!' !'* * * CASE FILE: * * * * * EXPN1- * PROCEEDING: * * * * * * * * * * POSSESSORY INFORMATION PROCEEDING (INFORMACIÓN POSESORIA)* PETITIONER: * * * * * * * * * * * * [Nombre1] * RESPONDENT: * * * DECISION N° 384-F-13* TRIBUNAL AGRARIO. SEGUNDO CIRCUITO JUDICIAL DE SAN JOSÉ.- At fourteen hours and twenty minutes on veinticuatro de abril de dos mil trece.-* * POSSESSORY INFORMATION PROCEEDING brought by [Nombre1], of legal age, widowed, farmer, resident of Pilas de Canjel de Nandayure, Guanacaste, identity card number CED1 – - . Participating in the proceeding are the PROCURADURÍA GENERAL DE LA REPÚBLICA, represented by Susana Fallas Cubero, of legal age, attorney, resident of Santa Cruz, identity card number CED2 - - , in her capacity as deputy attorney; and the INSTITUTO DE DESARROLLO AGRARIO, now Instituto de Desarrollo Rural, legal entity identification number CED3 - - - , represented by Carmelina Vargas Hidalgo, of legal age, divorced, attorney, resident of San José, identity card number CED4 - - , in her capacity as general attorney-in-fact with unlimited authority.
Attorney Carlos Fernando Cubero Rojas, of legal age, married, attorney, resident of Puntarenas, identity card number CED5 - - , bar association number ten thousand two hundred forty-two, acts as special litigation counsel for the petitioner. Heard before the Juzgado Agrario del Segundo Circuito Judicial de Guanacaste, Santa Cruz.-* BACKGROUND:*
- 1The petitioner instituted a possessory information proceeding for the purpose of having the property described as follows registered in his name in the Registro Público de la Propiedad: “Land devoted to pasture, located at [Dirección1] in the Province of Puntarenas, which, according to the attached registered survey plan (plano catastrado) No P-1577154-2012, has an area of THIRTY-EIGHT HECTARES, with the following boundaries: NORTH: Estate of Israel Castillo Quirós; SOUTH: [Nombre1] and Hacienda Río Azul S.A; EAST: [Dirección2], with two hundred ninety-five meters and ninety-five linear centimeters of frontage thereon; WEST: [Dirección2], with four hundred seventy-nine meters and fifty-nine linear centimeters of frontage thereon.” (folios 13, 18, 23, 105, 213 and reverse of 238).-*
- 2The Procuraduría General de la República entered an appearance in the proceeding under the terms set forth at folios 36 to 37; the Instituto de Desarrollo Rural likewise did so at folio 38, neither expressing opposition to the present proceeding.-*
- 3Judge José Joaquín Piñar Ballestero of the Juzgado Agrario del Segundo CircuitoJudicial de Guanacaste, Santa Cruz, by judgment number 381-12 at dieciséis horas cuatro minutos on catorce de diciembre del año dos mil doce, ruled: “POR TANTO: The possessory information is approved subject to the encumbrances (afectaciones) referred to in article 17 of the Ley de informaciones Posesorias and without prejudice to third parties having superior rights, and the Registrar of the Registro de la Propiedad is ordered to register, for the first time, in the name of [Nombre1], of legal age, widowed, farmer, identity card number CED6, resident of Pilas de Cangrejal de Nandayure Guanacaste, at [Dirección3], the property described in the plan registered with the Catastro Nacional under number P-1577154-2012, which is described as follows: Pastureland located at [Dirección4] of [Dirección5] Primero in the Province of Puntarenas. Area: THIRTY-EIGHT HECTARES. Bounded on the NORTH by: Estate of [Nombre2]; SOUTH: [Nombre1] and Hacienda Río Azul S.A; EAST: [Dirección2], with two hundred ninety-five meters and ninety-five linear centimeters of frontage thereon; WEST: [Dirección2], with four hundred seventy-nine meters and fifty-nine linear centimeters of frontage thereon. The real property that is the subject of this proceeding is valued at FOUR MILLION COLONES....” (folio 238 and reverse).-*
- 4Attorney Susana Fallas Cubero, in her capacity as deputy attorney, filed an appeal expressly stating the reasons for challenging the trial court’s position (folios 242 to 244).-*
5. In the conduct of the proceeding, the statutory requirements have not been observed, nor are there any errors or omissions in the decision capable of rendering it null and void.-* * * CONSIDERANDO* I-PROVEN FACTS. Proven facts one, two, and three are affirmed because they have evidentiary support in the record, but not the fifth, because evidence demonstrates the contrary, nor the seventh, because it is inaccurate. Facts numbered six and eight are not adopted because they instead constitute statutory requirements of the proceeding. The following facts of that nature are added:
- 9)The land for which title is sought, shown on plan P-1577154-2012, is located within Zona Protectora Península de Nicoya- Sector Carmona, created by executive decree N. 22968-MIRENEM dated 10 de marzo de 1994. (evidence/ plan at folio 209 and certification at folio 2).
- 10)The land for which title is sought has been devoted to pasture, abandoned pasture, forest, and the protection area (área de protección) of the stream, and the land has been used in conformity with its designated use (uso conforme del suelo). (evidence: land-use certification at folio 7; judicial inspection (reconocimiento judicial) at folio 60).
- 11)The petitioner has possessed the property (fundo) since 11 de enero de 1980, and it was acquired through a sale executed by [Nombre3] in a public deed (escritura pública). (evidence/ original certified copy of deed number 157, witness statements of [Nombre4] at folio 52, [Nombre5] at folio 53, and [Nombre6] at folio 54, initial filing at folio 13); 10) The soil resource is duly protected, as is the protection area of the stream. (evidence/soil study at folio 7, judicial inspection at folio 60). * * * II- The State’s representative appeals judgment N. 381-12, issued at 16:04 hours on 14 de diciembre del 2012 (folio 237), arguing:
- 1)CONSIDERANDO I, proven fact five, states that the property for which title is sought is located outside any protected wildlife area (área silvestre protegida), whereas registered survey plan P- 1577154-2012 places it within Zona Protectora Península de Nicoya Sector Carmona, created by decree 22968-MIRENEM dated 10 de marzo de 1994.
- 2)The weighing of the evidence (valoración probatoria) necessary to determine whether the requirements of article sétimo of the Ley de Informaciones Posesorias were met was omitted, even though the land is located within the protected zone. She asserts that the court failed to analyze the statements made in the final-hearing filing dated 20 de setiembre del 2012 concerning the impossibility of obtaining title to property that, despite being within that area, is devoted mostly to pasture, as shown by the various items of evidence and statements.
- 3)She appeals because the judgment describes the land as consisting entirely of pasture without mentioning the existence of forests adjoining the stream; therefore, the nature of the land is not accurately described, and it fails to state that the protection area exists and that the prohibitions under article 33 of the Ley Forestal apply. * * * III- These proceedings are brought for the purpose of registering in favor of [Nombre1], in the Public Property Registry, an unregistered parcel (finca sin inscribir), consisting of pastureland and forest, located in La Balsa, [Dirección6] , Puntarenas, Province of Puntarenas. It is shown on survey plan P- 1577154-2012 and has an area of thirty-eight hectares. It is bounded to the north by the Estate of [Nombre2], to the south by [Nombre1] and Hacienda Río Azul, to the east by [Dirección7], and to the west by [Dirección2], with frontage on [Dirección8]. The land is part of the protected wildlife area (área silvestre protegida) known as Zona Protectora Península de Nicoya- Sector Carmona, created by decreto ejecutivo N. 22968-MIRENEM of 10 de marzo de 1994, as shown by the survey plan at folio 209 and the submitted certification at folio 2 issued by the Sistema Nacional de Áreas de Conservación. It was verified that the property lies outside lands or properties administered by the Instituto de Desarrollo Agrario (folio 38). The notice required by law was published in the Boletín Judicial (folio 40), and the applicant has not registered property under the Ley de Informaciones Posesorias (folio 4). The soil study in the record establishes that the land consists of pasture, abandoned pasture, and forest. It stated that the land has been used in conformity with its designated use (uso conforme del suelo) (folio 07). The recommendations indicated that the area devoted to pasture must be withdrawn from livestock use and included in the property’s reforestation area to restore that small portion, which the owner undertook to do by sworn declaration. Folio 105 contains a declaration indicating that a portion of the property measuring one hectare exceeds a 30% slope and undertaking that it would be used for reforestation and natural plant regeneration, rather than for livestock. On 2 de marzo del 2010, a second judicial inspection (reconocimiento judicial) was conducted to verify compliance with the technical instructions issued by INTA, and a report was prepared (folio 115) stating that the sector identified in the soil study had been visited and was observed to be fenced, devoted to regenerating pasture, and free of any livestock activity. The Court had previously conducted a judicial inspection (folio 60) of the property, whose report described the land as fenced along all its boundaries. The area containing the stream was observed to be duly protected by mature trees native to the region, including Guanacaste, spavel, gallinazo, and ceiba; some sectors were devoted to pasture and had trees in certain areas, with no crops or structures, and bore the appearance of long-standing possession (posesión). On 23 de marzo del 2009, testimony was received from [Nombre7] (folio 52), who stated that he had known the land for 30 years, since the applicant acquired it from [Nombre3], and that it was devoted to pasture and secondary scrub (tacotal), with maintenance consisting of clearing, fences, and firebreaks, and that he knew of no dispute concerning possession. The witness [Nombre5] (folio 53) testified that he had known the property for 35 years and that it then belonged to [Nombre3], who sold it to the applicant approximately 33 years ago. He stated that the property was devoted to pasture and secondary scrub, that he knew it was maintained, and that he was unaware of any dispute concerning possession. The witness [Nombre6] (folio 54) stated that he had known the land for 50 years, when it belonged to the [Nombre8] siblings; it then passed into the hands of [Nombre9], subsequently to [Nombre3], and had belonged to the current applicant for title (titulante) for 28 to 30 years. Upon analysis of the evidence, the appellant’s grounds for appeal are deemed unavailing. Although the appellant is correct regarding the error identified in the fifth proven fact of the judgment under appeal, that error has been corrected at this appellate level, since it has been stated that the property lies within the aforementioned protective zone (zona protectora). It has been established that the applicant personally exercised possession beginning in 1980, and that [Nombre3] exercised it before him, thus covering a period exceeding the ten years preceding the designation of that zone as a protected wildlife area in 1994; the applicant for title was procedurally required to prove possession dating back at least to 1984, and he amply satisfied that requirement. Such possession may be inferred from a joint assessment of the deed submitted into the record and the aforementioned witness testimony, which are consistent as to the chain of possession (cadena posesoria) and the period during which the applicant has possessed the property. They describe a clear chain of possession consistent with the public deed submitted into the record by the applicant, which records the sale of the unregistered land. The State’s representative requests that these proceedings be denied on the ground that the evidence was not assessed. A reading of the judgment under appeal shows that the second recital (considerando) refers to the aforementioned witness testimony as establishing possession sufficient to approve the titling. In addition, the judgment’s list of proven facts identifies the matters it deemed established and the evidence supporting them. This Chamber finds that the witnesses’ testimony establishes possession exercised for a period exceeding the ten years preceding the creation of the protected wildlife area that affected the land. * IV- Protected wildlife areas, regardless of their management category (categoría de manejo), must be understood as zones subject to a particular and specific administrative and regulatory regime, governed by management plans (planes de manejo) that ensure the protection, conservation, and rational use of natural resources. Their administration, management, and protection are entrusted to MINAET, unless a special Law provides otherwise. Article 58 of the Ley de Biodiversidad defines them as geographically delimited zones composed of lands, wetlands, and portions of the sea, declared as such because they possess special significance and warrant protection and conservation of the environment and its ecosystems, as well as of historical and cultural resources. This provision expressly refers to the Ley Orgánica del Ambiente regarding regulation of the requirements and mechanisms for establishing or reducing such areas. By Law, their administration rests exclusively with the Ministerio de Ambiente, Energía y Telecomunicaciones, except for Natural Monuments. The Ley Forestal, in turn, provides that when a state-owned protected wildlife area is declared, it must immediately become part of the State Natural Heritage (Patrimonio Natural del Estado), governed by Article 13 of that law, which expressly states that its administration belongs to MINAET. This body of law must be interpreted in conjunction with Article 58 in fine of the Ley de Biodiversidad, which recognizes the acquired rights (derechos adquiridos) of Indigenous and rural communities and natural or legal persons over lands declared to be protected wildlife areas and their management categories. This is supplemented by Article 7 of the Ley de Informaciones Posesorias, which states: “When the property to which the possessory information proceeding (información posesoria) relates is located within a protected wildlife area, regardless of its management category, the applicant for title must demonstrate that he or she holds the legal rights arising from ten-year possession (posesión decenal), exercised for at least ten years before the effective date of the law or decree creating that protected wildlife area.” In this case, because personal possession beginning in 1980 has been demonstrated—that is, for a period exceeding the ten years preceding the designation of the zone under the Zona Protectora management category in 1994—the applicant’s acquired rights to seek recognition of his ownership right over the property must be recognized. * * * V- On ecological possession (posesión ecológica). The appellant’s claim concerning the failure to establish possession consistent with the nature of the property is not accepted. The record shows that the requirements for exercising ecological possession have been met, as confirmed by the aforementioned soil study and verified during the judicial inspections (reconocimientos judiciales) conducted in these proceedings. The State’s representative alleges that ecological possession has not been exercised because the land is used entirely as natural pasture. She states that this is reflected in the initial pleading, the soil study, witness testimony, and the judicial inspection record, and that no possessory acts (actos posesorios) aimed at protecting the natural resource are identified, as required under Article 7 of the Ley de Informaciones Posesorias. Those arguments are incorrect because the record documented that the protected area (área de protección) of the stream (quebrada) is properly covered by trees native to the area. Although the aforementioned soil study noted the existence of pasture, it also recorded an area of abandoned pasture and forest, and the second inspection stated that the judge had verified compliance with the technical recommendation issued by the soil-use certifier. It must be considered that the evidence entered into the record does not show that possession was exercised contrary to the conservation of natural resources. Although the property is located within the aforementioned protected wildlife area (área silvestre protegida), the soil resource has been protected, as has the water resource, whose protected area is properly covered by forest cover (cobertura boscosa). Furthermore, it was not established that the applicant for title engaged in acts contrary to the technical recommendations of the agencies competent in environmental administration or to the guidelines of any management plan established by MINAET, if one exists. Nor was it established that any administrative or judicial proceeding had been brought for environmental harm to any resource on that property. In addition, the records did not note the permanent presence of livestock, and the sloped portion is devoted to regeneration. The Protected Zone management category (categoría de manejo de Zona Protectora) was incorporated as such in subsection (b) of Article 32 of the Ley Orgánica del Ambiente. That legislation omitted any definition of the individual management categories governed by that article, and the current Ley Forestal number 7575 likewise contains no legal definition. For its part, the Ministerio de Ambiente, Energía y Telecomunicaciones has defined them as: “lands, most of which are suited for forestry, appropriate for timber production, on which management activities are conducted according to sustainability criteria.” (Table of Management Categories defined by MINAE-SINAC, 2000). As a legislative antecedent, the repealed Ley Forestal number 4465 of November 25, 1969, defined a protected zone in Article 83 as:* “...those forest areas or forestlands which, established by provisions of law or by decree of the Executive Branch, are intended to protect soils, maintain and regulate the hydrological regime, or act as regulators of the climate or environment.” Subsequently, Ley Forestal 7174 defined it in the same terms, whereas, as noted, the current Ley Forestal number 7575 of February 13, 1996, refers neither to this management category nor to any other. For its part, the Procuraduría General de la República stated regarding the objective or purpose assigned to this management category: “Now then, Ley Forestal number 4465, both before and after its comprehensive amendment, assigned protected zones a clear environmental purpose, since they were established with the objective of protecting vital natural resources such as soil and water through the conservation and protection of forest resources. The environmental legislation currently in force assigns this same objective to protected zones as a management category for protected wildlife areas, although it does not define the term.” (Opinion C-323-2004).* Similarly, Opinion C-16-2002 defined it as follows: “The term ‘Protected Zone’ has been used in our legal system as a management category for protected wildlife areas whose primary purpose has been associated with protecting the soil resource and the hydrological regime (springs (nacientes), protected areas, watersheds, etc.).” Based on the evidence assessed in the record and the cited legal and technical references, this Court finds that although the petitioner has pasture in portions of his land, he has not failed to exercise possession as required by Article Seven of the Ley de Informaciones Posesorias, because he has protected the soil resource and the stream located on his property, and the land also contains areas of forest and regenerating pasture. The record does not establish that the applicant for title engaged in activities harmful to natural resources; instead, he complied with the technical provisions issued by INTA in its certification, safeguarding the soil resource and allowing regeneration to occur. The care and protection of the water resource were also established through the protection of the protected area and the conservation of the soil resource. * VI- For the reasons stated, the appeal filed must be denied and the judgment approving the possessory information proceeding (información posesoria) brought by the petitioner must be affirmed. On its own motion, this Court adds that the property is subject to the validation period (plazo de convalidación) and to the reservations under the Ley de Aguas, Ley Forestal, and Ley de Caminos Públicos, pursuant to Article Nineteen of the Ley de Informaciones Posesorias. It is ordered that the area adjacent to the stream constitutes a protected area pursuant to Article 33, subsection (b), of Ley Forestal N. 7575, and the cutting and removal of trees are prohibited; the channel and waters are in the public domain pursuant to Ley de Aguas, Article 1, subsection IV, and Article 3, subsection III; and the right-of-way (derecho de vía) along the eastern boundaries of [Dirección9] is governed by Article 4 of the Ley de Caminos Públicos. These restrictions must be recorded as encumbrances (gravámenes) on the property by the Registro Público when the property is registered. It is further noted that the land consists of pasture and forest. * THEREFORE:* The appealed judgment is affirmed. On its own motion, this Court adds that the property is subject to the validation period, and to the reservations under the Ley de Aguas, Ley Forestal, and Ley de Caminos Públicos, pursuant to Article Nineteen of the Ley de Informaciones Posesorias. It is ordered that the area adjacent to the stream constitutes a protected area pursuant to Article 33, subsection (b), of Ley Forestal N. 7575, and the cutting and removal of trees are prohibited; the channel and waters are in the public domain pursuant to Ley de Aguas, Article 1, subsection IV, and Article 3, subsection III; and the right-of-way along the eastern boundaries is 14 meters, pursuant to Article 4 of the Ley de Caminos Públicos. These restrictions must be recorded as encumbrances on the property by the Registro Público when the property is registered. It is further noted that the land consists of pasture and forest. * * * * * 6*3!% .%15/ * VJSAE9NEQUO61* [Nombre10] - DECIDING JUDGE* 0-9:7$ #:(% * * * * * * * * * * * * * * 7 '98-:# * * &'* PMYZWD0CZHE61 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * W0GYXMZC43FG61* [Nombre11] * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * [Nombre12] -* VARGAS - DECIDING JUDGE * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * DECIDING JUDGE* *