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Conservation Property Right

The ´conservation property right´ is a new institution of private law established in Chile by Law 20.930 enacted on June 10, 2016.

In its article 2, this law establishes: ´The conservation property right is a real property interest that consists on the faculty to conserve the environment on a specified land or certain attributes or functions of such environment´.

The conservation property right can be applied in rural or urban areas, either to ecosystems or habitats in strict sense or to different environmental, social or cultural elements. Moreover, the conservation property right can be established with respect to ´attributes´ and ´functions´ of the corresponding environment, which means that this new property right can be directly established with respect to specific ecosystem services.

The ´conservation property right´ is defined by reference to a normative power: the ´faculty to conserve´ that constitutes its essential element. It is this ´faculty to conserve´ that allows to distinguish this new property right from another institution known as the conservation easements- and also known in the civil law tradition as ´environmental servitude´ which is defined as a restriction and that in the civil law system is typified as an encumbrance or gravamen,.

Therefore, in a significant advancement, the conservation property right comes to add a new ´main faculty´ to the ´property rights system´: the faculty to conserve -ius conservandi-. In this way it facilitates the delineation of new assets that constitute new wealth, sometimes also called natural capital, and by the same token it facilitates the circulation of this new wealth -which also means or implies a reduction of the relevant transaction costs-.

In other words, the fact that the new conservation property right is being defined and structured by reference to a main and active faculty (the ´faculty to conserve´) entails that this new right focuses on the delineation of new wealth rather than on the restriction of traditional property (see below the section on Theoretical Foundations),,.

The diverse elements of the new law that established the conservation property right were fundamentally discussed in the Constitutional Commission of the Senate of the Republic of Chile, in which the Conservation Law Center of Chile had a substantial and permanent participation through its researchers Jaime Ubilla Fuenzalida and Francisco Solis - The Conservation Law Centre, through several documents suggested a definition on the basis of the ´faculty to conserve´ and, in this way, it suggested a modification of the original drafting of the Lower House -of Representatives- that was oriented towards the idea of easement or servitude.



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