Understanding Transferred Easements vs. Restrictions: What Property Buyers in Costa Rica Need to Know About Right-of-Way Access
When buying property in Costa Rica—especially in rural or coastal areas like Guanacaste or Puntarenas—one of the elements in the due diligence process is ensuring clear, legal access to the property. For many foreign buyers, a confusing issue often arises when the right-of-way easement is not individually registered in favor of the specific parcel being purchased.
At LandCo, our legal team frequently addresses this concern during closings. In this article, we explain why the absence of an individual easement inscription does not necessarily mean a legal defect—and how Costa Rican law protects the buyer’s access rights through transferred easements, even in complex registration scenarios.
Easement Not Individually Registered in your Real Estate in Costa Rica? Don’t Panic.
While the current right-of-way easement providing access to your property may not be individually registered in the Public Registry in favor of your specific parcel, there can still be substantial legal and factual indicators supporting the existence and enforceability of that easement.
The law in Costa Rica recognizes various ways in which access rights persist, even without a direct permanent annotation on the title. The key is understanding the distinction between transferred restrictions and transferred easements.
Restrictions vs. Easements: A Key Legal Distinction
It is important to distinguish between restrictions or reservations (such as environmental buffers, height limits, or use limitations) and easements (such as access routes or utility corridors).
- Transferred Restrictions, originally recorded on the parent parcel (finca madre), may lose enforceability if they are not explicitly restated and re-registered at the time of subdivision. For instance, a restriction prohibiting two-story buildings must be re-annotated on the new parcels to remain binding.
- Transferred Easements, on the other hand, such as rights of way, function differently. By their legal nature, easements may continue to exist and operate legally, even without being individually re-registered, provided they remain:
- Visible
- Continuous
- Necessary
Legal Foundations of a Transferred Easement
Costa Rican Civil Law provides solid ground for enforcing an easement that meets these criteria. The principle is especially applicable to right-of-way easements (servidumbres de paso) that were created to serve multiple parcels arising from a larger mother property.
If the easement existed at the time of subdivision and has remained in visible, uninterrupted use, it may still be legally enforceable even in the absence of a new annotation.
What If the Easement Isn’t Directly Registered?
Even when an easement is not directly registered in favor of your parcel, the existence of a “transferred easement” on the title of the original estate, coupled with clear evidence of its continued use in the field—and particularly when that easement constitutes the only viable access from your property to a public road—gives rise to an enforceable right. In such circumstances, Costa Rican courts will recognize and uphold the easement against all intervening property owners, ensuring your legal right of access is vindicated.
The Case at Hand: Field and Legal Evidence Support the Easement
In some recent transactions managed by LandCo, the properties in question have no individually annotated right-of-way easement. However, our due diligence uncovered strong factual and legal support for its continued validity:
- Field Verification: A licensed topographer confirmed that the access road is clearly visible and physically present on-site.
- Survey Plan Evidence: The easement is depicted on the official plano catastrado, an authoritative cadastral instrument which forms part of the public registry’s supporting documentation.
- Continuity from the Mother Parcel: The easement appears to be a transferred access route from the original finca madre, now serving not only the subject property but multiple neighboring parcels. This continuity reinforces the presumption of ongoing legal validity.
Transferred Easements Do Not Expire Like Restrictions
Unlike old restrictions that may become legally obsolete if not restated, a transferred easement is not extinguished by time or by the act of subdivision alone. Provided it continues to fulfill its function and is not superseded by a contrary legal act or registration, its legal effect remains active and enforceable.
This principle ensures that no property remains landlocked, in accordance with Costa Rican Civil Code provisions that prohibit the existence of so-called fundo enclavado (landlocked estates).
Next Steps for Buyers of Property in Costa Rica: Confirming Legal Access
While the facts strongly support the continued existence of the easement, each case must be carefully analyzed. At LandCo, we review:
- Field topography and physical access conditions
- Survey plans and annotations
- Historical use and origin of the easement
- Public Registry records and subdivision history
If needed, we may recommend taking further legal steps to reaffirm or formally annotate the easement in the National Registry. This is not always required, but can be advisable to ensure clarity and peace of mind, especially for future resale or title insurance purposes.
Contact LandCo Today
Visit us at www.landcolaw.com, email us at info@landcolaw.com or send us a WhatsApp or iMessage private message to schedule your consultation.
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