NOTARY PUBLIC’S ROLE IN A REAL ESTATE TRANSACTION IN MEXICO
The position of Notary Public is that of a Government commissioned (appointed) officer who can perform activities such as document authentication and event certification (take oaths, file depositions, certify acknowledgments, etc.).
A Notary Public in Mexico must be an attorney at law. Upon application, after passing rigorous examinations, he is commissioned by the Government as a Notary Public. A Notary Public in Mexico holds office for life, unless either he or she resigns or is removed for a cause. The Notary Public in Mexico fulfills a civil service delegated upon him by the Government.
By Government appointment, a Notary Public in Mexico oversees the legal compliance of any and all aspects of any and all parties involved in any given civil cause provided under Civil Code. (take for example, a rental agreement or a purchase/sale agreement or setting up a corporation or executing probate)
Even though a Notary Public in Mexico is a licensed Attorney at Law and member of the Bar, the Notary Public in Mexico will not take part representing neither one of the parties involved in the civil cause. The Notario’s role is to oversee the legal compliance of ALL the parties involved in the civil cause. (including the Government, acting as one of the parties involved in such cause at time of collecting taxes as a result of such civil cause)
When doing real estate transactions in Mexico, it is the buyer who usually selects the Notary Public to protocolize (register) the transaction.
The Notary Public´s legal responsibilities in a real estate transaction in Mexico include:
- serves as an independent and neutral counsel to the buyer, the seller and the lender, as to their respective rights and obligations
- drafts legal documents (contracts, powers of attorney, promissory agreements, acknowledgments of payment, etc)
- certifies (verifies) the facts therein
- identifies any inconsistencies that may impede the proper execution of an agreement, seeks that such inconsistencies are cured before proceeding with the execution of the agreement and ensures that all parties have taken all necessary steps to execute a valid contract according to the mutual instructions of the parties involved.
- attests to all involved parties are in agreement by having those parties sign such agreements before his presence
- records documents in the Notarial Register Book (notarial protocol)
- records the documents with the Public Registry
- on behalf of the Government the Notary ; calculates, withholds and pays to Government agencies the fees, rights and taxes due by each party involved in the transaction and as a result of it. All payments of fees, rights and taxes paid by all parties are attached to the executed agreement as proof of compliance.
Upon paying the Notary Public, ask him to provide you with an official Receipt for the service fee he has charged for performing his Notarial services for you.
Answer: Around 60/90 days
The timeline for finding a property varies greatly from person to person. Once you find a house/condominium and have an accepted offer, it usually takes around 60/90 days to close, depending if we need to set up a new trust/fideicomiso for you or if we just need to transfer the rights of an existing trust/fideicomiso into your name.
Timeline CAN vary depending on the trust bank we work with.
Yes, foreigners may obtain direct ownership of property in the interior of Mexico. Mexican foreigners can also own property along the ocean front. By Mexican law, properties within the 50 km of any ocean front and 100 km of any country boarder are acquired via a bank trust or via establishment of a Mexican Corporation.
Laws passed in 1973 and 1993 have made it possible for foreigners, foreign firms, and Mexican firms with foreign participation to acquire interests in coastal real estate through a bank trust.
The Trust/Fideicomiso is a legal substitute for ownership, but in many cases, the Trustee is the legal holder of the property. As Beneficiary, you have the right to sell your property without restriction.
You will need to name the names of the substitute beneficiaries of your trust when we set up the new trust for you or when we put the rights of an existing trust into your name.
The Purchaser holds the same rights as a property owner in the U.S. or Canada, including the right to enjoy, sell, rent, improve the property, etc. This is not to be confused with a land lease. The property purchased is placed in a trust with the Purchaser named as the Beneficiary of the trust — the Purchaser is not a lessee. If the property purchased is already held in a trust, the Purchaser has the option of assuming that trust, or having the property vested in a new trust.
Anyone, even someone in Mexico on a Tourist Visa, may buy property in Mexico.
The notary will ask you on the day of closing to show your valid visa in Mexico.
This can be a tourist visa or any of the residents visa.
I do strongly advise you to get a visa after you obtain property in Mexico for several reasons. I would be happy to explain you why, please contact me for this specific question.
The only person that can answer this question on a specific sale is the notary through the accountant.
I always advise to my clients an approximate rate of 5% – 6.5%, depending on the amount of the agreed upon sales price.
Some of the taxes are percentages and some of the taxes to be paid on closing are fixed amounts.
This is a conservative and high percentage I am giving and an estimation.
It is common that the buyer pays the transfer of acquisition tax and all other closing costs, including the Notary’s fees and expenses, while the seller pays his capital gains tax and the broker’s commission.
– the seller holds valid, unencumbered title to the real estate;
– there are no taxes due on, or liens attached to, the property;
– the terms of the sale are evidenced by a written purchase contract or promissory contract if money is paid in advance of closing;
– the Fideicomiso agreement correctly describes the terms negotiated with the seller and the bank;
– the buyer obtains a certificate of no liens; certificate of no amounts due on water,
– the SRE issues a permit for the Fideicomiso;
– the Fideicomiso Agreement and the escritura/deed is registered in the Public Registry of Property.
In light of homeland security in Mexico’s Constitution, inside the ‘restricted zone’ of Mexico (100 kilometers from the border and 50 kilometers from the coastline), a foreigner entity (individual or foreign corporation) can only purchase real estate by means of a Fideicomiso, commonly called a Trust.
The Fideicomiso is a 50-year Bank Trust, renewable for 50-year terms for perpetuity. It grants a foreign Buyer the right to use, mortgage, improve, rent or sell the property.
The foreign Buyer is called the Trustee or the Beneficiary of the Trust.
The parties involved in a Fideicomiso are: the Fiduciary or Fiduciario (Bank), the Trustor or Fideicomitente (Seller), the Trustee or Trust Beneficiary or Fideicomisario (Buyer).
As the Trust Beneficiary, buyer retains ownership rights and responsibilities to the property and has the right to use, sell, lease, improve, mortgage or inherit the property to the Beneficiary’s heirs. Essentially, the Beneficiary of the Trust enjoys ownership rights equivalent to ownership.
Just as additional info:
The Trustee or Trust Beneficiary deisgnates Substitute Trustee or Subsitute Beneficiary when setting up the trust. In other words, one is the main beneficiary and the other one the substitute beneficiary (in case the main beneficiary passes away).
The change of the substitute beneficiary or beneficiaries is an administrative change you can request directly to your Trustbank for a fee.
So you CAN change this if you change your mind!
With the advent of the North American Free Trade Agreement (NAFTA), the Mexican government recognized that it was crucial to make foreign investment in Mexico safer and easier for non-Mexicans.
Because the Mexican Constitution prohibits non-Mexicans from purchasing or owning real estate within 60 miles of the U.S. international border, or within 30 miles of the Mexican coast, an innovative and secure method of holding title was created. This method allows non-Mexicans ownership through a Mexican property trust called a Fideicomiso. This is a trust agreement, much like an estate trust in the U.S., which gives the Purchaser all of the rights of ownership.
In order to gain the rights of ownership, the Department of Foreign Affairs in Mexico City issues a permit to the Mexican bank of the Purchaser’s choice, allowing the bank to act as Purchaser of the property.
Essentially, the bank acts as the “Trustee” for the trust and the Purchaser is the “Beneficiary” of the trust. The trust is not an asset of the bank; the banks simply act as the Trustee to hold the trust.
You can opt to designate a legal representative to represent you at closing. This is done through a Power of Attorney issued by you (we will draft it for you as part of our service). This document will need to be Notarized in USA or your specific country (we can direct you to the Notary closest to your location). Once Notarized, it will require to be Apostilled, which is a legal authentication for international use. (we will direct you to the closest Head of State office in your State of residence, in order to process Apostille authentication
Once Apostilled, we will issue instructions to send the POA to Notary via Fedex or DHL courier service. Upon receiving Apostilled POA, Notary will acknowledge the legal representation you have designated, and proceed draft the title, forms and writs with such acknowledgment. On closing day, your designated legal rep will be summoned by Notary to appear in your representation to close on your behalf.
Designating a legal representation must be done early in the process, as all forms, drafts and legal writs will acknowledge that you are being duly represented by legal representation.
If you choose to appear before notary public on closing day, and on a last minute notice you decide to designate legal representation, it will be too late, as all legal writs, drafts and forms are directly in your name, and no legal representation is acknowledge, nor can it be acknowledged on a last minute basis.
We encourage you to plan your ability to be present before Notary Public on closing day, or evaluate the designation of legal representation early in the process. Last minute designation of legal representation will disrupt closing day planning, and delay closing by anywhere from 4 to 6 weeks, because all forms, drafts and writs will need to be modified in order to acknowledge legal representation.