MULTIPLE OWNERSHIP in the Costa Rican Civil Law system.
A jurisdictional article, © Lic. José Juan Sánchez, (LL.M.International Law), Feb 2009.
“Property interests may be exercised, either as a fractional right or as a user interest, or just as a useful domain” - art. 543 Napoleonic Code, France 1804.
"In a civilized society, men must be able to assume that they control, for purposes beneficial to themselves, what they have discovered and appropriated to their own use, what they have created by their own labor and what they have acquired under the existing social and economic order. This is a jural postulate of civilized society as we know it. The Law of property in the widest sense, including incorporeal property and the growing doctrines as to protection of economically advantageous relations, gives effect to the social want or demand in this postulate.” -Pound, An Introduction to the Philosophy of Law 1822.
The notions of Law and its practice involves a process of continual classification: concepts by name in order to study about them, compare them and to deal with them: personal and real rights, present or future, vested or contingent. Classifications are sometimes vague, in the gray zone or overlapping. If the Law recognized only one type of ownership: fee simple absolute and owner A could not own all his property at one time or do anything with it, the social utility of ownership would be limited. Instead the Law, in order to provide for the prosperity and commonwealth, evolves and recognizes many interests in the same property or object.
2. MULTIPLE OWNERSHIP:
As opposed to absolute fee simple where one single individual owns a property object, multiple ownership is a private property regime whereby the property object has two or more owners, this property modality has been recognized by different legal systems since ancient times:
2.1) HISTORICAL DEFINITIONS OF MULTIPLE OWNERSHIP:
a) Common Law: “Concurrent estates or ownerships, involving present interests of the same quality in a single object [property], by a series of individuals: some types are Jure Uxoris, Curtesy, and Dower, Homestead, Coparcenary, Tenancy by Entirety, Joint Tenancy, Tenancy in Common and the Totten Trust.” (Principles of Law of Property, John Cribbet, 1975).
b) Roman Law: “Condominium Iuris Romani”: under this system, the right of ownership belongs jointly and simultaneously to several persons (co-owners), these rights of ownership are divided into proportional and abstract shares (units of the object), which are awarded or distributed between the co-owners. The Roman co-ownership is based on an individualist property concept, whereby the individual’s right of ownership has supremacy over the object, and notwithstanding the fact that the object is shared or undivided, the right of ownership is not, because the individual has absolute and exclusive disposition of his right of ownership: this means the individual may sell, convey, donate, mortgage or dispose freely of his right of ownership, as long as there shall be no harm, limitation, ejection or encumbrance upon the rights and shares of the other co-owners. A modern adaptation of this concept is the Condominium Law: a single real estate unit in a multi-unit complex, in which an individual owns a unit and shares an interest with the others in the common areas, however the individual’s rights of ownership on the unit, are limited by restrictive covenants and regulations common to all the condominium owners.
c) German Law: “Condominium Iuris Germanici”, “Gesammte Hand” or common hand: under this system the property belongs as a whole to various owners, there is no division of the object in shares, instead the ownership rights are expressed as units or measures of participation or enjoyment of the common object. Opposed to the Roman individualist idea, the German concept is based on a collective property concept, whereby the individual’s right of ownership is subordinated to the collective rights of ownership, thus the individual cannot dispose of her right of ownership without the common agreement of the other co-owners. The undivided nature or condition of the object is necessary for the use and exploitation by the co-owners, or to serve its economic purpose or utility, thus there is no functionality in the fractioning of the object. Historical examples of German or Common Hand co-ownership are: water rights or water easements owned by a collective entity such as a family or community, forest or mining exploitation rights, a family owned nobility title, pantheon or mausoleum, shared walls, a privately owned hydroelectric dam, floors or patios that divide common grounds or units of a building. Modern adaptations of this concept are: a cooperative or dwelling owned collectively by its residents as tenants (co-op); or companies, which legally are regarded as a single entity of economic unity, however the company issues shares to its co-owners (shareholders) as expressions of their rights to participate and benefit from the collective ownership.
- (Derecho civil, A Colin/H Capitant, 2002; Sistemas de Derecho Civil, LDiaz/A Gullón, 1977, Tratado de los bienes, ABrenes, 2001, Rafael Rojina V, Derecho Civil Mexicano, 1957).
2.2) MODERN CONCEPTS OF MULTIPLE OWNERSHIP:
Modern legal systems and doctrine have developed and recognized a full array of multiple ownership regimes, some of them are:
a) Common Law:
- Concurrent Estate: ownership or possession of the property by two or more persons at the same time. In modern practice, there are three types of concurrent estates: joint tenancy, tenancy in common and tenancy by the entirety.
- Joint tenancy is defined as a tenancy with two or more co-owners, who take identical interests simultaneously by the same instrument and with the same rights of possession. Joint tenancy differs from Tenancy in common because each joint tenant has a right of survivorship to the other’s share.
- Tenancy in common is defined as a tenancy by two or more persons, in equal or unequal shares of an undivided property, each person having an equal right to possess the whole property but no right of survivorship over the other tenant in common. Upon the death of one of the co-owners, the ownership share of the decedent is inherited by the person or persons designated in the decedent’s will.
- Tenancy by the entirety is a joint tenancy that arises between a husband and wife when a single instrument conveys reality to both of them, but nothing is said in the deed or will about the character of their ownership.
- Since we are dealing with the Costar Rican civil system, an in-depth analysis of the common law concepts is out of the scope of this article. (PLP, C.Cribbet,Id; Black’s Law Dictionary, Abridged 7th edition, 2000, Barron´s Dictionary of Real Estate Terms, 1984).
b) Civil Law:
- Condominium Pro Indiviso (Co propiedad Pro Indiviso): This is the classical co-ownership scenario whereby as the result of different causes, the right of ownership of one object, belongs simultaneously to two or more persons without a material division of the object. It’s an undivided association of interests over the same object. Under this concept, the share of each co-owner is not a piece of the object, but an ideal (abstract) and proportional right in the totality. As long as the undivided ownership exists, none of the co-owners can dispose of any piece of the object, without the total agreement of the co-owners, but may freely convey or dispose of their co-ownership right; also the undivided nature of the object is linked to its essence. It can also be defined as an individual and isolated ownership right, over a commonly owned estate, asset or patrimony. In most cases, co-ownership pro indiviso is involuntary or incidental, temporary or disadvantageous for the co-owners. Examples:
- ex. 1: A and B are co-owners of an automobile.
- ex. 2: A and B are co-owners of the decedent’s jewel or art object.
- ex. 3: A and B are co-owners of an intellectual property.
- ex. 4: A and B share an undivided interest in the title of the apartment or a stock on a publicly traded company.
- Condominium Pro Diviso (Co propiedad Pro Diviso): a distinct or hybrid type of co-ownership, in which rights of ownership co-exist severally, distributed or expressed as fractional and individual shares of the same object (quotas or allotments), as the result of a contractual or voluntary agreement between the co-owners. In other words, the material content of the property is under a fractional or fragmented state or condition, allotted to different owners. Under this property regime, each co-owner owns his unit or quota, in a concurrent and juxtapositional relationship of rights: this relationship means that each co-owner has an exclusive and absolute right and use of their property unit, only limited by the shares and rights of the other co-owners. Co-ownership Pro Diviso, differs from co-ownership Pro Indiviso, in the fact that the co-owners pro diviso are in the relationship on a voluntary basis, that the nature of the object enables each co-owner to have separate and undisturbed access, use and possession of his unit, that each co-owner has free disposition of his piece of the object, and that the co-owners receive mutual and reciprocal benefit from the relationship. These examples should make it clear.
- ex. 1: the soil of a farm belongs to owner A, and the timber forest growing in it belongs to owner B: a common farming practice from feudal times.
- ex. 2: the ground of a lot belongs to owner A, and the structures built on its surface or part of the surface belong to owner B: a common practice in apartment buildings from Roman times.\
- ex. 3: a horizontal residential subdivision of Land, sharing a mother farm title (umbrella title), but materially partitioned into individualized lots, each one allotted to a different co-owner.\
- Dismembered Ownership: another type of multiple ownership is the fragmentation of a property right into three functionally separated interests: the naked ownership, the right of usufruct, and the right of use and household of the property: eg. the only parent remaining alive transfers to her children the encumbered ownership of the property (naked ownership), but reserves for herself the right of Use and Household of the house (as a life tenant), so the children own the property but not the right to live in it, until their parent dies. After her death the possession reverts automatically to the children, without the necessity of a probate, hence the purpose of this ownership figure.
- (Derecho civil, A Colin/H Capitant, 2002; Sistemas de Derecho Civil, LDiaz/A Gullón, 1977, Tratado de los bienes, ABrenes, 2001, arts. 270- 276, 335 – 369 and 864 of the Costa Rican Civil Code of 1888 “CR CC”).
3. PRINCIPLES OF MULTIPLE OWNERSHIP:
Under civil law, multiple ownership has the same complete and absolute attributes that full domain property has, these qualities are the quintessential elements of private property and they are divided as primary rights and secondary rights:
- i. primary rights: these are the core rights inherent to the private ownership of property: ius fruendi, ius utendi and ius abutendi: ie the right to usufruct, the right to use and the right to dispose of, transform or alienate the object.
- ii. secondary rights: these rights are incident to the means that the owner has to exercise her right of ownership in a complete, independent and undisturbed mode: right of possession, right of defense and exclusion, the right of restitution and right of indemnification. (arts. 264, 277-334 CR CC).
Consequently, the subjects of multiple ownership domains enjoy and are bound by these principles of law, and furthermore are subject to the following specialized juridical principles which govern the co-ownership relationship:
a) Private Autonomy: in a general sense this concept means that private individuals are free to do and engage in any activity or obligation which is not expressly forbidden by the Law; within the multiple ownership realms this principle means that the contracts and agreements established and entered by the co-owners for the structuring and functioning of their private property regime, become the fundamental law and regulatory status. Other legal norms are regarded to have an accessory or supplementary input.
b) Proportionality: benefits and obligations of the co-owners are proportional to their respective shares of participation, which unless otherwise agreed upon, are presumed to be equal.
c) Democratic: administrative and transcendental decisions are to be taken on a majority principle, which is not the majority of co-owners but rather the majority of shares.
d) Individual Liberty: this principle means that notwithstanding the concurrence of ownership, each co-owner maintains his or her individual liberty; this idea is expressed as the coowner's freedom to dispose of his right, to request the separation from the co-ownership or to quitclaim his right as a whole.
e) Solidarity: under this principle, individual co-owners assume a proportional share of the expenses related to the conservation or preservation of the object.
- (Spanish Civil Code, CR CC, LDiaz/A Gullón,Ibid).
4. ORIGINS OF MULTIPLE OWNERSHIP:
The origins of multiple ownership are the causes, facts or incidents that evolve into a relationship of co-ownership or a concurrence of interests on a commonly owned object.
a) Inheritance: Inheritance is one of the most common and well-known sources of common ownership; this is the case when a decedent’s estate or property passes to the heirs in equal shares of ownership, as the result of a testamentary provision or the impossibility to divide into pieces the inherited property, ex. family jewels, art collections or another corporeal movable property. In fact, this source is what gave rise to the common law figure Coparcenary: “an estate that arises when two or more persons jointly inherit from one ancestor, the title and right of possession being shared equally by all.” (Black´sLaw, Ibid). In some cases, pro indiviso real estate passes to heirs as a share in co-ownership, as the result of the lack of means or agreement between the heirs to partition the land in equal or proportional shares, so a common practice has been to split the land into arithmetical shares of ownership: ex. four children inherited the farm and each one owns 1/4th in the totality of the farm (note: this pro indiviso share is an abstract arithmetical mental expression of the ownership with no actual partition on the property’s topographical surface). Incidentally and given the pro indiviso nature of the property, if the heirs could not agree on a way to distribute or partition the inheritance, the law provides for a termination process of the co-ownership by way of auction.
b) Donation or gifting: Similar to inheritance, donation or gifting is another source of co-ownership, as the result of the decision by the donor to transfer an asset to two persons or more, ex: a parent gives one car to her two children upon reaching legal age to foster their brotherhood spirit.
c) Involuntary: this source of co-ownership points to the subjective will of the co-owners towards the cause of acquisition of the property’s share, the co-owner's will is considered to be in a static or passive mode because the co-owner could not decide about the undivided nature of the object, ex. the co-owner enters into co-ownership as the result of an inheritance, discovery (a treasure found with another co-owner) or prize (in a draw or contest).
d) Voluntary: conversely to the involuntary source, under this scenario the co-ownership is the result of an ordered, multilateral and contractually structured relationship, whereby all the co-owners exercise the rights of domain of their share, based on convenient, practical and logical purposes, in this case the co-owner’s will plays a dynamic role in shaping the ownership process and the commonwealth governance, ex: the so called “time shares” whereby multiple owners own a fraction of a vacation unit, subject to rules, regulations and fees mandatory to all co-owners; minimal density Agricultural Parcels (5,000 square meters) are often partitioned into smaller size lots or units, or Pro Diviso residential subdivisions in co derechos or co propiedad (with a Master Deed of material partition of the lots and reference surveys).
e) Natural: in some cases the multiple ownership nature of the object, becomes the very existential reason of its being, in other words the object could not exist without its shared ownership condition, ex: the time shares mentioned above, would cease to exist if one co owner owned all the shares of the program; division walls or structures that serve as a common marker would not be co ownership if the same owner was on both sides; another example yet are the very public domain objects like the beaches, national parks and rivers which by their own nature belong to the collectivity of citizens as co-owners.
- (A Colin/H Capitant,Ibid, LDiaz/A Gullón,Ibid, Manuel Albaladejo, Compendio de Derecho Civil, 2007, Beatriz Arean, Derechos Reales, 2005).
5. COSTA RICAN LAW STATUTORY AND JUDICIAL NOTIONS OF CO OWNERSHIP:
The Costa Rican civil law system evolves from the Roman, Continental and Napoleonic systems, therefore the figure of co-ownership is well rooted and in fact the main statutory source of co ownership is the Civil Code from 1888 which is 60 years older than the constitution.
a) Statutory: Civil Code of 1888: articles 270 to 276 and 864 of the Civil Code of Costa Rica, regulate this property regime with the following definitions and rules: In case an object belongs simultaneously to two or more persons, all owners exercise jointly the rights of the individual owner, proportionally to the share which each one of them has in the common property. No co-owner may, however, dispose of a predetermined fraction of the property, without the previous partition and allotment of the respective unit. All co- owners have the responsibility to contribute with the conservation expenses of the property or common right. Any co-owner may request or demand the division of the common property, except the following cases: mercantile companies or common partnerships, if the nature of the object is indivisible, concurrent assets originated under Condominium Law, or real estate assets which fractioning contravenes the urban and zoning laws. If the object is indivisible in nature, and the co-owners lack agreement on its partition or purchase, the item is to be sold and the proceeds distributed.
- Law of Real Estate Taxes of 1995 (Law Nº7509 and 7729):
- Civil Procedures Code of 1989:
- Law for Title Procedures of undivided interests of 1961 (LawNº2755):
b) Court Cases and Resolutions: