Real State

On April 12, 2023, and pursuant to the first transitory article of Law No. 21.442, on Real Estate Co-ownership (“Law”), the Ministry of Housing and Urban Development (“Minvu”) published in the Official Gazette the approval of the text of the “Standard Rules of Co-ownership” (“Standard Rules”). The purpose of these Regulations is to provide specific rules to those condominiums that do not have their own co-ownership regulations. Thus, the text prepared by the Minvu will be applicable as a regulation for those condominiums that were created before the entry into force of the Law, or which, having arisen thereafter, originate in a community that does not imply co-ownership under the terms of the aforementioned Law. Likewise, it will be applicable if a regulation has not been issued one year after the publication of the Law.

These Regulations regulate all the relevant matters as required by the Law, among which we highlight the following novelties or modifications:

– Possibility of electing qualified administrators.
– Modification in the execution of debtors of common expenses;
– Telematic assemblies or meetings are allowed and the participation of tenants is added;
– Pets are allowed in the units, as long as they are appropriate to the environment, hygiene and surface area of the unit, and,
– Collective fire insurance, among others.

On this matter, we must remember that, according to Article 100 of the Law, condominiums under the old law will be governed by the Law and, consequently, are obliged to adjust their internal regulations in accordance with the Law, an obligation that must be complied with within one year from the publication of the latter.

However, the Law itself states that its regulations must be issued within 12 months from the publication of the Law, which has not occurred to date. As a consequence of the above, the Executive Secretariat of Condominiums, through its Circular No. 2, has instructed that the 12-month term to issue or update the co-ownership regulations must be counted from the date of publication of the Regulations of the Law, which has not occurred to date. Therefore, the period for each condominium to modify its bylaws has not yet begun to run.

Should you require additional information on this matter, please contact Sven Herlin (sherlin@jdf.cl), and/or Julio Trucco (jtrucco@jdf.cl).

On July 27, 2022, the Executive Secretariat of Condominiums, created by the new Real Estate Co-ownership Law No. 21.442 (hereinafter the “Law”), issued Circular Ord. No. 1, (hereinafter the “Circular”), in order to resolve doubts regarding the transitory provisions of the Law and, specifically, regarding the applications to join the real estate co-ownership regime that were being processed at the Municipal Works Directorates (hereinafter “DOM”), and that were filed prior to the entry into force of the Law (April 13, 2022).

Regarding the applications to join the real estate co-ownership regime that were being processed at the Municipal Works Directorates, the Circular indicates the following:

1. All applications to join the real estate co-ownership regime, submitted up to April 12, 2022, the date prior to the entry into force of the Law, will continue to be processed in accordance with the regulations in force at the date of submission of such application, therefore, they will be processed and resolved in accordance with the terms of the old Law on Real Estate Co-ownership, Law No. 19.537.
2. Likewise, building permits approved by the Municipal Works Directorates prior to the publication of the Law, that is, prior to April 13, 2022, and which had informed of their intention to be included in the real estate co-ownership regime, will be processed and resolved in accordance with the regulations in force at the date of their entry, that is, in accordance with the former Law No. 19.537.
3. Finally, as in the previous 2 paragraphs, the Circular indicates that the building permits where the interested party informs that the project will be under the co-ownership regime, and which are submitted after April 13, 2022, and prior to the date of publication of the Regulations of the Law (which at this time have not been published), will be processed and resolved in accordance with Law No. 19.537.

In addition to the above, the Circular confirms or clarifies the following:

• The Notice confirms that those communities of co-owners that have adopted Law No. 19.537 on Real Estate Co-ownership must adjust their bylaws to the provisions of the new Law within a period of one year.

• The Notice indicates that the resolutions adopted by the Co-Owners’ Meetings prior to the entry into force of the Law will be valid as long as they are not contrary to the provisions of the New Law.

• With respect to the first co-ownership regulation, the provisions of Article 8 Letter C) of the Law will not apply, in the sense that it must indicate the number and date of the filing of the co-ownership plans with the competent Real Estate Registry.

• Finally, prior to the updating of the forms of the respective DOM, applications for building permits shall be processed using the forms currently available, on the understanding that the reference to the real estate co-ownership law contained therein refers to the new Law. For these purposes, the respective DOM may state in the “notes” section of the building permits that the reference to the real estate co-ownership law refers to the new Law No. 21.442.

Should you require additional information on this matter, please contact Sven Herlin (sherlin@jdf.cl), and/or Julio Trucco (jtrucco@jdf.cl).

On July 20, 2022, Law No. 21.458 was published in the Official Gazette, which amends Decree Law No. 3.516 on subdivision of rural properties, hereinafter referred to as “DL”, as follows:

1. It incorporates in Article 1° that the land resulting from a subdivision carried out in accordance with the DL must have access to a public space or to a road coming from the process of subdivision of the agricultural reform.

It also adds that the interior common roads of a rural community, whether they are made up of easements or road lots, must be maintained on a pro rata basis by the owners in order to guarantee access between the public space and the respective properties.

2. It also adds to the aforementioned Article 1 that, unless expressly stipulated to the contrary, in road lots or transit easements that have been projected as such in the subdivision plans certified by the Agriculture and Livestock Service, it shall be understood that a transit easement has been constituted under the terms of Article 881 of the Civil Code, and such easements must be registered in the competent Real Estate Registry.

Should you require additional information on this matter, please contact Sven Herlin (sherlin@jdf.cl), and/or Julio Trucco (jtrucco@jdf.cl).

On July 12, 2022, the Ministry of Agriculture issued Ordinary No. 637 (hereinafter “Ordinary“), by virtue of which the Agriculture and Livestock Service (hereinafter “SAG”) was instructed to suspend the certification of Rural Land Subdivision projects (hereinafter “SPR”), in those situations in which a possible change in the destination of the lots resulting from such subdivisions may be noticed, in order to avoid negative externalities caused by an unplanned urbanization and thus preserve the rural land so that it may continue to fulfill the agricultural purpose that corresponds to it.
In order to comply with the aforementioned objectives, SAG was instructed by means of the Ordinary to suspend the processing of the evaluation of an SPR when it notices a possibility of a change of land use, and in these situations to request reports from the following public services:

• To the corresponding SEREMI of MINVU, in order to ensure that potential subdivisions do not give rise to new urban centers.
• To CONAF, in the event that there is a native forest or sclerophyllous vegetation or the property is qualified as forest aptitude.
• Eventually, to the Subdirección de Agua Potable Rural de la Dirección de Obras Hidráulicas del MOP, in order to determine the impact of the subdivision on the drinking water supply.
• Finally, the Ordinary instructs to request any other report to the public services it deems pertinent.

Subsequently, and in accordance with the aforementioned Ordinary, on July 18, 2022, Circular No. 475 of 2022 (hereinafter the “Circular”) was issued by the Ministry of Agriculture, through the National Director of the Agriculture and Livestock Service Central Office, which establishes complementary criteria for the review of applications for the Subdivision of Rural Land. The purpose of this Circular is to allow the SAG Regional Directorates to suspend or reject the SPR certification submitted to them based on these criteria.

The Circular indicates different cases that merit suspension or rejection of the project certification process. These hypotheses are classified in 2 classes. First, generic cases of suspension, when, for example, there is a complaint from an individual or other Public Services regarding an SPR project that violates the regulations; and, second, it establishes 12 specific cases of suspension or rejection, for which the Circular orders specific actions of suspension and requirement of information or rejection of the SPR certification. Within these cases, we can highlight the following subdivisions:

I) Include in the plan elements typical of a condominium.
II) Contemplate a project design that is incompatible with the agricultural, livestock or forestry use of the resulting lots.
III) Result in plots of 5,000 m2 or more, which present an offer to the public in social networks, real estate portals, or other elements that allow attributing characteristics of an urban or housing destination.
IV) Consider the generation of 80 or more lots.
V) Consider in their design the habilitation of roads on forest surface.
VI) Correspond to the development of new stages of previous projects, consolidated with real estate destination.
VII) Presented by an owner whose business is linked to the following economic activities: construction of buildings for residential use, purchase, sale and rental; and/or its corporate purpose is mainly real estate.
VIII) That they are located in Indigenous Development Areas or are included in CONADI’s Indigenous Land Registry.

Should you require additional information on this matter, please contact Sven Herlin (sherlin@jdf.cl), and/or Julio Trucco (jtrucco@jdf.cl).

On June 30, 2022, Law No. 21.461, hereinafter referred to as the “Law”, was published in the Official Gazette, which incorporates a precautionary measure for the early restitution of real estate and establishes a procedure for the collection of rental income. For these purposes, on the one hand, the Law amends Law No. 18.101, which establishes the special rules on leasing of urban properties and, on the other hand, deletes in paragraph 6 of the second subsection of Article 680 of the Code of Civil Procedure the expression “and precarious gratuitous bailment”.

The purpose of the Law is to protect with greater strength the rights of the lessor, mainly in cases of: (i) a serious lack of care of the lessee with respect to the property; and (ii) cases of serious delinquency in the payment of rent and bills by the lessee.

The Law protects these rights through 3 elements, namely: (i) it incorporates a precautionary measure for the early restitution of real estate; (ii) it incorporates an order for payment procedure for the collection of rent; and (iii) it establishes new formalities for written lease agreements.

1. Early restitution.
Incorporates in Article 8 of Law No. 18.101 a new paragraph 7 bis, by virtue of which the judge is granted the power to “order the early restitution of the property and the launching of the defendant lessee, with the assistance of the public force if necessary”.

It is necessary to indicate that such measure will proceed in those cases in which the lessor demands “the termination of the lease contract and the restitution of the leased property, for having been partially destroyed or rendered unusable for its use as a consequence of the action or omission of the lessee in its care”.

Finally, since this new power is a precautionary measure, the judge is empowered to require, at his discretion, the delivery of a bond by the plaintiff, which will serve for the payment of the eventual damages that the lessee may suffer in the event of a possible final judgment that does not condemn him to the restitution of the property.

2. Payment for payment procedure for the collection of rents.
The second relevant element of the Law is the implementation of an order for payment procedure for the collection of rents owed. In order to initiate this procedure it is necessary to file a lawsuit for the collection of such rents, together with the request for the restitution of the property that is the object of the lease. Such demand must expressly include the unpaid debt, whether it be rent, common expense accounts, utility bills, all derived from the lease agreement. In addition, the lessor must request that the debtor be required to comply with the payment within a period of 10 calendar days. This request must include the expenses and rents accrued after the filing of the claim, plus the corresponding interest and costs. Once these requirements have been met, the judge will accept the claim and order that the debtor be required to pay, so that it complies with its obligation within the aforementioned 10-day period.

It should be noted that, in this same resolution where the judge requires the tenant to pay, it will be stated that in the event that the latter “does not pay or does not appear or does not oppose, he will be considered as condemned to pay” the debts claimed against him, and the eviction will be carried out within a term not exceeding ten days.

As a last modification of a procedural nature, the Law makes the payment order procedure described above applicable, as appropriate, to the actions of precarious bailment that seek the restitution of the property and to the action of precariousness established in article 2.195 of the Civil Code.

3. Formalities for lease contracts.
On the other hand, the Law replaces Article 20 of Law No. 18.101, requiring certain formalities when the lease contract is in writing and establishes a presumption with respect to the amount of the rents in the case that the contract is only consensual.

In effect, in contracts in writing, and which are governed by Law No. 18.101, the signatures of the contracting parties must be authorized by a public notary, who must also “request the titles that enable the lessor to assign the use of the property in respect of which the contract is made”. The contracts authorized in this way will constitute a sufficient precedent to file a claim for the restitution of the property together with the collection of debts in the payment order procedure indicated in point “2” of the present legal alert.

Finally, with respect to contracts that are not in writing, it is provided that “it will be presumed that the rent is the amount stated in the deposits or payment documents for at least three consecutive months and, in the event that these do not exist, it will be presumed that the rent is the amount stated by the lessee”.

Should you require further information on this matter, please contact Sven Herlin (sherlin@jdf.cl) or Julio Trucco (jtrucco@jdf.cl).

On April 13, 2022, Law No. 21.442 was published in the Official Gazette, which approves the new Real Estate Co-ownership Law. This Law, which revokes the current Real Estate Co-ownership Law (Law No. 19.537), establishes a series of changes, among which the following are worth mentioning:

– New definition of the concept of Real Estate Co-ownership, as well as of the condominium typologies (A and B).

– Regardless of the type of condominium, access to the condominium must be direct to a national public property, eliminating the option of access by means of traffic easements.

– New condominiums must respect the road network established by the Territorial Planning Instrument (IPT).

– The provisions of the co-ownership regulations that do not comply with both the legal norms and the regulations of the Co-ownership Law will be null and void.

– The minimum quorums for the constitution of ordinary and extraordinary and reinforced majority meetings, as well as for the adoption of resolutions, are modified.

– A National Registry of Condominium Administrators is created, in which all individuals or legal entities that carry out activities as condominium administrators, whether free of charge or onerous, must be registered.

– The Minvu will be in charge of an Executive Secretariat of Condominiums, which will be in charge of issuing instructions regarding the application of the Law, among other functions.

– The possibility is incorporated in the Condominium’s co-ownership regulations to agree on the participation in virtual assemblies, subject to certain requirements.

– Expansion of matters that may be agreed upon by means of written consultations.

– With respect to the assignments of exclusive use and enjoyment that are not included in the co-ownership regulations and are related to common land and property, the obligation of their registration in the registry of mortgages and liens of the competent Real Estate Registry is stipulated.

– Establishment of a limit of 160 housing units in social housing condominiums (with exceptions).

– It is stipulated that the co-ownership regulations may not prohibit the keeping of pets and companion animals, without prejudice to the power to restrict the use of the common property of the respective condominium by such animals.

– At the time of the purchase-sale or the subscription of the promise of the respective unit, the first selling owner must deliver a material and also a digital copy of the first co-ownership regulations.

– The co-ownership regulations, if applicable, must ensure, by means of the respective rules of coexistence and penalties for noncompliance, that the use of housing units as temporary lodging, tourist lodging, apart-hotel or other similar, does not produce nuisances that affect the quality of life of the permanent inhabitants of the condominium or affect their use of the common goods and services.

– In case of default in the payment of the condominium’s economic obligations, only one service will be cut off. This will be extended not only to electricity supply cut-off, but also to heating and telecommunications.

– Parking spaces for persons with disabilities may only be assigned in use and enjoyment to co-owners, occupants or lessees of the condominium units that so require, when these correspond to persons with disabilities, especially those with reduced mobility who have the respective accreditation of such condition as indicated in Law No. 20.422. Notwithstanding the foregoing, as long as the parking spaces corresponding to the mandatory minimum quota for persons with disabilities are not required by the aforementioned persons, they may be temporarily assigned in use and enjoyment to other co-owners, a concession that will terminate by the sole authority of the law, when they are assigned to persons with disabilities.

– In the case of condominiums with more than 200 units for housing purposes, subadministrations not exceeding such amount shall be constituted, corresponding to the collective buildings or sectors into which the condominium may be divided, pursuant to the provisions of letter D of Article 1° and Article 38 of the Law. Notwithstanding the foregoing, if the condominium consists only of a collective building of more than 200 units for housing purposes, the constitution of subadministrations shall not be required, but the existence of certain differentiated common properties that facilitate the circulation of persons and the daily administration of the condominium, such as accesses to the public space, receptions or concierge offices and/or elevators that serve certain floors or units, must be contemplated. For such purposes, the Regulations of the Law shall regulate the minimum standards.

Finally, it is noted for the record that (i) Law No. 21.442 became effective on the date of its publication in the Official Gazette, April 13, 2022, except for certain exceptions (contracting of collective fire insurance); and (ii) the regulations of the Law and the National Registry of Condominium Administrators must be issued within a period of 12 months from April 13, 2022 and must be submitted to public consultation for a period of no less than 30 days.

Should you require additional information on this matter, please contact Sven Herlin (sherlin@jdf.cl) and/or Julio Trucco (jtrucco@jdf.cl).

On March 24, 2022, the SEREMI MINVU of the Tarapacá Region issued Exempt Resolution No. 138 (hereinafter, the “Resolution”), in order to ensure that subdivisions and constructions on rural land do not give rise to urban nuclei outside of intercommunal urban planning, stipulated in the second paragraph of Article 55 of the Decree with force of law No. 458 of 1975, which approves the General Law of Urbanism and Construction (LGUC), instructed a series of criteria applicable to the Tarapacá Region.

To this effect, it established criteria within five thematic areas, taking into consideration both the National Rural Development Policy and the principles of exceptionality and discretionality. These areas are: i) social integration; ii) economic development; iii) environmental balance; iv) identity and heritage and institutionality; and v) governance.

Based on the above, the regional criteria established in the Resolution to ensure that subdivisions or constructions in rural areas do not give rise to new urban nuclei outside intercommunal urban planning are as follows:

1. Location, mobility and connectivity – in that the respective project must respect the rural characteristics of the environment, with respect to the densification and intensity of occupation of the rural territory, that there is consistency with housing programs and that there is concordance with local transportation systems, connecting at least through a public road or pathway, complying with minimum standards of urbanization and accessibility.

2. Rural areas with IPT studies in the process of approval – the project that signifies a future urban area may be authorized if it has an approved preliminary project or is in the process of being approved by the Mayor’s Decree or the Governor’s resolution, as appropriate.

3. Compatibility of uses – all projects authorized in accordance with the second paragraph of article 55 of the LGUC must be compatible with the existing use of the territory, avoiding negative impacts on the environment and human environment of the surrounding area.

4. Vulnerability and Surrounding Risks – as a general rule, all projects must avoid being located in risk areas and/or areas exposed to hazards. In exceptional situations where this is unavoidable, a risk study developed by a professional specialist and approved by the competent agency must be considered.

5. Safeguarding of elements of environmental, heritage, cultural and identity value – in this regard, an analysis of this condition and the importance of the intervention must be taken into consideration in the case of areas recognized as having environmental value. Regarding areas recognized as having heritage, cultural and identity value, rural development plans and programs, economic, social and cultural diversity, heritage, indigenous and local identities must be considered.

6. Territorial Concurrence of Productive Activities – any project that is considered inoffensive, annoying, unhealthy, polluting or dangerous must attend to and respect the pre-existing uses of the surrounding area.

7. Territorial Compatibility of Tourist Camp Activities – the activities, resorts or tourist camps of paragraph 3 of art. 55 LGUC, must comply with the criteria established in the Regulation on Minimum Sanitary Conditions for Campsites or Tourist Camps and Chilean Standard NCh2948.

These criteria will be applied particularly in the performance of the precautionary function that corresponds to the SEREMI de Vivienda y Urbanismo of the Tarapacá Region; all of the above in the context of future interventions in rural areas, and projects may be evaluated in terms of a particular casuistic criterion or on the basis of an integrated analysis.

Should you require additional information on this matter, please contact Sven Herlin (sherlin@jdf.cl) and/or Julio Trucco (jtrucco@jdf.cl).

On March 24, 2022, the SEREMI MINVU of the Tarapacá Region issued Exempt Resolution No. 138 (hereinafter, the “Resolution”), in order to ensure that subdivisions and constructions on rural land do not give rise to urban nuclei outside of intercommunal urban planning, stipulated in the second paragraph of Article 55 of the Decree with force of law No. 458 of 1975, which approves the General Law of Urbanism and Construction (LGUC), instructed a series of criteria applicable to the Tarapacá Region.

To this effect, it established criteria within five thematic areas, taking into consideration both the National Rural Development Policy and the principles of exceptionality and discretionality. These areas are: i) social integration; ii) economic development; iii) environmental balance; iv) identity and heritage and institutionality; and v) governance.

Based on the above, the regional criteria established in the Resolution to ensure that subdivisions or constructions in rural areas do not give rise to new urban nuclei outside intercommunal urban planning are as follows:

1. Location, mobility and connectivity – in that the respective project must respect the rural characteristics of the environment, with respect to the densification and intensity of occupation of the rural territory, that there is consistency with housing programs and that there is concordance with local transportation systems, connecting at least through a public road or pathway, complying with minimum standards of urbanization and accessibility.

2. Rural areas with IPT studies in the process of approval – the project that signifies a future urban area may be authorized if it has an approved preliminary project or is in the process of being approved by the Mayor’s Decree or the Governor’s resolution, as appropriate.

3. Compatibility of uses – all projects authorized in accordance with the second paragraph of article 55 of the LGUC must be compatible with the existing use of the territory, avoiding negative impacts on the environment and human environment of the surrounding area.

4. Vulnerability and Surrounding Risks – as a general rule, all projects must avoid being located in risk areas and/or areas exposed to hazards. In exceptional situations where this is unavoidable, a risk study developed by a professional specialist and approved by the competent agency must be considered.

5. Safeguarding of elements of environmental, heritage, cultural and identity value – in this regard, an analysis of this condition and the importance of the intervention must be taken into consideration in the case of areas recognized as having environmental value. Regarding areas recognized as having heritage, cultural and identity value, rural development plans and programs, economic, social and cultural diversity, heritage, indigenous and local identities must be considered.

6. Territorial Concurrence of Productive Activities – any project that is considered inoffensive, annoying, unhealthy, polluting or dangerous must attend to and respect the pre-existing uses of the surrounding area.

7. Territorial Compatibility of Tourist Camp Activities – the activities, resorts or tourist camps of paragraph 3 of art. 55 LGUC, must comply with the criteria established in the Regulation on Minimum Sanitary Conditions for Campsites or Tourist Camps and Chilean Standard NCh2948.

These criteria will be applied particularly in the performance of the precautionary function that corresponds to the SEREMI de Vivienda y Urbanismo of the Tarapacá Region; all of the above in the context of future interventions in rural areas, and projects may be evaluated in terms of a particular casuistic criterion or on the basis of an integrated analysis.

Should you require additional information on this matter, please contact Sven Herlin (sherlin@jdf.cl) and/or Julio Trucco (jtrucco@jdf.cl).

On February 9, 2022, the Executive Director of the National Forestry Corporation (CONAF) Rodrigo Munita, issued Ord. No. 87/2022, in which he made a regulatory analysis regarding the concern of such institution regarding the development of real estate projects of subdivisions or subdivisions that intervene both native forests and xerophytic formations through the presentation of Work Plans for the cutting, destruction or clearing of xerophytic formations (PTFX) and the Management Plan for the cutting of native forest to carry out Civil Works (PMOOCC).

In consideration of the above, and with regulatory support in Articles 3° and 5° of the Constitutional Organic Law of General Bases of the State Administration; in addition to Articles 5, 31 and 37 of Law No. 19,880 on the Bases of the Administrative Procedures that Govern the Acts of the Organs of the State Administration, as they discuss the Principle of Coordination, CONAF informed that it will require the following background information for the entry and evaluation of PMOOCC and PTFX:

I. The objective established in the PTFX and PMOOCC must be clear and explicit with respect to the project or activity with which it is associated, in order to rule out the possibility that it corresponds to a subdivision or urbanization on land outside the urban limits, for purposes other than agriculture.

II. In the case of constructions necessary for the agricultural exploitation of the property, or to develop housing for the owner or his workers, the CONAF will process:

– PTFX, in accordance with Article 60 of Law No. 20,283;
– PMOOCC of native forest, in accordance with Article 21 of Law No. 20,283 under the cause “Cutting of native forest in connection with the change of use of rural land established in the General Law of Urbanism and Construction (LGUC), under the exceptionality of paragraph 1 of Article 55° of the aforementioned Law.

III. In the case of subdivision of rural or agricultural land for urbanization or development of real estate projects outside urban boundaries, prior authorization must be accredited in accordance with Article 55 of the LGUC, i.e., change of land use. As a consequence, CONAF will request:

– Certificate from the Agriculture and Livestock Service (SAG);
– Favorable Report from the Regional Ministerial Secretariat of Housing and Urbanism (SEREMI de Vivienda y Urbanismo);
– Favorable Report of the Regional Ministerial Secretariat of Agriculture; and
– Authorization from the respective Directorate of Municipal Works (when construction is contemplated).

If the above-mentioned background information is not submitted, the respective project may still be submitted for evaluation. However, in those cases in which it is confirmed through the information provided by the Agriculture and Livestock Service (through the CONAF-SAG Agreement), or other means of public access (web page, publications, press media, etc.), that the project corresponds to an urbanization or real estate project, CONAF’s Evaluation Office will carry out the following actions (emphasis added):

To send official letters to certain agencies to obtain the aforementioned background information (SAG, seremis, municipalities), based on the Coordination Principle.

The evaluation procedure will be suspended as a provisional measure, until a response is obtained from the offices mentioned in number ‘I’ above.

The resolution that decrees the suspension of the evaluation will have to be duly informed to the interested party by official means of CONAF. The suspension shall be lifted only once the respective reports have been received, and a new resolution shall be issued ordering the lifting of the suspension. On the other hand, if the complete background information is not provided, the respective application will be rejected.

Finally, CONAF indicated that in the event that violations of Article 55 of the LGUC and Decree Law No. 3.516 are detected, the respective Regional Directorate of CONAF must inform the SEREMI of Housing and Urban Development, SAG and the respective Municipality, so that they can exercise their supervisory powers.

If you require additional information on this matter, please contact Julio Trucco (jtrucco@jdf.cl) or Sven Herlin (sherlin@jdf.cl).

On February 28, 2022, Decree No. 13 of 2021 was published in the Official Gazette, which amends Supreme Decree No. 47 of 1992 of the Ministry of Housing and Urbanism, that is, the General Ordinance of Urbanism and Construction (hereinafter the “Ordinance”), in order to exempt non-structural works in existing buildings and other cases indicated therein from obtaining a building permit and its procedures.

The main changes involve clarifying the scope of application of the Ordinance and simplifying the permit granting process. The most relevant changes in this regard are as follows:

New definitions are added to the regulations, which indicate what is to be understood by Change of Use, Existing Building and Change of Use or Activity.

Some of the definitions already contained in the Decree are modified, such as Alteration, Minor Work, Reconstruction of a Building and Repair.

The hypothesis of infringement subject to fine for changing the destination of a building (or dwelling) without the corresponding permit is extended.

A new cause for fine is added, consisting of the failure to submit documents for the installation of antennas to the Construction Department.

It is established that, with the urbanization or building permit, the use or destination to be given to the works will be approved, which must be in accordance with the land use established in the Territorial Planning Instrument.

Article 5.1.2 of the Ordinance is modified, adding cases in which the building permit requirement is exempted with respect to non-structural interior or front works of existing buildings, interior closings or dividing walls of properties, additional installations to those required by regulations, and the execution of gardening and ornamental works in private properties, including irrigation.

The use of a dwelling may not be changed without prior authorization, nor may the approved use or destination be modified without a new permit or authorization.

The Director of Municipal Works must corroborate that the economic activity to be implemented on the respective property is in accordance with the land use established in the Territorial Planning Instrument in force.

Should you require additional information on this matter, please contact Julio Trucco (jtrucco@jdf.cl) or Sven Herlin (sherlin@jdf.cl).

On 26 March 2021 and through ruling No. E89540, the Office of the Controller General of the Republic responded to a request for a statement made by the Fundación Defendamos La Ciudad, regarding the legality of building permit No. 35 of 2019, issued by the Directorate of Works of the Municipality of Providencia, which authorised the construction of two residential buildings on a site that would already have buildings on it.

The Comptroller’s Office notes that, according to the Providencia Communal Regulatory Plan, the land is located in the UpR and ECr (Preferential Residential Use and Restricted Commercial Equipment) land use zone and in the EAL/pa (Free Isolated Building/Allowing Adosamiento) building zone, admitting a land occupation coefficient for the first floor in isolated building of 0.2 and a constructability coefficient of 2.9.

The Sheraton Hotel is currently built on the land in question, with a floor occupation coefficient for the first floor of 0.3 (a value that complied with the urban planning regulations at the time of its construction, as the coefficient was set higher than the current one, which is 0.2). Thus, the Comptroller found that there would be no basis for admitting new construction on the site, since any other construction would mean exceeding the land occupation coefficient currently contemplated by the planning regulations.

The Comptroller’s Office determined that the building permit in question does not comply with the urban planning regulations in terms of land occupation coefficient, and will therefore have to take steps to correct the irregularity. Regarding the allegations raised about the project and the assumption that it would exceed the constructability coefficient allowed in the Communal Regulatory Plan, the Comptroller’s Office dismissed these allegations.

On the other hand, the Comptroller added that one of the underground levels of the projected buildings to be constructed would not meet the definition of article 1.1.2 of the General Ordinance of Urbanism and Constructions to qualify as an underground itself.

Subsequently, the Comptroller’s Office made a statement on the allegations made with respect to the Impact Study on the Urban Transport System of the project (approved by official letter No. 4015 of the Metropolitan Regional Secretariat of Transport and Telecommunications, hereinafter “SEREMITT”), indicating that it only contemplated the car parks to be built and not those that were already previously constructed. The Comptroller’s Office determined that SEREMITT must inform and accompany the background information to prove that the approved mitigations considered the impact of the car parks already built at the Hotel.

Finally, the Comptroller dismissed the allegation that the project should enter the Environmental Impact Assessment System, considering that this entry was not mandatory for the implementation of the project.

If you require further information on this matter, please contact Sven Herlin (sherlin@jdf.cl) and/or Julio Trucco (jtrucco@jdf.cl).

On 29 March 2021, and resolving case Rol N°88.411-2020, the Supreme Court, hereinafter the “Court”, accepted an appeal for protection filed by the Corporación Pro Defensa del Patrimonio Histórico y Cultural de Viña del Mar and the Fundación Yarur Bascuñán, against Inmobiliaria Punta Piqueros S.A., referring to the works that the latter is currently executing in the Roca Oceánica Nature Sanctuary, located between the communes of Viña del Mar and Concón, consisting of the construction of a hotel and its respective mitigation works.

In this ruling, the Court pointed out that any work that is located in the vicinity of a Nature Sanctuary must be submitted to the Environmental Impact Assessment System, by obtaining an Environmental Impact Study.

In this particular case, the Court ruled that the mitigation measures adopted by the respondent were complementary to the project itself, so it was necessary, prior to assessing the relevance of such measures, to study the environmental impact of the project itself, which has not taken place to date. In addition to the above, the real estate project does not have a Building Permit, so its construction is not likely to materialise and therefore the mitigation measures have no justification for their implementation.

Moreover, the Court concluded that the Respondent’s activities generated a violation of the right to live in an environment free of pollution, enshrined in article 19 N° 8 of the Constitution, in relation to article 2°, letter ll) of the Law of General Bases of the Environment.

Finally, the Court ordered the Superintendence of the Environment to supervise the project again, bearing in mind that the Hotel Punta Piqueros project lacks a Building Permit and with special observation of the norms that protect Nature Sanctuaries, being able to paralyse any work until a favourable Environmental Qualification Resolution is obtained by the Real Estate Agency.

Should you require further information on this matter, please contact: Sven Herlin (sherlin@jdf.cl) and/or Julio Trucco (jtrucco@jdf.cl)

In a verdict dated December 23, 2020 of the RIT 11-2020 case, the Court of Oral Trial in Criminal Matters of La Serena unanimously convicted Ximena Alicia Burdiles Mohr and Juan Manuel Miranda Carmona as perpetrators of the crime of irregular lots, contemplated in Article 138 of the General Law of Urbanism and Construction (hereinafter “LGUC”) and of the crime of repeated fraud. In addition, it condemned Flavio Jaime Edgardo Gómez Pizarro, the lawyer who advised them on said lots, as an accomplice to the crimes described above. All this, in the context of the sale of irregular land or “witches’ plots” in the communes of La Serena and Coquimbo.

The convicted persons, through the company Parcons Propiedades Limitada, between the years 2013 and 2017 acquired agricultural land in the communes of La Serena and Coquimbo that was forbidden to change the use of the land. Notwithstanding the foregoing, said land was parcelled and put up for sale, expressly contravening the regulations in force, as it was subdivided without the corresponding authorizations, as provided in the LGUC, and in a size smaller than 5,000 square meters as established by Decree Law 3.516.

To that effect, and without prejudice to the existence of pending appeals, the Court determined that Mrs. Burdiles Mohr was guilty of the execution of 6 irregular lots plus 5 crimes of repeated fraud, being sentenced to 20 years and one day in prison. Mr. Miranda Campos was found guilty, as co-perpetrator, of carrying out 4 irregular plots of land plus 3 crimes of repeated fraud and was sentenced to 13 years in prison. Finally, Mr. Gómez Pizarro was found guilty, as an accomplice, for the execution of 5 irregular lots plus 5 crimes of repeated fraud and was sentenced to 8 years in prison. To all the above, the fines to be paid by the defendants and the amount of the civil action filed for the emergent damage to the more than 200 people affected by the purchase and sale of the irregular land must be added.

In case you require additional information on this matter, you may contact Sven Herlin (sherlin@jdf.cl) and/or Julio Trucco (jtrucco@jdf.cl).

On December 11, 2020, the Controller General of the Republic, hereinafter “CGR”, on the occasion of a request submitted by the Foundation Defend the City, consisting of the CGR to pronounce on the legality of the document No. 1. 546-S/2019, of the Works Directorate of the Municipality of La Florida, hereinafter “DOM”, which rejected its request to initiate an invalidation procedure with respect to building permit No. 143, of 2019, of that unit, based on the fact that projects such as that of the type are governed by official letter No. 184, of 2009, hereinafter “Specific DDU No. 5”, of the Urban Development Division of the Ministry of Housing and Urban Development, since, in the Foundation’s opinion, this would violate the urban spacing regulation; issued Ruling number E58946/2020, by virtue of which, in its opinion, the Specific DDU No. 5, by providing a different parameter to the total height of the building to determine the distance, as well as by contemplating various distances according to the floor they face, would be amending the General Ordinance on Urbanism and Construction, for which it would be acting outside the scope of its competence, defined in Article 4 of the General Law on Urbanism and Construction.

As a consequence of the foregoing, CGR determined that the Building Permit was not adjusted to the law, instructing the DOM to correct the irregularity, specifically through the invalidation of the administrative act. On the other hand, CGR instructed the Undersecretary of the Ministry of Housing and Urbanism to adopt the measures to adjust the content of the Specific DDU No. 5. In both cases, CGR must be informed within 15 days as from the receipt of Opinion number E58946/2020.

In case of any doubt or complementation on the matter, please contact Sven Herlin (sherlin@jdf.cl) and Julio Trucco (jtrucco@jdf.cl).

The Third Chamber of the Supreme Court in Ruling No. 62. 662-2020 accepted the appeal for protection filed by the Neighbors’ Board La Portada de Ñuñoa against the Executive Directorate of the Environmental Evaluation Service (hereinafter “SEA”), for the issuance of Exempt Resolution No. 0576, which rejected the opening of a process of citizen participation in the project being executed by Puente Real Estate Company Limited for the construction of the “Mall Vivo Santiago Stage II Shopping Center”, which includes, among others, commercial premises, residential units, Apart Hotel and 7 floors of parking lots.

The SEA maintained that the project did not generate any social benefit for the nearby community, but only for those families who will live in the homes and use the shopping center. Therefore, since the requirement of Article 94, paragraph 7 (social benefit) of Decree 40, which approves the Regulations of the Environmental Impact Assessment System, was not met, its decision was justified. A contrarily sentencing, the judges considered that given the characteristics of the project, by contemplating the construction of a tunnel connecting to the Ñuñoa subway station, creating housing units to buy and sell and implementing a new network of rainwater collectors, as well as medical services, both social benefits and negative externalities (increased noise, vehicle congestion and floating population in the surroundings), necessary to configure the concept of environmental charges required by Article 30 bis of Law No. 19, would be verified. 300, on General Bases of the Environment, to open a process of citizen participation and, therefore, since the effective exercise of the principle of participation established in the environmental regulations is prevented, the action of the SEA, by denying citizen participation, becomes illegal.

In case you require additional information on this matter, please contact Sven Herlin (sherlin@jdf.cl) and/or Julio Trucco (jtrucco@jdf.cl).

On October 5, 2020, the Third Chamber of the Supreme Court unanimously rejected the appeal for protection filed by Inversiones Panguipulli SpA against the Regional Comptroller of the Rivers (Ruling No. 62. 948/ 2020), for the issuance of Ruling No. 203 dated January 15, 2020, which declared irregular thirteen building permits granted by the Municipal Works Directorate of the Municipality of Panguipulli (“DOM”) to the appellant to build housing in part of the 228 lots resulting from the subdivision of the rural property located in Panguipulli Bay. In the opinion of the Comptroller’s Office, the failure to submit the favorable reports of the Agricultural and Livestock Service (“SAG”) and the Regional Ministerial Secretariat of Housing and Urbanism of the Los Ríos Region (“SEREMI”) for the respective change of land use in view of the development of the “Bahía Panguipulli” housing project, was in breach of the provisions of Article 55 of the General Law on Urbanism and Construction (“LGUC”), in addition to infringing the terms of the D L. N° 3.516, since this norm prohibits the use of subdivided properties for urban or housing purposes.

Although Inversiones Panguipulli SpA maintained that its intention was to prepare and sell the mentioned properties maintaining their condition of rustic, and therefore it was unnecessary to request the change of land use, only for this purpose the building permit granted by the DOM is sufficient, In the opinion of the judges, although the controversy exceeded the precautionary nature of the appeal, it did not prevent the fact that Inversiones Panguipulli SpA did not have the favorable report for change of land use, which given the background, should have been issued in order to comply with the provisions of Article 55 of the LGUC.

In case you require additional information on this matter, you may contact Sven Herlin (sherlin@jdf.cl) and/or Julio Trucco (jtrucco@jdf.cl)

On August 7, 2020, the Third Chamber of the Supreme Court, in a ruling on Case No. 29. 614-2019, put an end to the dispute between Inmobiliaria Travesía SpA (“Inmobiliaria”) and the Municipality of Pudahuel, rejecting the appeal on the merits deducted by the Inmobiliaria and thus confirming the sentence issued by the Court of Appeals of Santiago in August 2019, which rejected the claim of illegality against the municipal resolution that declared the expiration of building permit No. 221/15 granted in favor of the Inmobiliaria for the construction of two residential towers.

The highest court determined that the allegations made by the Real Estate Agency, although not incorrect, since, in fact, in order to suspend the expiration term in a construction project by stages, it is sufficient that the works had been started in only one of the towers projected, and not with respect to the entire real estate project, as provided in Article 1. 4.7 of the General Ordinance on Urban Planning and Construction (“OGUC”); in the particular case, the judge of court could not verify that the excavations carried out on the land corresponding to Tower B, where a public lamppost was still standing in the middle of the work, complied with the requirements set forth in the aforementioned urban planning regulation.

In this sense, the judge stated that, contrary to what the Real Estate Agency argued, with respect to Article 5.1.3 of the OGUC, which refers to the execution of excavations, shoring and bracing in works preliminary to the project itself, in no case did these facts suspend or interrupt the expiration period established in Article 1. 4.17 of the OGUC, since only excavations in accordance with the plans of the project, together with the execution of its layouts, allow the work to be considered as having begun, and while this event does not take place, the period of three years contemplated by the urban planning regulations must be calculated to begin the construction work.

If you require further information on this subject, please contact Sven Herlin (sherlin@jdf.cl) or Julio Trucco (jtrucco@jdf.cl)