DUALITY IN PROPERTIES

The Property Surface Right.
(more information at www.landcolaw.com)

Land "is richness", it generates utilities and profit, is the ideal way for the investments in real estate, without forgetting that it fulfills a social function by the payment of taxes, the production of income and prime matters "to make easier the life" in the planet.

What can an owner do, when he has a lot or a property that does not want to sell, but cannot also take advantage of it, because he doesn’t have economic resources for do it?

The law allows selling, donate or lease the property, but it is not allowed for one person to be the owner of the property and another one who constructs within.

Right now, if a developer offers you to construct an industrial park or a mall in your property, keeping you as the owner of the land and him of the constructed area, there is no law at the moment that authorizes it.

Nevertheless, there is a project in the Congress filed under N°16303, of the Congresswoman Ofelia Taitelbaum, law’s name is: Ley de Regulación del derecho real de superficie, the law pretends to allow "selling for a period of time” the right to take advantage of the area and that, ultimately, will pass to being yours, or, your inheritors.

In Costa Rica th property rights do not limit theirself to the surface of the land, but it continues over accession to what it is on the surface and what is below.

The Romans used to say that the property rights are extended from heavens to hell, in allusion to the center of the earth. Then, any construction, sowing or plantation is presumed done by the owner of the area and, therefore, it belongs to him.

If someone constructs or sows in area property that is not from his own, or in his own land, but with other person´s materials, the law has the ways to regulate these situations, but always in according with the mentioned principle, so that the construction or sowing pass to be a property of the owner of the land.
At worst, when the construction or plantation has being done with the knowledge of the owner, a co-ownership might arise.

Although it is true that there are figures as the concession that allows using "foreign" properties belonging to the Government of Costa Rica, many foreign investors are afraid of this figure, since the certainty and safety of this kind or property tenure is not the same that grants, for example, a property right duly registered in the Public Registry.

New trend. The property surface right establishes a new model of production to generate utilities to the owners of the property, both urban and rural, on having allowed that others develop projects without buying the land, meaning in other person’s lands, which reduces the costs of investment.

This figure has been in use for years, in some countries as Spain, Argentina and Brazil.

Here’s a small summary of the principal regulations that contains this project of law, presented to the Congress:

It’s constituted in favor of third persons, by the owners of the property o horizontal property over a land that is susceptible for edification, sub edification or over edification.

Is a temporary and autonomous property right, that offers the use, enjoy and legally dispose of the surface of a another person´s property, with the faculty to carry out some construction or plantation and to do own it built or planted.

For third parties, it should be constituted in public deed and to be recorded in a special section in the Public Registry, generating a double registration for a same property. It should be done a detailed description detailed of works or plantations to be done. The price and forms to calculate and to cancel the property surface right, as well as the time limit.

The surface right can be transmitted by the living or by mortis causes, for free or onerous title, owing the new owner to respect the rights of the surface right holder and can be given in guaranty (mortgage).

Will have a maximum time limit of 50 years.

It has a time limit of five years in order to start of the constructions and of three for the plantations; when this term is expeired, the right of property surface right will be extinguished.

It can be sold, mortgaged, constituted in trust, usufruct, as well as any another act limited only to the time period and type of construction or plantation that can be carried out according to the writing of constitution.

Produced the extinction of the property surface right, the owner of the property extends his authority to the buildings or plantations, and he must indemnify the property surface holder in the measurement of his enrichment, unless otherwise stipulated.

Logically, all this implies the modification of several laws, included the Civil Code, however, in any case the important thing is that this legal procedure should be adapted to our needs and realities in order to concrete the wished effects, not only of the investors, but also and especially, of the property owners.