When is ownership of property transferred?
“It draws my attention that the plebiscitary justice says that the real property is transferred with the public deed that gives rise to the registration in the Registries. For this affirmation, the Jury would only have agreed to the registry entry, but not to the title of the transfer that in this case was a ‘donation in payment'”
The Special Electoral Jury has excluded a presidential candidate from the contest because he allegedly omitted to declare last December, a property that according to the Jury had already belonged to him since November, the date of the public deed of the title that ultimately allowed the registration of the domain name of the applicant.
I do not rule on the electoral rules and the scope of the statements that the candidates must make, but it does call my attention that the plebiscitary justice says that real estate is transferred with the public deed that gives rise to the registration in the Registries. For this affirmation, the Jury would only have agreed to the registry entry, but not to the title of the transfer, which in this case was a “dation in payment”. Transfer Of Property Act – How Does It Work?
Well, article 949 of the Civil Code states that
“The mere obligation to dispose of a specific property makes the creditor its owner unless otherwise provided by law or agreement to the contrary.” This means that the dates of: the initial agreement, the draft, the public deed or even the registration of the title in the Public Registries, are not determinative to affirm when the property has been transferred.
It may well happen that the parties agree that ownership will pass to the recipient at the time of registration or even after. Deferring the transfer is a faculty of the contracting parties, and usually occurs in complex contracts, such as dation in payment. The transferor and the beneficiary indicate the moment in which the change of ownership will take place, indicating an event or a time that will give rise to the transfer of the domain. That is, the date of the public deed is not conclusive at all. The agreement is the title of the transfer and the fundamental source of the right.
In the case of agreements that are registered in the Public Registries,
certainly, the title remains in the registry files and there is the detail on when the transfer takes place. The registry entry does not take precedence over the title. In addition, in terms of real estate transfer, the agreement is not subject to any formality. The parties could modify it even through agreements that do not reach the Registry but that still have effects on the moment in which the change of ownership takes place.
In short, knowing the filed title and any complementary agreements is essential to determine when the property is transferred. This verification is always important, especially when the authorities make far-reaching decisions for society.
1.1.- Regarding Law No. 29674
Law 29674 was published in the Official Gazette El Peruano on April 9, 2011 and provides:
- The free transfer in favor of the National Superintendency of State Assets – SBN of the land owned by the Municipality of Villa El Salvador, located in Lot 1, Mz. K-3, Plot II, Parque Industrial del Cono Sur urbanization, Villa El Salvador and registered in Item No. 12332049 of the Land Registry of Lima.
- On May 30, 2011, the Municipality of Villa el Salvador filed an Amparo claim against the SBN, the Congress of the Republic and the Central of Business Associations and Entrepreneurs of the Micro and Small Enterprises of the Southern Cone of Lima (APEMIVES Southern Cone) requesting Law No. 29674 is declared inapplicable for violating their property rights and due process.That the SBN must transfer it to the Central of Business Associations and Entrepreneurs of the Micro and Small Enterprises of the Southern Cone of Lima (APEMIVES Cono Sur) in accordance with Law No. 28183 – Framework Law for the Development of Industrial Parks and Law No. ° 2151 – General Law of the National System of State Benefits.On the Amparo claim filed by the Municipality of Villa El Salvador. pretty scale