Occupation: Acquiring Ownership of Unclaimed Property

Posted on Oct 10, 2024 in Law & Jurisprudence

Concept

Occupation is a mode of acquiring ownership of unclaimed tangible movable property. It involves physically grasping the property with the intention to acquire it, assuming the acquisition isn’t prohibited by law (Art. 606).

Requirements

  1. Unclaimed Property (Res nullius or Res derelictae): The property must belong to no one. This can be because it never had an owner (like a wild animal), or because the previous owner abandoned it (like a domesticated animal that returned to the wild).
  2. Acquisition Not Prohibited by Law: The acquisition must not be prohibited by Chilean or international law. Examples include hunting or fishing out of season, or appropriating enemy property during wartime.
  3. Physical Apprehension with Intent to Acquire: This involves two elements: the physical act of taking possession and the intention to acquire ownership. The physical act can be actual (taking the object) or constructive (performing actions demonstrating intent, like trapping an animal).

Classes of Occupation

Occupation of Animate Things (Art. 607)

This includes hunting and fishing.

Rules for Hunting:

  1. Hunting is permitted on one’s own land (Art. 609).
  2. Hunting on another’s land requires permission, unless the land is unfenced, unplanted, and uncultivated. Even then, the owner can explicitly prohibit hunting (Art. 610).
  3. Hunting on another’s land without permission leads to penalties and requires indemnification of the landowner.

Rules for Fishing:

  1. Fishing requires permits (Art. 611, Law 18,892).
  2. Fishermen have limited use of ocean beaches and adjacent lands (Art. 612).
  3. Fishing is prohibited in rivers and lakes that affect buildings, crops, or fenced banks (Art. 614).
  4. Fishing in foreign waters follows similar rules to hunting on foreign land (Art. 616).
  5. Hunting and fishing are subject to special regulations (Art. 622).

Rules for Capturing Wild Animals:

  1. Capture occurs when the hunter or fisherman severely wounds the animal, making escape difficult, and continues pursuit, or when the animal is trapped in nets or traps set legally (Art. 617).
  2. One hunter cannot pursue an animal already pursued by another.

Occupation of Inanimate Things

Invention or Discovery

Concept: This involves acquiring ownership of an unclaimed inanimate object by finding it (Art. 624).

Requirements:

  1. The object must be inanimate.
  2. It must be res nullius or res derelictae.
  3. The finder must take possession, demonstrating intent to acquire ownership.

Things Susceptible to Invention or Discovery: This applies to things with no signs of previous ownership. Things with such signs are considered lost, not abandoned.

Discovery of Treasure

Concept: This refers to coins, jewels, or other precious objects of human origin, long buried or hidden, with no record of ownership (Art. 625).

Requirements:

  1. The object must be movable.
  2. It must be coins, jewels, or other precious objects.
  3. It must be of human origin.
  4. It must have been buried or hidden for a long time.
  5. There must be no record or evidence of ownership.

Allocation of Ownership:

  1. If discovered by the landowner, they own the entire treasure (Art. 626).
  2. If discovered by a third party with the landowner’s permission, the treasure is split equally.
  3. If discovered by a third party without permission, the treasure belongs entirely to the landowner.
Capture of War (Arts. 640-642)

Concept: This is the seizure of enemy property during wartime.

Allocation of Ownership: Captured property belongs to the state, not individuals (Art. 640, Fourth Hague Convention, Art. 46).

Lost and Shipwrecked Goods

These are not initially subject to occupation. However, if the owner remains unknown after due process, they can be acquired through specific legal procedures (Arts. 629-639). If the owner doesn’t claim the items after public notices, they are auctioned, and the proceeds are divided between the finder and the municipality (for lost goods) or the finder and a local hospital (for shipwrecked goods).