A legal tool for private land conservation

The DRC amends Chile’s Civil Law to add a new definition of private property ownership: the right to own and manage land for its conservation values. It recognizes and enshrines in statute the ecological, historical or cultural significance and scenic beauty of private property, meaning that the land is important to the larger society, not just to its owner. 

The DRC is a practical, legally enforceable and flexible agreement to secure private land conservation.

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Advantages of a DRC agreement

Protects nature for future generation and in perpetuity, if agreed

Runs with the land, it requires succeeding landowners to abide by its terms and conditions

Formalizes the relationship with the land trusts organization, which acts as a partner in conservation

The landowner continues to own, manage and enjoy their land as private property. 

Protects Conservation Values from land use change

Key Components of the DRC Agreement

The following are the components of a DRC. These components are agreed to by the DRC Grantor and Grantee, and result in a secure, enforceable and flexible long-term land conservation agreement.

The Grantee has the legal responsibility for ensuring that the terms of the DRC agreement are upheld. It does this by physically monitoring the property on at least an annual basis, and communicating with the landowner on a regular basis. The Grantee has no other rights to the property unless specified by in the agreement

The DRC agreement ensures that the property’s conservation values are protected for the long-term. The length of the DRC is specified in the agreement; the most secure and effective DRCs are perpetual agreements.

The DRC includes important language describing the attributes that are being protected in the agreement. These can include the land’s environmental, cultural and historical heritage and attributes, whether tangible or intangible Together these attributes are referred to in the DRC as Conservation Values.

The DRC includes a section that describes sustainable land uses that will be permitted because they will not have a negative impact on the conservation values being protected by the agreement. It also includes a description of unsustainable land uses that will be restricted or prohibited because they will have a negative impact on the conservation values.

There are three main costs associated with protecting land with a DRC, including: 1) drafting the DRC legal agreement and baseline report; 2) Monitoring of the property by the
Grantee (land trust or government agency) for compliance with the DRC; and 3) Legal enforcement action if the terms of the DRC agreement are violated. The Grantor and Grantee decide in advance how these costs will be covered.

Standards for the use of the Derecho Real de Conservación

To learn more visit :
www.estandaresparaconservar.cl

The holder of the Derecho Real de Conservación guarantees the protection of property conservation values in the long term and in a transparent manner.

The holder not only receives the power to preserve, but also undertakes to a number of tasks, including: ensuring compliance with the obligations, restrictions and prohibitions established on the contract, monitoring conservation values, maintaining constant communication with the owner, among other actions related to the conservation of environ

The landowner and holder undertake actions to protect the environmental heritage and property conservation values in the long run.

In order for a DRC agreement to ensure the protection of environmental heritage, the parties’ commitment to protect conservation values indefinitely is required, in addition to establishing procedures to ensure continuity of the original intent of the agreement in the event of changes to the contract or holder. This standard, therefore, promotes that the DRC be instituted in perpetuity.

The negotiation and constitution of the right of actual conservation is carried out in a transparent manner and in accordance with current legislation.

It is essential that a DRC contract can be sustained when taking legal action in case of non-compliance, so it must not only adhere to the law that creates this real right, but also to all regulations governing the protection of environmental heritage, and those that are relevant. In addition, the DRC should be constituted transparently in order to maintain confidence in the instrument, especially in the case of future landowners.

The Derecho Real de Conservación is constituted for the purposes of protecting environmental heritage and property conservation values, so the prohibitions and obligations set out in the contract are consistent with that objective.

The identification of conservation values allows to prioritize the efforts or measures to be carried out, as well as evaluate the effectiveness of the management. The clear identification of these values also makes it possible to specify the ultimate objective of rights and obligations, together with determining the narrative expressing the spirit of the agreement and the intention of the owner at the time of the contract.

The Derecho Real de Conservación agreement ensures responsible custody of conservation values.

The DRC holder must ensure the protection of conservation values and compliance with the agreement, which is why the parties need to agree on a monitoring or monitoring plan. Regular monitoring of the agreement allows you to identify problems or threats early, before serious or repeated mis faults occur. At the same time, this practice helps maintain constant communication between the parties, fostering a collaborative relationship.

FAQ

Why does an landowner establish a DRC?

The main motivation for establishing a Derecho Real de Conservaicón is the desire to protect the environmental values of a property and that this will be expressed in the owner’s legacy in an unequivocal way in perpetuity. 

In addition, work is being done to enable future owners who protect their land with a DRC, that meets certain standards, to access tax benefits or new financing opportunities. These benefits may be varied, such as funding, compensation from the Environmental Impact Assessment System (EIA) and opportunities for access to new markets in the case of properties that have productive uses.

How long does a DRC agreement last?

The law provides that the Derecho Real de Conservación is of indefinite duration, unless the parties agree otherwise (Article 3, Law 20.930), and does not indicate the need for a minimum period. However, for a DRC to meet the established standards, it is key that the agreement is in perpetuity.

Why should the DRC agreements be in perpetuity?

For real protection of a property’s natural heritage, conservation must be long-term. A perpetuity DRC allows to achieve the objectives of biodiversity conservation, as it protects cycles and natural functions for long periods of time. On the other hand, short-term agreements can lead to false sense of protection, making the time and costs spent implementing and executing a DRC not reflected in the effective protection of environmental heritage.

How do I terminate a DRC agreement? 

According to Law 20.930, a DRC agreement can be terminated in the same way that other in rem rights are terminated: by mutual agreement between the parties, foreclosure, or the expropriation of the property.

What happens when the holder ceases to exist?

In the event of the dissolution of the holder, the DRC agreement passes into the hands of the legal successor established in the organization’s statutes, unless something different is stated in the contract. The successor holder shall have the original obligations and rights to the agreement.

How much does it cost to establish a DRC?

Establishing a Derecho real de Conservación has different associated costs. Broadly speaking, they are divided into: 1) Costs associated with the establishment of the DRC, such as the development of an ecological baseline, legal support and procedures for registration in the Conservador de Bienes Raíces; and 2) Costs associated with implementing the terms of the contract, such as monitoring conservation values and enforcement.