Land Ownership in the 21st Century

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cali_chile48
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Land Ownership in the 21st Century

Post by cali_chile48 » Wed Jun 15, 2011 6:41 pm

I am interested in focusing on the consequences TODAY for some of the land acquisition practices in Chile from 30-40 years ago. More specifically I am talking about the massive "occupation" of land, without purchase or title, that took place, as I understand it, under both Allende and Pinochet in the 1970's.

My information comes largely from my Chilean girlfriend and from this forum. I hope we can discuss this in a fairly academic way, with a minimum of abrasive language. I am interested in what happened (the historical facts) and the legal consequences today for people that own land or seek to own land in Chile.

Specific details to follow.....

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Re: Land Ownership in the 21st Century

Post by cali_chile48 » Wed Jun 15, 2011 7:11 pm

OK...now I'm in a semi-private room, right????

I live in an area where a lot of land was occupied by families many years ago. As I understand it, they never paid for the land, and many families never registered their "ownership" with any government agency, they basically just "squatted" and assumed control. This issue is affecting me in two ways, both fairly direct:

1. I bought a lot that was probably one of those squatter's lots, but the owners did what they needed to do to make the acquisition legal, and then the ownership passed to me. The lots next to mine were never developed and i don't think they were registered until very recently. Now the lots are for sale. My driveway cuts across the boundary between two lots, and there is a septic tank that is shared by my lot and another neighboring family. it's a bit complicated when we start talking about easements (certidumbre) and rights of way. The owner of the lots is asking a ridiculously high price, but if someone buys them, I am going to have to work out a solution to the driveway and the septic tank. The agreements between the previous owners about the driveway and the septic tank were informal and i don;t think they were ever written down or legalized. Nonetheless, the driveway and the septic tanks exist, they are where they are and if i get a new neighbor i want to have a clear idea about the relevant Chilean law on the topic.

2. Many families in the area lost their homes in the earthquake and tsunami in february, 2010. The government is in the process of expropriating a few hundred lots that were residential lots but paying commercial rates to compensate the owners IF they can prove they own the land. If they were squatters they'll get nothing out of the expropriation program (right???). The influx of large amounts of government money will certainly have many ripple effects in the local economy, most especially on land prices. Families that receive the generous (3.5 UF per square meter) payment will be able to buy lots on higher ground, like the land next to my house, and probably pay too much for them creating a mini housing bubble. On the other hand, if very few families are going to get any compensation, then the land prices will probably drop to pre-earthquake levels or even lower which obviously makes a purchase more attractive.

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Re: Land Ownership in the 21st Century

Post by admin » Wed Jun 15, 2011 7:13 pm

We get titles all the time that were cleaned by various acts of congress. They essentially made a mess out of the title system in rural areas, as congress tried to correct the problem.

Those title cleaning acts are still fairly broken. They are being used by people to essentially squat, then file for a title correction. If the owner does not get notice in time and contest it, they can loose their land. We have seen it a few times with people that own land say in the south, but live in Santiago. Someone builds a house on the edge of a larger property, waits out the statute of limitations, files for a title clearing that is published often times only in a local paper, and puff they lost that part of the property. The abuse of it is still fairly rare, and an owner really has to not be paying attention to what is going on with their property, but it does occur. Really I would have to get my wife to explain it fully to me, in order to give a full explanation of just how it all works.

Down in the Patagonia, say south of Puerto Montt, they have passed dozens of very localized correction type laws to try fix the title mess from the colonial settlement acts. The land really did not have any value when the government was giving it away (like hundreds of hectors at a time), and thus all kinds of problems are still being sorted out. One of the reasons you can't really hire a law firm from Santiago that does not know the Patagonia to do a title search or purchase. hell, we have seen lawyers in Puerto Montt, that should know better because they work in the area, be shocked to find out about the patchwork of particular laws. None of this really has anything to do with the Allende or the dictatorship, just they are a related batch of property laws.
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Re: Land Ownership in the 21st Century

Post by admin » Wed Jun 15, 2011 9:06 pm

On the flip side, when we do title searches for clients and we see that at some point in the history of the property it was corrected by one of those acts of congress, we can be fairly confident in knowing the legal buck stops there in terms of possible claims over ownership (short of another act of congress).
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Re: Land Ownership in the 21st Century

Post by nwdiver » Thu Jun 16, 2011 3:48 pm

I had an issue with the title to a small property on Chiloe several years ago, we had 12 ha surrounding an un used 3000m lot that was once a boat yard. The owner wanted a sum equal to3 times the 12 ha we had, we setup a facility on our property for an oyster operation and since we surrounded the other property we fenced it off, he sold it to a competitor BUT as it did not have a road into it they had no access over our land, long and short of it they have water access only and have pretty well abandoned the property, my partner will offer them peanuts 2-3 years down the road. Road access and easements are not to be taken lightly, under codified law if it is not agreed on in writing and in the property title it may not exist. It not like common law
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Re: Land Ownership in the 21st Century

Post by cali_chile48 » Fri Jun 17, 2011 4:13 pm

The contract for the property I bought clearly states that the easements pass to me. When I had a problem last year with my water line, the agent at ESSBIO told me that they accept unwritten agreements, but it's much better to have them in writing. Obvious. In the case of my driveway, I doubt there was ever a written agreement, and if there was, it was probably never registered with the local city planner.

I am trying to get ready for the possibility that my neighbor sells the empty lots and then the new owners try to force me to re-route the driveway. Or maybe the current owner ill do this before the sale to make the sale easier). I suppose they would be within their rights to do that, and I am not totally opposed to the idea as long as I have some kind of street access that doesn't require a 4WD vehicle.

Another issue just came up yesterday. I had to replace an old rotten picket fence between my lot and one of the lots that will soon be for sale. I put the new fence along the same line as the old fence. After I was 90% done, I realized that the fence line may not be correct. The fence goes right over a septic tank that is shared between the cabana that I rent out and the family that is 40 feet up the hill. Their sewer line also cuts across the lot that is for sale.
If the neighboring lot is sold, then there are several issues to be worked out....like the septic tank, the driveway, the sewer line, the location of a permanent fence (the new one is just a simple chain link fence, enough to keep the stray dogs out).

I think we will need to pay for a surveyor to come out and establish the correct boundaries. I have no idea what will happen with the driveway and the septic tank. I suspect they will both have to be moved. I can connect the sewer line from the cabana to the septic tank for the house, but my neighbor will have a bigger problem since I don't think he has any other waste system for his house. ALL of this infrastructure is old and worn out, so it's not a bad idea to upgrade. I hope all of the parties involved can establish and maintain a cooperative attitude, because will all need to make some compromises.

on the sketch, my property is LOT 3. LOTS 2 and 4 are undeveloped and currently for sale. Each lot is approximately 500 square meters.
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Re: Land Ownership in the 21st Century

Post by otravers » Mon Jun 20, 2011 11:16 am

Not to assign homework to anyone, but it would be fantastic if someone in the know could link the relevant laws in this thread from the official www.bcn.cl.

Is this issue of messy title histories (or lack of such) a more prevalent issue is some regions or is it just a coincidence that you're all discussing rural properties in the south?

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Re: Land Ownership in the 21st Century

Post by admin » Mon Jun 20, 2011 2:32 pm

The big issue is that the more rural a property, the less settled the lines. In the Patagonia, it is a mountain mas o menos in dispute, sometimes involving hundreds of hectares that use to have no real value. In the cities, you start debating over meters and fractions of meters because they are so valuable.

By chance yesterday, I was out surveying my own property where we are gong to build our house for our architect. I bought a transit level, tripod, and grade rod on amazon for about $150 total. I don't have an credentials to certify a survey for legal issues, but 9/10 th of the time like in the case of surveying for my house or verifying the size of property it is not a legal registration. If something did seem obviously out of wack, then I would shell out the cash to have some one do a property line corrections for the plot. We do have engineers that are friends, relatives, or have done work for us that would sign off I am sure on whatever I sent them, but not really needed in most run of the mill cases. Mostly a just checking thing.

I discovered I have a couple meters of play in the right of way of the road because it is not straight (likely just drifted a meter over the years as it is dirt), of which to the center of the road is an easement. So I got to go out with the legal description and figure out where my extra couple meters went. Mostly making sure I keep my fence inside the property lines. Still, nothing I am loosing sleep over on 5019 meter property.

Your easements need to be more than just on the contract, they need to be registered as marginal notes on the relevant titles to be protected and to make sure those rights get conveyed from owner to owner.

Fence lines, in most cases, are a shared expense in rural areas (well, at least in theory). Neighbors are suppose to split the cost 50 / 50. Personally, I prefer my fences just slightly, but clearly, on my property to keep the neighbors from building some mess of a fence or telling me what I should do with my fence (If I want to build a gun turret, that is my business).
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Re: Land Ownership in the 21st Century

Post by nwdiver » Tue Jun 21, 2011 6:10 pm

Where do you get your known point from, I know there are survey points but in a rural site where do you find the marks?? I have been involved in rural property, but the bounds have been geographical, like the ocean. Once we had a property with one corner designated as the “fork of a stream” to the beach, this was in Continental Chiloe, the survey was from the 1870s, the fork we were using was pointed out to be the wrong one, the right one was over a 1500m upstream, as the hydrography of the site changed over the years so did the size of the property, we thought we bought 120ha but had over 350ha. I have never seen known points (Iron survey markers) about. I must admit I’m not the one that normally looks into this.
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Re: Land Ownership in the 21st Century

Post by admin » Thu Jul 14, 2011 7:18 pm

Yea, metal survey markers are a new thing. A very new thing. When we started having surveys done for clients' properties years ago, we started having the surveyors we hired sink metal markers (in less than obvious places) and none of them had ever had that request of them. The idea was to insure there were no surprises later, and provide an easy reference point when our clients would start building their fence or whatever. Now we regularly see clear survey markers in parcels that are rebar, set in concrete, painted yellow or orange. Things you can see from the otherside of the valley or whatever through a transit level.

yea, down in the Patagonia, it can be very loose and wild. We have seen some old titles where the major land mark is the "big tree on the coast". You know, the old tree that is now a rotting stump.

More recent surveys are fairly easy to work out, but still they can have issues. Your water ways, such as rivers, lakes, or ocean are typically one of the better ones. They are kind of "it is what it is", and say the river deposits a hectare of extra land on your side of the river, it is yours. If it takes it away, too bad. Mountains and such are nice ones.

We also for a while requested GPS coordinates be taken, and started including them in our titles as amendments. Well, one little problem occurred. It seems GPS might be the same, but Chile is not. Chile kind of moved in the last earthquake. Luckily the original title descriptions rule the roost anyway.
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DL 2,695

Post by admin » Thu Jul 14, 2011 7:28 pm

I am going to open a separate thread on the issue of DL 2,695 law, as it is completly seperate animal from the other laws and problems discussed in this thread. It is really the dirty secret / problem of real estate in Chile, that deserves its own thread discussion in the EL Patio (because new people I am sure will freak out about it).
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Re: Land Ownership in the 21st Century

Post by cali_chile48 » Thu Jul 14, 2011 7:43 pm

Here in Dichato we have had a lot of engineers in town with the rebuilding projects. They had to do a lot of surveying work, so they built some markers, just concrete blocks with a piece of iron re-bar stuck in the middle. Nothing like the brass caps from USGS, but good enough for the immediate need.

I am interested in doing some careful measurements on and around my property, not so much for evidence in a court of law, but just so that I feel better about my knowledge of the specific properties I want to develop.

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