GUIA_LEGAL_CHAPTER_11_REAL STATE PROPERTY .pdf

TO DOING
BUSINESS IN
COLOMBIA
LEGAL
GUIDE

This document reflects the valid Colombian
legislation at the date of its development and it seeks
to provide general and basic information of the
Colombian law. This message does not represent or
replace legal counsel of a specific or particular
matter. Such legal counsel must be obtained from
specialized legal services. To that effect, we suggest
that you contact any of the law firms that can be
found in the Investor’s Services Directory located in
the webpage of ProColombia
LEGAL
GUIDE
TO DOING BUSINESS
IN COLOMBIA
www.procolombia.co

REAL STATE
PROPERTIES
IN COLOMBIA

(a) According to its constitution, Colombia is a social
State governed by the rule of law in which private
property is protected and guaranteed.
(b) The applicable regulations to the acquisition of
real estate properties are the same for Colombians as
for foreigners. There is only one rare exception
according to which foreigners cannot acquire real
estate properties that are located in border areas and
have a vacant origin, that is, that have been
transferred by the State to individuals because they do
not belong to anyone.
(c) The real estate acquisition process in Colombia is
done through a registry system. Therefore, to transfer
real estate properties, as well as executing the
agreement, this document must be registered before a
Public Registry Office, which reviews that the
agreement complies with all legal requirements. Note
that the ownership of the property is not transferred
until the registration process is completed.
2. Due Diligence
Before acquiring real estate properties in Colombia, it
is advisable to make a legal due diligence, to confirm
that: (i) its acquisition does not entail any risk, and (ii)
the properties have the conditions needed. This
analysis is divided in two: title search report and land
use report.
(a.) Title Search: A review of the title deed, of the
documents registered in the ownership certificate of
the property in the last 10 or 20 years (depending on
the scope), and of other documents (that will depend
on the property and its intended use) is conducted. As
a result of this analysis the following is established: the
owner of the property; if the title chain is uninterrup-
ted; and whether or not there are current liens, encum-
brances or any other limitation to the use or ownership
rights of the property. In other words, if there is any
risk associated to the acquisition of the property. Addi-
tionally, compliance of tax obligations, as property
tax, betterment levy, or increase value of the property
tax (plusvalía), is also reviewed.
(b.) Zoning Report: It is a review in which the
zoning conditions of a property are analyzed. It deter-
mines if the needed land use is permitted, and the
construction conditions applicable to the property. For
this, the following documents are reviewed: (i) Zoning
Instrument of the municipality where the property is
located; (ii) other zoning regulations instruments such
as macro projects (macro-proyectos) and specific
zoning plans (planes de parciales), if applicable; (iii)
the land use opinions issued by the competent authori-
ties; and (iv) the building permits that were granted for
the property. With this analysis it is possible to deter-
mine if the location of the property is suitable for the
project, and to establish the applicable architectural
and structural regulation (which includes maximum
indexes, height, insulation, among others).
Chapter 11
REAL STATE
PROPERTIES
IN COLOMBIA
Chapter 11
Overview of acquisition of real
estate properties in Colombia
Colombia is one of the countries in the region with
the highest investment and execution of real estate
projects. This is due to the large rural areas of the
country, the growth in the development and
acquisition of urban housing and the
technological advances in the development of
intermediary platforms for the purchase and sale
of real estate. Below, we highlight three (3) main
matters that should be considered regarding the
acquisition of real estate properties in Colombia
02

4. Main agreements for the development
and operation of real estate projects
During the development and operation of a real estate
project, it is necessary to execute different types of
agreements, of which we highlight the construction
and the lease agreements.
3. Main agreements for the acquisition of
real estate properties
The main agreements used in Colombia for the
acquisition of real estate properties are: (i) the promise
to purchase agreement, the private and preparatory
document for the transfer of a property; (ii) the
purchase and sale agreement, the public document
executed by means of a public deed that must be
registered; and (iii) the trust agreement, a recent
alternative for the transfer, development, and
operation of properties.
There are other agreements used in Colombia, which
although they are less used, pursue different purposes,
such as easements, bailments, usufructs, or civil trusts.
a. Promise of purchase agreement: It is an
agreement by means of which the framework and the
necessary conditions for the final transfer are establi-
shed. Therefore, the rules for the negotiation, the
conditions precedent, the place and date where the
final agreement will be executed, the guarantees that
will be offered between the parties, the commissions
that may exist, time and form of payment of the
possible final price, among others, are agreed. This
agreement is a private document that is not subject to
any formality. It is usual to include in this agreement
an advance payment of the price, called “arras”
(which is legal mechanism that acts as a sanction for
retraction or confirmation of the final purchase and
sale agreement). Usually, the delivery of the property
is not made with the execution of the promise of
purchase agreement.
b. Purchase and Sale Agreement: It is the
agreement by means of which the seller transfers the
ownership of the property, and the buyer must pay a
price. This agreement must be executed by means of
a public deed before a Public Notary and the docu-
ment must be subsequently registered with the corres-
ponding Public Registry Office; otherwise, the agree-
ment shall not be enforceable against third parties.
The Public Notary takes approximately five (5) days
to formalize the transfer public deed. Furthermore,
Colombian law establishes that the registry process
will take a maximum of five (5) business days, except
in cases where there are more than ten (10) real
estate units, for which an additional term of five (5)
more business days is permitted. However, in our
experience these terms mare usually longer.
c. Trust Agreement: The trust agreement has
been the most used mechanism in recent decades for
the development and acquisition of real estate
properties in Colombia. This is since it allows efficien-
cies in costs and can limit the liability of the contrac-
tual parties. In summary, this agreement constitutes a
trust that is handled by a financial entity that is
supervised by the Colombian Superintendency of
Finance.
Some advantages of the trust agreement are: (i) trusts
are not liable for pledges nor for claims of the parties,
(ii) in some cases the rights of the trust can be
transferred, thus achieving an indirect transfer of
properties, without paying notary and registration
taxes and through a private document. On the other
hand, it should be noted that the trustees (the financial
entities) charge for their services.
Furthermore, once the purpose for which the trust was
created has been fulfilled, the trust must be closed,
extinguished and liquidated. In this case: (i) profits
shall be paid to the investors of the project; (ii) the
properties shall be returned to the settlors and, in case
it has been developed, returned to those who that
acquired it; and (iii) the outstanding debts shall be
paid with the trust assets.
The following are the main types of trusts used in the
sale and development of properties in Colombia:
i. Administration trust (commonly known
as "fiducia de parqueo"): Under this scheme the
property is transferred to the trust so that it holds the
ownership following the instructions of the settlor.
ii. Security trust: Under this scheme, a property is
transferred to the trust for as security for the obliga-
tions in favor of third parties, generally referred to as
secured creditors. This type of trust can be structured
in two ways: (i) security, where the transferred proper-
ty will be sold to pay debts in case of a default, or (ii)
security and source of payments, where the trust recei-
ves the cashflows from the operation of the property,
and these are used to directly pay the owed debt.
iii. Treasury administration trust of real
estate projects: Under this scheme the builder
transfers all funds of a real estate project to a trust.
Therefore, the trust is used as security for the payments
needed for the development of the project. These funds
come from by bank loans, sales of the real estate
project or own resources.
iv. Real estate trust: Under this scheme, the trust
is used for the administration of the resources and
assets needed for the development of a real estate
project.
03

a. Construction Agreement: The construction
agreement is the agreement in which the condi-
tions to execute the development of the project are
agreed. By means of this agreement, the parties
agree on the price, means, and stages of the cons-
truction. Depending on the form of payment, this
contract has the following types:
b. i. Fixed Global Price (precio global
fijo): The contractor receives a fixed sum price as
consideration for the services performed.
ii. Unit price (precio unitario): The payment of
the service is made according to each work executed
and corresponds to the result of multiplying the number
of activities executed by the price of each of them.
iii. Delegated administration (administra-
ción delegada): The contractor is responsible for
the execution of the agreed construction, but at the
expense and risk of the developer.
On the other hand, Colombian law establishes the
following securities for constructions that are built as a
result of a construction agreement: (i) 10 years for any
claims to the contractor related to structural failures
that may occur and (ii) 1 year for any claim related to
the finishes of the construction. This responsibility
extends to the developer of the project or the owner of
the property, at the time of selling the real estate units
to third parties.
b. Lease Agreement: By means of this agreement
the tenancy of the real estate is transferred to a third
party for its use. It can be made verbally or in writing,
although normally is made in writing. The only thing
required for it to be valid is an understanding on the
lease fee and the leased property. In these agreements
it is important to regulate: the form of payment, the
date and conditions of delivery, the improvements and
repairs regulation, the payment of the administration
fee (if applicable), the payment of utilities, the term,
the obligations of the parties and the way in which any
dispute will be resolved.
On the other hand, depending on the type of lease
there are certain special provisions that must be consi-
dered:
i. Urban Housing Lease Agreement: For
the lease of urban housing, the price of the fee
may not exceed 1% of the commercial value of the
property. Furthermore, the lease fee cannot be
increased to a value greater than the consumer
price index (CPI), an economic index that is calcu-
lated by measuring the value of certain products
annually.
Commercial Establishment Lease Agree-
ment: The lessee of a commercial establishment has
a right of an automatic renewal. According to Colom
bian law, the lessee who has occupied a property for
more than 2 years will have the right to have the lease
agreement renewed, except if: (i) the lessee has brea-
ched the agreement; (ii) the lessor needs the property
for his own room or for an establishment of his own
with a different destination or (iii) when the property
must be rebuilt, repaired or demolished due to its state
in ruins or for the construction of a new work. For these
exceptions, the lessor must give notice to the lessee
within a minimum period of 6 months in advance.
The adjustment of the lease fee is not regulated by
law; therefore, the parties will be responsible for
agreeing on the dates and percentages in which the
readjustment will take place. Generally, the increase
in the fee is based on the percentage of the Consumer
Price Index (CPI) of the year prior to the execution of
the lease.
5. Urban licenses
For the construction of a real estate project, a prior
authorization is required from the competent authority
called urban license (licencia urbanística) which,
depending on the type in which it is granted, authori-
zes the use and development of the property. Urban
licenses have the following modalities:
i. Urbanization (urbanización): It is the prior
authorization to execute works on properties
located on urban and urban expansion areas. By
means of this license, public and private spaces,
access roads, connection to public services,
among others, are created. Furthermore, this licen-
se permits the adaptation, and subdivision of the
property for future developments, as well, it speci-
fies its land use regulation, buildable area,
volumetry and other technical matters for the future
licenses granted for the properties.
ii. Parcelling (parcelación): It authorizes the
creation of public and private spaces of properties
located on rural and suburban areas. By means of
this license, the same purpose as the urbanization
license (licencia de urbanización) is sought, that
is, to condition the property for future develop-
ments.
iii. Construction (construcción): By means of
this license, the previously approved technical
matters are specified and implemented. The cons-
truction license can be granted in the following
types: of extension, adaptation, modification,
restoration, structural reinforcement, demolition,
reconstruction, enclosure, and new construction.
iv. Subdivision (sudvisión): It is the prior autho
rization to divide one or more properties.
04

v. Parcelling (parcelación): It authorizes the
creation of public and private spaces of properties
located on rural and suburban areas. By means of this
license, the same purpose as the urbanization license
(licencia de urbanización) is sought, that is, to
condition the property for future developments.
6. Special Matters
Due to Colombia´s large rural areas and its history,
the country has special regulations that seek to control
illicit activities related to the acquisition of real estate
properties, such as the accumulation of vacant land
(baldíos), forced displacement (desplazamiento
forzado) and the acquisition of properties financed by
terrorism.
a.Vacant land (baldíos): Vacant land are rural
properties that have no owner; therefore, they are
owned by the Colombian Government. These
properties are “inalienable” (that cannot be
transferred by individuals) and imprescriptible (that
cannot be acquired through squatters´ rights).
Therefore, it is only the Colombian Government the
one that can transfer these properties to certain
individuals if they meet the legal requirements.
Generally, vacant lands are transferred to low-income
rural individuals.
According to Colombian law, a property can be
considered vacant land if its titles do not meet certain
legal requirements. Additionally, vacant lands are
subject to certain limitations, such as the maximum
area that a person or entity can own, as well as
limitations for their transfer of ownership.
Considering the above, for the acquisition of rural
properties we suggest conducting a title search to
assess if the properties are or have a vacant land
origin, to avoid any sanction, limitation, or possible
restriction by the Colombian Government.
b. Land restitution: This regulation aims to return
the tenure and ownership of real estate properties to
the victims of the internal armed conflict who have
been dispossessed of their land by violence in Colom-
bia. By means of this regulation, the victims will be
able to claim ownership of the properties through a
process that has an administrative and, later, a
judicial stage where the victim asks the judge for the
restitution of the property.
To disprove this claim, a standard of “good faith
without negligence” must be proven. This means to
have acted under the legitimate belief that the
property had a lawful origin and having verified the
legal origin of the property through a due diligence
process.
Therefore, we suggest conducting a legal study on the
properties that are located in areas affected by
Colombia’s armed conflict, to verify that they are not
in a land restitution process, and thus mitigate the risk
of losing their ownership.
c. Extinction of Ownership (extinición de
dominio): is a judicial process through which the
Government can claim the ownership of properties
that were illicitly acquired or have been used to
develop illicit activities, such as drug trafficking or
terrorism.
As a result of this process, the Government can seize
or extinguished the right of ownership over the
property, both to the persons who have committed the
illegal activities and to its subsequent owners. As in
the process of land restitution, the owner must prove
the standard of “good faith without negligence” to
prevent the properties from being claimed by the
Government. It is an action of a constitutional, in rem
(real) nature – as it pursues the asset regardless of
whoever has them –, and does not grants any
consideration or compensation for those affected.
Additionally, this action is imprescriptible (that has no
prescription).
Therefore, we strongly recommend performing a due
diligence prior to the acquisition of a property to
determine whether the seller of the property or its
previous owners are not, or have not been, involved in
illicit activities.
7. Taxes and contributions
Below are (i) the expenses and taxes that must be paid
in Colombia for the acquisition of a real estate
properties and (ii) the contributions and taxes that
must be paid for owning real estate properties in the
country.
a.Expenses and taxes related to the
transfer of a property:
In Colombia, the costs related to the transfer of a
property are around 3.5% of the value for which the
property is transferred. The exact amount will depend
on the price of the property and its location.
i.Notary fees: Notarial fees are those that must be
paid to a Notary Public because of the transfer of
ownership of the property. For the acquisition of a
property, a fee of 0.3% of the transfer price must be
paid. According to commercial practice, notary fees
are usually paid in equal parts between the parties
involved.
05

ii.Registration fees: The registration expenses
consist of those incurred for the registration of the
transfer of the property before the Public Registry
Office. The amount to be paid is calculated depending
on the range in which the price of the property is, for
2024, if the property costs more than
COP$11.622.077 this value will be between 0.
825% and 1, 206% of the price. If the property costs
less than the mentioned price, it will be charged a
fixed fee of COP$48.100. In accordance with
commercial practice, registration fees are usually paid
in full by the buyer.
iii.Registration tax: It is a tax that must be paid
because of the registration of the transfer of the
property in the Public Registry Office. The value of this
tax is between 0.5% and 1% of the value of the
property. The exact value is determined by the
departmental authorities where the property is
located. According to commercial practice, this tax is
usually paid in full by the buyer.
iv.Other regional taxes: Depending on where
the property is located, there may be other regional
taxes that must be paid for its transfer. These are
established by the regional authorities, who annually
indicate the amount for each one of them. Examples of
the above are the “impuesto de beneficencia” (charity
tax) charged in the department of Cundinamarca and
the pro-hospital stamp paid in the department of
Atlántico. This tax is usually paid by the buyer.
v.“Impuesto de timbre” (stamp duty): This
tax is generated because of the transfer of real estate
property. This tax must be paid when the price of the
property is higher than COP$941.300.000 (USD$
217,390 approx.). Depending on the price, an
amount of 1.5% and 3% of the value of the property
must be paid. This tax is usually paid by the buyer, but
it can be agreed to be paid in another way.
b.Expenses and taxes related to the
ownership of a property:
i.Surplus value tax (plusvalía): It is a tax
created because of the activities carried out by the
authorities that are intended to increase the use of the
land, and that allow that the land use of the property
to be more profitable. The surplus value tax becomes
enforceable at the time urban licenses are issued or at
the time additional construction rights are granted
through other documents. This tax becomes
enforceable when transferring of ownership of
properties. Although the surplus value tax should be
registered on the ownership certificate of the property,
regularly, the registry is not always made.
ii.Betterment levy (valorización): The
betterment levy is a tax that should be paid as a result
of the benefit that the execution of public works by the
government generates to a property. This is recorded
in the Ownership Certificate of the property and must
be paid before making any transfer of ownership. The
entity that executes the work will oversee the collection
of the tax, and such collection may be carried out in
different payments.
iii.Urban delineation tax (impuesto de
delineación urbana): It is regional tax that is
related to the cost of construction per square meter
and is caused by the construction of new buildings or
the renovation of existing ones. This payment is
required at the time of issuing construction licenses in
the following types: new construction, extension,
modification, and adaptation.
iv.Property tax (predial): It is a tax that is
generated by the existence of the property. This is
collected by the municipalities and districts, who are
in charge of its administration, collection, and control.
It is determined based on the cadastral appraisal of
the property and is charged annually.
06

NORM
11.1. Regulatory Framework
SUBJECT
Contracts.
Contracts.
Urban Leasing Law.
National Code for Renewable Natural Resources and
Environmental Protection.
Real Estate Tax
Municipal development plans, acquisition and expropriation.
Rural land regime.
Amendment of Law 9 of 1989.
Modifications of Law 388 of 1997.
Planning sanctions.
Planning permits.
Partial plans.
Planning permissions on rural land.
Partial plans.
Rural land zoning regulation.
Urbanization and development of lands and areas on urban
land and expansion and applicable legislation on calculation
of participation in surplus value.
Modifications to Decree 3600 of 2007.
Modification to Decree 3600 of 2007
Promotion of developable land and access to housing.
Paperwork reduction.
Civil Code
Code of Commerce
Law 820 of 2003
Decree 2811 of 1974
Law 44 of 1990
Law 9 of 1989 and 1469 of 2011
Law 160 of 1994
Law 388 of 1997
Law 507 of 1999
Law 810 of 2003
Decree 564 of 2006 (partially removed)
Decree 2181 of 2006
Decree 0097 of 2006
Decree 4300 of 2007
Decree 3600 of 2007
Decree 4065 of 2008
Decree 4066 of 2008
Decree 3641 of 2009
Decree 1469 of 2010
Law 1448 of 2011
Law 1454 of 2011
Law 1469 of 2011
Decree Law 0019 of 2012
07

11.1. Regulatory Framework
NORM SUBJECT
Law 1753 of 2015
Resolution 740 of 2017 Agencia Nacional de Tierras (“ANT”).
Resolution 041 of 1996 (Incora – today ANT)
Decree 2051 of 2016
Decree 1766 of 2016
Decree 1071 of 2015
Decree 1273 of 2016
Decree 2363 of 2015
National Development Plan 2015-2018.
Winding up of the Colombian Institute of rural
development (INCODER)
Creation of the Rural Development Agency (ADR)
Issue to facilitate the implementation of the Integral Rural
Reform contemplated in the Final Agreement signed with
FARC, specifically the procedure for access and
formalization and the Land Fund
UAF extensions
Regulates the Unique Registry of Abandoned Lands and
Territories -RUPTA-
Modifies the decree of the rural development sector,
Decree 1071 of 2015
By means of which Title 5 is added to Part 10 of Book 2
of Decree 1071 of 2015, Sole Regulatory Decree of the
Agricultural, Fisheries and Rural Development
Administrative Sector, related to the temporary
assumption of the administration of parafiscal
contributions
Decree of the rural development sector
Regulates the Areas of Interest for Rural, Economic and
Social Development (Zidres for its acronym in Spanish).
Create the Areas of Interest for Rural, Economic and
Social Development (Zidres for its acronym in Spanish).
Creates the National Land Agency, (ANT for its acronym
in Spanish).
08

09
Address:
Phone:
Web page:
Calle 67 # 7 - 35, Bogotá Bogotá, D.C. Colombia
+57 (601) 319 2900
https:/
/gomezpinzon.com

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