On October 5, 2009, in the case “Owners Consortium Libertad 1031/33/35 vs. Teryazos, Michael William on Actions of section 15 of Law 13,512” National Civil First Instance Court, resolved that the implementation of temporary leases on a property should be considered as a commercial activity, and therefore contrary to the provisions of the joint ownership regulation. In the case, the judge established that the execution of temporary lease agreements on a building as usual activity is a commercial activity and is therefore in contradiction with the exclusive destination for home use provided by the rules of joint ownership and building management. In this case, the owner of the property in question hired the services of the real estate agency ApartmentsBA SRL (hereinafter “ApartmentsBA”), acting as an intermediary firm, offered the property to tourists for short term lease, offering various additional services, which was essential to distinguish the activity of the temporary lease permitted by the law of urban leases. From the evidence produced, the Court was convinced that ApartmentsBA allowed the reservation of units per night and offered the property along with a number of additional services to hire temporary, similar to an accommodation contract. These services were offered on ApartmentsBA’s website. Additionally, the contracts were written in English, including atypical clauses that gave travelers the use of furnished and equipped apartments for short term, including the provision of various additional services during the stay, such as housekeeping service, provision of mobile phones, IP phone with itemized billing and other concierge services. With these features, the court concluded that the case was not a temporary lease, but it was the development of a commercial activity, that were explicitly and clearly forbidden by the rules of joint ownership and building management of the apartment. Given that ApartmentsBA is a company with business, and that contracts were executed by ApartmentsBA without demonstrating any representation, management or the owner’s mandate, the court concluded that “although the figure of the lease constitutes a civil act, to be linked to a strictly commercial activity, the agreements executed should be considered commercial acts per connection-being-thus subject to the commercial law”. Finally, based on the reasoning outlined above, the court ruling ordered the immediate cessation of the activities in the property, under warning of receiving a daily fine in case of default. This ruling is consistent with what has been resolved earlier this year in the case “Owners’ Consortium Callao 626 vs. Palacio, Cora Maria”, which banned the temporary lease by a procedure similar to ApartmentsBA’s, in view of the inconvenience to the other joint owners of the building in question. The ruling has been appealed to the National Civil Chamber of Appeals.
Javier Canosa
Canosa Abogados
http://www.cansoa.com.ar PH 54 11 5252 2462
