Legal Alert: Modifications to Acts Subject to Comptroller’s Prior Review (Toma de Razón): Changes Introduced by Resolution No. 3 of the Comptroller General of the Republic

Authors: Alejandro Álvarez and Blanca Oddo – Alvarez Abogados

 
I. Introduction

This legal alert analyzes the incorporation of section 16.5 into the catalogue of acts subject to prior review (toma de razón), introduced by Resolution No. 3 of the Comptroller General of the Republic, published on February 21, 2026, which amends Resolution No. 36 of 2024.

The analysis focuses particularly on its scope with respect to the Ministry of Housing and Urban Development (MINVU) and its Regional Ministerial Secretariats (SEREMIs), as well as its practical implications for the issuance of administrative acts of general application.

II. Purpose of the Regulation

Resolution No. 3 is based on the premise that toma de razón constitutes a mandatory legality review of administrative acts, aimed at safeguarding the principles of legality, probity, and the proper use of public resources.

This is a prior control, meaning that until such review is completed, the act cannot produce legal effects.

From a regulatory standpoint, this authority is grounded in Article 10 of Law No. 10,336, which empowers the Comptroller General to exempt certain acts relating to non-essential matters from prior review, on a reasoned basis.

However, in practice, the resolution—like its predecessors—does not merely establish exemptions but rather sets out a structured catalogue determining which acts are subject to or exempt from the toma de razón procedure, thereby redefining the scope of preventive legality control through regulatory means.

III. Incorporation of Section 16.5

Resolution No. 3 expands the catalogue of acts subject to toma de razón to include scenarios that were previously not subject to such control.

In particular, section 16.5(d), applicable to MINVU and its SEREMIs, provides that the following are subject to prior review:

“Acts that approve or contain rules, instructions, guidelines or orientations of general application, as well as their amendments.”

This amendment extends preventive legality control to acts that, while not formally regulatory in nature, produce normative effects of a general character, either externally (towards private parties) or internally within the Administration.

Furthermore, the measure reflects an intention to subject administrative interpretations of sectoral regulations to prior control, thereby limiting, in practice, the discretion of MINVU and SEREMIs in exercising their interpretative and regulatory implementation powers.

This may directly affect the timing of implementation of sectoral policies and the regulatory certainty applicable to real estate development projects.

IV. Practical Scope for MINVU and SEREMIs

As a result of this amendment, acts issued by MINVU and SEREMIs will be subject to toma de razón whenever, regardless of their formal designation, they contain rules, criteria or interpretations of general application, even if they were previously processed as exempt acts.

The determining factor is no longer the form of the act but its scope—namely, whether it is addressed to a general body of recipients, including private parties, administrative bodies or municipalities.

In the case of SEREMIs, such generality must be understood within their respective territorial jurisdiction.

For example, a resolution issued by a SEREMI establishing general criteria for the evaluation of projects within a region will be subject to prior review.

V. MINVU and SEREMI Circulars

MINVU circulars—particularly those issued by the Urban Development Division (DDU) and the SEREMIs—are issued under statutory powers to instruct, interpret regulations and supervise their application.

In light of Resolution No. 3, circulars will be subject to toma de razón when they:

• Contain instructions, interpretations or guidelines of general application; and
• Are addressed to a general body of recipients, whether at a national or regional level.

Conversely, circulars of a specific nature, aimed at resolving particular cases or individual queries, will, in principle, remain outside this control.

This approach is consistent with the distinction between general and specific circulars previously recognized by MINVU itself.

VI. Key Criterion: General Application

It is not possible to establish in advance a closed list of acts subject to toma de razón. The classification must be made on a case-by-case basis.

The decisive factor is whether the act produces effects with respect to a general body of recipients within the scope of the authority’s competence.

Such generality must always be assessed within the material and territorial limits of the relevant authority.

Acts exceeding these limits will not only be subject to review but may also be unlawful, with the Comptroller’s preventive control serving precisely to prevent such deviations.

VII. Practical Criteria for Assessment

In determining whether an act must be subject to toma de razón, the following criteria are relevant:

• Normative content: whether the act interprets, supplements or establishes criteria regarding urban planning regulations.
• Recipients: whether its effects extend to a general body of persons or entities.
• Permanence: whether the act establishes a criterion applicable to future situations rather than resolving a specific case.

Additionally, the external effect of the act must be considered: even measures presented as internal may be subject to review if, in practice, they affect the conduct of third parties.

VIII. Publication Requirement

Pursuant to Article 51 of Law No. 19,880, administrative acts of general application produce legal effects upon publication.

Accordingly, acts issued by MINVU and SEREMIs that are subject to toma de razón and have general content must also be duly published in order to produce legal effects.

Otherwise, they will likely not be enforceable against third parties.

IX. Entry into Force

Resolution No. 3 provides that these amendments will enter into force on June 1, 2026.

A transitional period is therefore in place during which public authorities must adjust their internal criteria and procedures to comply with the new regime.

For more information on this matter, please contact Alejandro Álvarez (aalvarez@alvareza.cl) or Blanca Oddo (boddo@alvareza.cl).