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The Speedy, Magic Way to Create a Public Road

by Garland M Baker on October 2, 2006

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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