Chile's usurpación law: penalties, eviction and what to do in the first hours

Quick answer: since Law 21.633, published on 24 November 2023, occupying someone else's property now carries a prison sentence, not just a fine. But what actually helps the owner is not the penalties: it is article 157 ter of the Código Procesal Penal (the Chilean Criminal Procedure Code), which allows the Ministerio Público (the Chilean public prosecution service) or the victim to request eviction with police assistance at any stage of the proceedings, even before the investigation has been formalised, by producing the registered title to the property and evidence of the occupation. The judge calls a hearing as soon as possible. What remains illegal is removing the occupants yourself: article 457 itself imposes a fine on an owner who uses force.

This guide is written for the exact moment the occupation is discovered, which is when decisions matter most. What is done in the first few days decides whether the case is resolved in weeks or turns into a problem that drags on for years.

What is usurpación (unlawful occupation of property) and what changed under Law 21.633

Usurpación is the total or partial occupation of someone else's property, or the usurpation of a real right that another person legitimately holds. It has been part of the Código Penal (the Chilean Criminal Code) since its earliest versions, but until 2023 the penalty for peaceful occupation was essentially a fine, and that fine frightened no one.

Law 21.633 changed three things that matter in practice:

• It introduced custodial sentences where previously there was only a fine, and graded the penalties according to whether there was violence, intimidation or damage to property.
• It extended flagrancia (being caught in the act). Previously the debate was whether an occupation still counted as flagrante once the initial moment had passed. The law settled the point in favour of police action for as long as the occupation continues, which in practice completely changes the response that can be requested.
• It created a special precautionary measure for eviction, which is the tool we cover in detail below, and it is the only thing that returns the property before the criminal case is finished.

The three offences and their penalties

The law distinguishes according to how the occupation took place, and that distinction decides everything else.

Under article 458, the court moves within that range according to circumstances that are worth knowing, because they are what gets argued at the hearing:

Housing need is real and it works. It is worth knowing this before building up expectations: the law expressly allows the penalty to be reduced on that basis. That is why, in most cases of peaceful occupation of a site, the owner's strategy should not rely on the penalty but on recovering the property quickly.

The tool that actually returns the property: article 157 ter

This is the most useful change in the whole law, and the one used least because people simply do not know about it.

Article 157 ter of the Criminal Procedure Code allows the Ministerio Público or the victim to ask the judge to order the eviction of the unlawful occupants with police assistance. Its features, which are what make it valuable, are these:

The practical consequence is that an owner with an up-to-date registered title has a route to recover the property without waiting for a conviction, and without depending on a civil case that can take years. It also explains why the first question we ask is not what happened, but how the property is registered.

What to do in the first hours, step by step

The order matters more than it seems, and several of these steps cannot be made up for later.

• Call Carabineros (the Chilean police) immediately and stay until the patrol arrives. The closer to the start of the occupation, the more scope there is for police action, and the less room for argument about dates.
• Leave a police record and file the complaint the same day. The date of the complaint is one of the facts weighed later on, and a late complaint reads as tolerance.
• Record everything with a date. Photographs, video, location, how many people, what was set up, whether there was damage to fences or gates. Damage to property changes the offence and its penalty.
• Obtain the current registered title together with a certificate of good standing. It is the document article 157 ter requires, and without it the eviction request does not hold up.
• Request the article 157 ter eviction without waiting for the prosecutor to formalise the case. It is the step that gets the property back, and it does not depend on how the rest of the case proceeds.
• Do not negotiate payments or deadlines without advice. A poorly made agreement can later be read as tolerance, giving the occupant a claim they did not have before.
• Do not go in and remove anyone yourself. That is covered next.

What the law does not allow: removing them yourself

It is worth saying this with the statute in hand, because this is where most owners ruin their own case.

Article 457 itself, in its second paragraph, penalises the owner or legitimate possessor who uses force against someone unlawfully occupying their property, with a fine of six to ten monthly tax units, and that is without prejudice to whatever penalties apply for the violence used. In other words, the law that toughened the penalties against the occupant expressly kept the sanction against an owner who takes the law into their own hands.

On top of that, any injury, threat or damage caused in the attempt carries its own liability, and the occupant switches from accused to victim for part of the story. It is exactly the same mistake we cover in cutting off services to an occupant, where the courts have been clear that self-help is an unlawful and arbitrary way of taking the law into one's own hands.

Common mistakes that sink the case

• Filing the complaint late. Weeks later, the debate stops being about the occupation and becomes about why you did nothing.
• Turning up without an up-to-date registered title. If the property is still registered in the name of a deceased parent, if the purchase was never registered, or if it was acquired through shares and rights in a larger property, the article 157 ter requirement becomes complicated and the title has to be sorted out first.
• Confusing occupation with a tenancy. If there was ever a contract, even a verbal one, it is not usurpación but a civil tenancy matter, and the route is set out in our guide to evicting tenants.
• Waiting for formalisation. Article 157 ter expressly states that the measure applies whether or not the investigation has been formalised. Waiting simply gives away time.
• Not documenting the damage. If there was damage and it was not recorded, the offence drops down to article 458, and the penalty with it.
• Leaving the property without fencing or signage after the eviction. A site left empty and unattended gets occupied again, and the second time round, prior knowledge of the earlier occupation is an aggravating factor that it is worth being able to prove.

The special case of rural land and unfenced sites

In Ñuble and Biobío, most of the occupations we see are not organised land occupations of an urban site, but gradual encroachment onto rural land: someone puts up a fence a few metres further in, builds a small shack, starts planting. Nobody objects because the owner lives in another city or the property comes from an unresolved inheritance.

That scenario has two fronts that need to be dealt with together. One is criminal, and that is this guide. The other is registration, and it decides whether the criminal route can even be used: if the registered area does not match the actual size of the land, or if the boundaries are described using references that no longer exist, the first step is to correct the registered area and boundaries. And if the property was never regularised, that is where you have to start, because without a current registered title, no eviction request will succeed.

There is also a concept worth keeping distinct: prolonged, peaceful occupation can, over the years, lead to acquisitive prescription (adverse possession) in the occupant's favour. It is neither automatic nor quick, but it is the real reason why letting time pass is the worst possible decision.

How we advise you at Terreno en Regla

The first thing we check is not the incident but the title: whose name the property is registered under, whether the registration is current, and whether the registered area and boundaries match the land. That decides whether the article 157 ter eviction can be requested this week, or whether there is a prior step to take.

In parallel we put together the file on the occupation: the complaint, police records, dated photographs, and georeferencing of the occupied area. The survey is carried out by our own surveying team, which is what lets us show the court exactly which part of the registered property is occupied, and since when.

When the title has problems, which is common with inherited rural properties, we resolve it with a title study, with regularisation of title where it applies, and with the grant of probate, or its Chilean equivalent, the posesión efectiva, if ownership was left in an unprocessed estate. The contentious side is handled by our litigation team.

Send us the registered title and dated photographs of what is happening, and we will tell you whether an immediate eviction request is appropriate, which offence applies given what was done, and what needs to be put in order first if the title is not in good shape.

Frequently Asked Questions (FAQ)

Do I have to wait for formalisation before requesting the eviction?

No. Article 157 ter expressly states that the measure applies at any stage of the proceedings, whether or not the investigation has been formalised. Waiting for formalisation is one of the costliest mistakes, because every week that passes entrenches the occupation further.

Can I request it myself, or does the prosecutor have to do it?

The victim can request it directly. There is no need to sit and wait for the prosecution service to take the initiative, and in practice it is the victim's push that gets these requests filed early.

What documents do I need exactly?

The registered title to the property and evidence of the occupation. Specifically: a copy of the registered title with a certificate of good standing, and material proving that there are occupants and since when. The more precisely the occupied area is identified, the better.

Someone occupied my vacant land with no building on it. Is that still usurpación?

Yes. The offence covers the occupation of property, and vacant land counts as property. In fact it is the most common scenario, especially on vacant urban lots and unfenced rural land.

The occupants say they have been there for years. Does that protect them?

How long the occupation has lasted does not legalise anything on its own, but it does complicate the case: it changes the discussion, allows housing need to be argued, and given enough time it opens the door to acquisitive prescription. That is why acting early is not just textbook advice but the difference between a simple case and a difficult one.

Can I cut off their water or electricity to make them leave?

It is not advisable. That is self-help, the courts overturn it through a recurso de protección (the Chilean constitutional protection remedy), and it hands the occupant a ruling in their favour before their own case has even started. We cover this in our guide on cutting off services.

I bought the land and it arrived already occupied. Can I still file a complaint?

If you are the registered owner, yes. What has to be checked first is whether the occupation is genuinely without title, because if the seller had a current tenancy by public deed, the situation is different. That point should be resolved with a title study before buying, not after.

What if the occupant is a family member?

It is almost never usurpación, because there is usually prior tolerance from the owner or an undivided estate involved. In that case the correct route is civil, and usually succession related: partition proceedings or, when there really was no family link, a precario claim.