On June 25th, 2016, Law No. 20,930 that establishes
the environmental conservation right was published in the Official
Gazzette. The purpose of this law is to create a mechanism to
simplify and promote the participation of private parties in the
conservation of the environment, as a complement to the work done
by the State in these matters.
This right has its origin in Comparative Law. The United States
of America includes within its legislation the conservation
easement as a voluntary mechanism that allows a land owner to
destine a piece of land for conservation, without losing its
property. Likewise, in 1992, Costa Rica included in its legislation
a similar figure and by now, there are more than three thousand
hectares of private property that are protected through this
Law No. 20,930 defines the environmental conservation right as
"a right that consists in the aptitude for preserving the
environmental heritage of a land or its attributes and
characteristics", and underlines that it shall be
constituted "by a voluntary decision of the owner of the
land in benefit of a specific person or legal
This environmental conservation right may have as a titleholder
any public/private person or legal entity, that differs from the
The way this right is constituted is by means of a contract, by
public deed, signed by the land owner and the new titleholder.
According to the law, this contract must, at least, have one of the
Forbiddance or restriction to destine
the land to real estate business, commerce, tourism, industry, and
Obligation to assume or hire
maintenance, decontamination, repair and administrative or other
services destined to the rational use of the land.
Obligation to execute and supervise
the management plan established in the contract for the proper and
rational use of the natural resources of the land.
This right takes an interest for every third party that desires
to promote conservation actions towards the environmental heritage,
such as (i) the owner of the land of the contract and/or (ii) the
new titleholder, for the development of preservation
This law refers to the definitions established in Law No.
19,300, on General Bases of the Environment. Considering that the
concept of "environment" has an extended regulation
notion, including environmental, social and cultural concepts,
it's natural to consider that this new mechanism is an
opportunity for those who desire to implement preservation projects
with relevant heritage consideration.
However, it's important to consider that the protection
given to the land within the contract is limited. Furthermore, this
law indicates that (i) it is illegal for the owner of the land to
stop, harm and obstruct the environment conservation right and (ii)
this right will be considered as a first priority in comparison to
other rights that have been agreed upon the land,
It is also important to bear in mind that the economic benefits
obtained from this right must be standardized. Indeed, Law N°
20,930 establishes that this right does not allow its titleholder
to receive the natural or civil products/results from the
maintenance of the land, unless the parties decide it and settle it
in the contract.
Concerning the Environmental Impact Assessment System
(SEIA)2, nowadays, lands affected by this right, will
not be considered as a protected area, which from a legal point of
view, has important and relevant implications.
Neither was expected that the environmental authority would
consider it so, because this right does not fulfill with the
conditions to be considered as a protected area, particularly as to
be determined under "official protection" by means of an
"act issued by the authority"3.
1. On the other hand, rights that have been convened in
the land, before the environment conservation right, will
2. Concerning the discussions made by the legislative
authority, the former Minister of the Environmental Department,
Mrs. María Ignacia Benítez, specified that this new
mechanism wouldn't have any effects in the Environmental Impact
Assessment system, because this right is a consequence of a private
agreement between the parties involved and doesn´t belong to
a public matter placed under official protection.
3. Art. 8, inc.5, D.S. 40 states "protected areas
shall be understood as any territory, geographically defined and
established by an administrative act from the competent authority,
placed under official protection, with the purpose of ensuring the
biological diversity, the protection the nature and its
preservation or the environmental heritage".
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados
Brazil is the most biologically diverse country in the world. According to the United Nations Organization, it is ranked as one of the world's top mega-diverse countries and second only to Indonesia in terms of species.
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