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Rights and registration

Rights

What types of holding right over real estate are acknowledged by law in your jurisdiction?

The law gives holders ownership rights – the right to use, enjoy and dispose of the land. There are also other rights which are separate from these and which allow the title holder to retain the right to dispose of the land and to trade the right to use and enjoy it (eg, via leasing, possession, usufruct and mortgages). 

Are rights to land and buildings on the land legally separable?

Yes, but there is a legal presumption that all buildings constructed on the land owner’s property are owned by its title holder. A building and the land on which the construction is based may have different owners where the building only is traded and this event is filed in the real estate register. The legal consequences of building on someone else’s land depend on whether or not the building party has acted in good faith.

Which parties may hold and exercise rights over real estate? Are there restrictions on foreign ownership of property?

In Colombia both natural persons and legal entities with legal capacity may hold and exercise rights over real estate. With regard to foreign investors, there are restrictions over properties located in border areas and around the coast.

How are rights, encumbrances and other interests over real estate prioritised?

Rights, encumbrances and interests are prioritised depending on the lien priority order and the seniority of the credit. With regard to mortgages, the mortgage with the oldest date of registration will be paid first if the property is seized and eventually auctioned.

Registration

Must real estate rights, interests and transactions be registered in your jurisdiction? What are the legal effects of registration?

Yes, all rights, interests and transactions must be registered in order to be effective against third parties but not all of these registrations are legal conditions for constituting these rights. In order to transfer the property, rights such as usufruct, mortgages and other encumbrances must be registered in the real estate register. 

What are the procedural and documentary requirements for entry into the national real estate register(s)? Can registration be completed electronically?

There is no national real estate register; every registration must be carried out in the municipality where the property is located. The procedure is first to create the contract subject of registration, then to formalise this with a notary public and present this notarised deed before the register office. The registration cannot be completed electronically.    

What information is recorded in the national real estate register(s) and to what extent is such information publicly available?

The following information must be recorded in the register:

  • the means by which the property was acquired;
  • any encumbrances (mortgages);
  • any domain restrictions (eg, usufruct, easements or condominium regimes);
  • any protective measures (eg, seizures and other claims);
  • any use of the property, such as leasing, possession or usufruct; and
  • the date, time, location and municipality of every act.

This information is publicly available to anyone. 

Is there a state guarantee of title?

No. However, Colombian law makes provisions for a liberty and tradition certificate which shows trades and encumbrances carried out on the property, although this does not guarantee that the land is free from other interests and rights. For this reason, due diligence by a professional is always recommended.

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