An unregistered easement to access a property in Alajuela
An easement is often created to give access to a property. But what happens if that easement is not registered? Should a listing agent worry about it when listing the property?
For those who are really into easements, there are many different easements possible. Water, power, drainage and water treatment. Check other blogs on this.
This blog is about an easement to give access to a property, or servidumbre de paso in Spanish.
When listing a property in Alajuela quite a few years ago in the mountains, in Las Pilas de Alajuela to be exact, I saw that an easement to access the property from the public street was not registered in the National Register by the closing attorney when the property was purchased.
Pilas the Alajuela is well known because the Buena Vista Hotel is up there and quite a few properties with incredible views of the Central Valley.
On the survey, there was almost a mile of road frontage. But this frontage had an over 40 feet drop off (see photos). It was impossible to dig a driveway into this Alajuela property. It was just too steep and there was not much space to do so.
Paid for but not registered
For that reason, the seller had paid the neighbor for an easement that was level with the property. This was done when he purchased the property but the closing attorney never registered that easement. Few buyers check if their title is correctly registered after closing and few attorneys in Costa Rica send the proof of the registration in the National Register. I never measured the easement. But it may well be possible that the easement was larger than the admissible length (60 meters). I don’t know if they ever fixed the problem, because the seller didn’t call me again until years later.
Listing a property
Most real estate agents in Costa Rica do not bother getting a copy of the registered survey before they list the property. We always request one from the seller and do not list the property until we have seen all the documents on the property and made sure they are legally all correct.
Since this event happened so many years ago, I don’t have this particular survey anymore. But I looked the location up on Google Earth. See the map below that shows the easement and the house.
Elevations do not show on a survey
In this case, the Alajuela property title showed totally clean and clear. By Costa Rican law, a property cannot be enclosed and left without access. But on the survey, this property has plenty of road access although you need an elevator to get from the road to the house as shown in the picture below. Elevations do not show on surveys so anybody who looks at the survey will not notice the elevation problem.
A personal visit?
The possibility the closing attorney will know the area well enough to notice the problem is very small. Closing attorneys do NOT personally visit the property they will close on to investigate. I have only seen one attorney do this in all my years of selling Costa Rica real estate.
Correcting the legal problem
My solution, in this case, is not to list the property until the problem is solved, it gets the problem out of my way. It is up to the seller to do what he/she needs to do. The danger here is that the seller will try to list the property with other realtors who don’t know what they are doing (or don’t care) and try to sell the property without correcting the legal problem in the National Registry. An unknowing buyer will purchase this Alajuela property and will get stuck with a huge problem.
When I told the seller about his problem, his neighbor did not want to cooperate in signing off on it as it was so many years ago and the attorney who should have registered the easement was never available.
A mad seller
The seller got really mad at me at the time because I didn’t want to list the property. But he called me many months later that I was right and he was trying to fix the problem. I never heard from him again and don’t know what happened to the property.
I hope he didn’t stick the problem to an unknowing buyer.
When you buy a For Sale by Owner, for sure you will never find out about an easement problem like this until you sell again. The above is another reason why you should purchase Costa Rica real estate through a professional real estate agent.
Don’t try to save the real estate commission on your Costa Rica property purchase, contact an American European Real Estate affiliate now.
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