The figure of trust has been in use extensively in our country in recent times. It is true that generated under the Trust and head of a "fiduciary" common affected a specific purpose, separate from both the heritage of those who provide active, "the settlers", and those who have to be "beneficial" administration or investment and disposal, generates a special protection of the trust assets against claims of creditors of each other. The institute has
undoubted advantages, but also presents risks and inconveniences that sometimes overlook. is that the trust is only one among many alternative solutions will guide, which should be evaluated carefully in the legal and economic aspects.
The impressive growth experienced by the Uruguayan economy in recent years has been accompanied by a major real estate development,
characterized by an increase in the amount of purchases as well as property prices and rents. At the highest capacity consumer spending, largely driven by real wage growth and the employment rate was associated the emergence of private investors who are buying real estate in a valid alternative to protect your capital and income for financial investments that are not offered. The traditional haven currency, the dollar has been weakening and banking interests as well as public and private securities in the first world have very low returns, being situated on the bonds and government securities Uruguayan well below their historic performance.
All these factors led to increased demand in the housing sector, which determined that there were a construction boom, especially in certain neighborhoods of Montevideo and Punta del Este. Much
of the new works are financed by private investors initial placements, followed by other investors who purchase the units built. When the bulk of the many works in progress and the units culminate dumped into the target market for their end the deal, either as owners or tenants, can be determined if it is harboring an oversupply in the areas listed, and if therefore, there is a stagnation or fall in prices of both leases as property. Another factor to consider is the emergence of investment options more tempting in financial markets that will occur with certainty when, within some time, consolidated recovery developed economies of the crisis of 2008, interest paid by financial investments, now in its floor, starting to rise.
Meanwhile, the party continues and will continue to initiate work in addition to those that are in progress. To channel, is widely used to figure the trust in order to provide investors the necessary securities.
Hence the attractiveness of whether they are real or illusory, at least in part.
Linking property trusts is as old as the trusts themselves. This type of property can appear on all forms of trust be they administrative, security, investment, financial, or mixed.
As we have said, at present, the trust is increasingly being used to channel investment to the construction and sale of properties. In these cases, it can be single administration, in which case investors (settlers) sums of money delivered to the trustee so that it addresses the original cost and purchase building materials and land (unless the investor either owner thereof and transmit it to the trustee), the trustee responsible for a construction company performing the work, and finally transferred and delivered to the trustor-beneficiary local units or rooms built, sold to third prior to delivering the result of the transaction, or use mixed formulas.
The trust will be "financial" to the extent that people are holders of certificates of participation in the trust domain of debentures secured by the assets constituting the trust or hybrid securities giving rights to money and claims participation on the remnant "(art. 25 of Law No. 17,703). The figure of financial trust, transferred to our law of Argentine law, in which it originated, has a stricter regime than the other trusts. For example, trustees are required to be financial entities or companies managing investment funds, these trusts are subject to special regulations and provides that the Central Bank of Uruguay will take on financial trustees powers of search , supervision and penalties.
Recently, the BCU should rule on the nature of a business conducted through a trust consisting of the following: the trust is constituted by a contract between the trustee and a few primary settlers made a relatively minor contribution. Then he summoned the general public for those interested in buying a property to build the trust was incorporated as secondary settlers, who were forced to make monthly contributions to the works to be financed, it hired a construction company to build housing and construction is finished, credit is awarded to the settlers the unit, first in mere possession and when the winners end up paying the agreed amount, the property, which provides that the awards would become more as the money advanced or score. Each trust and a real group conformed saved in advance. The contractual position of the settlers, not represented by documents issued in series, was transferable to others, by the mere will of those.
the dilemma was raised whether this was an operational subject to rules on prior savings groups or a simple case of management trust, which was beyond the powers of regulation and control of the BCU.
The decision rendered in the case, stated that it was not either of the two ways mentioned, but a "financial trust." To do this we started from a broad interpretation of securities law, as the means by which such "property or rights transferred, incorporated or not a document that meet the requirements laid down rules force, including in this concept "stocks, bonds, futures, options, shares of mutual funds, securities and, in general, any credit or investment law" (art. 13 of Law No. 18,627).
Given the generality of the above standard, the conclusion of the BCU was that in the hypothesis, it was facing a financial trust public offering, thus subject to all rules relating to that category.
This resolution, beyond the view on it is asserted, imposed a severe limitation to the operation of reference, challenging the validity of the already completed and which are used in the future by persons who do not meet the subjective and objective. Weight
0 comments:
Post a Comment