PROCEDURE TO TITLE AN UNREGISTERED PROPERTY

By Alex Thompson

Hello Readers! In relation to properties, the Costa Rican legal system determines the existence of different types, such as:

1. The average registered property, with a series number or “Folio Real” (in Spanish), which you can check on the National Registry.
2. The Property of Public Domain or Public Interest. In this category you may include Maritime Zone property, which you lease from the Municipalities, National Parks, Public Properties, etc, and
3. The untitled and unregistered property which unlike the previous type is important due to it not being legally created. It obviously exists even though there is no record of it in the database of the National Registry. As well as this many frauds may occur because of the situation.

Due diligence. When you’re interested in buying a property, consult an attorney, who shall inform you of the type of property you’re purchasing and how to proceed with the corresponding registration.

Once determined that a property is untitled or unregistered, the due diligence should become more “intense”. However, the due diligence, in this case, is a joint venture between all the participants: the “self proclaimed” owner, the Attorney and yourself. You see, the attorney should already know if it is an untitled property because you showed him/her a survey of a lot produced by a topographer, hired by the seller, but the Attorney cannot corroborate if that piece of land has been the object of a judicial procedure to title or has been already registered under another person’s name.

There is no Department in the National Registry or in the government that can compare two sets of plans in order to confirm if they match as the same property or in fact is a different one.

Facts: A simple survey or “Plano Catastrado” of the property does not constitute title. Actually, when trying to title a property, a Court procedure, usually not including litigation, called “Información Posesoria” must be executed, with the intention that a Judge grants you the title of the property and issues a Court Order to the National Registry. This judicial process involves the fulfillment of several requirements including a survey of the property, testimonies of wit nesses, certifications of several government institutions, etc.

These types of procedures may last years depending on various factors, such as the ability to fill the requirements, the speed of the judicial system, and if you have to litigate (fight) for the right of possession of the land or not. When you have a ruling in favor, the Judge shall instruct the National Registry, in order for this institution to determine a series number for the property, named “Folio Real”. We should stop here and leave the legal proceedings to an attorney.

Nature, principles and reality:

• First: When a person sells you an unregistered piece of land, what he/she sells you is a “Right of Possession (ideally backed by a notarized purchase agreement), which you have to prove to the Judge on a judicial procedure, mentioned above.
• Second: The seller has the “Right of Possession”, under Costa Rican law, when he/she has acted as owner of the property publicly, peacefully and for a term no less than ten years. Those principles have to be proven at Court.
• Third: In areas like Manuel Antonio and Tamarindo, for example, where the price of land is extremely high, a lot of “swindlers” survey properties with the intention to sell them as their own backed with lies and false witnesses. That’s the reason why you must do an intensive due diligence. You should ask the neighbors of the zone and verify that this “self proclaimed” seller is the owner of that right of possession. As well, abandoned properties by its owners are easy targets, even if the land is well registered and has a serial number in the National Registry. Therefore, be sure somebody keeps an eye on for you, have it properly signposted as yours, take dated pictures of the signs, make a fence, keep it clean, etc, or build something. The Law of “Informaciones Posesorias” may have the intention to avoid the existence of unproductive lands, but as well, this “Agrarian and Socialist Principle” has the potential to consolidate a fraud.
• Fourth: The judicial procedure itself does not guarantee you the title, because another person may challenge it during the court process and once registered, during the term of three years of confirmation that the law required. How can a third party come and challenge your title procedure? Basically, stating and proving that he/she has more right as an owner with more than ten years of public and pacific possession.