THE LAND SURVEY AND ITS IMPORTANCE WITHIN THE DOMINICAN REAL ESTATE SYSTEM

The land survey and its importance within the Dominican Real Estate System.
Due Diligence.
Advice for foreign investors.

In our long practice in the area of foreign investment and real estate investment we always advise foreign investors to undertake a thorough investigation before making decisions about their investments. This process of due diligence performed by a reputable professional can save effort, money and above all avoid a possible dispute or lawsuit, which is quite uncomfortable, and besides that, it is very costly.

One of the procedures that can lead to lawsuits in real estate property matters is the process of land survey of the portions of land acquired, either by individuals or companies. This procedure is usually quite complicated, and it requires the advice of an attorney specialized in the area.

Before proceeding to explain what the land survey is, we'd like to summarize for the foreign investors who are not used to the terminology or the procedures of our legal system the origin and the need for the land survey.

Our system of land is based on the division of land in the form of a puzzle where the larger pieces are called districts or cadastral demarcations. This system, before the amendment of Land Law No. 1542, replaced by Law No. 108-05, was essentially administrative. This means that the land surveyor carried out his/her work, the land survey was authorized, and the owners got their certificates of title. The current process is more complex.









This whole process of land survey occurs because in our country the possession of real estate property is properly protected by law. An owner of a piece of land was used to receiving what is called a record letter or document that gave testimony of his/her right of ownership over a portion of land, without stating the specific place where this portion of land was located. Today our system is in the process of eliminating this type of certificate of title.

This owner of a portion of land within an area was linked to the other owners, and they formed a sort of consortium of owners who are called joint owners. This joint owner was then obliged to segregate his/her specific part within a portion of land to ensure of having total control of it and for getting a certificate of title that is no longer a record letter, but a definite certificate. This procedure of segregation and individualization is called land survey.

The importance of this procedure is that, if it is done on a regular basis; that is, naming the joint owners, and as a result of it a certificate of title is ordered to be issued, this right becomes a guarantee against whom nobody can make any claim, but in the extreme case of fraud. In other words, the certificate of title obtained under this mode enjoys an absolute guarantee, and it protects our investors of the attempts of claiming the rights over a portion of land acquired for any purpose, especially for developing condominiums or hotels.

It is therefore of vital importance to conduct a thorough investigation on the processes of acquiring portions of land on which our valued foreign investors intend to build their projects. In this investigation it should be inquired about the chain of acquisition, and especially about any abnormality in the process of individualization of lands known as land survey.

The important point is to make sure that all of the joint owners have been properly cited or called to try of reaching an agreement on the rights of each one of them; that is, about the specific places of location of their portions of land. In the end, after the amendment to the Land Law, this process ends in a phase called jurisdictional. It's called jurisdictional because a court decides on the final approval of the works of individualization (land survey), and it gives the order to prepare the corresponding certificates of title that will ensure the right of ownership over a portion of land on which the real estate projects will be built.

The surveyors in the proceedings of the current law are required to notify all of the joint owners. Should they not do so, the land survey will be declared irregular, and it can be annulled by the courts. In this case, the surveyors are subject to sanctions that could lead to their dismissal and the beginning of actions through repressive or criminal proceedings.

It is of vital importance to know this procedure, since if a project is built on a portion of land previously segregated or separated through a land survey on the basis of an irregular procedure, the act or resolution that authorizes it may be annulled and the occupants of those portions of land may be evicted under the provisions of Article 49 of the amended Land Registry Law, No. 108-05. In this case, as a standard procedure, the authorization of eviction is given at a court following a lawsuit that on the matter of real estate properties is known as lawsuit on registered lands. In addition, the parties that have proceeded to get an authorization of land survey works on an irregular manner could be subject to lawsuits for damages.

Finally, the guidance of the Supreme Court of Justice regarding the respect or possibility of cancelling the works of land survey is that unless the land survey was performed on an irregular manner, it must be respected, and the rights covered by the certificates of title that had been issued must be respected, even by the Dominican State. The irregularities, in particular, are the lack of notification or information to the other joint owners or fraud.

Summing up everything for our valued foreign investors, it is imperative before investing to conduct always an investigation about the chain of acquisitions or previous owners, and how the property right was generated, in order to avoid putting our money on a possible legal contingency or lawsuit.

Freddy Miranda
Translated by Orlando Alcántara