The Companies inc.






Mexico's Land Rights 
Home Up Contents Search Feedback
Home Up



TREC LICENSE # 0303291


















Land Rights/Usage

Land tenure
The Mexican legal system is different from the American legal system in its fundamental historical and organization basis. Mexico can be generally defined as a civil law country. Its legal system has its ancient origins in a Roman law system inherited from Spain. Civil law countries give precedence to written law combined with an extensive codification of their ordinary law. In Mexico, the Spanish legal heritage was modernized in the nineteenth century by the addition of the Napoleonic code, itself a system of codification rather than legal precedent, as in the common law tradition.

Property rights are not surprisingly legally defined by the Latin terms of Roman law: the three rights of jus fruendi, the right to enjoy; jus utendi, the right to use; and jus abutendi, the right to consume. The rights to enjoy and use are well guarded in law and practice in Mexico, and are familiar to those more conversant with the concept of the bundle of rights as known to American real estate practitioners. In Mexico, however, the third right, the right to consume, is more narrowly restricted than in the U.S. concept of the bundle rights, and better defined as the right to dispose of real property: use, enjoyment, and disposal, rather than use, enjoyment and consumption.

In Mexico, there are four legal categories of land tenure:
1. Private ownership by a single owner, private ownership by co-owners, and private
condominium ownership.
2. Tenure held communally without private ownership rights (eijido lands).
3. National, state, or municipal government lands that are defined as public domain, and therefore are cannot be sold or otherwise transferred.
4. National, state, or municipal lands that are defined as private domain land, and
therefore can be sold, otherwise transferred, and legally are regarded as private

The deed (title) to a property is known in Mexico as a public instrument. They are held and can be researched at the local Public Registry of Property. They are accessible government offices and present in most Mexican cities and towns. The title (public instrument) will identify the parties involved in the property transaction as well as identify the property. When the title is finalized and signed by the notary (see below) and buyer and seller, then the purchase price of the property is exchanged. The transaction is now considered complete.9

A notary public, or notario, is essential to any real estate transaction in Mexico. A notario is actually a legally required professional who puts together the paperwork required for the transfer of ownership in Mexico. Notarios act as both attorneys and title companies, and there are only 1,500 in all of Mexico. The notary public is legally an extension of a judge or agent of the government as his duty is to formally execute the transaction and make sure it complies with all legal requirements.

This more expansive role (and power) of the notary public is due to the basis of Mexican
law in Roman law, while the more limited role of the notary public in the United States as a third party witness is part of our (British) Common law heritage. The notary public must authenticate the following documents for a sale to legally occur: the title deed, a certificate of no encumbrances, a certificate of no property tax liability, a property appraisal and a topographical survey. The authentication of these documents is then recorded within the title deed. Title insurance is not common in Mexico but can be purchased for use in Mexico through companies in the United States.

General methods of sale
At the most basic level, a letter of intent is accepted as a valid contract or agreement for a sale. The parties must then reach agreement on the best method of transfer. The most commonlyused agreements in Mexican real estate transactions are a general purchase sales agreement or a reserve title and installment sales agreement.

The general purpose sales agreement is the simplest and most common method of property transfer in Mexico and can be used by foreigners outside the restricted zones (see below). Essentially, it is basic contract law, requiring consent (between the buyer and seller) and object (the title and then the payment). It is formalized by a notary public and recorded at the Public Registry of Property of the locality where the real estate is located.

A reserve title and installment sales agreement allows the seller to reserve title until full payment of the agreed price has been received, while the buyer has the benefit of the use of the real estate while still making payments. Default in payment by the buyer may entitle the seller to have the property revert to him. However, if the payments are made, the seller may not sell, encumber, or in any other way transfer the property to a party other than the buyer.

1999 ongoing Baja incident
Baja California, the scenic peninsular southern end of the California region that is within Mexican national jurisdiction, is host to over 63,000 American property owners. A recent and ongoing incident there highlights some of the potential problems of property ownership in Mexico - for both citizens and foreigners. 150 property owners, mostly Americans, currently face eviction from their properties at the Punta Banda beachfront development, located about 85 miles south of the US/Mexico border. The dispute involves up to US$25 million worth of resort property.

The legal problems come from the unfortunate circumstance that the Punta Banda properties are built on an eijido, which are land grants that were made to peasant farmers and indigenous groups by the Mexican government in the 1970s. These land properties all have serious questions surrounding the validity of land title, because of fraudulent transactions, inadequate registrations, or collective claims. Difficulties in determining true legal title to eijido land, and fraudulent transactions related to these uncertainties, are a problem for Mexicans and foreigners alike. Eijido land can be safely listed as one of the major property rights issues that plague the establishment of the clear ownership of title in Mexico.

In the Punta Banda case, the property was part of an eijido given by the government to a communal ownership of 80 eijidatarios. They, in turn, had leased the land to developers by the late 1980s, but later, seven original landowners challenged the legality of the eijido. Their claim was upheld by the Mexican Supreme court in 1996, who found that the developers who sold the home sites never had proper legal title to the land. The questions of whether home owners can remain in their homes while further legal proceedings are under way or whether they are entitled to financial compensation, and if so, from who and by what means are unclear.10 Initial attempts by Mexican authorities to carry out evictions were stopped by protesters, but the situation is still in a legal limbo.11

The unfortunate situation that has developed for these Baja resident investors highlights how important it is for foreign purchasers of real estate to thoroughly investigate any title issues that may exist in relation to a prospective property. Basically one should take even more care than when buying property at home. Unfortunately, it can happen in Mexico that the property developer will advertise and sell the individual units of a condominium complex before proper establishing the legal subdivisions that comprise the Condominium Regime. A serious problem then arises. Until the condominium regime for the particular complex has been registered with the Public Registry of Property and Property Tax Office, no legal title can be given for a particular unit, since it is thus part of a non-existent legal entity. As such a title cannot be issued, because legally there is not a property to describe. A full title search is at least as necessary in Mexico as in the United States, and should be carried out regardless of the type of property purchased.12

REALTOR® - A registered collective membership mark that identifies a real estate professional who is a member of the NATIONAL ASSOCIATION OF REALTORS® and subscribes to its strict Code of Ethics.  
The National Association of REALTORS®, 430 N. Michigan Ave., Chicago, IL 60611   Telephone: 1-800-874-6500


DISCLAIMER:  Note:  This is not a legal document.  This write-up may contain errors and omissions and is for informational purposes only.  The above information is deemed correct, but is not guaranteed and is subject to changes and corrections. The property is subject to withdrawal from the market without prior notice.  Seller makes no presentations, warranties or disclosures as to the property except as to title.  The property is sold as is, where is with all faults and without warranty, representation or guaranty as to suitability, express or implied, (as to the condition or fitness of the property) for buyers’ use.

Home ] Up ]

Send mail to with questions or comments about this web site.
Copyright © 2008 Jacob R. Casanova
Last modified: November 15, 2011