By Reason or Force: Illegal Land Occupations and the Rule of Law in Chile

Introduction

Beneath the Chilean coat of arms (condor and huemul), a white band bears the national motto: Por la Razón o la Fuerza (“By reason or force”).

The illegal occupation of land (tomas) by large groups in Chile constitutes a complex phenomenon, with significant social, legal and political implications. As this article argues, the resurgence of large-scale occupations challenges foundational assumptions underlying Chilean civil law institutions and raises difficult questions not only within domestic public and administrative law, but also within the broader framework of international legal obligations.

Chile has traditionally conceived of itself as a polity where reason prevails over force, but the occupation of land outside lawful housing mechanisms is essentially an exercise of force. At the same time, it is frequently justified by occupants as a response to structural inequities, framed as a necessary and morally legitimate action rather than an unlawful one.

From one perspective, a toma may be understood as an expression of acute desperation among vulnerable populations. From another, it may be perceived as an implicit form of coercion: occupations are often accompanied by demands for negotiation or alternative solutions, coupled with the suggestion that failure to resolve the matter peacefully may result in violence for which the State will bear responsibility.

Chile thus confronts the fundamental dilemma of how to reconcile the enforcement of the legal order with the pressing realities of housing insecurity and social inequality.

Historical context and the re-emergence of land occupations

Land occupations were particularly salient in Chile during the 1970s and 1980s. Over the subsequent three decades of sustained economic growth, public authorities addressed the phenomenon with considerable success. Nevertheless, in recent years, illegal occupations have re-emerged with renewed scale and visibility.

Historically, such occupations were closely linked to housing shortages and broader episodes of social and political unrest. Occupants organised settlements on vacant or barren land, constructing precarious housing and demanding access to essential public services, including water, electricity and sanitation.

In previous decades, the State responded through comprehensive policies, most notably:

• administrative regularisation mechanisms implemented through the Ministry of National Lands; and
• subsidy programmes facilitating access to newly constructed housing.

Although these procedures were often bureaucratic and slow, they contributed to a perception that the problem had been resolved.

Chile consequently turned its attention to other social challenges, including inequality reduction, the expansion of educational access, and the inclusion of marginalised groups.

The contemporary crisis

In recent years, however, Chile has witnessed a dramatic resurgence of illegal occupations. More than 1,000 plots of land are currently occupied, with over 100,000 families residing in such settlements.

Extreme poverty persists, albeit often less visible. With limited exceptions, such as criminal actors who profit from illicit land markets, most of the occupants do not wish to live under the precarious conditions of these settlements, which frequently lack adequate sanitation, security and basic infrastructure.

The expansion of tomas has therefore become a central issue in Chile’s contemporary public debate, and has revealed significant shortcomings in the existing housing policy.

Structural changes

The current wave of occupations differs from earlier episodes in several respects. A substantial proportion of occupants are immigrants, including individuals with irregular legal status. Moreover, a troubling informal real estate market has emerged. Initial occupants may seize land, establish rudimentary services, subdivide plots and subsequently transfer them to new occupants, thereby transforming occupation into an organised economic enterprise.

Legal owners face serious procedural obstacles when seeking remedies through traditional civil or criminal mechanisms. Actions for trespass, squatting or eviction typically require the identification of individual defendants – an often insurmountable requirement in cases involving thousands of occupants. Even where judicial relief is granted, the prospect of forcibly evicting large numbers of families, including children and other vulnerable persons, raises significant humanitarian and political challenges.

These dynamics are illustrated in two particularly salient case studies: the Mega Toma de San Antonio and Alto El Molle in Alto Hospicio.

Case studies

Mega Toma de San Antonio

The Mega Toma de San Antonio involves the illegal occupation of privately owned land on a seaside hill near the port of San Antonio, the largest port in Chile, located in the Valparaíso Region. The occupation encompasses approximately 110 hectares (272 acres) and is inhabited by roughly 10,000 individuals (4,000 families). Landowners pursued multiple legal actions, including the Constitutional Protection Action (recurso de protección). This constitutional remedy, filed directly before the Courts of Appeals, must be grounded on the violation or threatened violation of specific constitutional rights. In this case, the action was based on the infringement of the right to private property and the guarantee of equality before the law.

The judiciary ruled against the occupants and ordered their removal. However, the enforcement was delayed and effectively suspended through an agreement between the executive branch, the occupants and the landowners.

Initially, the agreement envisioned that occupants, organised through co-operatives, would raise sufficient funds to purchase the land. When this proved unfeasible, the government shifted toward an eminent domain solution, proposing the expropriation of the occupied land for the construction of state-subsidised housing.

While some analysts defend this approach as a pragmatic response to an urgent housing emergency and the logistical difficulties of mass eviction, it may also be perceived as legitimising unlawful occupation. Such measures risk privileging illegal occupants over lawful applicants within established subsidy frameworks.

Alto El Molle in Alto Hospicio

A similarly significant occupation has occurred in Alto El Molle, in the municipality of Alto Hospicio, located in the Tarapacá Region near Iquique. The settlement involves approximately 2,500 families (5,000 individuals) occupying 100 hectares (247 acres). Observers have characterised Alto El Molle as being among the most vulnerable occupations in Chile, due to severe insecurity, violence and the absence of basic services. Serious crimes have been recorded, including homicides and kidnappings.

The region is economically intertwined with the mining sector, and the occupied lands are proximate to commercial and industrial properties, many belonging to foreign corporations.

On 9 July 2025, the Supreme Court ordered the removal of irregular constructions and the relocation of inhabitants within six months. The Court reaffirmed that the recurso de protección constitutes an effective remedy against unlawful occupation, and instructed authorities to proceed with eviction.

The ruling further required the Municipality of Alto Hospicio to co-ordinate with multiple ministries, including Interior, Housing, National Lands and Social Development, to secure temporary accommodations for affected families. As in San Antonio, eviction was required to be carried out under conditions ensuring proportionality and the reasonable use of public force, if necessary.

International investment dimensions

An additional layer of complexity arises where occupied land constitutes foreign investment protected under bilateral or multilateral treaty regimes. Chile has more than 30 bilateral investment treaties in force, as well as approximately 40 commercial treaties containing investment protection provisions. Foreign investors may pursue claims for compensation based either on State inactivity or on measures adopted in response to occupation.

Such disputes are most commonly adjudicated before the International Centre for Settlement of Investment Disputes (ICSID), a World Bank-affiliated institution headquartered in Washington, DC. As a host State, Chile is bound by the “full protection and security” standard, requiring the provision of minimum safeguards for the physical integrity of investments. This standard may be relevant in assessing whether Chile has adopted effective mechanisms, such as police enforcement, to prevent occupation from obstructing investment development.

Moreover, investment treaties impose conditions on expropriation, generally requiring that such measures be undertaken for a public purpose, on a non-discriminatory basis, in accordance with due process, and accompanied by prompt, adequate and effective compensation.

Another relevant issue concerns the exhaustion of local remedies. While ordinarily required, international jurisprudence recognises exceptions where domestic remedies are excessively slow or ineffective – circumstances that must generally be established by the claimant, subject to treaty-specific modifications.

Conclusion

Illegal land occupation in Chile constitutes a multifaceted legal and social challenge that exceeds the traditional confines of civil and administrative law. It implicates housing policy, institutional legitimacy and, in certain cases, international investment obligations.

In both San Antonio and Alto Hospicio, the judiciary has acted decisively in defence of the rule of law. The executive branch now bears the responsibility of addressing the underlying housing crisis while ensuring that enforcement measures, including potential evictions, are carried out lawfully and proportionally.

Ultimately, durable solutions will depend on effective public policy, coherent legal frameworks and the preservation of the State’s monopoly over the legitimate use of force.

Reason, not force, must prevail.