Possession is More Important Than Ownership

Owning property in Costa Rica is much more than just having a deed. Possession is nine-tenths of the law in this country.

Most people believe it is a simple procedure to buy a piece of land in Costa Rica. One just needs to have an attorney check to see if the catastro, or plat plan, exists in the Registro National, Costa Rica’s national registry of properties, and check to see if the property is free and clear of liabilities and other encumbrances, then sign a legal sales document to transfer the property from the seller to the purchaser.

In reality, there is much more involved if you want to be sure your rights are protected.

First of all, catastros, plat plans, are sometimes wrong. They do not match the property being purchased. The reason being, most plats were made many years ago before instruments were readily available to surveyors so they could do a good job. Property boundary pins probably didn’t exist in those times, and the measurements were just stepped off from one point to another without too much consideration as to the latitude and longitude.

On a small lot, this can be rectified without too much difficulty. But on a larger piece of land or farm someone else may have possession rights to a piece or to all of the land.

It is important to verify if the parcel has a fence. If there is no fence, the buyer needs to ask the seller why there isn’t one. The buyer should walk off the entire property and do a personal survey of it. If the buyer is unable to do so, he or she needs to get someone honest
and responsible who can. All the neighbors and campesinos, the country folk, should be questioned to see if they know of someone else who has used the land or improved it in any way. They should also be asked if they know the owners and who they think they are. If the answers do not match the people selling the property, the buyer needs to dig deeper and find out why.

Property is divided into two elements in Costa Rica: ownership and possession. Land can have a registered owner in the national registry but have someone claiming rights to the same area because they have used the property for as little as 12 months.

If someone is on the property for more than a year, the owner can’t kick them off even if they start a legal action against them. After 10 years of uninterrupted public and peaceful possession, the occupants can obtain legal title that supersedes any other.

There are still many unregistered properties in Costa Rica, but others that fell into this category have been registered through the Ley de Informaciones Posesorias or the Law of Posession. These properties have liens attached to them called plazos de convalidación or confirmation periods in English. These properties can be sold like any other but can also be disputed during the validation period.

No one should buy a property sight unseen. Just because someone can display a valid deed does not mean they have both of the requirements for true ownership, which are title and possession.

Through a process called usucapión (believe it or not the same word exists in English) someone else can actually have more rights than the deed holder. The history of usucapion is an important fact in the history of Roman jurisprudence, and Costa Rican laws are based on Roman law. Usucapion is the acquisition of ownership by possession.

Before someone buys property in Costa Rica, he or she must do their homework because neither the sales agents nor the attorney hired to protect the buyer will do it.

If you have already purchased property and someone comes to roost on it without your permission, you have only three months to file a process called an interdicto, or an injunction, to regain possession. After that, you only have nine more months to fight for your legal ownership before the law gives stronger rights to the new inhabitant.

Absentee owners need to have fences and people watching their land all the time. And something most of these absentee owners forget, they need to have a legal binding contract with the watchers because they, too, can acquire rights. The best contract is one that includes un acuerdo de mera tolerancia or a mere tolerance clause so the watchers don’t replace the owner as the one in possession. If the watchers are using the land, then the owner needs a contract called an esquilmo, a land-use or harvest agreement in English.

Again, a buyer should do his or her homework because no one else will do it in Costa Rica.