Water Use Rights: Protection Through Registration
**Protection by Registration of Water Use Rights**
Introduction: The Question of Registry
There are countless records, many legal records, but few guarantee records.
Among legal filings, many stand out as guarantee-focused, aimed at registering publicity for enforceability purposes. Of these, the most typical are the Land Registry, the Registry of Mortgages and Charges, the Register of Interdiction and Prohibition to Transfer Real Estate, and the Registrar of Real Estate. In contrast, there are control records, called registers, of which the most distinctive is the Role of the Internal Revenue Service.
In some cases (National Registry of Motor Vehicles, Civil Registry and Identification, Registration of Ships, Bureau of Maritime Territory, Aircraft Registration, Directorate of Civil Aviation, etc.), the law has preferred that both functions be served in a single cadastre record. However, in some cases (clearly with motor vehicles), these records do not reach the degree of publicity and enforceability enjoyed by Real Estate records.
Guarantee records are of paramount importance: the certainty and legal security of property rights over countless properties lie in this scheme, making it an essential adjunct of the respective constitutional guarantee.
Andrés Bello, having dismissed the French model and opted for the more purist distinction of Title/Mode, set the Civil Code and Registration Regulations for the Conservatory of Real Estate, using the practical Prussian system of property registration. However, transcending the formalism of the abstract title of that system, the institution rests on a solid Romanist foundation: registration is the mode. But his sensible intuition (no doubt Romanist) indicated that registration would also be held on the way to usucapio. As stated in a 2008 presidential message proposing an organizational reform of the notarial and registry system in Chile, the scheme represented a significant advance in legal certainty and efficiency… the guarantee and proof of ownership of real estate and real rights constituted over them. There is presently a consensus on the undeniable advantages of this system, which must obviously be preserved and strengthened.
This great building has served its purpose for over one hundred and fifty years and has been replicated in similar terms for the guarantee protection of mining concessions and the right to use water, among other goods.
The legislation governing registration issues is not widespread, and perhaps that is why there has been no further development of doctrine concerning it. This is presumably also due to its simplicity, as it has not presented major difficulties of interpretation or application. There are no statistics on the prosecution of conservatory inscriptions, but in general, the perception is that it is almost marginal. This does not mean that there are no questions of various kinds that should be resolved.
Registration and Right of Use
As previously stated, there are countless records, many legal records, but few guarantee records. When it comes to water logging, we are talking about two entirely different entities in nature.
The first is regulated in Articles 122 and 122a of the CA and relates to the inventory of public land resources or water, which organizes the various records to be kept by the General Directorate of Water. These records belong to the category of legal records to which I referred, but they do not reach the level of guarantee records. It served as a pillar for that activity of the National Water Policy at the beginning of our course management and is called control.
The second entity is formed by the registration of water that should be led by the Real Estate Registrar, regulated in Articles 112-121 of the CA, as well as sections 111 permanent and 8 and 13 transients of the same CA. This record, as we shall see, is not one but three, and assumes full attributes of a record, not only legal but also a guarantee.
Both kinds of records are regulated in the same title in CA: Title VIII of Book I (Articles 112 to 122a). However, we should not lose clarity about the different entities and purposes.
The theme that follows refers only to the waters of the Conservatory record of real estate, only clearly set a record for which a guarantee can speak of the protection by registration of the timeshare.