Costa Rica Real Estate – ‘Servidumbres a derecho’ (rights of way)

Costa Rica Real Estate – Servidumbres a derecho (rights of way) – You should be aware of servidumbres that infringe the law.

Real estate professionals should carefully advise all those who plan to build an apartment house, a home, or a commercial building. These professionals are required by law to advise correctly and comprehensively those who consult with them.

For example: topographers, civil engineers and architects know perfectly well that it is illegal to build on, or near high-risk areas that could endanger the future residents.

Within this context it is also stated that private property represents a social function. The former absolutist, exclusive and unrestricted concept is set aside in favor of a new vision, which is reflected in resolution N° 507-F-04 as of June 17th 2004, decreed by the First Supreme Court of Costa Rica. The traditional standpoint towards servidumbres has given way to a fairer position.

A change: historical precedents, tradition and jurisprudence gave way to create automatically apparent and continuous servidumbres (view, light, awnings, etc.) just by the passing of 10 years without objections.

But these situations, like opening a window closer than the legal limits, or an awning protruding into the neighbor’s property are an abuse of the law and a lack of respect towards the adjacent property, and therefore can not be constituted automatically as a servidumbre. Such was the vote by the magistrates of the court.

The case that prompted this new law was the claim from a neighbor who sued for the demolition of a wall, which blocked his property from light, view and ventilation, and of which he had the benefit for the last 20 years.

The owner: a short while ago another “traditional” law came down, in which fraudulently acquired property, and if it was “legally” inscribed at the National Registry was still the rightful property of the buyer. This has changed towards a fairer treatment of those cases where the initial owner was deceitfully deprived of his property. The court now recommends in these cases to act directly against those who committed the deception.

This last court decision is an improvement, but it is still important to remind all those who are planning to buy real estate to check thoroughly all entries at the National Registry for apparent irregularities by the former owners.

For instance: sudden mortgages, sales, and auctions in short periods of time, when there has been no movement for many years. It sure pays off to make a few calls to the former owners to verify the legality of those transactions. It is an insignificant effort compared to the benefit it brings.

The social function and purpose of a property is extended as well towards the protection of the environment. The friendliness of the buildings has to be in accordance with its inhabitants and with nature and the surroundings. If a house is not built in harmony with nature, it will not be harmonious to its dwellers. But this is a theme for another occasion.

Therefore: consulting beforehand with a professional about all activities connected with buying, building, transfers, and zoning of properties etc., will save you surprises, costs, and grievances.

A servidumbre

1. A servidumbre is an obligation or a right that the law imposes in favor and against neighboring areas, dwellings, and urbanizations. The person who benefits from it is called “fundo dominante” and those who purvey it are called “sirvientes” (servants).
2. A servidumbre affects the property, not the owners. They are part of the property rights. A servidumbre can serve more than one adjacent lots.
3. It is a lawful right on a property that limits its proprietors. As an example: A servidumbre cannot be hindered by fences, retaining walls, etc.
4. Servidumbres are classified into “continuous and apparent” (power lines, walls), “continuous but not apparent” (water pipes sewage and draining pipes), and “discontinuous” (rights of way, intermittent ravines and rivulets).
5. At the constitution of a servidumbre all its characteristics have to be specified: its duration, if it is a temporary or continuous one, its exact location with precise width, height and all the permitted usages. It will be inscribed in the National Property Registry.
6. The most common are: right of way, watering holes, height of buildings, power lines, water and sewage pipes, etc. They can be private or public, and some can be imposed forcibly.

Even if the law forbids properties without direct public street access, there are many such cases in these conditions. The seller is held by law to provide access to a public road.

If a property does not have sufficient entrance to a public street, the owner can force the neighbors to provide access.

The Civil Code, Water Regulations, the Expropriations and Fractioning Code for Urbanizations regulate Servidumbres. It has the same protection as the right of property.

Our thanks to our friends at La Nacion – Costa Rica’s largest Spanish circulation newspaper for their permission to use their article in English.

[custom_script adID=97]

Andrew Makarik

to@welovecostarica.com

Andrew Makarik is the main editor of WeLoveCostaRica, a fan of this sunny country. He is also a loving husband and a has a lovely daughter. By being a devoted family man and the biggest Costa Rica fan, he wants to make more people feel at home there. WeLoveCostaRica unites people and helps them find new home or a new travel destination. This website is a friendly community where everyone can find not only information, but also new friends and travel pals. Andrew is also passionate about IT and programming, so he himself maintains a friendly atmosphere in this cozy environment of WeLoveCostaRica.com.