Purchasing Real Estate in Costa Rica
By Alvaro Carballo Pinto
A word of caution. When one of these annotations is found, extreme caution is
advised.
Contents
About the Author
Foreword
Preface
The Legal System
Real Estate Records
Getting Professional Help
Real Estate agents or brokers
Attorneys and notaries
Other professionals
Costs
The Purchase Process
Property in General
Means of holding property
Different property rights
Titled and untitled property
Constitutional Protection of Private Property
Most Common Registered Liens and Encumbrances
Liens
Registered Mortgages
Normal consensual mortgage
Bond mortgage
Considerations with reference to
mortgage operations
Judgment liens
Unregistered Mortgages
Legal mortgages or tax liens
Other Encumbrances
Annotations.
Easements.
Leases.
Water rights.
Restrictions due to future roads or projected road
expansions.
Private roads converted into public roads.
Zoning.
Party walls
Origin of title
Squatters rights
Mining code restrictions
Ecological restrictions
Construction restrictions
Special Cases
Beachfront or Shoreline property
Condominium property
Final Comments
Exhibit I
Closing costs
Exhibit II
Additional costs of mortgage
Exhibit III
Check list
Some Common Real Estate Terms
About the Author
Alvaro Carballo-Pinto was born a Costa Rican. His family's ancestors can be
traced in this country to the early 1800's. All his life he has been involved
with real estate. He obtained his law degree from the University of Costa Rica
School of Law, and his master's degree from the University of Miami School of
Law.
He has been both a professor of Commercial and Real Estate Law. He served as
Vice-Consul of Costa Rica in Miami, Florida, as legal counsel to the Free Zone
Corporation, having drafted the original free zone law project. He also served
as counsel to the Costa Rican Congress during its discussion and approval. He
has also served as legal counsel to the Costa Rican Chamber of Agents of Foreign
Companies, the Center for the Promotion of Exports and Investments, the Ministry
of Natural Resources, Energy and Mines, and currently is legal counsel to the
Costa Rican American Chamber of Commerce - AMCHAM.
Mr. Carballo has been a member of several commissions involved in planning
for the economic development of Costa Rica, including the Trans-Isthmus Pipeline
Commission, (Government of Costa Rica), Commission to study the Mining Code and
its real estate effects, (Costa Rican Bar), Commission that drafted the law
creating the Ministry of Natural Resources, Energy and Mines, and the Commission
to create a High Technology Park in Costa Rica, among others.
Currently, he is a member of the Board of the Costa Rican American Chamber of
Commerce - AMCHAM, and the Costa Rican Coalition of Development Initiatives -
CINDE, an organization dedicated to further development and private investment
in Costa Rica. He has been in the private practice of law for fifteen years and
is a partner in the law firm of Carballo & Abogados.
Mr. Carballo is also co-author of "Investigation and Analysis to Further
Development of the Draw Back Industry in Costa Rica", and "The Legal Structure
Governing Foreign Investment in Costa Rica".
Foreword
The basic rights of all citizens in Costa Rica are respected by its society
which has a well-developed tradition of democratic government. More importantly
for foreigners, those same rights are extended in equal measure to all residents
of the country. Few countries are so magnanimous in their treatment of foreign
residents. This is the point my wife and I found most compelling in our decision
to make our home in Costa Rica.
Unhappily, while this is true, the facts of life are that the differences in
the legal system and ways of doing business in Costa Rica discriminate against
those who do not understand them. Unfortunately, there are people who would use
that lack of understanding to their advantage. Therefore, anyone wishing to make
their home or otherwise invest in Costa Rica, faces a greater possibility of
risk in their decision making process than they would in familiar circumstances.
My wife and I have been extraordinarily fortunate in our business dealings in
Costa Rica. We have not had a single bad experience. Distressingly, some of our
friends have not been so fortunate. We have been witness to several instances
where good people fell on bad times because of misunderstandings or bad advice
and/or unscrupulous operators -not necessarily Costa Ricans.
Several situations have made it clear to me that problems may develop not
because the foreigners involved are either greedy or stupid, but rather because
they "understood" something which was not true. A basic understanding of the
Costa Rican system of property registration will solve many problems before they
occur, and so will having a general idea of what is or is not part of a property
development program. Infrastructure development in Costa Rica is usually far
different from what we have known in our home countries. Problems with squatters
and earthquakes are not issues we have normally experienced before.
It has become evident to me that people who wish to buy property in Costa
Rica, for whatever reason, need some source of competent objective information.
With certain exceptions, information is usually available if you know how to
find it and have the time to do so. The difficulty comes from knowing where and
how to look, interpreting the information obtained, and knowing whether it is
reliable. Lamentably, most investors or home buyers rely on the same individuals
promoting the investment to provide them with such information. This is a
formula for disaster!
Obtaining reliable information from someone reputable who is not involved
with the investment is a must. This guide is a good beginning to meet that need.
It was written specifically to inform you about the process of purchasing land
in Costa Rica. It will also help you understand the system and recognize its
limitations as well as most of the risks you may face in making a property
purchase here. It will not be everything you need, since you will still need
competent help by specialized professionals and companies, but it should
identify your needs better than you could otherwise.
This guide is simply the best source of information available on the subject
of property investment in Costa Rica. You will find it easy to use and easy to
understand. After reading it, you will probably develop a healthy skepticism,
which will serve you well as you consider a property investment. My intention is
not to overstate the problem; after all, my wife and I have our home here. My
intention is to insure that you are able to have the same good luck we've had
and enjoy your experience as much as we have. "COME ON IN, THE WATER'S FINE! "
... especially when you've had the right advice.
John F. McMerty
Brigadier General (Retired)
United States Air Force
Preface
This guide is intended to give its readers a general view of real estate
transactions in Costa Rica. It is not a comprehensive treatise of Costa Rican
real estate laws. No property transaction should be undertaken without the
benefit of professional assistance.
The purchase of real estate is often one of the first transactions foreigners
will undertake in Costa Rica. It can also be one of the most expensive. Taking
the right steps in the beginning is the key to having it done right. Preventive
medicine is the least costly and the most effective kind there is!
Costa Rica's civil law system of property transactions differs greatly from
the common law system. It may seem complicated to many, but really it is not.
Because of its unfamiliarity, however, foreigners can fall victims to its
pitfalls.
This guide is intended to diminish some of the anxiety of purchasing real
estate in a foreign country. It has also been written to make help available to
those who wish to help themselves.
In the course of writing this guide I became aware of the need for an
on-going source of objective reliable information for real estate investments in
Costa Rica. In order to meet this need, I and several others have incorporated
Propstdy S.A. which we intend will provide the services necessary for those who
wish to invest in Costa Rican real estate. For further information you can
contact Propstdy by faxing to (506) 55-4611 or writing to P.O. Box 10760-1000
San José Costa Rica.
I hope the information you find in this guide will help you count yourself
among those many persons who live happily as property owners in this beautiful
country.
I wish to specially thank Robert E. McBeath for demonstrating his patience
while taking care of my innumerable grammatical errors as well as correcting my
English. This guide would not have been possible without his help. I also wish
to extend my gratitude to John McMerty who took the risk of writing a foreword
to this guide, to Eduardo Valverde, my editor; and very specialy to Oscar
Gallegos-Gurdián who taught me most of what I know of real estate law, and to
many other persons who have had the patience and grace to provide their comments
for this publication, and last but not least, to my wife, who lost countless
hours of sleep while I wrote late into the night!
All comments which may help improve and add to this guide are welcome. Please
address them to:
Purchasing Real Estate In Costa Rica
Fax: (506) 23-9151
Telephone: (506) 33-0186
P. O. Box 6997-1000
San José Costa Rica
The Legal System
Costa Rica has a Civil Law system, as opposed to a Common Law system, also
referred to in the case of the United States as an Anglo-American law system.
Our country's original civil code, from which most of our other codes have in
one way or another evolved, finds its origins in the Spanish Civil Code, which
in turn derives from the French or Napoleonic Code. All these are based on Civil
or Roman law.
Compared with the Anglo-American "Common Law" system, interpretation and
application of the law under the "Civil Law" system is much more restricted.
Precedent has little or no force and is used as clarification of the law only.
There is less interpretation of the law by the judges. With one exception, the
Constitutional Court or Constitutional Chamber of the Supreme Court, known as
the "Sala Cuarta", jurisprudence is not compulsory.
For these reasons, foreigners are surprised to find that contracts in Costa
Rica are not as comprehensive as they may be in their home countries. In Costa
Rica, a contract covers only what the law does not mandate, while under the
Common Law, contracts cover much more, since they have to allow for as little
interpretation as possible.
Civil law is much more rigid, to the extent that form, in some cases, is
equally or more important than substance. Many acts or documents will have no
legal value, or differ as to their effect, if certain formalities required by
the law have not been met. This is especially true in real estate transactions.
Such transactions must be registered to have full legal effect, which means that
they must be closed before a notary public fulfilling a series of steps required
by law.
Real Estate Records
Under the Costa Rican system, public registries are of the utmost importance and
value.
All properties, or fincas as they are technically called, are registered in
the Property Section of the Registro Público under the Registro Nacional.
Condominiums are the exception, since they are registered in a special section
in the Registro Nacional called Horizontal Property (Propiedad Horizontal). In
this section, property subject to condominium laws and regulations is registered
under a general entry (mother property -finca madre) and each individual unit is
registered separately finca filial as secondary fincas or subentries.
In the Registro under the property or condominium registry entries, one will
find entries dealing with all registered liens, encumbrances, leases and other
related entries with reference to a specific unit or property finca. From such
entries one must go to the specific registries or sections where these liens,
encumbrances, leases and other entries are registered, and in some cases
microfilmed or scanned, in order to obtain detailed information about them.
Some of these registries or sections are:
(1) The mortgage section, hipotecas; where all mortgages subject to
registration must be registered in order to affect a given property or finca.
(2) Bond mortgage section, cédulas hipotecarias.
(3) Microfilm, where all documents are microfilmed.*
(4) The Diario where documents, that are not yet registered or are partially
registered, can be reviewed as to their content as summaries.
(5) Horizontal property, Propiedad Horizontal (Condominiums).
(6) Commercial Section Mercantil; where corporations are registered as well as
other business associations and other business related matters.
(7) Persons, Personas; where individual powers of attorney may be found, and
other kinds of juridical persons other than business associations.
(8) Plat or Plot Registry, Catastro; where lot maps are kept.
(9) Leases, arrendamientos.*
Theoretically, the Property Registry should show all liens, encumbrances and
any related contracts affecting the property. Also, in most cases the Catastro
(Plat Registry), also a part of the Registro Nacional (National Registry), will
have a registered map or plat of the property showing its owner, reference to
the registration in the property section, location, size, boundaries and, in
some cases, updated ownership of surrounding properties.
The registered owner of a given property is therefore the legal owner of that
property. Whereas only those liens or encumbrances registered under such
property ought to have a claim against it, this does not always prove to be
true. There are other liens or encumbrances either established by law (i.e.,
building restrictions and tax liens), or forthcoming from circumstances such as
unregistered leases or possible future easements, as well as other
possibilities, most of which will be explained in this guide.
Most people believe a simple property title study is enough. They will tell
you this can be done in the Registro, since it should be possible to reach the
original property entry which in some cases may be more than a hundred years
old. Again, this is not always correct.
It would seem that title insurance is not necessary in Costa Rica, since once
a thorough study has been made in the Registry, one should have nothing to fear
and can purchase the property. This is true in most cases, but not in all. As
title insurance is not currently available, one should pay special attention to
have a thorough title search and property study.
Once you have purchased your property it will be registered. In order to
ascertain that registration has taken place you may get the testimonio, or copy
of the closing document with the seals showing its registration, or a
certificate "certificación" from the registry showing registration in your name.
* Due to changes taking place in the Registry at this moment, the microfilm
section will disappear in the near future, possibly being substituted for a
scanning section. Other similar changes are being studied and may be adopted.
Getting Professional Help
Real Estate Agents or Brokers
You may already have a property in mind or may want to look for one. If the
latter is the case you will make your first important decision: finding a real
estate agent or broker, agente or corredor de bienes raíces.
Such an agent or broker will usually receive a commission from the seller of
between 5% and 10% of the purchase price if the sale is closed.
Most agents or brokers will have their own list of properties for sale. Such
a list should not be confused with what you might know as listed properties.
Some real estate agents or brokers have executed legal documents establishing
their right to act as agents for the seller; most have not.
In Costa Rica not all persons acting as real estate agents or brokers are
licensed. There are few regulations as to the process, and almost anyone can act
as an agent or broker, although there are some very good agents and brokers with
a long track record.
When you look for a real estate agent or broker, it is advisable to check his
or her reputation. You can also check if he or she is a member of the Costa
Rican Chamber of Real Estate Agents, Cámara Costarricense de Corredores de Bienes
Raíces, or the Costa Rican American Chamber of Commerce - AMCHAM.
Remember: the agent or broker is paid a commission by the seller for the sale
of the property, and therefore has a vested interest in the sale.
The real estate agent or broker has no legal obligation to you as a buyer
other than helping reach an agreement between you and the seller. Needless to
say, he must not misrepresent the property to you. Most will also act as
intermediaries in the negotiation of the price and conditions of the purchase.
Some will, on their own initiative, have studies made in the Registry in
reference to the property. Very few will go beyond that point.
If possible, obtain written statements from real estate agents or brokers, or
sellers, as to those special characteristics you want the land or house you are
purchasing to have. It is surprising how statements differ when put in writing;
it is also the only way to have legal recourse if such statements prove to be
untrue.
Attorneys and Notaries
While you are looking for your property, or once you have found it, you will
need an attorney, abogado.
Choosing your attorney is your second important decision.
Your attorney will be the person who will protect your interest during the
negotiations and the closing.
The attorney will check the property's registration at the Registro, and
inform you of its registered legal status, its owner, and which, if any, liens
and encumbrances are registered or in the process of being registered against
it. He will also advise you as to the conditions and clauses of the contract for
sale.
When you reach the point of closing, the seller and buyer must select a
notary, notario. The notary will be responsible for drafting and registering the
purchase documents. Legally, the notary is working for both parties and should
look after both parties' interests. In fact, this obligation is often not
complied with, since the notary tends to be a trusted person of the party
selecting the notary.
If you are paying in full upon closing, you, as the buyer, have the right,
unless otherwise agreed, to select the notary. If your purchase is financed by
the seller, he will have such right unless agreed differently. Selecting the
notary may be the subject of negotiation. If nothing is agreed, the notary will
be designated by the parties as stated, according to statutory provisions. If
you are financing your purchase with a lending institution, the institution will
want to designate the notary as a condition to the financing.
If you wish to select the notary, it is advisable that you make known your
feelings to the seller during the negotiations. Another possibility is the use
of two notaries in the closing deed, or a notary for the purchase and another
for the mortgage if any, although this last case may be more expensive in stamp
taxes, registry and notarial fees.
Notaries under Costa Rica's civil law system have much greater
responsibilities than under common law. In Costa Rica, notaries must be
attorneys before they are accepted by the Supreme Court to act as notaries. It
is this Court that regulates notaries and their conduct.
Notaries are responsible for studying the property in the Registry and seeing
that it does not have liens or encumbrances, or any other limitation registered
or in process of being registered, of which the buyer does not have knowledge.
The notary, in effect, makes the equivalent of a limited title search. Also, the
notary will make sure the property you have selected is duly registered in the
alleged owner's name and that such owner has the right to transfer title. If
there are liens, encumbrances or any other restrictions registered, he must let
you know so they are accepted in the closing contract.
The notary or notaries responsible for the closing must draft the purchase
contract. The document will be incorporated into the notary's register, commonly
known as a protocol book, protocolo, under a specific deed number for execution.
Once signed, the notary is responsible for registering the purchase in the
Registry as soon as possible. He may not be able to do so, and is not
responsible for final registration, until all needed documents and monies are
provided to him by the parties and his fees are paid in full.
In a normal transaction the documents needed are:
(1) A legible copy of the land tax impuesto territorial receipts paid up to
the quarter (trimester) of the date of purchase, provided by the seller.
(2) A certificate constancia municipal, issued by the municipal authority of the
Municipality where the property is located, stating that all taxes and fees for
municipal payments are current., provided by the seller. An identical
certificate as the aforementioned one, but for the buyer, provided by the buyer.
(3) Enough funds to pay all taxes and registration fees of the transaction.
Usually provided in equal amounts by both parties.
(4) Full payment of notarial fees, usually provided in equal amounts by both
parties.
(5) Other necessary authorizations needed to segregate a section of land from a
property whenever this has not been done before the closing and is necessary to
transfer the section you purchase; or to cancel a prior mortgage, lien or
encumbrance, in order to transfer free of liens and encumbrances, or any other
document or payment required due to prior transactions registered or in process
that are not the responsibility of the notary, provided by the seller.
(6) Powers of attorney poderes, when needed, provided by the party acting with
the powers; or other corporate documents.
The referred documents and monies are to be provided to the notary on or before
the execution of the closing deed. If the notary is not provided with all the
above, he is not responsible for finalizing the registration, although he is
responsible for presenting the deed to the Registry if it has been executed.
When one or several of the documents or monies are not given to the notary, or
paid in full on time, it is within his right not to execute the deed. The notary
must finalize registration once he has been provided with all such documents and
monies.
There is relatively new legislation making it compulsory for all parties
involved in registered transactions to be current with all their taxes. Since
several different procedures have been adopted to comply with such requirement,
some of the documents listed may vary and others may be added to the list. Refer
to your attorney for an updated list within sufficient time before closing.
Presentation of the deed to the Registry, commonly referred to as the
annotation, "anotación", will protect the buyer since he will have priority over
those documents that might affect his rights, presented to the Registry after
his.
Your attorney, if he is not also the notary, will review the deed and suggest
those changes he may deem necessary to protect your interest and reflect clearly
the intention of the parties.
Be aware that if you request a notary to prepare a deed for execution and
then do not wish to do so because of reasons different than those in which the
notary may be at fault, he has the right to collect from you a fee equivalent to
25% of the fee he would have collected if the document had been executed.
Other Professionals
It is a good practice to have other professionals or companies aide you in your
decision, such as surveyors, engineers, appraisers, etc. Always make sure the
property you are shown and the one you are given legal registration information
about are the same. Always request a registered plot map plano catastrado.
We know only of Propstdy for comprehensive property studies in Costa Rica.
If possible find individuals with a track record. Be sure to have references
with respect to these professionals. Try not to use those proposed by the seller
or broker.
Costs
If you use an attorney, either because you wanted him to advise you while
looking for the property, or because the seller selected the notary and you wish
to have additional advice, he will charge you a fee for his services. This fee
is in addition to the notarial fees collected upon closing.
It is best to agree on this fee at the beginning of the attorney-client
relationship. It can be a fixed amount, a percentage of the transaction price,
an hourly fee, or a combination of these. It is advisable to ask for a quote at
the beginning, and have your agreement in writing, as this will eliminate the
possibility of future misunderstandings.
As stated, in addition to legal fees, when closing takes place, notarial fees
must also be paid for the notarization and registration of the closing. Notarial
fees have a fixed rate established by executive decree. As of today, for real
estate transactions the rate is 1.50% of the first one million colones of the
price of the transaction, and thereafter an additional 1.25% of the remainder of
the agreed price. You must also add to that cost a 3% property transfer tax,
stamp taxes and Registry fees, (See Exhibit I), a total of approximately 5.28%
of the price. (For mortgage costs see Exhibit II.)
The buyer (or seller) need not have both an attorney and a notary, since as
previously stated, notaries have both titles. It is advisable to have both, or
request additional advice from the same person, since notarial work only
includes advising on, drafting, and registration of the final closing deed.
Having an attorney early in the process will allow you to know what is the
real legal status of the property you wish to purchase and have advice available
when options or other pre-closing legal documents are to be executed. In many
cases, in order to eliminate possible future problems, it is also advisable to
have additional studies made.
A common practice, which should be avoided, is to state a lower purchase
price in the closing deed than the true agreed price. This is done in order to
pay less transfer tax and tax stamps upon closing, allowing also for a lower
valuation for land tax purposes thereafter. This practice, aside from being
illegal, may be considered as tax fraud by the tax authorities, hamper the
buyers' right to claim for damages, as well as create problems for the
accounting of the transactions in the buyers' records.
If the price stated in the transfer deed is lower than the registered price,
at the time of presentation to the Registry, additional taxes will have to be
paid and the notary has the right to collect his fees based on the increased
value. Declared values in the closing deed are never diminished.
The Purchase Process
Once you have found a property you will want to know its legal status. If you
already have an attorney he will make a Registry study to determine the status.
If all is well you can either go ahead with negotiations with the seller and
agree on price and closing conditions, or take additional steps to assure
yourself that the property is what you want. Some of these steps may include
those necessary to discover other possible nonregistered restrictions, and
assure yourself that all your needs (e.g. sewer, water, electricity, etc.) are
supplied in the area where you are purchasing (for a list, see Exhibit III).
It is advisable not to rely only on the oral statements of the seller or any
intermediary. You should request written evidence of their statements. If you
wish, you can also obtain an independent appraisal. The appraised value is
usually only a reference, and may not reflect the actual value of the property.
If an option is to be signed, do not offer more money than is strictly
necessary. Options are usually not registered and if not complied with have to
be taken through a lengthy court process to have them honored. If you wish to
register the option against the property, be aware it may be expensive, but is
the most common way to insure the option will be honored. It is prudent to have
your own legal counsel available for options and other related pre-closing
documents.
It is also an excellent practice to allow yourself and your attorney ample
time between the moment you make the decision to purchase and the closing. Use
this time to check the property thoroughly. Always make sure the property you
see is the one you are buying. Ask for a plot map; if one is not available or
you have doubts as to its exactness, have a new one made. If necessary, get
professional help from a surveyor or property research company.
Once all matters of concern are agreed in principle, you will need a notary
(or notaries) who will study the property in the Registry, draft the closing
deed, and execute it by signing it with the parties. All deeds are in Spanish.
If you do not speak Spanish fluently, you have the right to have an interpreter
present, who can be the same notary, and to have the deed reflect the fact that
it was translated and explained to you in your native language. The notary has
the obligation to allow for the interpretation. The interpreter will be an
additional cost for you and is not included in the notarial fees.
Upon execution, the notary has the obligation to present an original copy of
the deed as soon as possible to the Registry, so that it is annotated against
the property. This is very important, since if another sale of the same property
were to be annotated before yours, the first one would have priority and you
would find yourself with the only alternative of suing the seller for fraud.
Once your deed is registered, you have the right to obtain proof of
registration, usually the original copy of the deed, testimonio, duly
registered. The registration seals must be visible on the copy; they will have
the relevant information as to where the transactions are registered.
Your property will have a folio real number showing you are the owner. Anyone
can obtain a copy of the folio real at the Registry. The folio real is a public
record. Also available are computerized registry statements, which are not legal
certificates, but show what is registered. An independent notary can also
certify your property ownership. If you are in doubt it is advisable that you
make sure registration has taken place.
If your purchase is not fully registered and is only annotated, you most
probably will have problems transferring the property afterwards. You will have
to finalize registration before a new transfer can be registered.
Property in General
Means of Holding Property
Property can be owned individually, jointly, in trust, as household property, or
in the name of corporations, or a combination of these. It can be owned and held
either by one or more individuals or in the name of one or more companies.
For reasons pertaining to limitation of liabilities and estate planning, the
most common and advantageous way to own property in Costa Rica is through a
corporation. Costa Rican corporations can have all issued stock owned by one
individual. Share sale income, if not part of normal business, is not taxable.
There is no capital gains tax in Costa Rica. Share sales pay no transfer tax.
Different Property Rights
Property rights differ depending on the kind of title and ownership. Our
Constitution grants foreigners the same rights as property owners that nationals
have, with few exceptions, one being ownership of beachfront property leases.
Others are specially titled property, with transfer restrictions. (see Other
Encumbrances, Origin of Title.)
One can have full property rights, or restricted ones.
Joint property can be physically localized upon the land or be a percentage
of all the property. Property may also be under condominium ownership.
In the case of certain beachfront property or other government owned lands,
it can be held (not owned) through a concession, granted by the government.
These concessions are sometimes thought to be leases because these holdings are
referred to commonly as leases, arrendamientos, although technically they are
not.
Private property can also be held by lease, by usage agreements, as a
squatter, de facto occupant, or occupant with permission from owner without rent
payment, as well as in several other ways.
Property owned and held in different ways is regulated by different statutes.
For specifics on these subjects you should refer to competent attorneys.
Titled and Untitled Property
All property registered under the Costa Rican civil law system is titled
property. Untitled property can not be registered. The ownership of untitled
property is uncertain. It is true that possession is important, but not until
the property is titled will there be certainty as to the legal ownership of the
land. Even when possession is apparent, it may not be legal possession. It is
possible to purchase the rights to possess untitled property, but this entails a
substantial risk since there is no way to know if the seller is the legal owner
of such rights and can legally transfer them. There is a court proceeding,
información posesoria, which allows, in most cases, a legal possessor of land who
has been either in possession uninterruptedly for ten years, or who has acquired
the rights to such ten-year possession, to title and register the land.
If land has been recently titled, there is a special three-year period when
third parties not involved in the titling process may go into court and assert a
claim to a superior right to the property. After such period, a claim is
possible but is more difficult. The statute of limitations for such a claim is
ten years.
A word of caution! Stay away from untitled property. This is one of the areas
of real estate transactions where I have seen many problems. No matter what you
are told, there is no sure way to establish legal ownership of untitled land.
For a secure transaction, land must be legally titled and registered in the
National Registry!
Constitutional Protection of Private Property
Traditionally, Costa Rica has protected private property, one of the pillars
of its democracy. Not even in the worst times of Latin America, when the
generalized trend was to expropriate the property of foreigners was Costa Rica a
part of such practice. There have been some expropriations in the past, and some
have not been paid even today, but this is the exception and not the rule. With
our new Constitutional amendments and the Sala Cuarta, it is difficult for such
a thing to happen nowadays.
Article 45 of our Constitution provides for protection to private property.
No one can be deprived of his property if it is not for a justified public
interest legally proven, in which case the person must be previously and justly
compensated.
Limitations to property and property rights can only be enacted if the law
establishing them is approved by the vote of two-thirds of the legislature. All
other restrictions are unconstitutional and can be taken to Constitutional Court
to be declared as such.
In Costa Rica, after a constitutional amendment that took effect in October
1989, it is relatively easy and inexpensive, compared to other countries, to
file a constitutional case and in most cases stop the Government from taking
property before just compensation is paid.
Due to the constitutional procedure now available, we can safely say that
private property is well-protected in Costa Rica. Problems arising from
expropriations, although few in the past, are not the general rule.
Most Common Registered Liens and Encumbrances
Liens
A Lien is a charge, hold, claim, or encumbrance upon the property of another, as
security for a debt or charge. It is not a title to property, but rather a
charge upon it; the term connotes the right which the law gives to have a debt
satisfied out of the property, by the sale of the property if necessary.
There are several different kinds of liens in Costa Rica; among them are
Consensual Mortgages, Bond Mortgages, Legal Mortgages Tax Liens.
Registered Mortgages
These will be checked by your lawyer and the notary of the transaction. Usually
upon your request, they will be explained to you as to their cause and effects.
Mortgages normally are:
Normal Consensual Mortgage. Hipoteca Común. This mortgage is a security for a
loan. If the loan is not paid, the property is sold through the court and the
amount and costs of execution are paid from the proceeds. It can be executed
even if it is only annotated against the property; it need not be fully
registered to have full legal effects. Title to this kind of mortgage can be
assigned, but such transfer will have the same or similar costs as a new
mortgage. If the amount owed is not fully covered by the proceeds from the sale
of the property once the mortgage is executed, the creditor can claim from the
debtor the unpaid balance of the debt.
Bond Mortgage. Cédula Hipotecaria This kind of mortgage is under a document
form. The legal owner of such document has the right to collect a certain amount
from the debtor and if it is not paid, he has the right to auction the property
through the court and pay himself with the proceeds.
It differs from a normal consensual mortgage because the ownership of a bond
mortgage can be transferred by simple endorsement of the document of title, and
it can be used over and over again to secure loans or other transactions without
the necessity of registering a mortgage every time a guarantee for a secured
transaction is needed. Also if the sale proceeds of a bond mortgage are not
enough to pay off the secured debt, the creditor can not go after the debtor for
the unpaid balance.
A word of caution: due to the fact that in past years inflation in Costa Rica
has been high and bond mortgages must be registered for a fixed amount, having a
life of ten years, often the property's market value is much greater than the
bond mortgage amount. Because of this, some people may not want to use their
bond mortgages as security due to the small amount of the market price of the
property that the bond mortgage represents.
Mortgages Considerations. Mortgages may have been agreed to in such a way
that some fixtures not normally considered as part of the mortgage are included
under the mortgage. Since mortgages have to be annotated or registered against
the property to affect it, these conditions should be found during the title
search. (Goods attached to the soil, machinery, trailers without their wheels,
etc., are examples of such fixtures.)
Some mortgage agreements restrict certain rights of the owner of the
property, mostly prohibiting transferring or encumbering the property for a
given period. For the same reasons stated, such limitations or restrictions
should be found in a good Registry study.
Also chattel mortgages can be imposed upon crops or goods found on a property
that shows free and clear title in the Registro. This is common in coffee farms
where the crop, the chattel, has been mortgaged to the local coffee miller to
finance the coffee operation. This can also be the case for future crops. Such
chattel mortgages will not be found registered against the property, but may be
found in other sections of the National Registry (Chattel Mortgage Registry).
Judgment Liens. These liens are annotated upon the property to which they
refer. They are court ordered when the property is attached, or when the right
of ownership, use, or any other rights pertaining to the property are being
questioned in court. Depending on the kind of court case they refer to, they can
go from minor matters to a loss of the property.
Unregistered Mortgages
Legal Mortgages or Tax Liens. These liens are established by law, usually for
non-payment of national or municipal taxes or transfer taxes.
If property taxes, transfer taxes, or other taxes have not been paid in time,
the property against which those taxes were assessed becomes legal security for
payment. This is true even when the owner is no longer the same as when the
taxes were not paid. Under this case we find:
1.-Road tax: Detalle de Caminos. Should appear on the municipal certificate
showing taxes owed. Usually unregistered.
2.-Transfer tax: Impuesto de Traspaso. Evident only when a pending transfer is
annotated against the property.*
3.-Land tax: Impuesto Territorial. Usually unregistered. Applied on land and
constructions on the land as well as other improvements. This tax is annual and
is an amount equivalent to the registered value multiplied by 0.3% to 1.17%. It
is paid in quarterly installments.*
4.-University and Charity stamp tax, Timbre Universitario y de Beneficiencia.
Although some properties might still show these pending taxes, they are no
longer important as they have long since been abrogated and the ten year statute
of limitations has gone by in all pending cases.
5.-Luxury home tax. Impuesto a las Construcciones de Lujo.Homes of a value
higher than an amount stated by the luxury tax law must pay an annual tax. Such
amount is currently colones 5,000,000 but may vary every year. Value excludes
land value and only constructions are considered for this tax. *
* Currently there are proposals in our legislature to modify these taxes.
Transfer tax could be diminished to 1%, land tax to a rate not yet determined.
Luxury home tax could be abolished. These changes are subject to congressional
approval.
Other Encumbrances
An encumbrance is a right to, interest in, or legal liability upon real property
which does not prohibit passing title to the land but which diminishes its
value. Encumbrances include easements, leases, privileges, restrictions of use,
homestead privileges, etc.
Annotations. Anotaciones. An annotation is not an encumbrance by itself, but
is a sign that something is in the process of being registered against the
property. Once an annotation is found against the property, it should be studied
carefully in order to establish the right or rights being registered.
Easements. Servidumbres. An easement is a right created by an express or
implied agreement, of one owner of land to make lawful and beneficial use of the
land of another, not inconsistent with any other uses already being made of the
land.
Easements should be registered in order to affect third parties (i.e., a
buyer). Though rare, certain properties could have an easement right against
them, even though it is not registered. This may be because another property has
acquired the right to such easement through its use over a period of time, but
the easement has not yet been granted by a court.
Easements are of different kinds. They may be apparent or nonapparent.
Apparent ones can be seen if you are on the property, such as electric lines,
water canals, private roads (rights of way), windows with rights of air and
light, etc. Non-apparent ones are more difficult to see, such as underground
pipes, non-apparent rights of way, etc. Since they are mostly all registered
with the exceptions mentioned, the effects on the property are easily
determined.
A word of caution. In some instances the description of the easement or its
conditions are not those in reality being practiced on site. Since easements can
legally change by practice through time, it is wise to make sure that both are
the same and that in those cases where they are not, a solution to the problem
is reached before you purchase.
Leases. Arrendamientos. A lease is an agreement by which a property owner or
holder turns over use of the property to another, usually for a given period of
time, for consideration commonly called rent.
In Costa Rica you will find two different kinds of leaseholds. One is
referred to as urban leasehold contrato de inquilinato and the other as the
common leasehold arrendamiento civil. Each kind of leasehold has its own law
applicable to it.
In the first case (inquilinato), the tenant is fully protected by a statute
applicable to urban property leased for housing, office space, industrial or
commercial purposes ley de inquilinato. Under the Ley de Inquilinato or
inquilinato, as it is called, for short, it is almost impossible to evict a
tenant.
Eviction, with few exceptions, can not take place as long as the tenant pays
his rent on time and complies with certain very basic obligations. If there is
no agreement as to increases in rent in the lease contract, increases can only
happen every five years, with the intervention of a judicial authority, if the
landlord and the tenant are not able to reach an agreement.
Exceptions to the eviction rule are: (a) when the owner is going to use the
property for his own personal or immediate family use, and can prove that
neither he nor his family has lived in a house of their own in the near past; or
(b) when the building leased is to be rebuilt or refurbished, in which case the
evicted tenant has a priority to lease in the new building; (c) when tenant does
not pay rent.
Other similarly onerous obligations are imposed by statute on the landlord
under this kind of leasehold and can not be contractually waived by the tenant.
Property rights are limited because of lease contracts; and their effects on the
property must be well known before a closing is executed.
These leases need not be registered to affect the property. The only way to
determine whether they exist is by physically inspecting the property and
questioning the person that has possession. Currently legislation is being
discused to amend this law.
The second kind of leasehold, the civil lease, is more of a contractual lease
in which the parties agree freely to their contractual obligations. They are
regulated by the civil code, and are very much restricted to what is said in the
contract. This kind of lease is normally found in farms and other agricultural
property not leased for residential, industrial or commercial purposes. These
may also be registered or not.
Unregistered leases are common in Costa Rica. Most leases are not registered
against the property.
A word of caution! It is wise to have all tenants evicted before the purchase
of the property takes place. If not, one may find himself in court for a long
time, without being able to use the purchased property other than leasing it to
the tenant already there.
Water Rights. According to the local Water Laws Ley de Aguas, all property
below other property must give right of way to waters coming from a higher
property. Also based upon the same law, restrictions as to construction lines
near water ways, rights of way to clean or inspect water ways, restrictions as
to what can be cut next to waterways, etc., may be found registered against the
property.
Restrictions Due to Future Roads or Projected Road Expansions. Restricciones
a la construccion por congelaminetos para caminos. Restrictions of this kind may
be found registered against the property. Most of these restrictions will not be
found when the title search is performed since they are not registered.
To obtain the construction line and other similar types of limitations, both
the governmental authorities in charge of transport as well as the municipal
authorities must be consulted. Some of these restrictions may be
unconstitutional, but until declared as such will remain in force
Private Roads converted into Public Roads. Caminos Privados convertidos en
Públicos. According to the Public Roads Law, Ley de Caminos Públicos, if a private
road is left open to public use for more than a year such road is then
considered to be a public road and cannot be closed to public use. The owner of
the land may lose his right to own and use that part of it on which the road
stands. In our opinion, this article of the law is unconstitutional. As this
guide is being written, this issue is before the Constitutional Court, and time
will let us know if we should worry any further because of this statute. In most
cases, such a circumstance will not be registered against the property.
Zoning. Zonificación. Although the current zoning law has been in effect since
1974, it has only begun to be enforced in recent years. Zoning restrictions are
not registered against the property and must be researched separately.
A word of caution! Pay special attention to zoning!
Party Walls. Medianeras. Party walls are those walls where both property
owners have a right to a part of the same wall. This is more common in old
properties. If party walls are encountered, one should remember that they are
subject to certain special legislation found in the Civil Code. Condominium
property is different from the law of party walls.
Origin of Title. Titles have different origins. Some are several hundred
years old . These titles were granted by the King of Spain, and in some cases
include beachfront property up to where the water reaches the horse's midriff
while in the sea.
Many titles have been registered by a judicial titling process known as
Información Posesoria. Through this process, the court establishes that a person
has exercised possession of a section of land, publicly, peacefully, and as the
owner, for more than ten consecutive years, or has acquired such rights from
someone with such possession.
Also, good faith is required (bona fide possession). This means that the
person or persons exercising the possession do not know of any other person with
a better right to the section of land in possession. It also implies that the
possessors do so believing they are the rightful owners of the land.
There are several different processes regulated by different laws. These laws
and regulations have changed over time. This short explanation will be limited
to current application of actual amended laws and regulations.
When land is registered by means of an Información Posesoria, depending on
which procedure is applied, it might have transfer restrictions, easements to
maintain water rights, forestry restrictions, and public road restrictions.
Generally, the process consists of a request by the possessor, accompanied by
a map or plat of the lot to be registered. Notice of the Información Posesoria is
made to all neighbors. A publication of the request, stating a period of time
for rightful interested parties to present opposing claims, is made in the
national gazette. If no opposing claims are made, or if those made are rejected,
the judge hears three witnesses that support the possessors' demand that he has
had uninterrupted, public, peaceful possession as owner of the land. Finally, an
on-site inspection of the land is made by the judge, and if no problems are
found, title is granted and a writ is issued to the Public Registry, Land
Section, to register the land in the name of the possessor.
There is a validation period of three years before title becomes final. Title
can still be contested for a period of ten years after registration takes place,
by any party with a better right to the land. This last seldom happens
Squatters Rights. Unattended property is an open invitation for squatters.
There have been cases in which "guards," hired by the owner and left to look
after the property, have taken advantage of the circumstances to claim squatter
rights. It is advisable to have a contract clearly stating the nature of the
possession of the property left with someone in charge.
Possession is a mayor issue in squatters' rights matters. Once squatters have
taken possession of a property, judicial intervention is required.
If judicial actions take place during the first three months after the
squatters have taken possession of the property, the procedure to oust the
squatters is a relatively simple one compared with those that must be undertaken
thereafter.
If the squatters have been more than three months but less than one year on
the property, the ouster procedure is somewhat more complicated and time
consuming, but the effects in comparison are not so negative, and squatters
improvements to the property do not have to be reimbursed to the squatters.
In those cases in which the squatters have been on the property for more than
one year, but less than ten years, the property is still salvageable, although
ouster procedures may last years. All improvements made to the property have to
be reimbursed to the squatters before they can be ousted. This last usually
entails intervention from governmental authorities, the Instituto de Desarrollo
Agrario, known as IDA.
A property owner's idea as to squatters' improvements and a court's idea may
be quite different. Improvements are investments in the property; technically,
they could even make the property lose value from a general real estate view.
Typically, the erection of huts, the planting of trees and other plants, even
elimination of original forest, are considered improvements. The legal owner may
find the property ruined, in his view, but still have to pay for improvements.
Facing such a case, it is advisable to negotiate with the squatters rather
than spend a long time in court. In a good negotiation, one may be better off
paying an amount up front than having the court decide the final
indemnification, notwithstanding the fact that the owner will also have to cover
legal costs and fees.
When squatters have been in possession of the property for ten years or more,
it is most probable that they have obtained legal right of title to it, although
this is not an absolute rule.
In all cases it is advisable to look for legal assistance the moment a
possible takeover by squatters is suspected or has occurred.
Mining Code Restrictions. Ownership of a property grants the owner property
rights in the topsoil but not the subsoil. All minerals are government owned.
The Costa Rican Mining Code establishes the authority to grant an exploration or
exploitation permit on third party registered property. These concessions will
not appear in a Public Registry study. This law also allows for easements to be
imposed on third party property whose owner does not allow concessionaires to
exercise their mining exploration or exploitation rights. In the case of
easements, when finally granted, these will be registered in the Registro
Público. For this reason they are usually negotiated with the legitimate owner
before enforcing them by administrative or judicial means. Compensation must be
paid to the property's landowner for restricting its use in this manner.
Ecological Restrictions. Costa Rica is trying to preserve its natural forests
and other resources. To that purpose there is a substantial body of law being
issued.
There are several different types of restrictions applicable to property for
ecological and conservation purposes. These go from absolute preserves that are
public property where, supposedly, everything must be maintained in its natural
state, even restricting visits through National Parks, biological preserves,
protective or buffer zones, forestry reserves, to non-restricted areas. If your
property is in a buffer zone or forestry reserve, you will most likely find
these restrictions. No one can own property in National Parks. Limited use is
allowed in some of these areas.
In all cases cutting a tree in Costa Rica requires a permit, no matter where
it may be. Any use of mineral, spring, or river water must also be by means of a
permit granted by the corresponding authorities. Non-compliance with these laws
and regulations may entail severe penalties, and in some cases even jail terms.
Water rights or concessions are obtained usually from the Servicio Nacional de
Electricidad and tree-cutting permits from the Dirección General Forestal.
Construction Restrictions. Construction or renovation of buildings may be
restricted in several different ways. They may have been declared historical
sites. They may be close to airports. Also, certain parts of a property or
building may have restrictions or prohibitions due to future road expansions. In
this last case, if a waiver to collect indemnification for improvements is given
in favor of the Government, authorities may grant permits for building or
improvements. Keep in mind that if such waiver is executed, the authorities can,
thereafter, destroy or purchase the building or land, and the construction of
improvements will not be taken into account for indemnification purposes.
Special Cases
Beachfront or Shoreline Property
In Costa Rica, you can find very few cases in which shoreline property is titled
and is for private use. These cases are those involving rights registered in
colonial times, and certain urban property next to the sea. The rest of the
first 200 meters above high tide is public land, the use and administration of
which is controlled by the local government, Municipalidad. After the 200 meter
zone it can be privately held and titled.
Most shoreline property can only be leased. The first 200 meters are
regulated by a law called the Ley sobre la Zona Marítimo-Terrestre. (Shoreline
Zone Law). Of those 200 meters measured from the tide's highest point, the first
50 are public and can not be used for anything else than the publics'use.
Nothing private can be built in such area. The remaining 150 meters can be
leased for private use. Certain buildings are allowed in this second area, but
these will revert to the municipalities (local Governments) at the termination
of the lease if such lease is not extended or canceled, although improvements
must be paid for in almost all cases. Islands are also subject to this statute.
Municipalities are the entities in charge of granting concessions (leases)
within the shoreline zone, through a process regulated by the Ley sobre la Zona
Marítimo-Terrestre.
These concessions or leases are granted for five to twenty year terms. Once
the concession (lease) has been approved, it is registered in a special
Concession Registry in the Public Registry. A yearly fee must be paid to the
municipality for the duration of the lease to keep it current. Failure to pay
may terminate the lease and constructions on it may be lost..
There are certain restrictions for foreigners when holding these leases. If
the lease is held personally, foreigners must first have five years of legal
residence in Costa Rica. If a company has title of the lease, it can not have
more than 50% foreign ownership.
The National Geographic Institute, Instituto Geográfico Nacional, is the
entity in charge of the demarkation of the maritime zone. If the zone is not
marked and a development plan has not been drafted and approved, the authorities
are, in many cases, unable to grant building permits for development of the
area.
There are other kinds of leases in shoreline zones. Because they are not so
common we will not address them here.
If your intention is to purchase beachfront property, it is advisable that
you have good legal counsel before agreeing to any transaction.
Condominium Property
Condominiums are becoming more and more fashionable in Costa Rica.
Condominium property has a special status. It is registered in the
"Horizontal Property Section" of the Registro Público. Condominium properties
have a main farm, finca madre, and sub farms, fincas filiales. The main farm is
the general registration of the entire condominium. Each sub farm is a unit of
the condominium.
When a unit is purchased, the owner must submit to the condominium
regulations in the deed by which the purchase takes place. Condominium
regulations establish the rules by which the condominium is managed and how
issues pertaining to relations between the unit owners are to be handled.
Knowing and understanding condominium regulations is of utmost importance when
purchasing condominium units.
Some condominiums have restrictions as to pets, or social and business
activities. Also, in almost all condominiums a monthly maintenance fee must be
paid. This fee can usually be increased when a majority of the condo unit owners
are agreeable. When purchasing a condominium, it is wise to have a certificate
issued by the appointed manager stating that no past condominium fees are unpaid
and all are current. When monies are owed, the unit becomes collateral for the
collection of the debt, which is a privileged debt. Therefore the unit must be
free and clear of such debts before purchase takes place.
Condo units can be mortgaged as any other kind of property. In Costa Rica
condominiums are a relatively new solution to maintenance costs, social areas
and security. Lately, we are also seeing conversions, that is, older buildings
being renovated and subjected to condominium laws and regulations. In many cases
regulations do not cover most conflict areas and may be amended as these defects
are found out by the unit holders.
Restrictions explained in other parts of this guide may also apply to
condominiums.
Final Comments
Our best advice is to examine your property carefully, always take your time
before closing. Use reputable specialized professionals to help you. If you wish
to be sure, you may want additional studies of the property done. Although cost
is always a consideration, if you have to spend an additional amount on
security, this will undoubtfully outweigh the cost of buying a property with
problems, in some cases so severe, you can lose your investment and more.
We hope you have made good use of this guide and that it has been able to
give you the information that makes the difference.
Enjoy this beautiful country, and cherish your piece of Costa Rica as our
fathers and grandfathers have done with theirs, and have in mind they were once
foreigners, too!
Exhibit I
Closing Costs
Exhibit II
Additional costs of mortgage
Exhibit III
Check List for Registered Properties
( ) 1. Registered legal status of the property
( ) 2. Plot map
( ) 3. Area and location
( ) 4. Possession of property
( ) 5. Services
( ) A. Electricity
( ) B. Water
( ) C. Telephone
( ) D. Cable TV
( ) E. Municipal services
( ) F. Health
( ) G. Groceries and pharmacy
( ) H. Fire station
( ) 6. Unregistered restrictions or dangers.
( ) A. Leases
( ) B. Construction limitations
( ) C. Pledges against crops
( ) D. Municipal taxes and services
( ) E. Property taxes
( ) F. Possible future easements
( ) G. Zoning
( ) H. Flood zones
( ) I. Behavior of land during earthquakes
( ) J. Future roads
( ) K. Extractions of minerals if any
( ) L. Past use of land due to health hazards
( ) M. Volcanic zones
( ) N. Seismic zones
( ) O. Ecological restrictions
( ) a. National Parks or Indian Reservations
( ) b. Protected forestry area
( ) P. Activities close to the property that may produce problems:
( ) a. Pig or chicken farms
( ) b. Polluting industries
( ) c. Mineral extractions
( ) d. Establishments visited by quantities of people or vehicles
( ) e. Trains
( ) f. Roads with heavy traffic
( ) g. Airports
( ) h. Stadiums
( ) i. Rivers (specially streams collecting coffee wastes)
( ) j. High voltage lines
( ) 7. Price
( ) A. Appraisals
( ) B. Local area market
( ) 8. Engineering considerations
( ) A. Soil tests
( ) B. Electric system condition
( ) C. Water and sewage
( ) D. Structural condition
( ) E. Termites
( ) F. Roof condition
Some Common Real Estate Terms
Spanish - English
Abogado - Attorney
Alquiler - Rent
Arrendamiento - Lease
Avalúo - Appraisal
Certificación - Certificate*
Comprador - Purchaser, Buyer
Corredor - Real estate agent, Broker
Costo - Cost
Depósito - Deposit
Depósito de confianza - Escrow*
Escritura Notarial - contract
Escritura de compraventa - Notarial purchase contract
Fideicomiso - Trust
Finca - Farm, Property
Firma de escritura de compraventa - Closing*
Gastos - Expenses
Hipoteca - Mortgage
Impuestos - Taxes
Impuesto de traspaso - Transfer tax
Notario - Notary
Opción de compra - Purchase option
Plazo - Duration, Time term
Precio - Price
Propiedad - Property, Track of land
Registro - Registry
Sociedad - Corporation
Testimonio - Copy of the escritura sent to the registry for registration.*
Timbres or Timbres fiscales - Stamp taxes
Topógrafo - Surveyor
Traspaso - Transfer
Vendedor - Seller
* These translations are not exact, there is no exact translation in this
case
Copyright Alvaro Carballo-Pinto 1994 San José Costa Rica
Please contact the author of this article to obtain professional
Costa Rica real estate
legal advice.
|