January 15 2018
A recent Supreme Court of Justice decision required the applicant in a proceeding initiated to complete the good and legal title of surface water rights to notify all holders of water rights in the same watershed to which the application referred.
The allocation of good and legal title of water rights is governed by the Regulation relating to the Public Administrative Registry of Water Rights (contained in the Ministry of Public Works Supreme Decree 1,220). Only holders of good and legal title of water rights can apply to register their rights with the Public Administrative Registry of Water Rights.
Incomplete titles lack some of the essential elements required by such rights, including details of:
In order to complete a title, rights holders must file an application with the competent civil court in accordance with the summary procedure established in the Civil Procedure Code. The applicable court will then verify whether the applicant fulfils the legal requirements to have its registration of rights amended accordingly. In general, such applications are directed to the Water Rights Authority director general, who is named as defendant. The directorate will then issue a report for the court regarding the application.
However, on November 9 2017 the Supreme Court ruled that in addition to serving an application to the Water Rights Authority director general, the applicant must also notify all holders of water rights in the respective watershed (Case Docket 88,987-2016). This additional requirement is based on the fact that in addition to the Water Rights Authority, applicants wanting to complete good and legal title of surface water rights must also notify any parties that may be affected by the application for title completion (ie, the rights holders in the same river basin).
Article 3(2) of the Water Rights Code indicates that the basin or river basin of a watershed is formed by the tributaries, sub-tributaries, streams, estuaries, lakes and lagoons that flow into it in a continuous, discontinuous, superficial or underground manner. This means that the Supreme Court decision also requires applications to complete good and legal title of surface water rights to notify all holders of surface and underground water rights in the same river basin.
In general, rulings issued by the Chilean courts have a so-called 'relative effect' (ie, a particular decision affects only the parties that participated in the proceedings). Despite this fact, the Supreme Court decision should be considered in other applications relating to the completion of legal title of water rights, as the courts still draw on Supreme Court decisions (and also Court of Appeals decisions) for guidance in order to resolve other particular cases. Failure to involve other rights holders in the same river basin in the respective proceedings, as required by this decision, could render subsequent proceedings obsolete and thus result in the loss of considerable time for the applicant.
For further information on this topic please contact Trinidad Prieto at Montt y Cia SA by telephone (+56 22 233 8266) or email (firstname.lastname@example.org). The Montt y Cia SA website can be accessed at www.monttgroup.com.
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