What if we rented the goal? By Alejandro Anibal Segura. axiological
Introduction and application. One of the most unwanted signs of "crisis" we would be suffering, it's that sort of sauf qui peut sweeping those sectors with lower social sensitivity. Trite that is remembered by the rock formation of democratic and republican thought, dwells on the sources of the French Revolution: liberty, equality, fraternity.
Breaking the fraternal bonds between citizens is, believe it or not, a delay of those assumptions and their translation into the here and now becomes "miraculously" on questions like the title of this work.
is a fact of reality to assume that the vast majority, if not all, of those living in buildings subject to horizontal property regime in the big cities are people who work (we use this expression instead of the classic "working "), so that they are socially" equal "to those who carry out their work task, precisely in such buildings.
equality "one and the other"-value French revolutionary reitérese, "should be the keystone to understanding the problem, assuming the artificiality of that some are "owners" and other "working" is not important axiological question, to the extent that, as men of law, the lawyers who make up this Institute have sworn to adjust our conduct to the Constitution and the international law of human rights. This plexus policy aimed at the realization of those values \u200b\u200bontic and not full of ups and downs these realities merely existential.
is clear then that a person claiming to be in a "superior" or hold "more" than the manager of your building, and you can stop reading these reflections, the angle of approach problem is so diametrically opposed to the values \u200b\u200band norms in question to prevent any form of understanding and agreement, operating as prejuicial unavoidable obstacle.
maximize the benefits. Ontic equality correcting existential inequality. As mentioned popularly, the viscera more sensitive when they are reduced revenue is usually the pocket. It is logical that a community of any kind, among which the consortium has, try to reduce expenditures to cushion the impact critical. Thus, within the social degradation which prints the whole crisis, the decline in material standards decanted slowly into a loss axiological. Is the time of every man for himself with the harsh confrontation between the ones and others that vie for your interest without limitation any scruples, "freedom" of others. A new decanting of the values \u200b\u200bof 1789 has operated.
orthodox economic liberalism defines this bid for resources as "profit maximization, where in a sort of social Darwinism some sectors with greater autonomy (freedom, intention and discernment), move to other" disadvantaged ", which must yield the conditions of others.
People working and that this fact had a unique socio chance to join the process economic and social development through the alienation of their labor are therefore in an inferior position existential relationship even those who have some means of production and determine the incorporation of a company's last full or partially employed, givers are working. Is not the place to remember these real social constraints that led to the "social question" (known to all) and its provisional decision by the state, with the issuance of mandatory rules, which displace the autonomy-and put to all persons involved in the work done in a real equal opportunities (equality ontological existential correcting inequality). As we see, labor law, which is the mechanism in question, was born to postulate the equality of people and if you want to restrict the freedom to expand one of the others. Why do we accept the average conscience of mankind? For the sake of brotherhood, of course. Again confirms our proposal on the validity of the assumptions inherent in the modern era started: liberty, equality and fraternity.
Therefore, the state burst in the game of wolves and lambs stop the process of maximizing profits. Hence the visceral hatred that defenders of these positions Orthodox economic, by the basic tenets of labor law. Declaim the "freedom" at the expense of trampling on the "equality" with the similar. Not to mention the "brotherhood"! Assume that collective action by workers is an "obstacle" to the free play of market forces. Disseminated without understanding the axiological foundation that gave rise to them, that labor standards are "tight" to be "flexible", etc.. The Argentineans can attest to the evils of certain policies implemented before 2003 under that ideological bias and its impact on the social fabric: the unemployment rate which reached and surpassed the 20 points are enough lessons to understand what would happen if you leave the guiding principles of our social legislation.
workers against workers "? fraternal not understand the construction process of deliberative democracy has to look at the other, on the other person who works, an enemy. Someone who, for reasons sauf qui peut this, it can attack so brutal a manner as, for example, leave without work and homeless.
purely axiological Under this premise, is that we restate the initial question, knowing that the answer to the question of the title is translated inexorablmente in the unavoidable loss of human rights for someone else-a fellow-, that is, stopping the fraternal process in the here and now.
may hold with a dose of cynicism that this is a "moral issue" or ethics, outside "the authority of judges" (art. 19, Constitution). This thinking implies that the constitutionally guaranteed property rights, has a superior body to the other rights, introduced first by the "reform" in 1957 and again by 1994. Also postulated that the human, economic, social and cultural rights contain a non-existent judicial enforcement.
However, and fortunately this is not the approach taken by the Supreme Court's Office, who, following the doctrine of the Human Rights Commission has repeatedly held that the rules enshrined in the ICESCR, are operationally and can be sued for any citizen as an act from individuals or the state itself puts them at risk. Who does not understand that these rights are justiciable and have a different etiology most comprehensive social rights than mere "owners" have a second chance to leave the reading of the booklet.
The civil matter. However, for the moment, we will approach treatment of the legal issue would (or not) answer affirmatively the question "What if we rented the goal?"
We refer to the "privatization" of the common area where you live in charge of building: the "goal." SUSANA
LAMBOIS, condo specialist says, when analyzing the 13,512 law that the common parts are those that are essential or useful for the operation of the system and the exercise of the exclusive right, so that they are not conceived without those. Understands the things that make building security and common use.
is clear, therefore, that if the building was built with a "goal", which was to provide a greater share of "security" and for the benefit of the community consortium.
regulations usually defined as common property to housing goal. But if not done, the 12,981 law gives it such a fate, as we shall see below.
Some of the writers consider that may change the "destination" of the forum. Continuing along this line of reasoning hypothesis would require a unanimous decision of the owners. Another expert on the subject, Dr. MARIANI OF VIDAL, argues that the common parts that are "use and common enjoyment "can be" privatized. " But he warns that:
"... As for the most part reporting of a custodial or privatization of a common part whenever possible, it would seem that, as the identification of common parts and depriving a clause in the Regulation of Condominium, the majority required for these purposes would be necessary for the reform of the Regulations, ie, in accordance with Art. 9 of the Act 'a majority of not less than two-thirds. " Nevertheless, uniform doctrine and jurisprudence, maintain that in such cases since unanimity would be essential that those terms by the formation heritage status of the joint venturers - 'statutory provision' as opposed to merely 'regulations' use and enjoyment or exercise of rights by the investors interested in its amendment, the right of ownership of each of them, insusceptible of change without the consent of each other. "
is clear that the decision to denature the target of the goal which we know is to house the workers building and is not used as a source of income, it exceeds the powers of the administrator who is not entitled to work in that sense but to show that the treasury income enters the consortium with the aim of alleviating a "crisis." We have seen that the housing goal is a common area with a preset destination by law. To alter such a destination, modifying the legal scope of the regulation, as we saw, it was necessary to reform, with requisite majority. Without thinking, as we argue in our view, that destiny is predetermined by a Public Order Act, which would make the decision unanimous, even in a legal act null and void.
But back on the classification of the parties 'private', where property rights appears glaring, and the "common", which is relativized by rules coexistence in a democratic system must be construed in accordance with constitutional principles and international law of human rights at stake.
LAMBOIS SUSANA says, as the Horizontal Property Specialist are ...
Communist Party: This sets out the common parts, which are essential or useful for the operation of the system and the exercise of the exclusive right, so such that they are inconceivable without the former. Understands the things that make building security and common use.
The goal, without any doubt, is a common part of "common use". The
distinction between those unique parts is essential as different will be the legal regime applicable depending on whether one or the other. Thus, reparations for damage caused on common or exclusive parties will be borne by the consortium or the holder of the sole, respectively, the origin of the damage, the maintenance of things in each category will fall on one or the other according to their ownership, the right to arrange or alter in any way each stop will be governed differently, and so on.
The result is that the distinction is well established in order to avoid time conflicts to resolve. As the enumeration made This article (referring to 2, Law 13 512) is declarative, which means that there are other goods, parts and services, which are common without the article you mention it, will depend on the provisions of Joint Ownership Rules and Administration for its detail.
Legally, common things are subject to an undivided condominium forced in terms of art. 2710 Coll. Civil, indispensable for the exercise of ownership rights to exclusive things. This interpretation arises from the provisions of art. 18 of the Act repealing the arts to its effects. 2685 and 2693 in the same order, so it is not applicable as the escape neglect the contribution the cost of maintenance or repair or ban not to require the division. This is explained by the need to establish a permanent system of undivided for the purpose of the configuration of the system. However, no one can say that the undivided forced to set is the same as Civil Code regulates but it additionally applies when a situation is not foreseen in the law.
The decision on "fate" of things called "common" exclusive to the owners. Course, no administrator, or a majority non-regulation, can alter "unilaterally" such condition.
Others argue that the distinction should not be presumed that the common character of the things mentioned in the preceding paragraphs because they generally serve to all owners and are in function and serve them, but nothing would prevent the inclusion of these in Regulation and Administration of Condominium and exclusive parties in accordance with a special destiny. Understand that when the rule indicates what type of law is said to be common property for this reason, only involves a rebuttable presumption may be rebutted by convention when not concerned in each case of things necessary for the intended use or enjoyment of the whole building. If the common quality derives from its involvement the benefit of all co-owners or safety of the building, its different parts will be one way or another according to their nature or purpose and not under the law making the statement.
LAMBOIS says:
since in principle and common things are of that quality by virtue of being essential for the safety of the building or the use of all joint owners could not mutate their status. However, in many cases and by the will of all joint owners, they can be privatized. Of course, that such change can not be operated on things that are essentially common, such as those necessary for the safety of the building, but when not affect the very existence of horizontal property regime, ie in those cases that do not jeopardize the possibility of a full mastery over the sole responsibility of each owner to restringírsele no powers have remained common to contribute to the maintenance of the building through exploitation (as premises are rented and the proceeds are solved with the rental costs for common expenses), side door when it has been changed to another, roofs, etc.. It concludes that the land, foundations, exterior walls, bearing walls and all those things essential to the operation of the system are insusceptible of being privatized.
The goal provided "security" to the building. But suppose not. Question of a common good without the condition, which would be "privatized." But still LAMBOIS:
However, the possibility of changing the quality of these common things that can be privatized is limited to the unanimous will of the investors. Is that when they are common, each participates in a percentage of your property, so turning them into proprietary it is reduced. If his will not be required for the transfer, it would affect their property rights. About ordinary things exists undivided condominium status, so none of the condominium may be made without the consent of all legal acts importing the current year and immediate property right, being enough opposition to prevent what one most wants to do about it without being able to dispose of some alienation in against or ignoring the will of the other (art. 2680, Cod. Civil).
But what we are discussing here is not the transformation of the goal on another drive, for sale, but to gain income from it. Thus, the argument of the percentage change in the fall. Continues the author cited:
the question also arises when you want to privatize is the use without reducing the percentage for each owner (a common hallway, for whatever reason you are concerned for the exclusive use of one of the co-owners). Although in this case no changes in the domain of each co-owner, is also affecting their property rights in the use and enjoyment, so that only the unanimity of the conversion efforts can be made. Generally, to make this change in the use of a common thing, is expressly establishes the extent of such use, with the consequent obligations of the beneficiary and a greater contribution to the common expenses in return for the greater use of the thing.
disaffect If after such use is intended exclusively recognized to the holders of one or more units, will need their agreement or majority suffice? Whenever it is a right attached to property owner can not be withdrawn without the concurrence of his will, so it is necessary for all that means to deprive of a benefit that was acquired conventionally.
clear. The nature of common part prevents the "privatization", the legal concept that extends to the "privatization of its use." The concept LAMBOIS marginal notes is perfectly applicable to the situation at hand.
Indeed, housing is a goal common property that, by operation of law, is a destination that, in a sense is "privatized" since it can only live in the building worker.
GABAS said rightly that:
Converting own common good, not cause an increase in property or benefit to the consortium or other joint owners, or improvement of the market value of the units can not be resolved, but unanimously. It also requires such unanimity when an exclusive right becomes common.
Similarly, with respect to amendments which seek to alter the characteristics and distribution of functional units building-dividing or unifying with others, it will be necessary to obtain the unanimous consent of the co-owners to draft a new plan of subdivision and the provision of appropriate reform in the regulation of ownership.
Then, the joint venturers have already found the answer sought in the civil law: "Yes. We can rent the goal ... but for this we must alter their destiny by making it a common good income producer. "
Too bad for them that there is employment law.
The labor issue. Various tricks and plausible deactivation. Sitting this, assuming that the consortium as a whole decides to alter the target goal, there can be a second obstacle theme. The public nature of labor law and the express premise established in art. 13 of Law 12,981, the reading and teaching is inevitable to understand the problem at hand. Standard says:
Staff working exclusively for an employer either as a manager, assistant or carer, is entitled to enjoy the use of appropriate hygienic room and receive the necessary working tools for the performance of their tasks . In rental buildings that house ever built for the said personnel shall not alter the fate originating from the same detrimental to the worker.
If it proves impossible to implement the first clause of this Article, the employee is entitled to a salary supplement of $ 60 per month.
The standard covers three different scenarios:
• The right to enjoy a hygienic and adequate room (in addition to the tools that is a matter extraneous to which we are analyzing).
• The mandatory rule that prevents privatize or alter the fate of the goal "to the detriment of the worker."
• The status of inexcusable failure to comply with the obligation, primarily the lack of housing built with that target, which was settled with the ratings "homeless."
The urge to rent the goal has led some consortia to commit the folly of dismissing the employee if, by the simple expedient to mind the popular saying "... the dog died of rabies is over, there were" aggrieved worker "to prevent free action against the spirit of the law.
In our "Labor Legal System in Buildings" (Ed. Lexis-Nexis, Buenos Aires 2006) have argued the vertical application of the law 12,981 to all skilled worker and legal translation in the scheme, which would assume that the term "personnel" is projected onto any person working in the building. Thus, if the consortium decides to "fire the manager" to replace him with someone who "will clean two or three days or hours," does not exempt from legal injunction preventing alter the fate of the house because the "worker" has a potential harm and puts in place against the decision made inevitable by the consortium.
The criterion for a certain part of the doctrine restrictively attributed to "injured employee" to charge displaced permanent housing to meet the affirmative the question that titles this paper not stand the scrutiny. First, the worker fired could articulate the invalidity of his own dismissal if established that was segregated from the working place for the purpose of violating the rule that expressly prohibits changing the destination. Possess two ways I could use so adjuvant: a) To seek the nullity of the act for violating a rule of public employment (Articles 12 and 14, LCT) decision to drag the "ultimate cause" of dismissal (art. 953, VCCI .) b) Show that the maneuver had a discriminatory content and articulate the mechanics of law 23.592.
Thus, the owners to ensure that the employee never reclaim the maneuver that cumulatively deprived of their jobs and their housing, their modus operandi to be extreme. The next choice (2 nd) will lead to the Conciliation Service Required to "make it give up" all that plexus legal guardian, on the express premise of "do pronounce" the "Clause Lafalce" This is the firm promise that "a Once the amount received under this Agreement, nothing else will have to claim your employer for the employment relationship to unite them. " Fortunately, this stratagem has a first rampart, marked by the conspicuous change in the approach that has shown approval to be granted the SECLO since May 25, 2003, especially in the current administration of Dr. Fabian Nesis, very attentive to all kinds of fun to labor rights and public order laws. Also, colleague or union representative to accompany the worker is exposed to so great resignation ethical judgments that will air later in the respective estates.
We have heard, in order to lavish the imagination tends to undermine the rights at stake that could "renounce the use" worker "in house" and then take it "homeless" (3 ª ploy). People who are not adept in handling labor law also assume that the maneuver would be "invisible", if between the resignation and the new contract elapses a time "a month or two." Of course, the return, mediate or not the payment of compensation (art. 255, LCT) does not alter the unity of the contract (art. 18, LCT) or prejudice the right of workers now "homeless" to articulate absolute invalidity of the clause at any pejorative, with no obstacle in the course of this limitation since the action would be limitations.
The fourth "idea" will fire the "in house" and hire a new worker entering the building "homeless" with the consolidated position. If you like, with self-fulfilling prophecy: "We've rented housing goal." With the same flimsy argument with someone intended to hide the sun with the palm of your hand, this time trying to count in favor of labor fraud with the complicity of another, supposedly "a right based on good faith" to stop the wayward worker's claim of buildings that now tries intervertebral its status as "homeless" by the normal "with." The nature of the rule does not show any hindrance and the condition of the third "good faith" does not mean fit the absolute invalidity of the contract which has signed with the consortium, subject to submit to the failure of title to the property locado in mean no one can convey a better title than you have initially. There will be subsequent litigation as between the tenant in good faith and the consortium, but the effects of absolute nullity drag the invalidity of the same character of all acts consistent, especially when they were taken to violate a rule of law and order and protect work.
The fifth and sixth hypotheses emphasize the role of association or a group concerned to ensure the supremacy of the human, economic, social and cultural rights. The
end devices. The triple nature of constitutional law at work. Expired arguably the systematic work, as often happens in times of degradation axiological, a sector of society assumes the worst position. A "fifth hypothesis" would be "fire and hire a cleaning company." In this case, try moving the recipient's job responsibilities of providing a "third party" who is paid a fee or price, usually much higher than that correspond under direct recruitment of a building worker.
The idea seems attractive, since there would be "no worker buildings "that he can be" harmed "by the lack of provision of housing in the building and leased to a third party.
this analysis omits the role that deliberative democracy must meet the association, while defending the interests of workers. The union has standing to ensure the effective application in its scope, of the collective agreement signed in nature "vertical." This provision and the text of the 12,981 law stating that all employee benefits that occur in buildings subject to horizontal property regime are governed by those rules. Also staff in question is necessarily framed by the collective agreement signed by the union (see Doctrine of the Whole Judgement C. Nac. Trab., in the case "Rizzo v. Star Chemistry.
Finally, in addition to exposing the consortium framing an issue of the unlucky "fifth idea to rent the goal" will result in greater expenditure (support to the cleaning company) and an eventual decision of the Labor Court, before the commission of unfair practice.
hypothesis final proves that puts plainly opposed the rights of the venturers, as owners of a real right-front group building workers, unions have organized a series of rights to enforce constitutional program targeted.
knows that the art. 14 bis of the CN has a triple at the top right of workers individually and collectively considered:
• Right to work.
• Rights of workers (or people working) conditions and decent working environment and satisfactory.
• The right to full employment.
This program is part of a larger, covered in the menu of international law of human rights in general, seeks to incorporate the disadvantaged sectors of society, like workers, economic and social system existing in a given society.
this perspective, the freedom "of not hiring" a few, just the owners, is opposed to social etiology rights inducing the inclusion of large numbers of people in the system. This is a way to "provide the general welfare" to the benefit of all they consist of an active mechanism that diffuses the direct causes of insecurity as unemployment and structural poverty.
The union, as a natural manager of this process may act to seek shelter (on the basis of Art. 43, NC) against the gross violation (default) rights involved, especially the "right to work and right to full employment" and would be able to demonstrate that the lack of provision of a workplace is violation of those basic human rights violated.
prognosis is not an imaginary, ideal or utopian. It is ridiculous that a person or group of people who make abundant use goal arguments to rent and get an ancillary income can understand, as the Court says, "the sign of the times." Legal thinking that puts social rights over individual rights contrasts with the rustic drive every man for himself.
So the question that we have trying to have two answers. An ethic: leave a person without work and home is violating their dignity existential and set against the international law of human rights. Practice: the Consortium will be exposed to a menu of responses where the worker concerned, the collective actor that represents him or the State could clear the validity of the act and penalties for misbehavior.
La Matanza, June 10, 2009.
