides: "The State, with respect to property susceptible to private property, public establishments and corporations, are subject to the same prescriptions as individuals, and can oppose them like them."
The current owner of a property, who has owned by himself or by cause, since the year 1795 inclusive, stating that possession by public or authentic document, will be in all cases, protected from the claims of the Treasury. For this reason, the Notaries before the year 1960, had to examine the domain transfers until the fiscal exit or until the year 1795 inclusive.
Law number 12802 sets the limit of the test in the last thirty years.
Articles 122 to 124 of the same regulate the process of "judicial declaration of ownership" for the sole purpose of fiscal exit, for those who cannot prove possession of thirty years by public or authentic documents.
It is good technique to add to the "title deed" the simple copies of the deeds that will be missing to cover the thirty years.
Municipal exit
Law number 13,892 of October 19, 1970, considers that assets whose possession is demonstrated by authentic titles, by themselves or by their originators, have left the municipal domain for 45 years.
Those who do not achieve said test, must go to the corresponding Municipal Administration and pay as many forty-five avos of the value of the property, as years will remain to complete the possession for forty-five years.
It implies that the possession or transfer of ownership has been carried out for the time necessary to verify that whoever presents the title to us is the owner of the thing, and that any eventual claim of a third party due to the decline of the action on which it may be based must be discarded.
This verification is carried out either by the results of the aforementioned title or through the registration information, which becomes an indispensable complement for the study of the title.
METHODOLOGY OF THE TITLE STUDY
To address the study of the validity and efficacy of legal business devices, we can follow the methodology suggested by Cafaro and Carnelli in their work "Contractual Efficacy." These authors conceive the formation of the legal business as a "process" of constitutive elements that appear one by one, in such a way that each one conditions the validity and effectiveness of the next one or each one presupposes the existence, validity and effectiveness of the previous one, and They analyze it in the following stages that respond to a priority order: 4 (CAFARO, Eugenio and CARNELLI, Santiago. Contractual Effectiveness.)
I) legal capacity
II) regulatory power
III) ability to act
IV) consent
V) object
VI) cause
VII) solemnity
VIII) standing to dispose
IX) final title
They state that legal capacity is the aptitude to be the holder of legal relationships, and the negotiating regulatory power is the aptitude of an individual to create contractual rules by himself; both qualities are inherent to the subjects of law and therefore external to the legal business.
Juridical capacity
The subjects who enter into the contract must be endowed by the law with legal personality (article 21 CC). The absence of this condition determines the non-existence of the business for these authors or its absolute nullity according to the majority doctrine.
Normative bargaining power
Ensuring that the subjects have legal capacity, we must analyze whether they are assisted by negotiating regulatory power, inherent in every subject of law, unless the law, for special reasons, denies it for a specific case.
Eg: in the case of the sale or donation between spouses, the subjects lack negotiating regulatory power because the law has expressly taken it away for these specific acts.
For these authors, the lack of one or both qualities causes the non-existence of the legal business and not its nullity, as they are external requirements to the business. This distinction would have different consequences in its effects. The declaration of nullity - except in special cases gives the right to reciprocal refunds and even extends to third parties that may be reached by the claim (Art.1565 CC). On the other hand, the non-existence confers the right to reciprocal refunds based on the quasi-contract of payment of the undue thing, which would not reach the third parties who derive their right from one of the parties for consideration (Art. 1318 CC).
Ability to act
Listed by law as an intrinsic requirement to the business, as well as the other elements that we will analyze (Art.1261 nral. 2 CC), it consists of the possibility of creating the legal business by itself in a valid and effective way.
In principle, for the ability to act the law requires majority and not be incapacitated. The absolutely incapable person has legal capacity, negotiating regulatory power, but lacks the capacity to act. In order to carry out valid acts, they will have to be represented by their legal representative, their omission is sanctioned with absolute nullity (Art. 1560 CC) and in certain cases the law also adds a legal requirement of effectiveness, such as court authorizations or authorizations for certain acts or contracts (Arts. 271 num.1; 395; 1117, 1130 CC etc.) whose omission produces the relative nullity of the act or contract (Art. 1560 in fine CC).
Consent
This must be expressed freely and without defects (Art. 1269 CC), the vices of consent cause the relative nullity of the contract (Art.1560 in fine CC); The absence of consent, on the other hand, can be considered as a case of "non-existence" of the legal business because it has not been formed.
Object
The object must be lawful and sufficiently determined (Art. 1261 num.3 CC), the analysis will be specified when determining if the object has legal autonomy and if it is determined according to the law.
Cause
This is presumed to exist and is lawful (Art. 1290 CC), therefore, except in the case that the illegality or falsity of the cause is explicitly stated in the contract, we should not make observations on this requirement.
To this method we must add
Solemnity
In cases where the law imposes it (Art.1261 in fine CC), whose absence prevents valid proof of the contract (Art. 1578 CC) and causes the absolute nullity of the same (Art. 1560 CC).
Any causal title that appears in the "title" of the asset must be the subject of the preceding analysis to determine its validity and effectiveness and with this we will have managed to form a judgment about the causal titles in themselves considered; But, not only the validity and efficacy as causal titles are of interest in the study of the degree, but also the effects or consequences of said causal titles.
The purpose of the causal title is to serve as an efficient foundation for the acquisition of property rights; It is not enough then that the causal title is valid and effective but also:
a) It must have been consented to by the owner of the thing or all the condominiums (Article 769 nral.1o CC).
b) It must be definitive, not resolvable, that is, the obligations created by it must have been fulfilled and that fulfillment must be recorded in the titles.
Legitimation to dispose
Property is a right to which the law grants the quality of "material", despite its incorporeal nature as a right that it is. By fiction, it is considered as an inherent quality of the thing itself, as part of its substance (Art. 489 CC).
- a) There can be no real property without an owner (Art. 476 and 481 CC); b) Property, as a right, cannot disappear without the fact of the owner (Art. 489 CC).
You can only cease to be the owner if you consent to it, in terms of property the principle of "Legitimacy" governs, the legal appearance is not enough to unlink the owner of the thing (Article 13 in fine Law 10.793), this principle ratifies the enshrined in Art. 489 CC and has been conceptually improved in the new Registers Law No16.871 Art. 62o.
a) by the owner or all the condominiums (Art.769 num.1 CC);
b) by the bare owner and usufructuary, in the case of dismembered property (Art. 537 num.3o CC);
c) by all the heirs of the deceased acquiring the asset, whether or not they appear in the declaration of heirs; This has the presumption of regularity but does not harm the right of the excluded.
Definitive title
We must verify compliance with all the obligations agreed in the contracts we are studying:
Regarding the price agreed in the sale:
- the effective payment that arises from the titling; that the resignation of the resolutory action has been expressly agreed, with which the title also becomes definitive, leaving the seller only the executive action for the collection of the price, personal action that does not harm to third-party purchasers; that 20 years have passed for the action to have been prescribed.
Other actions that may reduce the effectiveness of the titles and therefore nullify the "transfer effect" are those that may derive from what Cafaro and Carnelli generically call "voluntary requirements of effectiveness", that is, contractual agreements that make the effectiveness of the title on a particular event.
The suspensive or resolutive condition to which the effectiveness of the title may be subject always comes from a conventional source (Article 1407 CC) and is verified by studying the operative part of the contracts (Article 1576 CC). In these cases we must verify that the conditional event was fulfilled to assign full effect to the contract (Art. 1421 inc. 1 CC), otherwise, if we verify that the condition was not met, we must reject the title (Art. 1421 inc. 2 DC).
These principles of conditional obligations are also applied in contracts in which the law specifically provides for covenants named "resolutory condition", of eventual existence, because they all have a conventional source. Eg: the resolution clauses in the sale, the commission agreement, the best buyer agreement and the resale agreement (Article 1736 CC); and in the donation, the reversion pact or the birth of the donor's children (arts. 1628 and 1631 CC).
Actions for the revocation of acts and contracts
Paulian Action
(Art. 1296 CC). If he triumphs against the debtor, fraudulent alienator, the title of the acquirer will also fall.
From the certification of the titles, the verification of the fraud will not arise, the budget for the action; if any element of suspicion could arise from the registry information.
The term to exercise the action is one year from the registration, however, during that year, any sale is liable to be attacked by this action and therefore, when it is transferred again before the year, the registration information that accredits the financial situation of the first transferor is essential to form a judgment about the probability of this action; In case of doubt, we must wait the course of the year to be able to approve the title.
A probability of instituting the Paulian action may exist in the event that the heirs dispose of an asset of inheritance origin without having paid the debt to the surviving spouse entitled to a marital share. Faced with a title with this pending situation, it is advisable to demand:
- The demonstration of the payment of the spousal portion, wait for the course of a year, require the consent of the spouse prior to the document that we are going to grant.
