The acquisition of commercial units by public-interest residential condominiums: legal issues in the implementation of public policy under Law No. 21.442

Abstract

This article examines the legal framework governing the acquisition of commercial units by public-interest residential condominiums within the context of the public policy implemented through the housing programs regulated by Supreme Decrees No. 49 of 2011 and No. 19 of 2016 of the Ministry of Housing and Urban Development (Ministerio de Vivienda y Urbanismo). Its purpose is to identify the principal legal issues arising from the implementation of this policy under Law No. 21.442 and to propose possible solutions. To this end, the article analyzes the regulatory framework that encourages the incorporation of commercial units into public-interest residential condominium projects, the legal nature of such units under the condominium ownership regime, the legal capacity of condominiums to acquire title to commercial units initially designed as privately owned units, and the legal basis for the transfer of title to such property. The article argues that this public policy was conceived as a regulatory incentive mechanism that lacks an express legal framework governing the acquisition of these units. It further contends that, although condominiums do not possess separate legal personality, they nevertheless constitute legal subjects endowed with a limited functional legal capacity. Accordingly, through a systematic and harmonious interpretation of Articles 26 and 2(3) of Law No. 21.442, together with the general principles of Chilean civil law, it is possible to affirm their legal capacity to acquire commercial units originally conceived as transferable privately owned units. Finally, the article argues that the legal basis for the acquisition of such property by public-interest residential condominiums is the juridical act executed in performance of an obligation to perform an act (obligación de hacer) arising from the regulatory framework governing the relevant housing program.