Property Rights and Foreign Investment in Costa Rica
by Marie C. Wold. Revised January 1998 by Steve Olson and Jose M. Quiros
Table of Contents
Summary
Introduction
Purchasing Property
Establishing Residency
Hazards of Property Ownership
Bibliography
About the Author
Note: For more information on investment in Costa Rica, see the
U.S. Department
of State.
Owning property in Costa Rica is feasible but costly. Although Costa Rica is
an established democracy, one must not lose sight of the fact that it is still a
developing country and is endowed with certain intrinsic hazards of private land
ownership. While there are limited precautions that one may exercise in order to
avoid the hazards of the Zona Marítimo Terrestre, squatters, or expropriation, there
is no foolproof method of maintaining a legal title to property. A thorough title
search at the central depository (Registro Publico) is necessary in order to verify,
and if needed, resolve any discrepancies between, the escritura and the catastro.
Also, if one plans to reside in Costa Rica, it is necessary to establish legal residency
by one of several means available.
In Costa Rica, one may possess a legal title to a property. However, maintaining
that right is an active process that requires constant attention and supervision.
Also, unlike the United States, where the rules governing the purchase of property
and zoning restrictions are well-established, Costa Rica, especially in the Zona
Maritimo Terrestre, has regulations and restrictions that may evolve over time and
may be contrary to the established "rights of occupation" of a given Municipality.
If the uncertainties and the vigilance required of property ownership in Costa
Rica are not disagreeable to a foreign investor, he/she must still be prepared for
the costs associated with maintaining legal ownership of the property. One must
also be aware that as an investor in Costa Rica he/she is dealing with a foreign
government and therefore foreign laws, all of which are outside of the jurisdiction
of the United States government. The United States Embassy continues to be a reliable
source of information for U.S. citizens regarding investment practices in Costa
Rica and attempts to provide advice and assistance to potential investors, but it
cannot guarantee a trouble-free investment experience.
We hope that these pointers, along with realistic expectations and goals, can
help the prospective investor avoid the hazards inherent in investing in real property
in Costa Rica.
Costa Rica previously granted generous incentives to foreign nationals wishing
to become residents. The lure of its beautiful coasts and the warmth of the people,
together with numerous scams, has unfortunately led many Americans to make unwise
and ill-investigated real estate investments. The following is a brief synopsis
designed to provide a prospective investor with the necessary information for a
more thorough investigation of property rights in Costa Rica.
When purchasing property in Costa Rica, proper registration of the property,
and not the deed itself, is of the utmost importance (Carballo, 1995). Simply because
an individual may have a seemingly "legal" title to a property in his/her name,
does not necessarily mean that he/she is the legal owner. Like anywhere else in
the world, there are scam artists who attempt (sometimes successfully) to sell the
same property numerous times. It is therefore necessary to conduct a thorough investigation
of a prospective piece of property as outlined below.
Costa Rica has a Civil Law system rather than a Common Law system. The practical
differentiation between the two systems is that Civil Law is much more rigid than
Common Law, making the procedure frequently more important than the substance. Such
a distinction is of utmost concern when purchasing property, for the letter of the
law must be followed precisely when registering property in order to obtain the
full legal title (Carballo, 1993). All property is registered at a central depository
called the Registro Publico, and it is there that one should begin the title search
for a parcel of land. The title must be checked for any liens or encumbrances, of
which there are often scores. Alvaro Carballo, a Costa Rican real estate attorney,
has compiled a comprehensive check list of items that should be verified before
a purchase. This list is published in his book,
Purchasing Real Estate in Costa Rica: A
Guidebook (Carballo, 1993). If the initial background check is flawed and a
problem later arises, one could unwittingly lose possession of property thought
to be legally owned. Title guaranty services are now available through Stewart Title
Guaranty Company, based in San Jose. Stewart Title advertises escrow and title guaranty
services to protect the consumer throughout the process of acquiring land, and to
indemnify him/her for losses that may be incurred. Stewart Title is a 105-year-old
U.S. company based in Houston, Texas, with over 3,500 offices in the U.S. and abroad.
The trick to buying property in Costa Rica is to reconcile the actual property
with the two documents that legally define a property. The first is the escritura,
which is the title document that describes how the property is recorded in the Registro
in words; the second is the catastro map, which is the plat map of the property
that is on file. The problem with defining a property arises from the fact that
the escritura may not correspond with either the catastro or a physical survey of
the property. Such a discrepancy is due to the fact that when a transfer of property
takes place, the transaction may not have been recorded on the catastro, since a
change in one does not automatically require a change in the other (McMerty, 1995).
It should also not be assumed that the catastro map accurately depicts the property
itself. It is therefore necessary that an independent topographical study be conducted
in order to verify the property boundaries. Any discrepancies within the two legal
documents and the land itself must be resolved before purchasing. Such investigations
may be a bit daunting, not to mention confusing, for the foreign investor. Due to
the intricacies of resolving such issues, retired Brigadier General McMerty and
Alvaro Carballo founded PropData, a company that offers property title investigations,
legal support and financial information. PropData is to date the only known company
of its kind of Costa Rica (McMerty, 1995).
A reputable, diligent attorney should take care of the technical procedures involved
with a title transfer, but such attentiveness must not be taken for granted. Prospective
buyers should beware. They must monitor and understand what is being done, as well
as what is not being done. It is therefore worth mentioning the documentation needed
for the closing:
- A copy of the tax receipt (impuesto territorial) proving that all taxes
and registration fees are paid as of the date of purchase (Puleo, 1995)
- A certificate (constancia municipal) issued by the municipal authority of
the Municipality where the property is located (Carballo, 1993)
- Sufficient funds to pay all necessary taxes and registration fees, including
notary fees. Usually one half is paid by the seller and one half is paid by
the purchaser (Carballo, 1993)
- Evidence that all prior mortgages, liens and judgments have been lifted
(Puleo, 1995)
A notary must be present at the closing. In Costa Rica, notaries are attorneys
accepted by the Supreme Court.
Many single-home investors will be faced with the choice of whether to buy a
preexisting structure or a plot of land on which to build a house. While there are
a myriad of minor impediments that must be scrupulously attended to, most of which
are outside the scope of this paper, a few points are worth mentioning as they may
alter a buyer's decision. The law requires that all applications for construction
permits be presented by an architect licensed by the Costa Rican Association of
Engineers and Architects. Utilizing a certified architect can be extremely costly
as well as cumbersome (Puleo, 1995). Furthermore, construction companies in Costa
Rica are not bonded, thereby greatly increasing an investor's risk. Before building
a house one would be well advised to speak to numerous individuals who have previously
built in order to gain an understanding of the reality of the construction process,
such as constant delays, necessary personal supervision, and cost overruns.
It is necessary to qualify for and establish legal residency if one plans to
live in Costa Rica for an extended period of time. To this end, Costa Rica offers
several alternatives for legal residency: a pensionado (pensioner), a rentista (a
foreigner with a guaranteed income), an investor, a relative of a resident, or one
with a foreign government assignment or an international mission (Lawrence Publication,
1995).
The pensionados and rentistas program has historically been the easiest method
of establishing temporary residency in Costa Rica. Keep in mind when receiving advice
from current pensionados and rentistas who have been residing in Costa Rica since
before 1992, that the laws governing such residency status have changed. In 1992,
the legislature revoked the tax exemption laws that allowed pensionados and rentistas
to bring all of their possessions into the country duty free. Under the current
law, these groups are no longer exempt and must pay import taxes of up to 100 percent
on their belongings.
To quality for the pensionado status, one must fulfill three basic requirements:
(1) prove that one earns at least $600.00 per month from a qualified pension or
retirement account or from Social Security, (2) change at least $500.00 per month
into colones, and (3) live in Costa Rica for at least four months out of the year.
In order to quality for rentista status, one must fulfill three similar requirements:
(1) prove that one has outside investments that will guarantee $1,000.00 income
per month for five years, (2) change at least $1,000.00 a month into colones, and
(3) live in Costa Rica for at lease six months out of the year. Neither pensionados
nor rentistas pay taxes on money earned outside of Costa Rica.
Pensionados and rentistas have restrictions as well as rights in Costa Rica.
While either may set up their own business, as discussed below under the investor
classification, neither may work for someone else. Individuals of either residency
status must first become permanent residents in order to obtain a work permit.
The investor status is granted to those who invest at least $50,000 in special
projects such as reforestation, tourism and exports, or who invest at least $200,000
in any other business. The investor must also reside in Costa Rica for at least
six months out of the year. If there are no problems, the investor may become a
permanent resident in two years.
The two other methods of achieving legal residency are atypical, since both are
contingent upon very particular circumstances. The resident as a first-degree relative
status is the easiest method, as one need only be closely related to a Costa Rican.
One with such status has all of the rights of a Costa Rican save for the right to
vote. Another method is employment by a foreign government or an international mission.
There are three major hazards of property ownership in Costa Rica: the uncertainties
of the Zona Marítimo Terrestre, the unavoidable reality of squatters and the possibility
of expropriation. More space will be dedicated to the Zona Marítimo Terrestre, as
it is by far the most convoluted and misunderstood hazard of property ownership.
Costa Rica is famed throughout the world for its beautiful, untainted beaches.
It is therefore no surprise that beachfront property is actively sought by American
developers, retirees and those looking for vacation homes. The significant caveat
regarding beachfront development is that it is rarely the bargain it appears.
The principal problem is that no private ownership of beachfront property is
allowed. The Costa Rican government owns the first 200 meters of the beach front
area, known as the Zona Marítimo Terrestre, or the Maritime Zone, and it is governed
by the Ley sobre la Zona Marítimo Terrestre (hereafter referred to as 'ZM'). The
first 50 meters are public beaches on which absolutely no construction may take
place or any concession be granted. The remaining 150 meters may be developed via
special "concessions" that are granted by a governing Municipality (ZM Art. 35).
In order for any construction to take place on this 150 meters the area must be
part of a Plan Regulador, or a special zoning district created by the Instituto
Costarricense de Turismo (ICT). It should be noted that some privately owned beachfront
property does exist, due to the fact it was registered prior to the 1977 Maritime
Zone law, which has a grandfather provision providing for such ownership (ZM Art.
6).
Before actually attempting to obtain a concession for developing rights in the
Zona Maritimo Terrestre, a foreign investor must first be in compliance with Article
31 and 47 of the Ley Sobre la Zona Maritimo Terrestre (Carballo, 28 June 1995 interview).
Article 31 specifies that at least fifty percent of the development capital must
be Costa Rican (ZM Art. 31). In addition, foreign investors must have resided in
Costa Rica for at least five years (ZM Art. 47).
Such discrimination concerning foreign ownership could possibly be questioned
on a constitutional basis in the Sala Constitucional, or the Constitutional Court.
Article 19 of the Costa Rican Constitution (CRC) explicitly states that foreigners
have the same individual and social rights as Costa Ricans (CRC Art. 19). However,
Article 19 does contain ambiguity with the inclusion of the clause, "with the exceptions
and limitations that the Constitution and its laws establish," thereby creating
the window for Article 31 of the Ley de Zona Marítimo Terrestre which allows discrimination
against foreign investment (CRC Art. 19 and ZM Art. 31).
Inevitably there are methods employed by those who seek to circumvent the restrictions
of foreign ownership as established by Article 31 (Carballo, 27 June 1995 interview).
A common procedure entails establishing a Costa Rican as the "legal" owner of a
parcel of land by recording his/her name on the necessary documentation. Frequently
the name of the attorney or one of his/her staff is used as the local owner on the
concession. Needless to say such measures have a certain amount of inherent risk.
For example, in July 1995, the Municipality of Golfito threatened to pull the concession
rights of many foreign investors on the grounds of Article 57, which states that
"no person together with his/her spouse and minor children will be able to have
more than one concession" (ZM Art. 57). The fact that many foreign owners use the
same lawyers, and hence have the same names as the legal owners of their concessions,
is now creating a major problem in the Golfito region. Such non-compliance with
the law may result in the nullification of concessions without compensation.
The first step for a foreign firm or individual interested in developing the
150 meters of the Zona Marítimo Terrestre is to contact the Municipality that has
jurisdiction over the desired coastal areas (ICT, 7 July 1995 interview). It is
absolutely imperative that the area proposed for development be covered by a Plan
Regulador created by the ICT and that its zoning requirements be compatible with
the proposed development project. Beware of so-called "rights of occupation" granted
by Municipalities. Such rights are only tentative and must ultimately succumb to
the zoning requirements of a Plan Regulador when, or if, it is created by the ICT,
making "rights of occupation" too volatile and susceptible to corruption to be recommended
for development.
If the ICT has already created a Plan Regulador in an area, the developer must
abide by the arrangements of the Plan or risk losing the concession. If a Plan Regulador
does not exist, a firm wishing to develop the area must write a proposal for the
implementation of such a Plan. The proposal is in essence an environmental impact
statement that must include detailed information about possible damage to the environment,
proposed rights of way and other necessary infrastructure developments. By law,
the Municipalities are unable to grant concessions in the Zona Marítimo without
the aforementioned development plan (ZM Art. 38) and without the consent of the
ICT (ZM Art. 37).
Foreign investors wishing to develop tourist areas in the Zona Marítimo may seek
tax incentives from the ICT. The granting of such incentives are governed by law
No. 6990 of 30 July 1985 which was amended by law No. 3293 of April 1992. Regulations
for tourist areas are governed by Decree No. 9387 of 8 January 1979 (ICT 7 July,
1995 interview). Keep in mind that the ICT has the sole faculty to declare tourist
zones and such zones are published in the Diario Oficial (La Gaceta) (ZM Art. 27).
An understanding of the law and its inherent ambiguities is absolutely necessary
before purchasing concessionaire rights. Obviously, one should not heed hearsay
or follow the advice of friends and neighbors. Such behavior could result not only
in the loss of the concession but also that of improvements, such as a house, on
the property without compensation from the Municipality. The following are some
principal points of the law that must be adhered to:
Concessions cannot be granted to:
- Foreigners who have not been residents for five years
- Companies with bearer shares
- Foreign companies based abroad
- A company set up in Costa Rica exclusively for foreigners
- A company with more than fifty percent foreign capital (ZM Art. 47)
Concessions can be forfeited for the following reasons:
- Failure to apply for an extension of a concession in a timely manner
- The forfeiture of rights by the interested parties
- The death or legal absence of the concession holder with no heir
- Not abiding by the established obligations of Article 51
- Cancellation of the concession (ZM Art. 52)
The ICT can cancel a concession for:
- Non payment of the yearly canon or royalty
- Breach of contract (e.g. use of the land for purposes other than those expressly
stated by ICT)
- Violation of the ordinances of the law that grants the concession
- Impediment of the use of the public right of way
- Other causes that this law establishes (ZM Art. 53)
The reality of purchasing a concession in the Zona Marítimo is that ambiguities
exist within the written law, so that as regulations are created and amended, rights
to property may also change. The lesson garnered from concession holders is that
there are no guarantees and there is no foolproof way around the law. Additionally,
even if a concession is granted, there are no guarantees that the concessions will
be renewed or that the price of the concession or the yearly canon will be within
reason. The fact remains that one is not purchasing property but is simply "leasing"
it with absolutely no title. Therefore, one must be willing to accept the risk inherent
in any such endeavor. In fact, official correspondence of 10 May 1995, from the
Attorney General's office to the Municipality of Golfito, explicitly states that
these concessions are temporary and precarious (Bulgareilli, 1995).
The greatest potential danger for land ownership in absentia and at times even
when the landowner resides on the property is the problem of squatters. Before investing
in large expanses of land or even a cottage, or a quinta in the countryside, knowledge
of the legal procedures along with due diligence is necessary to maintain one's
property rights. Written into the Civil Code (hereafter referred to as 'CC') are
numerous passages that deal with the rights of possession that are reminiscent of
the earlier days of agricultural reform. Such clauses tend to favor the small, poor
land-holder by upholding de facto "squatters rights" (CC Titulo II, Capítulo II).
Technically, squatters can only attempt to gain legal rights to a non-maritime
property by peacefully occupying non-cultivated, unimproved agrarian land over an
extended period of time. The difficulty of maintaining one's rights over those of
the squatters is due to the nebulous nature of the law and what legally passes as
"non-cultivated" or "unimproved" land. It can be equally difficult to establish
the duration of the squatter occupation, which is a crucial piece of evidence in
the eviction process. It is imperative to understand that, according to the law,
in case of doubt, "good faith" is presumed on the side of the squatters (CC Art.
284).
There are legal steps that can be taken to rid one's land of squatters. Procedurally,
the eviction process is divided into three phases. The first phase is the eviction
of squatters during the first three months of occupation. Such early discovery is
key, as during this period one need not go to court. Theoretically, one need only
alert the local police, who are then obliged to evict the squatters. The catch is
that it can be extremely difficult to get the police to carry out their duty, and
if one is not in the country, actual eviction is very difficult to verify. Even
though eviction within the first three months is a rather straightforward procedure,
at least in principle, early recognition can prove to be difficult if one is not
residing on the property.
The second phase is after the initial three months of occupation but before one
year. If squatters are "allowed" to squat on property for this duration of time,
one must go to the courts and start the process of "administrative eviction" (Harris,
1995). The third phase is continued occupation for more than one year. According
to the law, squatters have then achieved a "legal assumption," and the owners must
go through an ordinary lawsuit process. Such a process has been described by attorney
Robert Wells as "kind of like a root canal" (Harris, 1995). In order for the court
to grant the property rights to squatters, they must prove that they have been on
the land "uninterrupted," "non-challenged" and "peacefully" for ten years.
Although there are no foolproof, preventive measures for eliminating the problem
of squatters on land owned in absentia, there are a few somewhat helpful steps that
can be taken. Firstly, the property should not appear abandoned and signs should
be posted with the owner's name. The most important, albeit expensive, precaution
is to hire a caretaker for the property. Great pains should be taken to secure a
reliable caretaker, as well as another individual who can monitor the caretaker;
it is not uncommon for a caretaker to squat on the land that he is paid to protect.
The easiest way to avoid such a problem is to register the caretaker as an employee,
which entails paying minimum wage and social security. One should also demand signed
receipts from the caretaker as proof of payment.
A word of caution regarding squatters: the notion that squatters are simple campesinos
is unfortunately not always correct. There have been numerous reports of armed,
dangerous and organized squatters -- predominantly in the southern regions of Golfito
and Pavones, and one such group killed an American landowner in 1997. There have
been other reports of armed squatters using intimidation and violence with caretakers
and landowners in order to gain control of the land. Obviously, extreme caution
should be exercised when purchasing land in Costa Rica to avoid areas with known
organized squatters. The bottom line with purchasing land for future development
or as a summer getaway is that, while it may be less expensive than other developed
resort areas, it may not be the bargain it appears, as caretaker and attorney costs
may accumulate very quickly.
An unavoidable hazard in the past has been governmental expropriation of land,
predominantly for the purposes of establishing or enlarging national parks or indigenous
reserves. While this is perhaps not the greatest hazard associated with land ownership
in Costa Rica, it has been a very well-publicized and expensive danger due to the
fact that the government does not have a history of fair and quick reparations for
the expropriated lands.
Prior to 1995, no single law governed expropriation matters in Costa Rica. The
dispersed nature of the law, along with general judicial and executive branch inefficiency,
has contributed to the protracted nature of many expropriation disputes, some of
which have gone on for more than a decade without resolution.
The prospects for future expropriation cases may be more favorable, for on 8
June 1995, the Nueva Ley de Expropriation (New Expropriation Law, hereafter referred
to as NLE) No. 7495, was signed into law. The stated purpose of the legislation
is to replace with a single law the several laws that allow the expropriation of
private property by any state institution. The new law seems aimed primarily at
ensuring that expropriations take place only after full and adequate payment is
made, regardless of the nationality of the holder of such property. Also, while
an earlier bill was aimed at making expropriation easier, the new law imposes obligations
and restraints on the state and its institutions (Quiros, 1995). A few of the more
important provisions of the new law are: (1) the return of the property within ten
years if it is not used for the purpose for which it was intended (NLE Art. 16);
(2) only one month is granted to the tax office to do an appraisal of the property
to be expropriated (NLE Art. 21); (3) payment in cash is required unless otherwise
agreed upon (NLE Art. 47); (4) only six months are allowed to fully complete registration
of the property (NLE Art. 20); and (5) local and international arbitration are contemplated
(NLE Art. 27). The possibility of international arbitration could permit cases to
be brought before the International Center for the Settlement of Investment Disputes
(ICSID). (Quiros, 1995).
In sum, it appears that if expropriation of land is to occur in the future, the
owner may be in a better position than in the past to receive a prompt and equitable
settlement. It must be stressed, however, that the new law has yet to be tested
and it remains to be seen whether it will prove to be a dramatic improvement over
the prior laws.
Blanco, Arturo. Interview of 6 July 1995.
Brennan, Peter. "What to Expect
when Investing in Miniscule Costa Rica Market," The Tico Times, 17 March 1995.
Bulgarelli, Victor. Letter to Consejo Municipal de Golfito, 10 May 1995.
Carballo, Alvaro. "The Golden
Rules of Buying Real Estate," The Tico Times, 17 March 1995.
Carballo, Alvaro. Purchasing Real Estate
in Costa Rica. Mundo Gráfico, San José, Costa Rica, 1993.
Carballo, Alvaro. Interview of 28 June 1995.
Constitucion Politica de la Republica de Costa Rica 7 November 1949.
Código Civil de Costa Rica
Fundacion Internacional de Derecho Agrario Comparado, La Propiedad, San Jose:
Editorial Juricentro, 1983.
Harris, Brian. "How to Avoid
Landowners' Worst Nightmare: Squatter Invasion," The Tico Times, 17 March 1995.
Instituto Costarricense de Turismo (ICT), Interview of 7 July 1995.
La Asamblea Legislativa de la Republica de Costa Rica, Decreta: Ley de Expropriaciones,
No. 7595, 8 July 1995.
Lawrence International Publication. Official Guide to Living and Investing in
Costa Rica, 1995.
Ley Sobre la zona marítimo terrestre y su reglamento. 1st ed., San Jose, Costa
Rica, IJSA, 1991.
McMerty, John. "The Realities of Real Estate Transactions," Costa Rican Business
Journal, Issue 1, 1995.
McMerty, John. Interview of 11 July 1995.
McMerty, John. "The Realities of Real Estate Transactions, Part II," Costa Rican
Business Journal, Issue 2, 1995.
Phelps, William. "Business Risks,
Opportunities in Costa Rica," The Tico Times, 17 March 1995.
Puleo, Christine. "Step by step
through the Real Estate Process: What you need to do, Pay," The Tico Times,
17 March 1995.
Quiros, José Maria, Interview of 15 June 1995.
Ruiz, Miguel, Interview of 14 July 1995.
Marie C. Wold worked as an intern at the US Embassy in San Jose, Costa Rica,
during the summer of 1995. This document was produced as a special research report
for the Embassy's economic section. It was revised January 1998 by Steve Olson and
Jose Maria Quiros.
Copyright 1998
Revisions by Kenneth R. Saborio
January 2008 - Added a link to the document Purchasing Real Estate in Costa Rica.
May 2008 - Added a link to the U.S. Department of State.
April 2011- Added links to Tico Times articles
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