Condominium
Property
1. WHAT IS CONDOMINIUM OWNERSHIP?
1.1 Historical background
The concept of horizontal property as we know it today was
not always as clear; its creation and perfection is the result of a
historical process.
Its earliest background can be traced back to ancient times: two
thousand years ago in the Ancient East, specifically, in the region
of Caldea. The recording of such transactions in the Babylonic
Law reveals that it was in this place where the first multi-unit
structures were built and every floor was sold.1
Likewise, some historical findings prove the existence of
horizontal property in the Lower Empire, the Sirian-Roman law,
Palestine, Egypt and among the Phoenicians. However, Roman law
has no definite records of this type. Some believe it did exist
during the Roman Empire, when the Roman commoners built this kind of
structures in Mount Aventine, opposing the legal principles of the
time. For others, it could not have possibly existed, for it
went against the Roman concept of property. It was illogical to
accept the idea of property owned by a person different from the
owner of the land on which the building was erected.
Horizontal property emerged as an autonomous figure with
well-defined characteristics during the Middle Ages, in the cities
of Nantes, Rennes and Grenoble. Economic, geographic and social
needs contributed to the establishment of this kind of property in
those cities. The presence of walled in spaces, the threat of
ravaging fires and geographic barriers like the ocean and mountains
were some of the various elements that influenced such phenomenon.
This type of property was beneficial: acquiring a home of one’s
own became easier and less expensive. For this reason, the
system spread rapidly across France and other countries, to such an
extent that it became part of the Napoleonic Code, which at the time
served as an inspiration for other nations.
In Costa Rica, the Civil Code was based on the Napoleonic Code of
1804, which did not regulate horizontal property. Such an
omission was justified by claiming that “horizontal property was
unlikely in our legal regime, probably because the issue was still
unknown, or because it was unnecessary.”
Nevertheless, different factors led to the regulation of this
kind of property. Some of them were urban development,
population growth, the high cost of lands, security, the possibility
of having shared luxuries, and the need to protect the cities’
surrounding areas. In 1966, Law 3670 or the Ley de
Propiedad Horizontal (Law on Horizontal Properties) was passed
and then reformed by Law 6890 on September 13, 1983.
It developed especially at the beginning of the 1980’s. More
and more buildings submitted to this special regime and gradually
and cautiously, different residential projects, whose structure did
not exactly fall into the category of “building,” were also a part
of it.
But there were more needs. Important aspects such as security,
privacy and comfort uncovered a new reality – the urge to apply this
regime to other kinds of constructions designed to serve other
purposes.
For not complying with its stipulations, shopping centers were the
first edifications to experience the force of the law: some of them
were submitted to the regime of horizontal property.
There were more requirements to meet. Why not consider
condominium lots or “private urbanizations?” Could we possibly
have lots, houses and buildings inside a condominium, all in
one? This and many other questions, along with social needs led
to the promulgation of executive decree No. 26259-MIVAH-MP,
published in El Alcance No. 44 in the official journal La Gaceta No. 168, September 12, 1997.
This decree, known as “Reglamento al artículo ocho de la Ley de
Propiedad en Condominio” (Regulations according to Article 8 of
the Condominium Ownership Act) enabled, for the first time in Costa
Rica, the submission of a building or group of buildings as well as
their accessories and whereabouts, to the regime. This applied
only if regarded as a single unit, either by building them
simultaneously, one by one, in stages, for commercial, residential,
industrial, storage or mixed purposes, and always considering
eventual vertical, horizontal or mixed condominiums. 3
The previous decree satisfied the needs present at that time, but it
was completely unconstitutional, for it regulated something that was
not in the law.
With all this commotion, the Congress had to analyze different
bills that could substitute for that of 1966 and this is how Law No.
7933 “Ley Reguladora de la Propiedad en Condominio”
(Condominium Ownership Act) was published in La Gaceta on
November 25, 1999.
1.2 Concept
Several or different individuals may own different floors,
apartments, lots or locales (units or private units). In this
way, they are exclusive owners of their own property as well as
joint owners of common areas, such as the stairs, green areas and
others.
1.3 Definitions
According to the previous concept, condominium property emerges
when an edification is divided into floors, locales or
apartments. Nowadays, we can refer to complexes that may have
or have different owners. The following are some definitions of
condominium property:
“Building owned under horizontal property regime.”4
“…legal figure created when the different floors or apartments of
a house or property belong to several owners, constituting a special
form of property considering its use. Due to its physical
structure, some parts of it belong exclusively to its general owner,
and other parts belong to joint owners.” 55
“Spatial property exclusively constructed on buildings that are
divided into floors or locales suitable for independent use, giving
the general owner a common and exclusive right over them, as well as
a right for joint or undivided ownership over the remaining common
areas of the property.” 6
Nevertheless, these definitions are closer to the concept of
horizontal property than to that of condominium
property. Horizontal property focuses on
edifications. Since the sphere of action is broader, the term
condominium and its relationship with joint ownership must be clear:
“Condominium Property: form of real property in which the
different apartments, houses or locales of real property built
vertically, horizontally or both are suitable for independent use
given the existence of a private exit to a common area or public
thoroughfare. It belongs to different owners, each with a
common and exclusive right to his apartment, house or locale, and a
right to joint ownership over the elements and common areas of the
real property, necessary for use or enjoyment.” 7
“Condominium: Real property right belonging to
different people for an undivided part over goods or real
property. In a condominium, each tenant can sell his undivided
part and his creditors can place an embargo and sell before the
division among the joint owners is made…” 8
“The condominium is the real property right that entitles several
people to decide over goods or real property; they are the general
owners of an undivided share.” 9
“Joint Ownership: Property right to goods or real
property in favor of several people and in the form of ideal shares,
or actions.”
It allows each joint owner to use property as long as he respects
the coinciding rights of the others, to enjoy and dispose of it
freely as far as his share allows him to.” 10
“In some cases, the right to own something is not only exercised
by one individual, but by two or more, for different
reasons. As long as it does not involve a company or
association, but simple relations within a community, this common
interest over a single object is called joint ownership or
condominium. When this takes place, the share of each joint
participant is not a specific portion of the property, but an ideal
share, a right over the condominium.” 11
All these definitions leave a bittersweet sensation. Costa
Rican treatise writer Brenes Córdoba sustains that when dealing with
joint ownership, we refer to condominiums. But, isn’t a
condominium a horizontal property? Does the concept of
condominium property confront us with the idea of horizontal
property, condominium or joint ownership? Or is it perhaps a
new kind of property? 12
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