Another Gringo gets a property surprise

Why take the long way around when you can get three witnesses to say a driveway is a public road, and voilà, like magic, it becomes public.

Then bulldozers do a great job of tearing down private entranceways.

This is what happened a week ago to one U.S. citizen from Chicago. Four years ago the man fell in love with Costa Rica, as many foreigners do, and bought a farm in Cartago. The title to the property was squeaky clean and had no annotation of easements or any other restrictions.

He invested thousands of dollars to build two houses and a huge trout fish lake. He also rebuilt all the internal roads inside the farm area.

Locals used to take shortcuts through the property to get to other tracts because the alternate public road was longer and in bad shape.

Normally, people can get an easement through another person’s property when one property is boxed in and has no access. The term used in Costa Rica for this type of property is fundo enclavado. It means a landlocked property in English.

Article 395 of the Costa Rican Civil Code states the owner of a landlocked property has the right to request the courts to award an easement for a right of way. This is similar to the United States where parcels without access to a public way may have an easement of access over adjacent land, if crossing that land is necessary to reach the landlocked parcel.

A property owner forced by the courts to give an easement to another is entitled to compensation for the access and any damages caused to bordering property. In some cases, where land is expensive, an easement can cost a bundle.

There is one exception to this rule. If a person subdivides off a landlocked property and sells it to another, an implied easement goes with the deal at no extra charge.

There are many kinds of easements. Requesting the courts to award an easement because it makes access more convenient is also possible but it could have a price tag.

Wait! Why go about getting an easement the legal way, and paying for it, when there is a speedy way of accomplishing the same objective?

This is what happened to the ex-pat.

One day strangers started walking more frequently through his property. The U.S. citizen decided to keep the gates closed and locked at all times.

This made the people using the access mad. Instead of filing for easement rights, they filed a petition in front of the local municipality to apply obscure articles of the public roads law.

This law, created in 1972, in its articles 32 and 33, states that an access that has been used by the public for more than one year must remain open to the public until a property owner can get a judicial decree stating otherwise. Any legal fight in Costa Rica can take years. In this case, the entrance to this owners home will remain public. And that is why a municipal bulldozer showed up Monday and demolished the man’s ornate entrance gate.

To apply the law, all one has to do is request an audience with officials of the municipality governing the area and bring three witnesses to declare that different people used the access for a year.

That is all. Presto, a public road is born. In Costa Rica, getting three witnesses is a pretty easy thing to do. Everyone has friends.

The ex-pat, through his lawyer, is filing a Sala IV case against the law and the local municipality. The case attacks the articles of the public road law as arbitrary, confiscatory and clearly in violation of due process of law.

The moral to this true story is that property owners should keep gates to properties locked and not let strangers transit freely. Otherwise, the bulldozers may appear unexpectedly at the front door.

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Condo easement situation is example

When laws collide, the fallout can hurt the little guy — or in this case, keep the little guy from getting full title to his new condo.

A simple pyramid can explain the legal system in Costa Rica. Sources are the Constitution, legislated laws, presidential and executive decrees along with the rules and regulations that give instructions on how to apply law.

The order of importance of law is from top to bottom. The Constitution is the supreme law, specific laws carry more weight than presidential decrees, and rules are just regulations on applying a law in different situations.

Costa Rican law is always under the watchful eye of the world. Treaties with other nations can change law in the country but only after an evolutionary process where individuals have to fight for specific rights in an international court.

Some laws and rules are confusing, and others clash. One example important to coastal developers is the Reglamento a la Ley Reguladora de la Propiedad en Condominio, or the Regulation to the Law of Condominium Property.

Article 43 of the reglamento states that a condominium built with access via an easement to public roads is legal. However, the people who approve the paperwork at the Instituto Nacional de Vivienda y Urbanismo or the National Institute of Housing and Urbanism will not sign plans for condominium projects that do not sit right next to a public road.

Developers rushed to develop master plans for incredible condo projects up and down the Pacific coast when the regulation to the condo law was published in La Gaceta at the beginning of last year, only to find their plans quashed by the institute.

The Instituto Nacional de Vivienda says the regulation to the condominium law is illegal and bureaucrats there want no part of it. Their position is that the rule conflicts with Article 40 of the Ley De Planificacion Urbana, Law of Urban Planning. This article states the following:

“Subdividing lots outside the city limits and all urban development will donate all roads corresponding to communal facilities to the municipality making them public.”

This Costa Rican battle between regulatory agencies in an election period has caught developers with their proverbial pants at their knees. Many of them have taken significant deposits from buyers promising them a beautiful condo on a hilltop with access via an easement as part of the condominium plan. Buyers may get something less than full title to their property when it is finished because the project will not qualify under the condominium law.

The dilemma is that the Urban Planning Law contemplated mostly houses on lots in urban developments. Written 30 years ago, it did not envision condo towers overlooking the beautiful oceans of Costa Rica. The law of Property in Condominium is a modern law for the Costa Rica of today.

The old cronies that make the decisions at the Instituto Nacional de Vivienda do not know who the next President will be. Their jobs are on the line. They do not want to take a position one way or the other.

The members of the current political administration will surely not solve this predicament. They are on their way out the door. Each of the new parties have their own philosophies for the country, ranging from “Let’s kick all the foreigners out of Costa Rica” to “Let’s sell all our beaches to the foreigners and make ourselves rich.”

What will really happen is something in between. What does this mean for the condo tower developers? Probably something in between, too. It is the way of the country. Never really white or black, always in the “gray area.”

Some lawyers say the whole discourse is unconstitutional. The constitutional court interprets Article 28 of the Constitution to mean everything not expressly forbidden as permitted. There is no law forbidding private access to condominiums. Article 28 also states private matters that do not affect moral or public order are out of the action of law. These both are interesting constitutional points.

Developers are scurrying to find solutions to this legal problem as they are with the freezing of beach concessions.

One thing for sure, nothing will happen on either front until after the election and even then, there is always a “honeymoon” period that needs to wear off before any new President gets down to solving the modern day problems of the country.

Complimentary Article in PDF Fomat

Easements can keep the backhoes away

Costa Rica is growing fast. Much of the growth is uncontrolled and can trample you if you’re not careful. Costa Rica has strong laws to protect intrinsic property rights, many of which are unknown and thus go unused here.

Powerful little-known easement laws protect property owners so they can control what is built around them. Much like the property rights law, certain easement rights can be acquired over time, like the easements of right-of-way, right-of-view and right-of-illumination. These and other important legal easement rights can also be transferred to another person acquiring a property, making real estate much more valuable in the right situations.

The right of easement is the real power a property owner has over someone else’s property to make a specific use of it. From the point of view of a real estate owner, an easement constitutes a lien that restricts its property rights.

In legal terms, an easement is a right where the proprietor of a piece of land, called the dominant estate, has the legal right to make some kind of actions or to make a particular use of an adjoining property, called the servant estate.

An easement, to validly exist according to the law in Costa Rica, needs to give a usefulness or utility which satisfies an interest of another. No easement can be more extensive than the value it gives. The different kinds of interests include: economical, esthetic, environmental, and conservational among others. They can also be expressed or implied.

The basic content of an easement is the straight power the owner of the dominant estate has over the servant estate. For example, the right to cross the servant estate’s property for a right-of-way to the dominant estate’s property, or to prohibit any construction or growing trees if it is an easement for the right-of-view or for the right-of-illumination.

The main characteristics of easements here are: 1) they cannot be divided, which means if the servant estate is segregated, the new lots will carry the easement, 2) they are accessory rights and cannot be separate from the property rights of the dominate estate and 3) they can only be registered against a property different than the dominant estate. So the same property cannot be the dominant estate and servant estate for the same easement.

The various classifications of the easements are broken down into continual and non-continual, apparent and non-apparent, legal and voluntary.

Continual easements are registered once and do not need intervention to continue to operate. Some examples of continual easements are: an easement for the right-of-way, the right-of-view, and for the-right-of illumination. Others are easements of electrical wiring and/or water flow.

Non-continual easements are used at time intervals and depend on actions to operate, for example an easement of water collection. Non-continual easements cannot be acquired over the passage of time, for example, walking across another’s property to go fishing.

Apparent easements are visible and conspicuous, revealing their use and existence, like the easement for the right-of-way, the right-of-view, the right-of-illumination, and the right-of-electrical wiring and/or water flow.

Non-apparent easements are not visible and conspicuous, making them hard to define, like an easement for underground services. It is important to note that the right of easement based on the passage of the time can only be acquired on continual and apparent easements. Non-continual and non-apparent easements can only be acquired by agreement or in a last will and testament.

Legal easements are established by the law. Some examples of legal easements are:

1. in a town where the people might need to collect water from a river crossing a private property, a water collection easement can be created (Costa Rica Water Right Laws), and
2. some properties with public road frontage are prohibited from construction in front of the public road without a previous authorization from the Costa Rican transportation department. (Costa Rica Public Road Law).

Voluntary easements can be of any kind and created by an agreement between two parties. To be valid they need to be duly registered at the Registro Nacional, or Costa Rica’s national registry.

Easement rights can be protected with different kinds of court procedures. Interdictos, or injunction lawsuits, are the most common in protecting easement rights. They are fast and effective if handled correctly and filed by someone with experience. If you have a valuable piece of property with great access, a wonderful view, and other valuable intrinsic assets, learn Costa Rica’s easement laws so you can protect it because many others will be lost to progress making yours that much more valuable.

Types of Easements and Descriptions

Other Types of Easements

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