Orientation: Sales, Transfers, and Mortgages

Mortgages can be written and registered in Costa Rica, and can be expensive to register, said fee paid by the buyer, but at least will be annotated against the property in the national registry, meaning there can be no legal transfer of the property until the mortgage is lifted. There is at least one legal and acceptable alternative to this fee.

Servidumbre is the Spanish word roughly meaning right-of-way or right to use, or easement. It can include access to another property, or right of use of the subject property in one defined form or another, and in many cases legally surveyed and noted on subsequent Planos Catastrados.  It will in most cases be annotated in the national registry.

Both mortgages, or hipotecas, and servidumbres are classified as gravamenes. The equivalent English word for gravamen would be encumbrance.

There is one exception to this explicitly granted right-of-way which can come about by the notable, persistent, and unchallenged, use of a private property by third persons, over time. Such use is usually the routine crossing of a farm to arrive at another destination, and if claimed, can convert into an enforceable derecho adquirido, or acquired right, of use.

This has brought about the quaint notion of rights of passage by foot, by horse, or by oxcart over a property on the part of third persons, rights still noted on many planos catastrados. 

Similarly, this Costa Rican custom has also brought about the much-discussed "squatters rights" problem afflicting many properties even nowadays in the country, where notorious use of a property over time has converted into ownership by dint of unchallenged use. The remedy for this is to monitor unused properties frequently, and absentee owners must find responsible persons to perform this function for them.

This subject leads me to discuss a similar, related one: when a landowner offers property over which he has no deed. A realtor will most times avoid such properties, since while there is an implied right to derecho adquirido, explicit right must be granted by a court of law and may take many years. That said, these properties can usually be acquired cheaply and held with a small down payment.

When the patriarch of a family died in years past, his farms fell to a wife and usually many children. While many families divided the properties into smaller fincas or lots, others formed corporations to be the owner and assigned shares among all heirs. There was also a third manner of distribution, whereby each heir acquired a right of a certain percentage of the finca, called derecho. This type of property must represent a red flag for the buyer, since all concerned must sign to unite or localize the derechos into one derecho to transfer ownership or perform any other legal maneuver.  

Likewise, as in other countries, expropriation by the state can subject parts of a property to alienation for specified use, such as public road or passage of power lines.

In the event of a sale, Transfer fees are by custom shared between  buyer and seller unless otherwise negotiated.

The government imposes a transfer tax of 1.5% over the registered value of the sale.

Additionally, Costa Rica requires many legal forms and documents to bear stamps, called timbres, and realty transfer is of course no exception. In all there are 5 stamps necessary on a deed, and there is a .05% registry fee as well.

Upon escritura, a seller must obtain from the municipality a certification proving that he is up to date in tax payments.

I cannot stress enough that this overview should be taken as general information and not legal counsel. Every buyer and seller must have his own attorney to counsel him in realty transactions. You are within your right to ask for translation of the drafts prior to ceremony, and can even insist on official translation of the actual document, which will have to be paid for. Experience says to ask for references from other expats: for bilingual lawyers who have proven honest and competent for them. The word for lawyer in Spanish is abogado, or advocate; and an honest one will advocate for your rights and interests. 

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