Law 20,930 was published in the Official Gazette on June 25 2016. It recognises a new in rem right of conservation that could affect land use.
In rem rights in Chile are established by law, so individuals cannot create such rights (ie, a right that would affect a property even after being transferred to third parties, such as usufruct and easements).
A notarial public deed and registration with the real estate registrar are required in order to establish a conservation right. The right will have effect only after registration.
Once established, the right will be transferable and transmissible and cannot be separated from the land for which it has been created. The right will be indefinite, unless the parties agree otherwise when it is established.
When establishing a conservation right, the parties will agree on at least one of the following prohibitions, restrictions or obligations:
- a restriction or prohibition against using the land for commercial, tourism, industrial, agricultural, forestry or other exploitative purposes;
- an obligation to take over or contract services for maintenance, cleaning, decontamination, repair, protection, administration or use of the land; and
- an obligation to carry out or oversee a management plan agreed in the contract to ensure the rational and sustainable use of the property's natural resources, subject to the conservation right.
Although a conservation right is focused on environmental preservation, it has commercial implications, as it will limit the use of the land in a way that is similar to easements; in fact, the law provides that certain Civil Code provisions regarding easements will apply.
For further information on this topic please contact Santiago Montt Vicuña at Montt y Cia SA by telephone (+56 22 233 8266) or email ([email protected]). The Montt y Cia SA website can be accessed at www.monttcia.cl.