Real Estate Sales Looking for advice to put my Condo solely in my name

[HouZzz]

So, in 2000 I met an Argentine and in the haze of love, married her in 2003 and then bought a condo in BA. I was ignorant about real estate law and and took the advice of the escribano's.

We moved away directly afterward and rented the place out.

Then we got an overseas divorce, noting that I would get the condo.

Now, today, I would like to put my affairs in order and ensure the condo is 100% mine. But this is what I have learned what the status is and it is looking very complicated to get this done.

a) Bought condo after married in Argentina, so my wife's name is also on the deed
b) Wife's cousin was named in the Title, as my wife had recently gone bankrupt in BA
c) Argentina does not accept overseas divorces, so I am still married in Argentina!
d) Both wife and cousin are willing to sign whatever is needed
e) In the contract it says the cousin is buying the condo with my money and at a later date, I will "accept" it from her.

Ultimately, I would like to sell, but I would settle for getting the title in my name and removing the wife's name.

I am just a 90-day tourist here and do not plan to stay for long, but the advice I was given was to get my DNI before proceeding. Is that true? Can not a non-resident own property?

Any advice or pointing to a source I can hire to facilitate this would be very much appreciated!

 

[SeeLess]

I'm really sorry that I can't offer any useful advice, but I'm sat here reading your post and shaking my head pityingly. You've got a lot of pain ahead dude and I wouldn't want to be in your shoes. Good luck!

Oh, and once you've got it sorted, would you be wanting to continue renting it out?

I'll be looking for somewhere once my current contract is up in 20 months, which could well coincide with your completion.

Actually, a friend of mine recently sold up here and she was told to get her DNI sorted before selling - I think it was something to do with tax and having to pay a sh1t-load more if you don't have a DNI? I'll email her and see if she can shed any more light.

I guess she might also know a good lawyer who deals with this sort of thing. I'll find out.

 

[TechNow]

Wow, you are really screwed. Here's all the problems with the situation you are in:

1. If the original escritura says you are married, you will have to get your ex-wife's consent to sell your part of the condo. If you don't get her consent, you have to have your overseas divorce registered in Argentina and validated by an Argentine judge. Then with your divorce, you'll be able to sell your portion.

2. You'll have to get your wife's cousin to sell her portion.

3. You also need a certificate from AFIP to sell as a non-resident.

Man I don't envy your situation. You are probably never going to sell this apartment unless your wife and your wife's cousin really like you and want to help you out. Otherwise you are really f***'d.

 

[earlyretirement]

Wow, you are really screwed. Here's all the problems with the situation you are in:

1. If the original escritura says you are married, you will have to get your ex-wife's consent to sell your part of the condo. If you don't get her consent, you have to have your overseas divorce registered in Argentina and validated by an Argentine judge. Then with your divorce, you'll be able to sell your portion.

2. You'll have to get your wife's cousin to sell her portion.

3. You also need a certificate from AFIP to sell as a non-resident.

Man I don't envy your situation. You are probably never going to sell this apartment unless your wife and your wife's cousin really like you and want to help you out. Otherwise you are really f***'d.

Excellent advice. And exactly correct.

a) If you bought AFTER you were married then it doesn't matter whatever a document might say in the USA. In the eyes of Argentina you're still married and your wife still owes her 50% of the property. (However your post is confusing as you didn't clarify what % her cousin owns).

b) You mention your ex-wife's cousin is listed on the Escritura. What % does she own or is this stipulated on the title deed. Why in the world would you list her cousin on the title deed??? I don't understand how your wife going through a bankruptcy has anything to do with you listing her cousin as an owner on the title deed? Can you explain?

c) Yes, you're still married as far as Argentina is concerned. My advice is be VERY nice to your wife and her cousin and don't get on their bad side. I met an American girl in your situation and she also bought after she got married. It ended ok with her situation but then again she didn't list her ex-hubby's cousin on the title deed.

d) Both SAY they are willing to sign whatever is needed. Like I said....stay on their good side until everything is over with.

e) I don't understand what you are saying? What contract are you referring to? I assume you mean you wrote up some contract that says the cousin was borrowing the money from you. Be careful in assuming that this contract will be enforceable. If you were silly enough to list her cousin (for whatever reason) on the title deed she would have claim to her portion and you will need her permission to sell as well.

I still don't understand why in the world you would list her cousin as an owner. Doesn't make sense to me.


The reason people are advising you get a DNI first is so you can avoid having to get a non-resident permit to sell from AFIP. It's difficult these days and AFIP is going after owners if they haven't paid all their fair share of taxes including ABL, annual asset taxes as well as rental taxes while you owned the property (21% of gross rentals).

I'm not sure if you've been renting it out or not but the permit process isn't easy and it can take several months to get.

You have the other issue after all of this that getting the title in your own name is expensive. You have to go through the process just as if you bought the property so you have legal fees for a new escritura, taxes, etc.

They say love is blind and it sure sounds like you were as well. I don't envy you.

I'd still be curious as to why you put part of the ownership in her cousin's name. Sounds strange.

 

[earlyretirement]

Edit: Of course the potential pitfalls I forgot to mention are (a) your ex-wife and cousin refusing to sign unless you pay them more money or they get part of proceeds of any potential sale. Or (b) one/both of them decide to stay in the apartment and live for the foreseeable future rent free as they are true owners of the property. There wouldn't be anything legal you could do to get them out of there.

 

[HouZzz]

I'm really sorry that I can't offer any useful advice, but I'm sat here reading your post and shaking my head pityingly. You've got a lot of pain ahead dude and I wouldn't want to be in your shoes. Good luck!

Oh, and once you've got it sorted, would you be wanting to continue renting it out?

I'll be looking for somewhere once my current contract is up in 20 months, which could well coincide with your completion.

Actually, a friend of mine recently sold up here and she was told to get her DNI sorted before selling - I think it was something to do with tax and having to pay a sh1t-load more if you don't have a DNI? I'll email her and see if she can shed any more light.

I guess she might also know a good lawyer who deals with this sort of thing. I'll find out.

Thanks for the info. I would love to talk to the Lawyer you know, as I am getting new advice every day from the firm I have spoken to.

They now say that I should accept the title from my "cousin" and then proceed with a divorce in Argentina (which would stipulate that I was the sole owner of the property). Then worry about Taxes later. But I guess knowing just how much the taxes are would help in the decision.

 

[HouZzz]

Well, I sure am glad I asked!
(ignorance truly is bliss)

As I do not speak Spanish very well, I looked at the "Actuacion Notarial" and see
my name on it and decide everything is fine! Well, after all of your well meaning
and thoughtful comments and questions, I have come to realize that when the people
say that my ex-cousin has the title, they actually mean she has 100% ownership and
it is stated that I would accept the title at a later time. Yes, I was naive. And I was not even in the country when I sent the money all starry eyed to buy the place. But, I trusted my wife to get it sorted and I was from Canada, so how complicated could it be??!!

Here is the last Paragraph of the "Actuacion Notarial":
(let the incredulous snickering and OMG'ing begin)

Gestion de Negocio:
En este acto la adquirente Monica xxx xxxx manifiesta que la presente compra la realiza
compra la realize para y con dinero de David xxxx , casado en primeras / nupcias con
Nora xxxxx , quien oportunamente aceptara la presente compra. Enteradas las partes del
contenido de esta escritura manifiestan su conformidad y aceptacion por ser lo
convenido. LEO, se ratification y firman por ante mi, doy fe.

Business Management:
This act states that the acquirer Monica xxx buys made this purchase and the money did for David xxx, married in first / married Nora xxx, who promptly accepted this purchase. Parties aware of the content of this writing manifest their agreement and acceptance to be agreed. LEO is ratification and signed by before me, I can vouch.


So, I am told now to "accept" and then get an Argentina Divorce. How does that sound?

Thanks for all you input!

 

[Mart]

I"m still trying to understand the "not recognizing the divorce" fact. I know several people who were married and divorced outside of Argentina and their divorces were recognized without issue.

Were you married here? If so, how did you get divorced outside of the country?

If you were married outside of the country, in the same place you were divorced, there should be no issue with the divorce being recognized here.

I don't understand the cousin thing either. Whether or not your wife was going through bankruptcy, why would you have ever put the cousin's name on it?

Or are you saying that you "lent" the money to the cousin and s/he bought the entire thing? I'm still confused.

 

[NigjeFs]

I am not able to give you all the details, but I am sure a good lawyer can get this done, maybe donating the apartment ( both you, wife and cousin ) and you might wanna get residency and pay substantially less taxes of course.

 

[SamBarto]

Thanks for the info. I would love to talk to the Lawyer you know, as I am getting new advice every day from the firm I have spoken to.

They now say that I should accept the title from my "cousin" and then proceed with a divorce in Argentina (which would stipulate that I was the sole owner of the property). Then worry about Taxes later. But I guess knowing just how much the taxes are would help in the decision.

Taxes are 21% of the rent received on the property, or deemed to have been received. If the property was empty and you were out of the country you will be deemed to have been renting the property unless you can prove is was empty. There will also asset taxes (bienes personales).

On any unpaid tax is charged interest from the date it should have been paid. The rate was 2% compound per month, but increased last year to 3% compound per month. You will find that the interest will come to more than the tax.

I am not sure how they treat properties jointly owned by residents and non residents. I doubt if anyone else in Argentina (including AFIP) knows either.

I recently went through this process as a favour, better to get your DNI first. If you are still legally married in Argentina it should only take a couple of months. (if you dont already have one). If you have a DNI from way back the tax problems shouldnt apply.

 

[TechNow]

If your wife and wife's cousin are both on good terms with you, I would try to sell it right away, without getting your divorce finalized in Argentina. Pick someone who you trust 100% who is also an Argentine resident and then transfer them the property.

You can apply for the AFIP certificate saying that you and your wife lived in the property (remember, AFIP doesn't know that you are divorced) and therefore owe no taxes on the property since it wasn't being rented out.

Then once you have the property in the name of an Argentine resident you can sell it without complications and without further taxes. If I was in your shoes, that is what I would do. This is the quickest way to get the thing done and over with.

Otherwise you are going to be stuck for 1-2 years trying to get your divorce registered in Argentina and then get your DNI to be able to sell without taxes, etc. If you really are on good terms with your wife and cousin you should be able to get this all done right now.

 

[earlyretirement]

If your wife and wife's cousin are both on good terms with you, I would try to sell it right away, without getting your divorce finalized in Argentina. Pick someone who you trust 100% who is also an Argentine resident and then transfer them the property.

You can apply for the AFIP certificate saying that you and your wife lived in the property (remember, AFIP doesn't know that you are divorced) and therefore owe no taxes on the property since it wasn't being rented out.

Then once you have the property in the name of an Argentine resident you can sell it without complications and without further taxes. If I was in your shoes, that is what I would do. This is the quickest way to get the thing done and over with.

Otherwise you are going to be stuck for 1-2 years trying to get your divorce registered in Argentina and then get your DNI to be able to sell without taxes, etc. If you really are on good terms with your wife and cousin you should be able to get this all done right now.

Nope. If he doesn't have his DNI before he sells it he has to apply for a permit from AFIP as a non-resident and part of that process getting the permit is AFIP will ask him for EVERY single page of his passport to see which days he was in Argentina.

The OP mentioned he wasn't in town and moved away and "rented the property". Obviously his wife as a resident wouldn't have to show anything or apply for a permit but he would have to as a non-resident if he didn't have his AFIP permit.

The permit process is fairly brutal now with having to show every single page of your passport, showing utility bills to see usage so you can't say no one was living in it. (gas, water, electricity and even phone bills now).

And the 3% a MONTH penalty and interest amount is correct. Plus you still have to pay any asset taxes you didn't pay. And also rental taxes if you were renting it out. Be careful lying because I've met people that said their "friend" was staying in it and AFIP asked for all their details and then sent an inspector to go talk to the portero to verify. Don't get caught lying or it will be difficult to get the permit to sell.

That's why you probably should get a DNI if you haven't been paying taxes as it will add up to be a small fortune if you've owned it since 2000 and never paid asset taxes or rental/income taxes on the rent you've been receiving.

Personally rather than trying to find a buyer, I'd just do whatever you need to get the property solely in your name. (as if you're buying it from your ex-wife and her cousin) so all the property is in your name. It would be a totally new transaction with you getting the title only in your name.

Then just take your time and leisure finding a legitimate buyer. Your luck hasn't been good in putting this property in others names so I personally would avoid putting the property in a friend's name. Just get it back into your name and then sell it afterwards.

In the future, even if you get married you can have an Escribano prepare a separate contract that stipulates that your spouse understands and acknowledges that the purchase of the property was purchased solely with money that was received before the marriage and part of YOUR estate and has no claim to it. Yeah, probably not comfortable getting your spouse to sign it but I've met people that have successfully done that.

 

[earlyretirement]

Edit: I don't see any QUICK way around this. Any option is going to take time to sort out. Nothing moves quickly in Argentina but if you're still "married" in Argentina I'd take advantage of that and quickly get your DNI to ease the process and tax burden.

 

[TechNow]

Nope. If he doesn't have his DNI before he sells it he has to apply for a permit from AFIP as a non-resident and part of that process getting the permit is AFIP will ask him for EVERY single page of his passport to see which days he was in Argentina.

The OP mentioned he wasn't in town and moved away and "rented the property". Obviously his wife as a resident wouldn't have to show anything or apply for a permit but he would have to as a non-resident if he didn't have his AFIP permit.

The permit process is fairly brutal now with having to show every single page of your passport, showing utility bills to see usage so you can't say no one was living in it. (gas, water, electricity and even phone bills now).

And the 3% a MONTH penalty and interest amount is correct. Plus you still have to pay any asset taxes you didn't pay. And also rental taxes if you were renting it out. Be careful lying because I've met people that said their "friend" was staying in it and AFIP asked for all their details and then sent an inspector to go talk to the portero to verify. Don't get caught lying or it will be difficult to get the permit to sell.

That's why you probably should get a DNI if you haven't been paying taxes as it will add up to be a small fortune if you've owned it since 2000 and never paid asset taxes or rental/income taxes on the rent you've been receiving.

Personally rather than trying to find a buyer, I'd just do whatever you need to get the property solely in your name. (as if you're buying it from your ex-wife and her cousin) so all the property is in your name. It would be a totally new transaction with you getting the title only in your name.

Then just take your time and leisure finding a legitimate buyer. Your luck hasn't been good in putting this property in others names so I personally would avoid putting the property in a friend's name. Just get it back into your name and then sell it afterwards.

In the future, even if you get married you can have an Escribano prepare a separate contract that stipulates that your spouse understands and acknowledges that the purchase of the property was purchased solely with money that was received before the marriage and part of YOUR estate and has no claim to it. Yeah, probably not comfortable getting your spouse to sign it but I've met people that have successfully done that.

Right, but since his wife and cousin could have been living there he can argue that the apartment was being used by someone and he was not getting rent. I had this same situation when I handled the sale of an apartment owned by my father. He was not a resident, but I was, so I could tell the AFIP that I was living in the apartment even though my father wasn't. They approved the certificate with no taxes owed.

The only thing he needs to do is find SOMEONE he is related to who IS a resident and who could have possibly been living in the apartment during the time. As long as you can convince the AFIP, you're good. They'll probably ask for that other person who is living in the apt to show a certificate of residence and change their fiscal address to match up with the apt (which is what I had to do).

But this can be done, just make sure you have a good accountant who helps put together all the paperwork.

 

[earlyretirement]

Right, but since his wife and cousin could have been living there he can argue that the apartment was being used by someone and he was not getting rent. I had this same situation when I handled the sale of an apartment owned by my father. He was not a resident, but I was, so I could tell the AFIP that I was living in the apartment even though my father wasn't. They approved the certificate with no taxes owed.

The only thing he needs to do is find SOMEONE he is related to who IS a resident and who could have possibly been living in the apartment during the time. As long as you can convince the AFIP, you're good. They'll probably ask for that other person who is living in the apt to show a certificate of residence and change their fiscal address to match up with the apt (which is what I had to do).

But this can be done, just make sure you have a good accountant who helps put together all the paperwork.

How long ago did your dad sell? I imagine it was probably a few years ago. AFIP has gotten MUCH more difficult in the past year. Previously it wasn't so difficult like it is now.

Sure, you can say your wife and/or cousin has been living there but just make sure you don't get caught in a lie. It's not too difficult these days now that AFIP is actually starting to be more careful if you were renting it or not. Previously AFIP didn't really care. Now they most certainly do and actually back tracking and researching things.

It doesn't sound like the OP is related to anyone else that is a resident in Argentina. If he was, I'm sure that relative would have warned him in being so foolish to do what he did. I don't think putting the property in yet another person's name is the answer either as it's another potential headache. In these types of situations it's best to think of possible worst case scenarios.

I agree finding a GOOD accountant is the key. Make sure you use one that is an expert in non-resident tax issues.

 

[TechNow]

How long ago did your dad sell? I imagine it was probably a few years ago. AFIP has gotten MUCH more difficult in the past year. Previously it wasn't so difficult like it is now.

Sure, you can say your wife and/or cousin has been living there but just make sure you don't get caught in a lie. It's not too difficult these days now that AFIP is actually starting to be more careful if you were renting it or not. Previously AFIP didn't really care. Now they most certainly do and actually back tracking and researching things.

It doesn't sound like the OP is related to anyone else that is a resident in Argentina. If he was, I'm sure that relative would have warned him in being so foolish to do what he did. I don't think putting the property in yet another person's name is the answer either as it's another potential headache. In these types of situations it's best to think of possible worst case scenarios.

I agree finding a GOOD accountant is the key. Make sure you use one that is an expert in non-resident tax issues.

My old man sold his apt back in 2008 when the whole conflict with the campo blew up. He got jittery and wanted out of Argentina ASAP. Anyway, it was still complex back then, but we were able to convince AFIP that I was living there.

I was assuming the OP's wife and cousin are Argentines, but perhaps I am not correct. So I figured they could be the residents who could have been living there.

 

[earlyretirement]

My old man sold his apt back in 2008 when the whole conflict with the campo blew up. He got jittery and wanted out of Argentina ASAP. Anyway, it was still complex back then, but we were able to convince AFIP that I was living there.

I was assuming the OP's wife and cousin are Argentines, but perhaps I am not correct. So I figured they could be the residents who could have been living there.

Ah. Yeah, I figured it had to be a few years ago. Your old man must feel pretty darn good. He sold at a very good time and in hindsight he totally nailed it.

Things are much more complicated now vs. 2008. Heck, things are much more complicated in 2012 vs. 2011.

You're right if possible to say the cousin was living there during that time. Especially if her name is on the title deed. However, you just have to be careful because now AFIP is much more difficult even interviewing the porteros in buildings.

I still don't understand the putting it under the cousin's name thingy. But then again, the OP doesn't seem to understand why he did that either.