To this day, Colombia has not implemented a comprehensive territorial policy that allows an efficient use of land in the country. This is the case, among other issues, because of the absence of sufficiently robust regulations allowing the exploitation of the nation's vacant land. However, legal mechanisms that seek to enable exploitation of vacant land that comply with constitutional provisions such as the social object of the land, have been regulated recently.
Agreement No. 28 of the National Land Agency (hereinafter "ANT"), established the way in which individuals may be adjudicated with contracts for the exploitation of vacant land, as well as mechanisms through which third parties to become the successful tenderers of such contracts.
Who can be a beneficiary of contracts for the exploitation of vacant lands?
All persons who have been included in the Registry of Ordinance Subjects (hereinafter referred to as "RESO") may be beneficiaries of the programs and contracts allocated by the Government through the ANT for this purpose. Persons included in the RESO may be individual, legal or ethnic persons regardless of whether they are legally incorporated or not. Any person wanting to enter the RESO must provide specific information, such as information of the land, personal data and if there is a prior occupation on the property of the which is intended to be an awardee.
In the event of a previous occupation, the ANT shall check whether any of the following situations are taking place in the vacant land:
(a) That the current occupant is not executing any kind of economic exploitation;
(b) The person is exploiting less than two thirds of the property; or
(c) The person is occupying and exploiting vacant lands with activities not in line with the vocation of the soil and/or are unsustainable from an environmental, social and economic point of view.
What obligations does an occupant interested in being a beneficiaryhas?
If a person interested in being a beneficiary of a contract for use, is occupying a vacant land, he must advance an economic exploitation covering at least two thirds of the occupied area. This exploitation or activity must be agricultural, cattle raising or forestry, all under the territorial planning and schemes that apply on that specific property.
In addition, economic exploitation must be carried out taking into account the limitations laid down by the competent environmental authorities. Therefore, the occupant may not carry out a land operation that casues environmental impacts such as deforestation or any other activity considered harmful. If the activity carried out by the occupant creates a risk of environmental damage or impact, the ANT may refrain from allocating the land.
Role of partners in operating contracts
Where land occupiers do not have sufficient economic capacity to carry out the exploitation activities mentioned above, they may associate with natural or legal persons regardless of whether they are adjudicators of vacant lands. These persons must be identified by the ANT, who in turn will bring the partners and the land occupiers closer together to build trust, reach agreements and, above all, sign the operating contracts that commit them to support and finance all productive processes that are intended to be carried out.
The members in question must meet the following requirements:
(i) Be incorporated;
(ii) Show that its social object is related to activities to promote the agricultural economy;
(iii) Not be under a mandatory dissolution clause;
(iv) Have at least 3 years of incorporation;
(v) Not have any legal inabilities;
(vi) The legal representative cannot be required to comply with any custodial sentence;
(vii) The legal representative should be enabled to manage the resources of the proposed exploitation; And
(viii)The legal representative cannot have been the successful tenderer of a property or beneficiary of another operating program.
The exploitation contracts
Once the ANT has finished intermediation between the partner and the occupant of the land, the partner must execute the operating contract under the understanding that it is the occupant who will continue the exploitation. This document shall contain the following elements:
(i) A concerted and approved productive project;
(ii) Certificate that the partners may not own the land subject to the project after the adjudication, for at least 7 years;
(iii) Contract term;
(iv) An administrative expiry clause for non-compliance with the occupant or his partner;
(v) Obligation of compliance with environmental regulations; And
(vi) Obligation of the partners to obtain complying insurance policies.
In this way, it is hoped that, once a vacant land operating contract is executed, the successful tenderers will be able to use and exploit the land. The above, with the aim of complying with constitutional provisions that protect the right of access to land ownership, together with the support of third parties that allow and promote the adequate exploitation of land resources.