Juicio de precario in Chile: requirements, the article 18-K monitorio procedure and the mistakes that lose it

Quick answer: precario (unauthorized occupation without any contract) is set out in the second paragraph of article 2195 of the Civil Code, and it defines the holding of something belonging to another, without a prior contract and through the owner's ignorance or mere tolerance. Those three words decide almost every case: the claimant has to prove that they are the owner and that the other party is in occupation, and from there the burden shifts to the defendant, who only needs to produce some title for the claim to fail. What almost nobody has taken on board is that since 2022 precario is no longer processed as a summary proceeding. Law 21,461 removed comodato precario (revocable loan for use) from article 680 of the Code of Civil Procedure and sent it to the monitorio procedure (an order for payment procedure) of the tenancy law. The effect is twofold: faster when the defendant does not oppose, and slower than before when they do.

It is an attractive action because it looks simple. And that is exactly why it gets misused: it is brought in situations where there was a prior relationship, the defendant proves that relationship with whatever record is at hand, and the owner ends up with the claim dismissed, with costs, and the occupant still inside.

Precario and comodato precario are not the same thing

The confusion starts with the name. The Civil Code uses the word precario in two different places, and only one of them is the one seen every day in court.

The distinction matters for a practical reason. If you lent the house under an agreement, even a verbal one with no deadline, you are in comodato precario and you have to prove that loan. If there was never an agreement, you are in the second paragraph and you have to maintain exactly the opposite, that there was none. They are two different claims, and getting it wrong costs the case.

The three requirements, and who proves each one

Once ownership and occupation are proven, the burden shifts. The defendant does not have to prove that they are the owner or that they hold a perfect right: it is enough to show something that justifies why they are there. And that bar has historically been low.

What changed in 2022 and still takes many people by surprise

Law 21,461, known as the Devuélveme mi casa law (Give Me Back My House), was publicised as a tenancy law. But it did something more, and that something completely changed how precario is processed. Its article 18-K, added to Law 18,101, provides that the rules of the new title apply, as relevant, to comodato precario actions seeking restitution of the property and to the precario action of article 2195 of the Civil Code.

And in parallel, article 2 of that same law removed the words and comodato precario from subsection 6 of article 680 of the Code of Civil Procedure. That subsection today says only that the summary proceeding applies to cases about necessary deposit. Precario left the summary proceeding and entered the monitorio procedure.

The paradox of the reform: a contested precario case got longer

This is the point that is said least and the one that changes strategy most. A reform designed to speed things up produced the opposite effect in contested cases. Before, if the occupant put up a defence, the dispute continued inside a summary proceeding. Today, if the occupant opposes and the court finds that the opposition is well founded, the monitorio procedure ends and the matter has to be argued in the procedure that was left over, which is the ordinary one, with its full pleading stage, its long evidentiary period and its appeals.

From that follows a practical rule worth being clear about before suing: the precario monitorio procedure works very well against an occupant who does not defend himself, and works worse than the previous system against one who does. That is why the first question is not how fast the procedure is, but how likely it is that the occupant has something to show.

How it is processed today, stage by stage

If you need to work out an exact date inside this procedure, bear in mind that here the days counted are consecutive and not business days, the reverse of what happens with most civil deadlines. You can use the legal deadline calculator so as not to get the count wrong.

What it means for the opposition to be well founded

This is where the real battleground lies today. The law requires the opposition to be well founded, but it does not say how closely the court has to review it, and judges have split.

The study by the Civil Law Academy of Universidad Diego Portales that reviewed the case law practice of this procedure identified eighty-five Supreme Court judgments on the subject and analysed sixty-seven. Of those, forty-three were about precario, twenty about tenancy and four about comodato precario. Put another way: the monitorio procedure created to collect rent has become, in practice, the procedure for precario.

That same study shows why it is unwise to rely on cassation as a safety net: of sixty-three cassation appeals filed, fifty-five were declared inadmissible, on the ground that the monitorio procedure is a demand and not a proceeding of full cognition. The match is played at first instance.

The point that divides the Supreme Court: which title is enough

On the merits, the split is older than the reform and is still alive. Knowing the two lines changes how the case is framed.

How this translates into strategy. If you are the owner, the claim has to anticipate the title the defendant is going to produce and deal with it from the first submission, rather than waiting for the response. And if your case rests on a title not being enforceable against you, that has to be said and argued, not taken as obvious. In the monitorio procedure this counts double, because the court decides on the basis of what was submitted to it.

An open question: precario over a rural property

Article 18-K lives inside Law 18,101, which is the law on the tenancy of urban property. Hence part of the legal literature maintains that the monitorio procedure only reaches precario over urban property, and that precario over a rural property was left without a procedure of its own once the summary proceeding was removed. Others understand that the reference in article 18-K is general and does not distinguish.

This is not an academic discussion for someone who has an occupant on a farm. It defines which procedure the claim is brought under and, with that, how long the case lasts. Our practical recommendation is to raise the point expressly in the claim, with reasons, instead of assuming that the court will share your reading. And if the property also has problems with its surface area and boundaries, it is worth resolving that first, because the occupant is going to use it as a defence.

The classic mistake: suing a former tenant for precario

The law says without a prior contract. If there was a tenancy, there was a contract, and it does not matter that it was verbal, that it expired years ago or that the tenant stopped paying. It existed, and with that the requirement falls away.

The owner's reasoning is usually this: I have no written contract, so I will sue for precario and avoid having to prove the tenancy. It is exactly the other way round. The lack of a written contract is a problem of proof inside a tenancy case, not a licence to switch to a different action. And the defendant will prove the tenancy without difficulty, because it suits them: that is how they win the case.

The correct route in that scenario is termination of the contract, under the rules of Law 18,101. If what there is is rent arrears, the route is the monitorio collection procedure, which we explain in the guide to the Devuélveme mi casa law. If the contract expired and there are no arrears, the route is the notice of termination (desahucio), with its own deadlines, which are in the guide on how to evict a tenant. And while that is being processed, it is worth knowing that cutting off the occupant's electricity or water speeds nothing up and exposes the owner to a penalty.

When precario is in fact the right route

• The occupant moved in through mere tolerance and there was never an agreement. The acquaintance who was lent the house for a few months with nothing signed and who has now been there for years.
• The owner did not even know about the occupation. It is the hypothesis of ignorance that the rule expressly mentions.
• A complete stranger is in occupation, with no relationship to the current owner or to the previous one.
• The title they had came to an end and there is no other one that justifies their presence, for example when the comodato precario was revoked and the borrower did not return the property.
• The occupant invokes a contract that is not enforceable against the current owner, and that is precisely the point that one wants to take to court.

And a frequent warning in the world of inheritance: between co-owners of the same estate precario is not the tool, because a co-owner has a right over the common property and that right is their title. What is called for there is partition, which is the only route that really divides things up.

Precario and judicial auctions: the scenario where the two lines collide

Someone who is awarded a property at a judicial auction and finds it occupied is the case where the split in the case law produces opposite outcomes on the same facts. If the occupant produces a contract entered into with the previous owner, under one line that is enough to dismiss the claim and under the other you have to analyse whether that contract is enforceable against the successful bidder.

Also, against the judgment debtor themselves precario is usually unnecessary, because physical delivery is requested inside the enforcement proceedings. The three possible scenarios and how each one is resolved are in the guide on what to do when the house bought at a judicial auction is occupied. The underlying conclusion is that this question is settled before bidding, with a title study, and not afterwards with a claim.

The family cases, which are the most delicate

A good many of these cases are between relatives: the child who stayed on living in the parents' house, the former partner who remains in the property, the sibling who occupies the parcel that belongs to everyone.

Under the first line of case law, the family relationship on its own usually operates as justification and the claim is dismissed. Under the second, the current owner is required to have taken on that obligation. Also, when children or a spouse are involved, a family law dispute can appear, such as the family asset declaration, which is a separate front with its own forum.

That is why, when the occupant is a relative, the first step is not drafting the claim but mapping out every front: succession, family and civil. The solution is often in the first and not in the third, above all when the posesión efectiva (the estate probate filing) was never done and the property is still registered in the name of the deceased.

What to gather before suing

• The current certificate of title registration for the property, with a certificate of mortgages, encumbrances and prohibitions.
• Proof of the current occupation: dated photographs, utility certificates in the occupant's name, statements from neighbours.
• The complete story of how they came to occupy the property, told honestly to the lawyer. It is the fact that decides which action to bring, and hiding it only brings the dismissal forward.
• Every document the occupant could produce: contracts with the previous owner, promises to sell, receipts, messages. If it exists, it is better to know about it beforehand than at the opposition stage.
• The plan and the description of the property, above all if the occupant uses only part of the land.

Frequently asked questions

How long does a precario case take today?

It depends entirely on whether there is an opposition. Without an opposition, the monitorio procedure is fast: once the defendant has been served, ten consecutive days run, and then the eviction is ordered within a period not exceeding another ten days from the time the ruling becomes final. With a well founded opposition, the monitorio procedure ends and you have to go to a declaratory proceeding which, with the summary proceeding removed, is longer than the one that existed before 2022. Any single timeframe that is promised to you ignores that fork in the road.

Are the ten days business days or consecutive days?

Consecutive. It is a substantial difference from most civil deadlines, and it has been argued all the way to the Constitutional Court, which in March 2025 unanimously rejected an application for a declaration of inapplicability concerning article 18-K, stating that the point is one of ordinary legality and that it is for the trial judges to resolve it.

The occupant pays the electricity and water bills. Does that give them a title?

On its own it does not constitute a title, but it is a fact the courts look at, because it suggests a tolerated relationship that has gone on over time. If there were also periodic payments to the owner, the issue is no longer precario but tenancy, and changing the action halfway through costs time and exposes you to an order for costs.

I bought a property that was occupied. Can I sue for precario?

This is exactly the scenario where the two lines give opposite outcomes. If the occupant has a contract with the previous owner, under one line that is enough to dismiss the claim and under the other you have to analyse whether that contract is enforceable against you. Before buying, that question is settled with a title study and a visit to the property.

Does precario work against a toma, a squatter occupation?

Technically there is occupation without a contract, but for an occupation by force the useful route is the criminal one, because it has a precautionary eviction measure that operates well before any civil case. It is explained in the guide to the law on usurpation (unlawful occupation of real property). Starting a precario case against a recent toma means losing precisely the moment when eviction was possible.

My land is rural. Does it still go through the monitorio procedure?

It is a disputed point, because article 18-K sits inside the law on the tenancy of urban property. Some maintain that the reference does not distinguish and others that the monitorio procedure does not reach rural property. It is worth raising it in the claim with reasons and being ready for both readings, instead of discovering it when the court issues its order.

Can I claim payment for the time they occupied the property?

The precario action seeks restitution. Compensation for the use of the property is a separate matter, with its own legal basis and its own evidence, and it has no place in the monitorio procedure. It is worth raising it properly and separately, not as an add-on at the end of the submission.

I am the owner but my registration has problems. Can I still sue?

Ownership is the first requirement and it has to be proven with the current registration. If the registration has defects, the defendant will use them, and rightly so. What you should do is regularise that first, through regularisation of title or whatever correction applies, and sue afterwards from a solid position.

Can I sue a sibling who occupies the inherited house for precario?

No, not while the inheritance co-ownership exists. A co-owner has a right over the common property and that constitutes their title. The tool is partition, and if the posesión efectiva has not been done, that is the first step and not the last.

How we handle this

Before writing a single line of the claim we ask the question that decides the case: was there ever a relationship between the owner, or the previous owner, and whoever is occupying the property today. If there was, precario is ruled out and we look for the correct action. We would rather say so at the start than after months of proceedings.

The second question is one of strategy and comes from the reform: how likely is it that the occupant will oppose. If the answer is that they will oppose and have the material to do it, the monitorio procedure stops being an advantage and the substantive case has to be planned from day one, without spending the best material on a procedure that is going to end.

When precario is the right action, the claim is built anticipating the title the defendant is going to produce, with the title registration properly attached and with the occupation proven by more than one means, because those are the two points the court requires from the claimant and the only ones that depend on us.

We handle these cases from our civil litigation area, and when the conflict comes from a succession, which is the most common situation, it is resolved in the inheritance area, which is usually the shortest path even though it looks like the longest. If the property's registration has defects that the occupant could use, we start with the title study.

Send us the certificate of title registration and tell us who is occupying the property and since when, and we will tell you whether precario is the right route or which one is, before you spend money on a claim that is going to be dismissed.