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Hidden ‘Owners’ Wait to Trap Unwary Buyers

by Garland M Baker on July 24, 2006

As property values increase, more and more people fall victim to El Ley de Informaciones Posesorias No. 139 of June 14, 1941.

The principal behind the law is Roman, the acquisition of ownership by possession. Problems arise when foreigners who have bought a property find others claiming the same land.

Some foreigners caught up in legal battles over these types of disputes have just picked up and left the country exhausted, walking away from substantial investments.

El Ley de Informaciones Posesorias translates into English as the “Law of Possession Information.” It means acquiring untitled and unregistered land through proof of occupancy over the years.

To acquire land and get full title to it using the law, one needs to have some long-term rights to the property by living on and improving it or through inheritance.

The procedure to get title involves starting a case in the jurisdiction where the land is located. This is called an información posesoria case. The judicial process is not complicated. The process begins by having a survey of the land completed by a licensed surveyor. Witnesses, such as neighbors, must testify as to the ownership rights of the person or persons requesting the title. The petitioner must show peaceful, public and continuous use of the property for more than 10 years.

There are also some technical requirements where government departments must provide reports as to the type and use of the land to the court.

The case can take from months to years to complete. Usually, the legal process is slow because the government departments drag their feet to complete their required studies. The time period is also dependent upon whether the court is fast or slow in accomplishing its judicial duties.

There are many different scenarios where a new owner can lose property because someone else is claiming the same land. Here are three examples:

Dual Title:

This ploy is where a local receives title to a parcel through the law and takes it to the Registro Nacional where officials there give the land a parcel number called a Folio Real number in Costa Rica. Once the land has the number, the person goes back to court and states he lost the original court decree and wants another one. The court issues a duplicate, and the person takes it to the Registro where workers give it another parcel number. There are now two different numbers for the same parcel. The swindler then sells them both to unsuspecting buyers.

In a recent Sala IV case, number 471-00, the justices decreed the first to re-register a particular dually sold property was the true owner based on the principle, first in time, first in right.

Transfer of possession rights:

At any time, a person in possession of a parcel of land can sell his or her rights to it based on the time they have it in possession. Transcribing the act of sale into a notary ’s book makes it legal. Since the land does not have a title, there is no document filed at the Registro Nacional.

The problem is evident, repeated sales of the same possession rights to foreigners over the years.

Out and out fraud – a setup from the beginning:

In this scenario, a person who is about ready to get a title to a property and while conspiring with someone else gets the accomplice to make property maps over the same area. Anyone can get a surveyor to map anything and have the layout filed at the property map department of the Registro Nacional.

The partners in fraud wait several years and then the one with the filed second map shows up stating he was the true owner of the land and sues.

Since these types of lawsuits can last many years, a new owner in many cases makes a deal with the plaintiff giving up valuable territory to settle instead of fight.

Increasing the proportion of a piece of land by redoing the measurements is another way to take someone else’s property. This happens in areas of Costa Rica where good fences do not define borders. In this country, to protect ones property rights, ugly fences are a must, in many cases destroying natural beauty in the process to keep people honest.

The Registro Nacional adds a validation period of three years to property records when they originate from información posesoria or an increase in size. However, this period means little. People have up to 10 years to sue over a property issue counting from its registration date.

In cases of moving fence lines, encroachment or trespassing, the courts have held there is no time limit to file a legal complaint.

Buyers should use extreme caution when purchasing property originating from a recent información posesoria case. When a property record has a validation period associated with it, they should find out why and from where it originates.

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