Conservation Property Right

The conservation property right is a new institution of private law that has been defined as a real property interest that consists in the faculty to conserve the environment in a specified land.^[1]

The ´conservation property right´ ^[2] is defined by reference to the ´faculty to conserve´ that constitutes its essential element.^[3] It is this ´faculty to conserve´ that allows to distinguish this new right from the conservation easement or servitude- known mainly in the North American legal system right as conservation easements- which is defined as a restriction and that in the civil law system is typified as an encumbrance or gravamen.^[4]

In this respect, from the perspective of the civil law system it is important to indicate that the main real property interests or main ´real rights´ are those that consist of certain main ´faculties´. The traditional main faculties are, from the times of roman law, the faculty of use -ius utendi-, the faculty of enjoyment -ius fruendi- and the faculty of disposal -ius abutendi-. Therefore, the main real rights have been traditionally the following two: the right of ownership and the right of usufruct. Conceptually speaking the main real rights -also known as active real rights- do not require of another right to exist, and traditionally are considered as an economic or accounting asset. On the other hand, the ancillary or ´accessory´or passive real rights are those that depend on the existence of another main right -as ownership in the case of the servitudes or the right of credit in the case of the mortgage and the pledge- and traditionally are not deemed as a separate economic or accounting assets.

The conservation property right comes to add a new main faculty: the faculty to conserve -ius conservandi-.^[5] 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 this sense, 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 the 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).^[6]

All this being said, it is important to note that the conservation property right, as observed from the perspective of the right of ownership will -certainly- be considered to be a limitation or restriction of the same. However, in this respect, the civil law system distinction between limitation and ´gravamen´ becomes relevant, as the conservation property right may be considered to be a limitation -in a similar way as the usufruct- but not a gravamen -in the way of an easement-.^[7]

The diverse elements of the definition and concepts adopted by the legislation of Chile -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 - www.centroderechoconservacion.org-. The Conservation Law Centre, through several documents^[8] 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.

Moreover, it was because of this new approach that focuses on the delineation of new wealth rather than on the restriction of traditional property that was possible -to argue for the circulation of new wealth and therefore- to argue for the possibility of establishing perpetual or indefinite conservation property rights. In the case of Chile, the original bill of the lower house -of representatives- had established a maximum limit of duration of the right -40 years-, but the senate under the new understanding of the institution -as proposed by the Conservation Law Center^[9]- takes distance from the idea of ´easements´ allowing therefore the indefinite duration of the conservation property right. This relates to the principle known as the ´restrictions of restrictions´ which involves that any restrictions to the ownership right must be restricted because such restrictions would encumber the circulation of wealth -circulation that is promoted not only by the civil code but also by common law-. Since the conservation property right promotes the delineation of new wealth, it also promotes its circulation and there is not reason to restrict its duration.^[10]

Therefore, the conservation property right represents a new paradigm of real property interest, which by being structured around an active faculty -and not as a restriction- focuses on the delineation of new wealth rather than on the restriction of traditional property (-thereby making possible the internalization of observations and knowledge from other spheres of society-) thereby making possible its indefinite duration,.^[11][12]

The conservation property right can be applied in rural or urban areas, either to biodiversity in strict sense or to broad environmental, social or cultural elements, thanks to the amplitude of the concept of environment adopted by the legislation of Chile -Law 19.300-.

Theoretical Foundations

The theoretical basis of this new institution, are fundamentally found in legal and social theory, and particularly in social systems theory.^[13][14] (additional foundations on the economic analysis of law are also relevant but secondary ^[15]).

If we understand that society is integrated by diverse spheres of meaning -of science, morality, politics, aesthetic-art, economy, religion, law, media, education, etc.- and we realize, however, that the legal relationship with ´things´ (the real rights) has been predominantly typified on the basis of the relationship (structural coupling) between law and the economy (specially considering that the main faculties of use, enjoyment and disposal that constitute the right of ownership -and to which refer the other limited property rights- relate fundamentally to the economic sphere -or to the operations of the economic system-), then we can conclude that the traditional real property interests are predominantly reflexive to the economic system but not to other spheres of society.^[16] It is in this context that we can understand that any real property interest that is defined as a restriction or ´gravamen´ is, therefore, being typified from the perspective of the right of ownership, that is, from the perspective of a purported reduction of the economic value of the encumbered asset.

The approach of the conservation property right involves shifting the consideration of value and making possible that the observations and assessments of other social spheres -i.e. the ecological assessment, aesthetic assessment, etc.- (and the corresponding knowledge originating from different spheres) are internalized or translated by the legal system as ´active values´. In simple terms, and by way of example, the scenic beauty no longer will be deemed as a restriction but as something valuable that it is the object of the ´faculty to conserve´. This has transcendental consequences, among others, for: (i) the understanding of the ´reflexive form of law´ that involves understanding that some forms of law may have greater capacity for internalizing new social complexity.;^[17] (ii) a new understanding of how broad societal interests are to be considered as elements of the ´public sphere´ within private law; (iii) an understanding that this new property right does not entail a process of ´propertisation´which has been a traditional critical approach to the use of property rights in the area of broad social interests, an others.^[18]

References

Law that establishes the Conservation Property Right, enacted on June 10, 2016; Ubilla, Jaime (2003). La Conservación Privada de Biodiversidad y el Derecho Real de Conservación. Revista de Derecho Ambiental de la Universidad de Chile, Nº1, 2003; Ubilla, Jaime (2014). Propuesta de Indicaciones al proyecto de Ley del Derecho Real de Conservación. Centro de Derecho de Conservación, Chile, June 9, 2014, submitted to Senators Alfonso de Urresti and Antonio Horvath. This document explains why the indications at the Constitucional Commission presented by these two senators regarding the definition of the conservation property right were the same; Ubilla, Jaime (2015). El Titular del Derecho Real de Conservación. Propuesta de Modificación o Indicación. Preparado para La Comisión de Constitución Del Senado de La República de Chile, Centro de Derecho de Conservación. Document Submitted to the Constitutional Commission of the Senate of the Republic of Chile. Ubilla, Jaime (2016). Reflexive Law and Reflexive Property Rights. PhD Thesis, Faculty of Law of the University of Edinburgh, 2016; Bulletin No. 5.823-07. Senate of the National Congress of the Republic of Chile, Commission of Constitution (2015). Second Report of The Commission of Constitution, Legislation, Justice and Regulation, Recaído In The Project of Law, In Second Constitutional Formality, That Establishes The Real Right of Conservation.

1. The first country to adopt this new conservation property right was Chile by a Law enacted on June 10th, 2016: Ley que establece el Derecho Real de Conservación. 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 the same´.
2. The denomination ´conservation property rights´ was originally proposed in 2003 in Chile in order to differentiate this institution from the conservation easements or servitudes. See Ubilla, Jaime (2003). La Conservación Privada de Biodiversidad y el Derecho Real de Conservación, Revista de Derecho Ambiental de la Universidad de Chile, Nº1, 2003. However, it should be noticed that the detailed difference between these institutions was still not clear at the time
3. As originally proposed in the following document: Ubilla, Jaime (2014). Propuesta de Indicaciones al Proyecto de Ley del Derecho Real de Conservación. Centro de Derecho de Conservación, Junio 9, 2014. Submitted to Senators de Urresti and Horvath who submitted the same indication regarding the definition of the conservation property right along the content of this document.
4. Ubilla, Jaime (2016). Reflexive Law and Reflexive Property Rights. Ch.9
5. Ubilla, Jaime (2014), Ubilla, Jaime (2016) Ch.9.
6. Ubilla, Jaime (2016). Ch.9
7. Ubilla, Jaime (2016). Ch.9
8. Ubilla, Jaime (2014); Ubilla, Jaime (2015)
9. Ubilla, Jaime (2015). El Titular Del Derecho Real de Conservación. Propuesta de Modificación o Indicación. Preparado Para La Comisión de Constitución Del Senado de La República de Chile. Centro de Derecho de Conservación, Chile, October, 2015.
10. Ubilla, Jaime (2014); Ubilla, jaime (2015).
11. Jaime (2014).
12. Ubilla, Jaime (2016). Reflexive Law and Reflexive Property Rights. PhD Thesis, Faculty of Law of the University of Edinburgh, 2016
13. Op.Cit.
14. Ubilla, Jaime (2016). Reflexive Law and Reflexive Property Rights. PhD Thesis. School of Law, University of Edinburgh.
15. Ubilla, Jaime (2003). La Conservación Privada de Biodiversidad y el Derecho Real de Conservación, Revista de Derecho Ambiental de la Universidad de Chile, Nº1, 2003.
16. Luhmann, Niklas (2015). El Origen de La Propiedad y Su Legitimación: Un Recuento Histórico. Original Title: Der Ursprung Des Eigentums Und Seine Legitimation. In: W. Krawietz et Al (Hrsg.), Technischer Imperativ Und Legitimationskrise Des Rechts, Rechtstheorie Beiheft 11, Berlin, 1991,” Revista MAD - Universidad de Chile 33.
17. Op.Cit. Ubilla, Jaime (2016)
18. Op.Cit. Ubilla, Jaime (2016)