Understanding Water Use Rights: A Guide to Regularization and Registration in Chile
REGULARISATION / REGISTRATION / FURTHER THE RIGHT OF USE
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I: AN OVERVIEW ON THE DISTINCTION BETWEEN GIVEN RIGHTS AND RIGHTS RECOGNIZED
When we talked about the budgets of water use rights we said we were three:
1 .- The public domain on the water (an inherent part of national property for public use of them)
2 .- The allocation, this is the act of the relevant concession State organ (DGA), which will give a title.
3 .- The title of the act resulting concessions.
We said that this title could take various forms and, paradoxically, in any way. But that should exist in substance, which would clarify when discussion of the topic of the rights granted and recognized.
Moreover, when we talked about the ways of acquiring the right to use, we noted that the main, original, was the assignment. And as to how to buy prescription, we said that possession required for the possession she was registered, not the possession of the facts. Of the latter, we said that was only authorized to access the benefit of the adjustment, under the requirements of the institution.
We continued by stating that rights could only be labeled as granted, those originating and formally acquired by assignment (whether the provision of the Code of 1981 or the grant or other names before this body of law).
We ended up saying that compared to those (the cast)
Were others (recognized)
of substantially equal quality and range to the point that the Constitution itself protects them with the guarantee of property.
Conceptuábamos the rights from two angles:
a) As those likely to be regularized.
b) As those who DGA should be considered when weighing the availability of a remedy to an application for new rights. In this regard, we quoted Article 122, paragraph 4, of the Water Code.
We concluded that both angles are the same thing and we announced that we would lead to study the institution of adjustment.
II: THE ADJUSTMENT OF THE RIGHT OF USE
A. –
ANTEDEDENTES
The 1981 Code attempts to bring order and improve certainty as to who hold a timeshare
This, over the problem of the existence of rights-holders:
-Granted prior to 1981 and not registered
-Granted and registered before 1981
“No rights but with applications made since before 1981
-Followers in the domain in any of the three previous cases.
Resolves:
To declare remaining entries made before its effective
Regular-how rights pending before its validity can be granted and registered
-Allow formally granted rights and are recordable, to enroll
-For other cases, it provides for the adjustment.
The adjustment assumes:
“The recognition of a pre-existing right course
“The ownership in favor of a particular person
Requires:
-Comply with relevant requirements
-Adjust to the respective procedure
It ends:
With the entry in the Water Register of CBR question.
B:
CONCEPT OF ADJUSTMENT
Legalising a right is to obtain the registration of the same name of his alleged current owner in all cases where such registration can not be obtained because there was no formal title registrable.
Exception:
the regularization of art. 1 transition, which sometimes are registrable titles.
C:
SCHOOL OF ADJUSTMENT
1 .-
REGULAR SUCH PROPERLY
a) Art. Transitional 1 CA (no advertising)
Essential requirement: the existence of an existing registration and documentary titles from it.
i. – first paragraph: based purely on the Conservator
ii .- Subparagraph seconds: double procedure: Conservative Court
We note that in the case of the first paragraph, even when the law called regularization, is in the presence of the normal application of the principle of successive chain. We saw the reasons why the legislature chose to regulate this issue explicitly.
b) Art. Transitional 2nd AC (with advertising: 3 newspapers and radio) Essential Requirement: resource use, time, etc..
i. – ITEM *** first obs obs + + +
ii .- *** ITEM second obs
In fact, in the respective judicial procedure should be described the right to regulate all its essential elements, in the mold section 140. This sometimes does not, to the point that art. Regulation 44 of the Cadastre refers to the possibility of completing their terms by way of improvement.
C) Art. CA 5th transient (no advertising)
2 .-
REGULAR unnamed (with pseudo advertising late)
Those of the arts. 4th, 5th and 6th transitional law
***
21 017 obs
3 .-
REGULAR improper (possibly with advertising in the context of legal proceedings)
That when recognizing or formalization of a community or association of water channels (arts. 187 and following of the CA) produce a recording of rights under art. 114 No. 8 of the CA.
Obsxxx
Comment:
***:
Only these constitute a real adjustment in the sense that all you have is a fact of resource use
+ + +:
It exists in a registered title, but for another. I think that once acquired the right prescription, the former incumbent he will have lost forever.
Xxx:
some scholars argue that these registrations do not constitute possession recorded.
III: REGISTRATION OF RIGHT OF USE (or rather: BRIEF REFERENCE TO THE SYSTEM REGISTRY OF THE RIGHTS OF INDIVIDUALS ON THE WATER)
A:THE ENTRIES IN THE CIVIL CODE
To understand why there are rights registered and unregistered rights, we must analyze the institution of registration in a broader context, from the institution of the registered office of the Civil Code.
Its legal framework is the DC current from 1 January 1857.
The real effect of the institution begins at a later date to July of 1857, which makes the Conservatory Register Regulations of Real Estate, which provides that the system will start to operate when the offices are installed conservatories in all departments (now jurisdictional territories) in the country, and appointed the respective officials (conservative real estate). This occurs at a later date to July
1857, I recognize not know (I suggest as a theme for a simple field investigation).
How the institution operates in the DC system, the lessons learned in their civil law. Remember concepts:
Title / mode
The traditional way (delivery), on real estate (and real rights over them), is the inscription.
The possession of real estate (and real rights over them) only begins with registration. B.
THE ENTRIES IN THE (THE) CODE (S) OF WATER
In the first Water Code, that of 1951, establishes the obligation to register the grant (the word worship is misleading: it serves to name the act of granting the right and the right thereof), in a special register to take the Conservative real estate and to be called Water Register.
Remember that also only in the first Water Code (1951) provides formal and uniformly throughout the country the expression of envelope (unit) in which the grant will be awarded:
In liters per second
In the second Water Code (1969, de la Reforma Agraria), it blurs the envelope form of expression, leaving open the possibility to use other than that of flow: for example, say xx cubic meters per hectare or other forms less accurate than simply talk liters per second in the 1951 Code.
Also this code makes it compulsory to register the grants awarded during their term.
The Water Code now in force in 1981, the flow returns to use as an expression of strength, not as accurate as the 1951 (liters per second), but the same content (articles 7,
140, 149).
As in previous codes, it makes it compulsory to register the right to use (no longer called grants) awarded during their term.
The detailed scheme of the 1981 Code registration will be discussed in the security section
Use Registry Law.
The three codes, then set the mode of registration of the grant (or right to use) in a special conservatory registration (but can only really speak of possession recorded in 1951 and 1981).
C.
BEFORE REGISTRATION CODES (BEFORE 1951)
Before them, the grant did not need to register.
From the point of view of the endowment, grants are normally granted sprinklers, including in some cases (from grant regulation for irrigation water, 1916) in liters per second, and sometimes in other ways, such as xx above such cubic meters per hectare, or other less precise when he spoke of Code 1969.
However, these grants did not enroll.
In other words, the system registered office of the Civil Code for real property did not apply to the waters.
But in 1908, gives the canal associations Act, which establishes the obligation to register the rights of members of these associations when they are formed, in a register of sprinklers to be borne by conservative real estate. But what part is not the market, which give the authority but the rights which the association is accorded to its members. And these rights are expressed in sprinklers, so that these distributional sprinklers are to be a mirror of the sprinklers asignacionales the respective member of the organization.
And then it happens that the grants that are awarded from the Code of 1951 (in liters per second, as we saw) must enroll in the Water Register in the conservative, but then, if the beneficiary enters a partnership of channels ( water or a community, similar institution created by the 1951 Code), must also register their rights in that organization, now expressed in actions.
It happens so from 1951 the same right of one operator will have two entries in parallel: the asignacional, his mercy, and the distributional, her actions, that theoretically mirror. And an inadequate management of these inscriptions can produce dissociations: for example, the owner sells his shares to a purchaser and his worship to another. Or an owner does not register his mercy but he entered the water community and register their actions, etc.
D.
RIGHTS registration status are effective WHEN THE CURRENT CODE
Product of the situations noted above, the rights of individuals over the water (to use the words of the Constitution), the effective date of the 1981 Code may be in different situations. Some cases:
a)-Mercedes granted before 1951 are not registered b)-Mercedes granted after 1951 registered
c)-Mercedes granted after 1951 are not registered
d)-sprinklers or actions of an organization registered, except in the cases a), b) or c) ..
e)-sprinklers or actions of an organization not registered, except in the cases a), b) or c). F)-Break in a chain of entries in either case b) c) d) e).
It is understood that the rights of use granted from the force of the Code
1981 should register and for them the whole system governed by this Code sets.
Eventually it may happen that if the holders are part of a user organization (association of water channels or community) can even occur a case of double registration, as the Code did not provide the solution of these events.
Well, the 1981 Code aims to enroll all rights to formally enter the legal traffic and water efficiently fulfill its economic function. To solve the problems of non-registration, set the adjustment mechanisms that were previously.
IV: THE DEVELOPMENT OF THE RIGHT OF USE
Existing rights before the entry into force of the CA 1981 can be expressed in many ways: … A gift of five estuary Snake irrigators … For irrigation of the ranch San Martín, forty shares of Channel Las Flores in the second section of the river Mataquito … etc. Etc.
A case like the above, is in the Resol. N º 53 of the DGA, of 15 February 1978that is contained in the document below.
Entries that protect those rights thus expressed are subject to immutable: you can not ask the curator to improve an inscription on the pretext of adapting to the standards of CA. 1981.
For its part, not all adjustments of the right of use to end in a suitable inscription to the terms of CA. 1981: quite possibly almost all cases of Article 1 transition leading to an inscription dated, that does not contain explicitly the 8 (9) tipificantes notes describing a right to use (those who compared it with a bar code).
For some of these cases, the Code provides assumptions to translate these inscriptions. The main provision is the presumption of
Article 309 (I pointed out in the table contains the essential elements or notes tipificantes of water rights).
Now, how to adapt outdated entries, how to apply the assumptions just alluded?
A lower-ranking body of law the Code, the Regulations of public land (from 1930 to 1912 DS 1220 – 1997) issued based on the rules of art. CA 122. 1981, created an institution called development and leads to the desired result.
Study Articles 44, 45 and 46 of the Regulation of Land Registry. The text is in the second document which
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