Water Use Rights Registration: Legal Framework & Procedures
Understanding Water Use Derivative Rights & Registration
These are referred to as Derivative Rights because their registration requires a foundational background, stemming from an initial, original registration. Such rights are recorded in various registries: some in the Water Property Registry, others in the Mortgage and Taxes Registry (Water), and still others pertain to interdictions and prohibitions on the transfer of water rights.
Registration of Water Use Rights for Individuals & Organizations
The Water Property Registry
The following acts and instruments must be registered in the Water Property Registry:
- The public deed containing the waiver of the right to use (Art. 114 No. 4, final paragraph).
- The public deed containing a title transferring ownership of the right to use itself, or the rights of a member of a user organization (Art. 114 No. 5).
- The instrument (e.g., a resolution from the Civil Registration Service or a writ of effective possession) demonstrating actual possession of the inheritance of a rights holder mentioned above (Art. 114 No. 6).
- The acquisition of such rights by a specific heir or heirs through succession upon death. This constitutes the special enrollment of inheritance referred to in Article 688 No. 2 of the Civil Code (Art. 114 No. 6). This inscription is practiced by the registrar based on the previous record of possession and an actual inventory of the estate’s assets, detailing the specific use rights or the rights of such member of a user organization, with reference to its registration in the name of the deceased. It must also certify the payment or exemption from inheritance tax.
- The public deed containing the act of partition of an inheritance, whether by mutual agreement among heirs or by the executor, if any, allocating to a particular heir the right previously registered in the name of the deceased (Art. 114 No. 6). This requires prior completion of registrations mentioned in entries (c) and (d).
- The documents establishing the altered distribution of use rights subject to the system of a user organization (Art. 114 No. 3). These would be public documents containing resolutions adopted by a user organization or relevant court judgments. These changes, naturally, cannot affect the substance of the rights concerned and are usually intended to attribute changes to the allocation of usage times, for example. This registration requires prior completion of the entry for the user organization, as detailed in section 2.1(a).
The Registry of Mortgages and Liens
The following acts and instruments must be registered in the Registry of Mortgages and Liens:
- The deed by which a mortgage or other real right is constituted over the rights of use itself, or the rights of a member of a user organization (Articles 111 and 116). It is noted that a mortgage under Article 111 is of compulsory registration (these acts must be registered), while Article 116, Number 1, refers to acts that may be included. It could be argued that this apparent contradiction is resolved by Article 111 speaking of registered rights, a requirement not explicitly mentioned in Article 116 No. 1. Nevertheless, I believe that mortgage registration for unregistered rights is unnecessary, as it undermines the registry system of water use rights, to the detriment of legal certainty. Especially considering that a mortgage involves a potential disposition, the reference to Article 116 for mortgages is, in my opinion, incorrect and should have been included in Article 115 bis.
- Titles transferring ownership of a property right (over the right to use or the rights of a user organization member) previously registered (Article 117).
- The acquisition by cause of death of a right (over the right to use or the rights of a user organization member) previously registered (Article 117).
- The public deed containing the lease, in the case of Article 1962 of the Civil Code, and any other act or contract for which registration is permitted by law (Art. 116 No. 3). This is a recording that can be practiced; it is not a prerequisite for the validity of the act or contract but only a means of publicizing the act or contract to make it effective against third parties.
- The conditions precedent or subsequent affecting the right to use (or the rights of a member of a user organization) or real rights constituted on them (Article 115 bis, first part). These conditions must be enrolled.