Within 30 days, by order of the Supreme Court, the defendant must return an indigenous land that his mother -now deceased- leased to him for 99 years and which he ceded to a construction company in Panguipulli, in the Los Ríos region. This is because the highest court ruled that giving up the lease, “for an illicit purpose, is a serious act that violates indigenous legislation and that which regulates the lease of rural properties.”
The Supreme Court admitted a cassation appeal and in a replacement ruling it termination of a 99-year lease on indigenous land. Likewise, it resolved that the defendant has a term of 30 days for the restitution of the property located in Panguipulli, in the River region.
As stated in the judgmentthe defendant, a non-indigenous person, occupied the property following a lease agreement that he entered into with his mother for a period of 99 years, but later, on January 29, 2014, he transferred it to Constructora Morales Hermanos Ltda. for the remaining period of 70 years.
However, in a unanimous resolution, the Fourth Chamber of the highest court established a fault in the contested sentence, issued by the Court of Appeals of Valdivia, which confirmed the first degree that rejected the claim.
In that first instance, the Valdivian court determined that when the owner died, the property belongs to a hereditary community, for which a special inheritance registration was made in the Property Registry of the Real Estate Registrar.
Regarding that contested sentence, it was specified that it made an error “by stating that the lessee was entitled to assign the contract, qualifying it as a legitimate exercise of a right, since it is an act prohibited by article 13 of Law 19,253, in force at the time of its execution (of the contract).
Violate indigenous legislation
It is also established that giving up the lease, “for an illicit object, is a serious act that violates indigenous legislation and that which regulates the lease of rural properties.”
“When entering into a lease agreement for rustic properties that, as noted, are governed by the provisions contained in Decree Law No. 993, the contracting parties may incorporate a clause by virtue of which the lessor authorizes the lessee to sublease all or part of the leased property, assign their right or the total or partial possession of the same, and introduce improvements, but, obviously, it cannot go beyond the restrictions that the legislator has imposed at the beginning referred to. The foregoing allows us to infer that the lessor with said stipulation is not granting the lessee an authorization that can be freely used, ”they argue in the ruling.
Due to the foregoing, the Supreme Court, by ruling of November 29, 2017, declared that the assignment contract that the lessee entered into is prohibited and, consequently, suffers from illicit purpose, therefore, it is absolutely nullordering the cancellation of all registration made in its regard”.
