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Law No. 21.442 of the Ministry of Housing and Urban Development is published, approving the new Real Estate Co-ownership Law.

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).

Exempt Resolution N°138 of the SEREMI de Vivienda y Urbanismo of the Tarapacá Region establishes regional criteria to ensure that subdivisions on rural land do not give rise to new urban centers outside intercommunal urban planning.

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).

Exempt Resolution N°138 of the SEREMI de Vivienda y Urbanismo of the Tarapacá Region establishes regional criteria to ensure that subdivisions on rural land do not give rise to new urban centers outside intercommunal urban planning.

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).

National Forestry Corporation indicates in its Ord. No. 87/2022 requirements for favorable reports and certificates for the evaluation of management plans for civil works and work plans associated with the subdivision of rural land.

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).

Decree No. 13 is published, which amends the General Ordinance of Urbanism and Construction, in order to exempt from building permit and its procedures to works of non-structural character in existing buildings and other cases indicated.

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).

Contraloría General de la República pronounces on the granting of building permits for new construction on previously built-up land, in relation to the land occupation coefficient.

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).

Supreme Court accepts appeal for protection against mitigation works regarding the construction of a hotel in Concon.

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)

Oral Trial Court in La Serena condemns perpetrators of irregular plotting and repeated fraud

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).

Ruling of the Office of the Controller General of the Republic instructs the adjustment of Specific DDU No. 5 on the subject of distancing and declares that it does not conform to law Building Permit in La Florida.

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 Supreme Court accepts the appeal for protection filed by the residents of Ñuñoa and orders the opening of the citizen participation procedure for the construction project of a Mall in the municipality of Ñuñoa.

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).

Supreme Court ratifies requirement to change land use to build on lots located outside urban radius, on the grounds of a real estate project.

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)

Supreme Court settles dispute over calculation of expiration period for construction permit of phased real estate project.

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)