Buy or sell a property when they really are looking to move house.
OPINION.Dr. Iván González Delgado: Barter and Swap Real Estate in Peru
Now we see in many of the traditional districts of Lima, collapsing large houses, to build modern buildings with comfortable apartments, usually for housing. The owners of these houses, people who have lived with several family members, and that with the passage of time are leaving the building, leaving it inhabited only by a small number of people, usually the father and mother. Here lies the crux of the topic, what do you do with a large building where few people live?With the boom that is now reaching Peru in economic activity, specifically in the real estate, concerns and questions arise about the need to shape and define the most advantageous carry out a transaction between a realtor who wanted to buy a house and an owner who wanted to sell, in order to live in a smaller building, as a Department. It
said to establish an exchange * 1 (which is called "barter"), instead of making a sale of current home and then purchase another, has its advantages, for a swap would take place only in an Exchange Act real estate, while the sale is effected in two transactions: the sale of the property, and another, the purchase of another property to live, considering that much more expensive to do the "exchange", which is a change of ownership ownership, without the contingency of having little time to find new home after selling the current one, or having to opt for the rent, or go to the home of a relative or friend.
However, we believe that the so-called "exchange" does not resolve such constraints or transaction costs, considering that the swap regulated in our Peruvian Civil Code, is governed by regulated for sale in what is applicable. On the other hand, we must consider that whether the transaction is carried out through an exchange or a sale, who sells his house for the construction of a future building, will have to find a temporary place to live while you build the department would be given in the future building will have to find a temporary place to live while building the department would be given in the future building.
The "Barter property ", as he has called the real estate exchange, and is regulated in our country through the exchange, however, which is carried out in practice is not a barter or exchange, but rather based on a sale between the owner of the house and estate, establishing that the buyer will be paying through the delivery of a sum of money, plus one or two departments of the future building to be delivered in lieu of payment * 2, Therefore, if we apply what has been called the exchange property, it should establish an exchange (barter) of real estate, that not having the same value, money will be delivered The difference is that this would constitute sale.
For example, if an owner wants to make an exchange (swap) your home, for which in return give him one or two departments of a future building, not being the real estate of equal value, the owner will be given a additional sum for the value of your home. When performing these operations, the exchange is set aside and the transaction is configured in a sale or perhaps in an amount of mixed contracts.
Similarly, we believe that the concept of bartering is useless property beyond that for which it was conceived, that is, above all, for those who want to avoid complications when to buy or sell a property when they really want is to move house. These difficulties are to be avoided with the exchange property, is mitigated if one considers that currently the property in order to avoid complications by owner sell your home, include in its budget to rent a house for temporary resident who sold his house, until it builds the department offered. We join
pointed out by Max Arias Schreiber * 3, which shows respect to interest rate swap agreement that "the sale has been moved by their greater use. The result is that the swap contract is a kind of 'second order', which are minor and for that reason is subject to the rules of the sale, as may be applicable. "
Finally we conclude by stating that the parties will take precedence over the contractual provisions of our Civil Code, unless they are mandatory * 4. Considering that the exchange does not solve the problem in practice, it is more efficient than the will of the parties who decide the case, for instance, including as an obligation of the real estate property solvent to live temporarily house sellers.
is much more efficient for legal transactions the parties decide, rather than being imposed by a standard model, because it is the parties who best to know what that business should be efficient, and this is demonstrated when the parties contract for a transaction combine efficient and suitable to their interests.
* 1: Peruvian Civil Code article 1602. "For the swap, the permutantes, mutually undertake to transfer ownership of the property." Section 1603. "The exchange is governed by the provisions on sale, as are applicable".
* 2: Civil Code: payment in article 1265. "The payment where the creditor receives as total or partial cancellation provision different from that must be fulfilled."
* 3: Lights and Shadows Civil Code. Max Arias - Schreiber Pezet. Analysis Books VI to X, 1 edition. Volume II, p.107.
* 4: Civil Code article 1356. "Primacy of the Will of the Contracting States. The provisions of the Contracts Act are supplemental to the will of the parties unless they are mandatory.
Source: Dr. Iván González González Delgado Valdivia Study Partner & Lawyers
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