Prescription and Limited Real Rights in Chilean Civil Law

Posted on Sep 28, 2024 in Law & Jurisprudence

IV. Prescription

1. General Principles of Prescription

Prescription, as defined in Article 2492 of the Chilean Civil Code (CC), is a way to acquire the property of others or extinguish the rights of others due to the possession or lack of exercise of those rights for a certain period, along with other legal requirements. It serves to stabilize rights and provide legal certainty.

Rules Common to Acquisitive Prescription and Statute of Limitations:

  • Prescription must be invoked; it does not operate automatically.
  • Prescription can be waived, but only after the legally established deadlines.
  • Prescription runs both for and against natural and legal persons.
1. The Prescription Should Be Invoked:

Prescription must be alleged, either as an exception (typically for the statute of limitations) or as an action (typically for acquisitive prescription). For example, in a case of a debt exceeding the statute of limitations, the debtor would invoke prescription as an exception to defend against the creditor’s claim. In a case of adverse possession, the claimant would invoke it as an action, seeking a court declaration of ownership.

2. The Prescription May Be Waived, But Only After the Statute of Limitations Is Met:

Waiver before the statute of limitations expires is invalid because it goes against the social interest in the stability and certainty of rights. However, after the deadline, waiver is permissible as it becomes a matter of individual interest. The waiver can be express or implied. An express waiver is a formal declaration. An implied waiver occurs when the party entitled to claim the prescription acknowledges the right of the other party (e.g., a possessor paying rent to the owner after the prescription period).

3. Prescription Runs for All, Whether Natural or Legal Persons:

This rule, stated in Article 2497 CC, clarifies that prescription applies equally to all individuals and entities, including public corporations, which were previously exempt under special laws.

2. Acquisitive Prescription (Usucaption)

Usucaption is a way to acquire ownership of another’s property through possession over time, fulfilling specific legal requirements.

Factors Relating to Acquisitive Prescription:

  • Possession
  • Time

Possession:

Possession, as defined in Article 700 CC, is the holding of a thing with the intention of an owner, whether one is the owner or acts as if they are on behalf of the owner. The possessor is presumed to be the owner until proven otherwise. This presumption is crucial for the Chilean property system, especially for unregistered real estate.

Classifications of Possession:
  • Regular Possession: Originates from a just title, acquired in good faith, and requires tradition if based on a title transferring ownership.
  • Irregular Possession: Lacks one or more of the requirements for regular possession.
  • Vicious Possession: Includes violent possession (acquired by force) and clandestine possession (exerted by hiding from the rightful owner).
Regular Possession Requirements:
  1. Just Title: A legitimate title, not falling under the categories listed in Article 704 CC (e.g., forged, granted without proper representation, void, or merely putative).
  2. Good Faith: The belief of possessing the thing legitimately, without fraud or vice. Good faith is presumed unless proven otherwise.
  3. Tradition (if applicable): Required for titles that transfer ownership (e.g., sale, exchange, donation). For real estate, tradition is achieved through registration in the CBR (Conservador de Bienes Raíces).
Importance of Regular vs. Irregular Possession:
  • Regular possession leads to ordinary acquisitive prescription (2 years for movable property, 5 years for real estate).
  • Irregular possession leads to extraordinary acquisitive prescription (10 years for both movable and immovable property).

3. Limited Real Rights

Limited real rights, also known as restricted rights, are rights that limit the full ownership of a property. They are themselves real rights, listed in Article 577 CC, but they restrict the powers of the owner.

Types of Limited Real Rights:

  • Trust
  • Usufruct
  • Use
  • Habitation
  • Easements
  • Mortgage (dual nature: real right and accessory contract)
  • Pledge (dual nature: real right and accessory contract)
1. Usufruct:

Usufruct, defined in Article 764 CC, is the real right to use and enjoy another’s property while preserving its form and substance. It is a temporary right, typically linked to the usufructuary’s lifetime. The owner retains the bare ownership (naked property) and the power of disposal.

Characteristics of Usufruct:
  • Real right
  • Movable or immovable (depending on the object)
  • Temporary
  • Transferable (but not inheritable)
Forms of Usufruct:
  • Legal (e.g., parents’ right to enjoy their children’s property)
  • Voluntary (conventional through contract or testamentary through a will)
  • Prescription
  • Judicial decree (e.g., in partition or alimony trials)
Rights and Obligations of the Usufructuary:

Rights:

  • Use and enjoy the property (including fruits and certain products)
  • Lease the right of usufruct
  • Transfer the exercise of the right (but not the right itself)
  • Mortgage the right (if it falls on real estate)

Obligations:

  • Before entering: make an inventory and provide a security deposit
  • During the usufruct: preserve the property, make necessary repairs
  • At the end: restore the property
Rights and Obligations of the Bare Owner:

Rights:

  • Alienate the property (subject to the usufruct)
  • Transmit the bare ownership to heirs
  • Bring actions to protect ownership and possession

Obligations:

  • Carry out major repairs
Termination of Usufruct:
  • Arrival of the agreed term or fulfillment of the resolutory condition
  • Death of the usufructuary
  • Resolution of the right of the grantor
  • Consolidation with the bare ownership
  • Prescription
  • Complete destruction of the property
  • Judicial decree (due to serious damage caused by the usufructuary)
2. Use and Habitation:

Use is the real right to enjoy a limited portion of the benefits of a thing. Habitation is the right to dwell in a house. These rights are more limited than usufruct. They are personal and non-transferable. Article 815 CC defines the family for the purpose of use and habitation, extending these rights to the spouse, children, servants, and dependents living with the user or inhabitant.

3. Easements:

Easements are charges imposed on a property (servient estate) for the benefit of another property (dominant estate) belonging to a different owner. They have a dual nature: as a real right for the dominant estate and as a limitation on ownership for the servient estate.

Classification of Easements:
  • Active/Passive: Depending on whether the easement is exercised (active) or suffered (passive).
  • Positive/Negative: Depending on whether the servient owner must do something (positive) or refrain from doing something (negative).
  • Continuous/Discontinuous: Depending on whether the exercise requires an actual act of man.
  • Apparent/Inapparent: Depending on whether the easement is visible through external signs.
  • Legal/Natural/Voluntary: Depending on their origin.
Characteristics of Easements:
  • Accessory right (linked to the property)
  • Indivisible
Acquisition of Easements:
  • Continuous and apparent easements can be acquired by prescription.
  • Other types of easements can be acquired through legal acts, immemorial enjoyment, or other legal means.

Conclusion

This section has explored the concepts of prescription and limited real rights in Chilean civil law, focusing on their classifications, characteristics, and legal implications. Understanding these concepts is crucial for navigating property law and related matters in the Chilean legal system.