About the Russian Roulette of Rights of Possession
Rights of Possession (ROP) or “Derechos Posesorios” may seem a simple way of investment...but they are not. In fact, they are more complicated if you really want to prevent a legal problem in the near future. In order to explain the difference between a property that has ROP and a property that is titled, we must first know how the Panamanian government legally creates a property.
In simple words, the land from the beginning belongs to the government of Panama. Then the government "assigns" those rights so that there is supply and demand and the land increases in value as it passes from hand to hand (buying and selling) that is where the government starts to make money from taxes. As the government of Panama is not a real estate company, nor is it dedicated to real estate activities, they have to guarantee that the land that belongs to the government are for public use and benefit, of course protected by the law.
Faites votre jeux - Get your game on.
Once I know that I want a property "without title" the first thing I must do is to have the right to "occupy" it, that is why they are called “rights of possession", because I must possess it as my own. If a person "occupies" a property but it belongs to another person, and this person does not care, because it is a "possessory" right, he can lose this right in a period of one (1) year.
Obviously, in Panama, nothing is automatic. This person who is the new unregistered owner, and just arrived and occupied the property, can approach the government and ask to be given that ROP. If there is someone who opposes, then they don't give it to him. If nobody objects, then it is theirs. The same happens if you want to title the property, that is to say, a public deed is drawn up, registered and it is known to all, that this property belongs to you. To do so, you will have to prove that you are the owner.
If you are thinking of buying ROP, keep in mind the following (as a frame of reference, remember that every case is different). You need to ask for the plan with the geographic coordinates, to define exactly where the property is located. Also, your seller has to prove that he is the "de facto" owner, that is to say, by means of a certification from the police authority stating that the seller has been living there for five (5) years, you can also ask for affidavits from the neighbors as witnesses. In addition, receipts for electricity, water and telephone expenses must be presented, as well as all other suitable documentation that may prove that this person exercises the spirit of owner over this property. This happens because, although a property has ROP, according to the law in Panama, you can lose your right when another person takes the property for himself in a "peaceful" way. Or in short, another person lives on the property for more than one (1) year and you allowed him to do so without expelling him.
The stakes are set, or not?
The law in Panama establishes that the person who has the ROP has to occupy the property, has to fence the property, has to work it, has to build on it, has to preserve nature, watch over it and protect it so that other people do not take it. There is a technical legal word for this situation and it is called "Acquisitive prescription of dominion”. That is to say, if I have a ROP and I did not exercise my right, and I allowed another person to do so, according to the law in Panama, I can lose my ROP in one (1) year, and that gives the right to another person to prove in the courts of justice in Panama that he is the legitimate owner.
Another important issue to know is that the ROP can be registered by a natural or corporate body. When the land titling process is finished, the natural person will pay a symbolic price to the public office of the government, but when it is a corporate body it can be very expensive compared to what a natural person would pay. You should also keep in mind that not all properties that have ROP can be titled, i.e. it must not be a protected area, comarca territory, private estate, administrative concession area, land assigned in use and administration, among others, as well as it must not have a conflict, or judicial/administrative litigation.
If you wish to title an island or insular territory, you must prove the occupation for more than five (5) years and the physical dominion with owner's intention, in a pacific and interrupted way, through suitable means, that is to say, certifications of the Mayor's Office (this documents by itself is not enough as a proof), affidavits of witnesses of the community or of the neighbors, photos of the land and of the constructions made on the property, plans with GPS position and detailed location, with its boundaries, measurements and neighbors, public services contracts, construction permits, among others.
Rien ne va plus - The die is cast.
In summary, buying a ROP can be cheaper compared to a property that has registered title. However, as lawyers we do not gamble, and due to our professional experience we strongly recommend buying titled properties in order to guarantee your investment in the future.
Photo: www.pixabay.com // Greg Montani