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*6RXEJHFAW43W61*
6RXEJHFAW43W61
BRENDA CELINA CALVO DE LA O - JUEZ/A DECISOR/A
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*XGXDRY0GTYG61*
XGXDRY0GTYG61
GUILLERMO GUILÁ ALVARADO - JUEZ/A DECISOR/A
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For the case at hand, based on the provisions of Article 261 of the Civil Code, the sports field does not meet either of the two assumptions established by this article to be considered a demanial property (bien demanial), as follows:
\n1) There is no law indicating that such real estate is permanently destined for a service of general utility and 2) It is not a property that all may benefit from nor destined for general public use. It is used for specific activities promoted by the Association for the Promotion of Integral Development of the Community of CoopeIsabel only.
\nShould the Association not authorize the carrying out of an activity on the real estate, its execution is not permitted and thus it has operated for more than 40 years. The Association has been using it for the development of the activities it promotes, the collection of funds for the operation of the organization and the maintenance of the real estate itself. It has been entirely responsible for this for more than 40 years.
\nPublic domain is understood as the set of assets subject to a special legal regime distinct from that governing private domain, which, in addition to belonging to or being under the administration of public legal entities, are affected or destined for purposes of public utility and which is manifested in the direct or indirect use that any person may make of them
\nThe foregoing citation present in the judgment subject to this appeal establishes other elements for a property to be considered public property, such as 1) that they belong to or are under the administration of public legal entities, which has never been the case, since the Association for the Integral Development of CoopeIsabel of Pital de San Carlos, Alajuela, is a private legal entity, governed by private law but with public interest, which has always been in absolute possession and in the capacity of owner of the sports field subject to the possessory information proceeding during all these years; 2) hand in hand with this is the second element corresponding to the destiny for public utility purposes, manifested in the direct or indirect use that any person may make of them. This has never been the case, since its use is restricted to activities promoted by the association; on occasions, proposals have been raised or activities carried out on the real estate by de facto means contrary to the objectives or interests of the Association, and these have been rejected or canceled by the members of this organization, thus asserting their ownership over the real estate.
\nThe doctrine recognizes public domain under different meanings, such as dominical property, demanial property, public things, public property or demanial property. Regarding this concept, the Chamber stated in its Judgment No. 2306-91 of 14:45 hours on November 6, 1991, the following: / \"Public domain is composed of assets that manifest, by express will of the legislator, a special destiny to serve the community, the public interest. They are the so-called dominical property, demanial property, public property or things, which do not belong individually to private parties and are destined for public use and subject to a special regime, outside the commerce of men. That is, affected by their own nature and vocation. Consequently, these assets belong to the State in the broadest sense of the concept, are affected to the service they provide, which is invariably essential by virtue of an express norm.
\n\nNotes characteristic of these assets is that they are inalienable, imprescriptible, unseizable, cannot be mortgaged or be subject to encumbrance under the terms of Civil Law, and the administrative action replaces possessory actions to recover ownership.\nIt can be seen, consequently, that the Chamber has already reflected on the nature of public assets and all of this, in close connection with the provisions of articles 261, 262, and 263 of the Civil Code, and based on these precedents and the doctrine of Public Law on the subject, the Chamber reaches the conclusion that public domain (dominio público) is a legal concept, which means that its existence depends on the express treatment given to it by the legislator; without a law serving as its foundation, no asset or thing would have that character.
\nFurthermore, in the specific case, the actual use and purpose of the asset demonstrate that it is a private property, belonging to the promoting Association.
\nIn our legislation, to define it, article 261 of the Civil Code follows the concept of allocation to a public purpose (afectación al fin público), stating that \"Public things are those that, by law, are permanently destined for any service of general utility, and those that everyone can take advantage of because they are delivered for public use.\" – Allocation (afectación) is the act or manifestation of will of the public power, by virtue of which the thing becomes incorporated for the use and enjoyment of the community and can be carried out by law or by administrative act.
\nB. Another of the rulings supporting the judgment is judgment number 2015-00101 of 11:00 hours on September 30, 2015, issued by the Tribunal Contencioso Administrativo y Civil de Hacienda.
\nIn the transcription present in the contested judgment, it cites jurisprudence regarding a sports field in Pérez Zeledón that was declared a public domain asset (bien demanial) by its nature, but this one was for common and free use of the people, and furthermore, its former owner participated as a bidder in a tender process (licitación) of the local municipality through which the sports field, object of the proceeding, was acquired by paying a price. The previous factual assumptions in no way resemble the case at hand. The reasons set forth in the jurisprudential ruling are not applicable to the present case, since the asset object of the proceeding is not for the common and free use of the people, nor has it been the subject of any tender process for its acquisition. The Municipality of the place does not participate in any matter related to it. The promoting party is the original possessor of the real property, by title of owner. And finally, in no excerpt of the jurisprudence does it say that by the simple fact of being a sports field, it is a public domain asset.
\nThe contested judgment, by presuming, distorting the facts, and omitting a comprehensive interpretation that it is a public domain asset, incurs in confiscation (confiscación), expressly prohibited in article 40 of the Political Constitution, since clearly there has been no expropriation (expropiación) procedure, as established in article 45 of the Constitution, and it is NOT an asset of public use as was clarified previously.\" (sic)
\nIt requests that the issued judgment be annulled and that the procedures be adapted.
\nIII.- On admissibility and standing to appeal: Article 10 of the Ley de Informaciones Posesorias provides for the appeal (recurso de apelación) against the resolution that approves or disapproves the information, so from that point of view there is no observation or objection whatsoever to make.
\nSecondly, it must be established whether the disagreement was filed within the legal deadline. As provided in article 67.1 of the current Civil Procedure Code, the deadline to appeal the judgment is five days.
\nIt must be remembered that deadlines are common, so they must be counted from the moment when all parties were notified (understanding of articles 10 and 38 of the Ley de Notificaciones Judiciales, No. 8,687/2009). In the specific case, the notifications to the promoting party and to the state representation were transmitted on 09/07/2019 by email and fax (see notification records incorporated into the electronic court file (expediente electrónico)).
\nLikewise, and in accordance with section 38 of Law No. 8,687/2009, in the case of electronic means, the person is considered notified on the next business day following the transmission, and the deadline begins to run from the business day following the notification of all parties. Consequently, the notification to all parties occurred on 08/01/2023 and the deadline ran from 08/04/2023 to 08/08/2023. It is verified that the appealing party filed its appeal on 08/08/2023, which is within the deadline granted for that purpose.
\nFinally, in its appeal, the appealing party set forth the reasons why it considers that the appealed resolution must be modified, so the requirements of admissibility, timeliness, and substantiation are met, and the merits of what has been raised are addressed forthwith.
\nIV.- On the proven and unproven facts: Due to the manner in which this must be resolved, any pronouncement on these facts is omitted.
\nV.- On the appeal filed. Having analyzed the appealed resolution and the grievances formulated by the appellant, this Court concludes that the decision must be reversed. The foregoing for the following reasons:
\nLaw No. 3,859, Ley sobre el Desarrollo de la Comunidad, declared the constitution and operation of community development associations to be of public interest, as a means of stimulating the economic and social development of the country (Article 14), in addition to providing broad powers to contract, carry out all kinds of lawful operations, and acquire assets, all aimed at achieving their purposes (Article 23).
\nLikewise, the Regulation to the Ley sobre el Desarrollo de la Comunidad, Decreto Ejecutivo N° 26.935-G, establishes that the assets (patrimonio) of development associations consist of the movable and immovable property they possess and the income obtained from the administration thereof (Article 60, subsection e).
\n\nIt is important for this Chamber that it be through the processing and evaluation of the evidentiary elements provided with the initial filing that it can be determined whether the property sought to be titled is indeed a public domain asset (bien de dominio público) or a private-use asset (bien de uso privado), a determination that, at the procedural stage in which the inadmissibility of the claim was declared, is impossible to verify, since it is not possible to rely on presumptions to indicate that it is a public domain asset (bien demanial).\n\nAlthough the assets of development associations are intended for community use, this does not in itself imply a gratuitous nature (since the association may require an economic consideration), and even less could it be subject to the public domain regime (régimen demanial), given the absence of the elements required for its configuration.\n\nOn the other hand, it is important to note that a public asset (bien público) may be natural or artificial, depending on whether it involves assets declared public by the legislator considering them in the state in which nature presents or offers them (a river, for example), or assets declared public by the legislator but whose creation or existence depends on a human act (construction of a street or a public park). Now, in accordance with paragraph 1 of article 44 of the Urban Planning Law (Ley de Planificación Urbana), \"...municipal ownership over areas designated for streets, plazas, gardens, parks, or other open spaces for general use, is constituted by that very use and its registration in the Property Registry may be dispensed with, if it is recorded on the Official Map...\" (emphasis added). Likewise, article 76 of Law 7800 provides that \"...Sports and recreational facilities of a public nature financed with State administration funds must be planned and built in such a way as to favor their multi-purpose sports use and recreational activities, taking into account the different sports disciplines, maximum availability, and the various levels of practice by citizens. These facilities shall be made available to the community for public use...\" (emphasis not in the original).\n\nFrom the norms partially transcribed above, \"in principle\" sports facilities, such as public squares, are municipal, but that would only be the case if they are cataloged as public domain assets, have become such over the passage of time, or were built with State resources.\n\nFor the foregoing reason, the appealed resolution is **revoked**, and the case is returned to the office of origin to carry out the corresponding procedure.\n\n**POR TANTO**\n\nThe appealed resolution is **revoked**, and the case is returned to the office of origin to carry out the corresponding procedure.\n\n**Brenda Celina Calvo De la O**\n\n**Guillermo Guilá Alvarado** **Olivier Ramírez González**\n\n**Jueza y Jueces**\n\nBCALVOD\n\n| | | |\n| :--- | :--- | :--- |\n|It can be noted, consequently, that the Chamber has already reflected on the nature of public assets and all of this, intimately linked to the provisions of articles 261, 262 and 263 of the Civil Code and based on those precedents and the doctrine of Public Law on the subject, the Chamber reaches the conclusion that public domain (dominio público) is a legal concept, which means that its existence depends on the express treatment given to it by the legislator; without a law serving as its foundation, no asset or thing would have that character.
\nFurthermore, in the specific case, the reality of use and destination of the asset demonstrates that it is a private property, belonging to the promoting Association.
\nIn our legislation to define it, article 261 of the Civil Code follows the concept of dedication to public purpose (afectación al fin público), by stating that “Public things are those that, by law, are permanently destined for any service of general utility, and those which everyone can take advantage of by being delivered for public use”.- Dedication (afectación) is the act or manifestation of will of the public power, by virtue of which the thing becomes incorporated for the use and enjoyment of the community and can be effected by law or by administrative act.
\nB. Another of the rulings on which the judgment relies is judgment number 2015-00101 of 11:00 hours on September 30, 2015 handed down by the Administrative and Civil Treasury Tribunal (Tribunal Contencioso Administrativo y Civil de Hacienda).
\nIn the transcript present in the contested judgment, it cites jurisprudence of a sports field in Pérez Zeledón that was declared a demanial asset (bien demanial) by its nature, but this was for common and free use by the people, besides that its former owner participated as a bidder in a public bidding process (licitación) of the local municipality through which the sports field subject to the proceeding was acquired, paying a price. The previous factual assumptions in no way resemble the case at hand. The reasons set forth in the jurisprudential ruling are not applicable to the present case, because the asset subject of the proceeding is not for common and free use by the people, nor has it been the subject of any public bidding process for its acquisition. The Municipality of the place does not participate in anything related to this. The promoter is the original possessor of the real estate, as owner. And finally, in no extract of the jurisprudence does it say that by the simple fact of being a sports field it is a demanial asset.
\nThe contested judgment, by presuming, distorting the facts, omitting a comprehensive interpretation, that it is a demanial asset, incurs in confiscation (confiscación), expressly prohibited in article 40 of the Political Constitution, since clearly there has been no expropriation proceeding (procedimiento de expropiación) as established in article 45 of the Constitution and it is NOT an asset for public use as was clarified previously.\" (sic)
\nHe requests that the judgment rendered be annulled and the procedures be adjusted.
\nIII.- On the admissibility and standing to appeal: Article 10 of the Law of Possessory Informations (Ley de Informaciones Posesorias) provides for the appeal (recurso de apelación) against the resolution that approves or disapproves the information, so from that point of view there is no observation or objection whatsoever to make.
\nSecondly, it must be established whether the disagreement was raised within the legal term. As provided in article 67.1 of the current Code of Civil Procedure (Código Procesal Civil), the term to appeal the judgment is five days.
\nIt must be remembered that terms are common, so they must be counted from the moment when all parties were notified (intelligence of articles 10 and 38 of the Law on Judicial Notifications, No. 8.687/2009). In the specific case, the notifications to the promoting party and to the state representation were transmitted on 07/09/2019 via email and fax (see notification records incorporated into the electronic file).
\nLikewise, and in accordance with section 38 of Law No. 8.687/2009, in the case of electronic means, the person is deemed notified on the next business day after transmission and the term begins to run from the business day following the notification of all parties. Consequently, the notification to all parties occurred on 08/01/2023 and the term ran from 08/04/2023 to 08/08/2023. It is verified that the appellant filed its appeal on 08/08/2023, that is, within the term granted for this purpose.
\nFinally, in its appeal, the appellant set forth the reasons why it considers that the appealed resolution must be varied, so the requirements of admissibility, timeliness, and substantiation are met, and the merits of the matter are now examined.
\nIV.- Regarding the proven and unproven facts: Due to the manner in which this is to be resolved, any pronouncement on these facts is omitted.
\nV.- Regarding the filed challenge. Having analyzed the appealed resolution and the grievances formulated by the appellant, this Tribunal concludes that the decision must be revoked. The above for the following reasons:
\nLaw No. 3.859, Law on the Development of the Community (Ley sobre el Desarrollo de la Comunidad), declared the constitution and functioning of community development associations (asociaciones de desarrollo) to be of public interest as a means of stimulating the economic and social development of the country (article 14), in addition to providing broad powers to contract, carry out all kinds of lawful operations, and acquire assets, all directed at achieving their purposes (article 23).
\nLikewise, the Regulation to the Law on the Development of the Community, Executive Decree No. 26.935-G, establishes that the patrimony of the development associations is composed of the movable and immovable assets they possess and the rents obtained from their administration (article 60, subsection e).
\n\n\nIt is important for this Chamber that it be through the processing of the proceeding and the evacuation of the evidence provided with the initial filing that it can be determined whether the real property sought to be titled is indeed a public domain asset (bien de dominio público) or a privately-owned asset (bien de uso privado), which, at the procedural stage in which the claim was declared inadmissible, cannot be ascertained, as it is not possible to rely on presumptions to indicate that it is a public domain asset (bien demanial).
\nAlthough the assets of development associations (asociaciones de desarrollo) are intended for community use, this does not in itself imply a gratuitous nature (as the association may demand financial consideration), and even less could they be subject to the public domain regime (régimen demanial), given the absence of the elements required for its configuration.
\nFurthermore, it is important to note that a public asset (bien público) can be natural or artificial, depending on whether they are assets declared public by the legislator considering them in the state that nature presents or offers them (a river, for example), or assets declared public by the legislator but whose creation or existence depends on a human act (construction of a street or a public park). Now, in accordance with paragraph 1 of Article 44 of the Urban Planning Law (Ley de Planificación Urbana), \"...the municipal domain over the areas of streets, plazas, gardens, parks, or other open spaces of general use, is constituted by that same use and its registration in the Property Registry may be dispensed with, if it appears on the Official Map...\" (emphasis added). Likewise, Article 76 of Law 7800, provides that \"... Public sports and recreational facilities financed with State administration funds must be planned and built in such a way as to favor their multi-sport use and recreational activities, taking into account the different sports disciplines, maximum availability, and the different levels of practice of the citizens. These facilities must be made available to the community for public use...\" (emphasis not in the original).
\n\nFrom the partially transcribed norms above, \"in principle\" sports facilities, such as plazas, are municipal, but this would be the case if they are catalogued as public domain assets (bienes de dominio público), or have been constituted as such by the passage of time, or with state resources.\n\nFor the reason stated above, the appealed resolution is **revoked**, and it is returned to its originating office to carry out the corresponding procedure.\n\n**POR TANTO**\n\nThe appealed resolution is **revoked**, and it is returned to its originating office to carry out the corresponding procedure.\n\n**Brenda Celina Calvo De la O**\n\n**Guillermo Guilá Alvarado** **Olivier Ramírez González**\n\n**Jueza y Jueces**\n\nBCALVOD\n\n| \n \n | \n\n
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