Argentina: Agricultural Real Estate Acquisition Process
Since the 2015 presidential election in Argentina, the new administration has placed an emphasis on foreign investment. Now, the real estate landscape in Argentina looks to be a promising investment strategy for Argentines and foreigners alike.
To be competitive with the locals, foreign purchasers must understand the ins and outs of the Argentine real estate process. However, while the inflation rate is still high, foreign purchasers may continue to have at least one advantage over domestic purchasers: property deals are typically done in U.S. dollars.
Purchasing real estate in Argentina is generally comprised of three primary stages: the pre-contractual stage, the contractual stage, and the completion stage. While the names of these stages are straightforward, having a deeper understanding of the basics of theses stage is crucial to ensuring a successful deal.
First Stage: Pre-Contractual
Generally, the pre-contractual stage is characterized by brokers, initial negotiations, letters of intent, and an investigation into title and encumbrances. Each element of this stage plays an important role in safeguarding potential purchasers from entering into a bad deal.
Contacting a broker will likely be one of the first steps taken in considering the acquisition of property. The broker not only can provide insight on potential properties but can also help guide the purchaser through each step of the process.
Once a property is selected, initial negotiations begin between the purchaser and seller. These negotiations may work to produce a letter of intent, which serves as a gauge as to what is of greatest importance in the deal to the prospective purchaser and seller. This is where the parties determine some of the primary terms of the deal (e.g., price, payment conditions, and date of completion). While a letter of intent is not always binding, the terms of the letter might make it binding on the parties. Hence, although a letter of intent is not the final purchase agreement, it is still important for the parties to carefully negotiate these terms.
Simultaneously, it is always advisable to undertake investigations and reports concerning the title and encumbrances, if any, on the contemplated real estate. A title search allows for purchasers to know with some confidence whether they are dealing with the correct party. Also, a search for any encumbrances on the land will uncover any third parties that might have an interest in the land (e.g., mortgage, easement).
Second Stage: Contractual
The normal type of contract used in real estate transactions in Argentina is the bilateral purchase/sale agreement (“boleto de compraventa”). Pursuant to this type of private contract both parties are bound by law to complete the transaction (i.e., the seller must deliver the property, and the purchaser must pay the price).
The purchaser will not, however, be protected against bona fide third-party rights unless and until the public deed (“escritura pública”) is registered with the land registry of the jurisdiction where the property is located (“Land Registry”).
The purchase agreement contains all the general and specific conditions pursuant to which the transaction is to be carried out. It is common practice in Argentina for the purchaser to make a substantial initial payment to the prospective seller, by way of an advance payment of the purchase price (customarily, 30% of the price).
In the case of bankruptcy of the seller, when at least 25% of the purchase price has been paid at the time of the purchase agreement, such agreement has effects vis-a-vis other creditors, and the court may order the execution of the public deed that transfers the property.
Third Stage: Completion
Although the purchase agreement will contain legally binding obligations between the parties under Argentine law, it will not create an “in rem” right, unless the terms of transfer have been included in a deed of conveyance, or “escritura pública,” executed before a notary public. The parties have a right to choose the notary before whom they wish to appear for the execution of the deed. Generally, the notary public is appointed by the purchaser.
It is normal upon execution of the deed for the seller to grant possession of the property to the purchaser in the terms agreed between the parties. Once executed, the deed should be presented for registration at the Land Registry. The registration procedure at the Land Registry will usually take one to two months to complete. Upon filing, the parties must also present their fiscal identification numbers together with the deed.
Additionally, immediately prior to signature of the public deed, the notary will request the Land Registry to issue a certificate (“certificado de dominio“) temporarily blocking the register with respect to the property concerned, so that no attachment, mortgage, or encumbrance can be entered in the Land Registry over the property for a period of 15 days.
In short, following this process for purchasing agricultural land in Argentina will help to protect the interest of potential purchasers not only against sellers but also third parties. However, as other laws are bound to affect the deal (see Argentina: Restrictions on Ownership of Rural Lands by Foreigners), consulting with an experienced real estate attorney is a must.
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