| Courts might
order provisional measures such as the auction of the property upon default
of a debt or just prohibit the owner from entering in to contracts to sell
while a dispute is pending. (Embargo and Prohibicion de celebrar actos
y contratos).
Price: CLP$
6600.00
Certificado
de Litigios (Certificate of Legal Claims).
Record of legal
claims pending regarding the property or the fact that it does not have
any legal claims pending registered at the time of the request. Additional
steps must be taken to check this throughly. There can be a time gap between
a legal claim being filed with the court and the time the registry is notified.
Price: CLP$
9900.00
Certificado
de Bien Raíz Familiar (Certificate of Family Status of the Property).
According to
Chilean Law a property can be given the status of Family Property. The
usually affects the first home in cases where divorce or alimony payments
are pending. This law is intended to protect the home of the family.
Price: CLP$
12200.00
Water rights
In Chile the
system of water rights it is separated from the owner's right to the property.
In order to get water rights a special procedure must be followed at the
regional water authority (Direccion Regional de Aguas). The Registry has
a special public record for those water rights called "Registro de Aguas".
Copies of those rights must be requested when studying a title. This is
especially important in areas where without proper water rights, the property
would be essentially worthless. This registry also covers well on the property,
or anything effecting the water table in an area.
Price: Ch$
4900.00
The Registry
also has public records of all corporations in Chile. This is known as
the "Registro de Comercio". You can get copies of those registrations and
if a certain person does have the authority to act on behalf of the corporation
for buying or selling a property. There are no valid corporations in Chile
that have not been registered in this public record.
Beyond checking
the documents the registry issues, and relating that information to the
other public records and data bases in Chile, there are a few additional
issues that might be worth considering when purchasing a property:
Surveys
and boundaries in Chile: The title description, the plot registered, and
the boundaries description (Minuta de deslindes).
In Chile when
purchasing urban properties, boundaries are usually clearly determined,
and fully described on the title as registered at the Property Registry.
Common problems in urban areas are typically related to ownership, inheritance,
and pending legal claims; but, rarely with the property lines or boundaries.
However, the situation in the cases of agricultural or rural land is radically
different. We have detected many serious flaws in the system of registration
and the national survey system recorded with the Bienes Nacionales (the
Chilean department of the interior ) and their national data base.
For example,
in the case of agricultural land, subdivisions must be approved by the
Agricultural Authority and registered in the Bienes Nacionales Office (National
authority for public property). For that reason the engineer or surveyor
in charge of that subdivision must present the project to those authorities
for approval in Chile. The authorities should check if the survey is correct,
and in accordance with the previous documents and that all boundaries are
consistent. Being an act of authority, they are presume to be correct;
but, in practice we have encountered serious errors with the plots. In
terms of legal consequences, a mistake of this sort will end in Court proceedings,
independently of the legal responsibility of the official that approved
such a plot with the errors. Double checking that the plot presented to
the authorities has been done without mistakes is essential.
Thus, as standard
practice we recommend to all of our clients that properties be independently
resurveyed before purchase, and when preliminary information in the title
search indicates a problem we insist that the property be resurveyed (
e.g. the property is on a river, or descriptions from one title to the
next does not match ).
Following the
subdivision, if we check the registered title description, generally when
subdivisions of the property have taken place, the limits are not only
described on the title, but detailed on a separate document attached to
the Registry (protocolizado) called "Minuta de Deslindes". In most cases
the old boundaries will be described on the title vaguely, and usually
describe the border in reference to the ownership of the neighboring properties
that might have changed or had errors itself. In rural areas, it is typical
to find titles describing the limit like the following:
North: Property
of Carlos Matamala, separated by a fence.
South: River
Claro in 5 meters of the highest waters.
East: Property
of Carrera Family, separated by a fence.
West: Property
of Carlos Matamala, separated by a fence.
As we can see
in this case, there might not be even reference to how many meters each
line has or if it is a straight line or skew. As the property gets split,
descriptions are better and the plots registered have GPS references. For
these reasons it is crucial to check the description on the document called
"minuta de deslindes" and plot itself. Also, it might be necessary to check
the titles of the neighboring properties and their plots in a sort legal
and surveyor forensics operation to determine the real property lines.
When properties
have not been subdivided, checking the old plots on the field it is very
important. Most of the references on those old plots are to either natural
marks (e.g. rivers, old rotting logs)- that might have change - or owners
that might not be the same. That said, for the most part, tracking down
problems tends to be easy, as the situation in conflict might be of public
knowledge in the community. This is where getting out and getting to know
the neighbors, the ranch hand that works down the road, and the local city
officials becomes a critical tool to detecting problems.
We have seen
that in most cases with rural property in Chile boundaries are not as easy
to determined based on titles and legal documents alone. They do represent
the basis for a safe purchase, but many steps should be taken to verify
they are correct. Re-surveying the property, establishing GPS coordinates
as reference on the Sale and Purchase agreement, checking the neighboring
properties not only in paper but by talking to the owners, and marking
the boundaries on the property with metal survey markers (not common practice
in Chile) are just a few of the many steps that might be taken in order
to avoid legal crusades in the future when purchasing property in Chile.
Expropriation
of Private Land in Chile
The Chilean
legal System established that nobody can be deprived of their property
or any of the attributes of ownership if it is not by a general or particular
law authorizing expropriation for based on the common wealth or national
interest. The legality of that expropriation act can be dispute in court,
and always the expropriation gives the right to a full compensation based
on the market price of the property. The amount of the compensation can
also be disputed if it does not correspond to the market value of the property.
Foreigners and Chileans owning property in Chile have the exact same rights
and responsibilities in regards to owning property in Chile. Usually for
major public projects the Government tends to pay higher prices than the
market value to avoid any possible conflicts in Court.
In order to
check if a property is being considered for expropriation there are 2 basic
documents:
1. Certificado
de no Afectacion Municipal (Expropriation at the county level).
2. Certificado
de no Expropiacion (Expropriation at the National Level).
The national
level must be requested usually at the regional office of the Ministry
of Housing and Urban Planing. The municipalities of each county issue the
other certificate and set the requirements of time and information needed
in order to get it. Both certificates have a cost, usually under the US
$20, and will declare clearly if the property is being considered for expropriation.
Zoning Laws
in Chile
Getting information
about building or restoration requirements for the property you wish to
buy, or if you are allowed to have a commercial operation in a certain
neighborhood must be done at the Municipal level. Zoning is dealt with
on county by county basis. Each Municipality has its own set of rules for
the requesting and type of certificates you might need based on their Municipal
Urban Planing Statute. In most cases this will not be an issue were buying
property for residential purposes, unless you are planing to build a second
floor or make changes that might affect the side walk, such as fences and
access. The certificates issued by the Municipality are usually called
"Certificado Municipal de Zonificación" or "Certificado de informaciones
Previas". In these you will find the particular details about the conditions
applicable for the use of the land and construction requirements. As a
general trend, the bigger the city, the more requirements regarding urban
planing. There are cities though, that do not have their own Urban Planing
Statute or office.
Construction
Permits in Chile
In order to
build a house, the architectural project and the construction itself must
be approved by the Municipality. It is a good to ask for the construction
permits before buying a building. In many areas, mostly rural, the projects
get approved but the final certification is still pending. (i.e. a process
called Recepcion Definitiva de las Obras where the county authorized the
use of a construction for either residential or commercial purposes). It
is typical that it will take time to get all the documents needed for that
approval. Rarely will the problem be more than bureaucracy and time, but
there might be a possibly that something more serious is occurring.
Business
Permits and Land Use in Chile
It is good
to have in mind when buying property for commercial purposes in Chile to
check if establishing a business is possible in the areas were you are
buying, and if the commercial use has been properly authorized by the local
Municipality. If the property is registered as residential, you can ask
for a change of use at the Municipality.
This has nothing
to do with your business license in Chile. For that, you must apply with
several local authorities and follow their procedures. This reference is
just regarding the use of your property.
In conclusion,
you can see that conducting a title search in Chile is not a trivial thing.
We do not recommend that you attempt a title search on your own. It is
our recommendation to seek competent legal help to conduct a title search,
but in this article we hoped to give you a reference point for the sorts
of documents you should expect to receive in a complete title report when
considering buying real estate in Chile.
Just one more
word of advice. If a title search turns up a problem on potential property
you wish to buy, keep in mind that there are very few problems that can
not be fixed. In most cases, you can still have that dream vacation property
you always wanted in Chile. |
