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Easements Can Let You Retain Your Lifestyle

by Garland M Baker on July 19, 2004

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

Right-of-Way Easement (Servidumbre de Paso) A right-of-way easement that gives someone the right to travel across property owned by another person.
Right-of-View Easement (Servidumbre de Vista) A right-of-view easement will restrict any building or landscaping which will restrict a property’s scenic and open condition.
Right of Illumination (Servidumbre de Iluminación) A right-of-illumination easement will restrict any building or landscaping which will restrict a property’s lighting. Includes someone over-lighting a property engulfing another.

Other Types of Easements

Right of Public Services Servidumbre de Servicios Públicos
Right of Public Access Servidumbre de MOPT
Right of Water Flow Servidumbre de Acueductos (AyA)
Right of Oil Flow (RECOPE) Servidumbre de RECOPE
Right of Conservation Servidumbre de Conservación

 

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