closing the deal When purchasing or investing in real estate in Mexico, it is important to know and understand that the legal system and the procedural and statutory requirements of Mexico are quite different from those of the United States. This article contains a brief overview of these requirements as they apply to foreigners in Mexico s Restricted Zone. mexican constitution Article 27, section I of the Mexican constitution provides that only Mexicans by birth or naturalization and Mexican companies have the right to acquire ownership of lands, waters and their appurtenances, or to obtain concessions for the exploitation of mines or waters. The Federal Government may grant the same right to foreigners, provided they agree (1) before the Ministry of Foreign Affairs (the Ministry) to consider themselves as nationals in respect to such property and (2) under the penalty of forfeiture for noncompliance, not to invoke the protection of their governments in matters relating to such property. This waiver or agreement is known as the Calvo Clause and, upon compliance, the Ministry cannot deny or limit in any manner the fulfillment of purchase of real property by foreigners. The foreign purchaser must notify the Ministry that he or she agrees to the condition included in the Clause, and the Ministry will issue a document of recognition so that the SE VENDE buying residential land in mexico s restricted zone BY JUAN F. MORENO 30 ARIZONA ATTORNEY MARCH 2002 WWW.AZBAR.ORG
transaction may be completed. The constitution also states that under no circumstances (including compliance with the Calvo Clause) may foreigners acquire direct ownership of lands and waters within a zone of one hundred kilometers along the frontiers and of fifty kilometers along the shores of Mexico. In other words, Mexico s constitution prohibits foreigners from the direct fee simple ownership of land 31 miles from the coast and 62 miles from the country s borders known as the Restricted Zone. Thus, only property outside the Zone may be acquired and held by foreigners in fee simple. The following general provisions govern the acquisition of lands and waters in Mexico by non-citizens: 1. In principle, only Mexicans by birth or naturalization and Mexican companies have the right to acquire ownership of lands, waters and their appurtenances, or to obtain concessions for the exploitation of mines or waters. 2. The federal government may grant the same right to foreigners, provided they agree before the Ministry to consider themselves as nationals in respect to such property and bind themselves not to invoke the protection of their governments in matters relating thereto, under penalty, in case of non-compliance with this agreement, of forfeiture of the acquired property to the federal government. 3. Under no circumstances may foreigners acquire direct ownership of lands or waters within the Zone. mexican foreign investment law of 1993 Is some foreign ownership possible in the Zone? Certain exemptions contained in the Foreign Investment Law are designed to encourage such investment. The Foreign Investment Law of 1993 provides that foreign-owned legal entities even those with 100 percent foreign capital may acquire the direct ownership of real property located in the Zone when that property is designated for non-residential purposes, provided they agree to the Calvo Clause. The purchase has to be registered with the Ministry. Thus, even in the case of a residential development, the foreign developer can be considered to be involved in non-residential activities and thus can hold the land without a trust if the owner of record is a Mexican company, which could be wholly owned by the foreigner. However, when the purpose of use of the real estate is for a residence, the Ministry cannot authorize the transfer of title to a foreign individual or corporation. As a result, a foreign buyer will be required to form a real estate trust. residential purposes in the restricted zone To permit foreign investment in the Zone, the law provides that foreigners may acquire rights over real property in the Zone. When these assets are destined for residential purposes, the acquisition has to be made through a bank trust a Fideicomiso. A trust agreement must be executed between the seller of property and a Mexican bank that has authorization by the Ministry to act as a trustee with rights over real estate located in the Zone. Under Mexican banking law, only banks can act as trustees. The bank, acting on behalf of the foreigner, purchases the property for his or her benefit and has a fiduciary duty to follow instructions given to the bank by such foreigner. The bank is the holder of title, and the buyer is entitled to the use and enjoyment of the property under a 50-year transferable and renewable trust. That includes, when appropriate, the obtaining of fruits, products and, in general, any benefit resulting from the property. As with the acquisition of real property outside the Zone, a foreign buyer also must agree to the Calvo Clause with the Ministry. subdivisions within residential developments Subdivision applications are submitted by the developer to the local district authority of the state s Department of Urban and Rural Development. The application must contain certain information, including: Description of the type of development, exact location and general characteristics An environmental impact study Property title Surface map of the property Draft or blueprint of the proposed project After review and approval of the intended project by the appropriate authorities, the developer will execute a formal agreement with the mayor, which will establish the developer s intentions to develop and his obligations for the proposed subdivision. This agreement must be registered in the public registry and published in the official bulletin. Hence, when buying a residence within a development, a buyer always should ask the developer for a copy of the published subdivision approval in the local official bulletin. process paperwork and procedural requirements In every purchase transaction, a bank and a notary public will be involved, as well as a lawyer if wanted by the buyer. All notary publics are licensed attorneys and are issued a special license to be a notary by the state government. Any transfer of ownership in real estate must be drafted by a notary public, who is responsible for ensuring the transaction is documented and consummated in the form required by law. Mexican real estate transactions are not done in the same manner as they are in the United States. A realtor may, but need not, be involved in a real estate transaction. Any person, foreign or not, can form a real estate company in Mexico with no special WWW.AZBAR.ORG MARCH 2002 ARIZONA ATTORNEY 31
requirement or license. There is no real estate commissioner or department of real estate at any government level. There are myriad documents involved in a purchase transaction, but in all cases the buyer should, at a minimum, obtain a copy of the following: closing costs Closing costs will be paid as the parties agree, but customarily the buyer pays the notary public fees, appraisal, property transfer tax (two percent of appraisal value), recording fees (both Public Registry and Foreign Investment Recorder office) and trust fees. The seller will have to pay capital gains generated by the sale, if applicable. Conditional Deposit Agreement with the trust department of the bank the buyer plans to use to set up the real estate trust (or the one holding the property in trust). The agreement will contain the escrow instructions, such as release of funds once the transaction has been completed. Another avenue to use an escrow is through U.S. companies doing business in the Mexican real estate industry. Mexico s constitution prohibits foreigners from the direct fee simple ownership of land 31 miles from the coast and 62 miles from the country s borders known as the Restricted Zone. 1. Title. A copy of the seller s title document, which is a recorded document prepared by a notary public evidencing a real estate transaction in the public record. Typically, the title will have a stamp on the last page containing the filing information with the public registry. If the stamp is missing, the transaction should be postponed or canceled until the seller can provide satisfactory proof of his ownership interest in the property. 2. Certificate of No Liens and Encumbrances, and of No Tax Liability. These certificates are issued by the public registry and by the tax department of the municipality where the property is located. 3. Real Estate Tax Payment Receipt and Utility Bills. Evidence satisfactory to the buyer that the real estate taxes and all the utility bills are paid the buyer becomes responsible for all past-due bills. The appraisal value used to calculate the two percent transfer tax is the greater of the bank appraisal, the value assessed by the state assessor for the annual taxes on the property and the purchase price. Many transactions are recorded with a lower sales price, thereby reducing the taxable gain for the seller and the transfer tax for the buyer. This may be highly detrimental to the buyer, because the low selling price will be used for determining the capital gain tax created by any future sale of the property. escrow A seller often will ask for a down payment. The buyer should refuse and say that he or she will pay the full purchase amount on the date of closing. If the buyer decides to make a substantial down payment, the use of an escrow agent will be necessary. This issue presents some difficulty because escrow, as we know it here in the United States, does not exist under Mexican law. A broker or other individual or entity that offers to act as escrow agent may not understand the services an escrow provides in the United States. The solution is to enter into a property currently held in a real estate trust When purchasing a property in the Zone, it is sometimes preferable to look for one that is already held in trust, because the buyer might save time and money in the formation and creation of the trust. However, the buyer has to keep in mind that real estate trusts are for 50 years and renewable one time only, and thus there will be less trust life in the desired property. A purchase contract involving an existing trust must be drafted in the form of an assignment of rights. The assignment has to be executed before a public notary, and consent from the bank/trustee is a must. creation of a trust Because the buyer is represented by the trustee, he or she does not execute the agreement. However, it is advisable to be aware of the rights and obligations of the buyer as beneficiary of the trust. A bank trust requires a permit from the Ministry. The process to obtain a trust follows. Both buyer (foreigner) and seller (trustor) must provide a trustor s letter of instructions and a beneficiary s application to the bank with the following information: trustor beneficiary(ies) substitute beneficiary(ies) Type of property Copy of the property deed Consideration to be paid Legal description and survey of the property 32 ARIZONA ATTORNEY MARCH 2002 WWW.AZBAR.ORG
Distance to the Federal Zone (distance to the sea shore or the border) With the above information, the bank/trustee applies for a trust permit with the Ministry with the following information and conditions: Information concerning the trustor, beneficiary(ies), substitute beneficiary(ies) Duration of the trust Purpose (residential) Location of the property Distance from Federal Zone Description by metes and bounds The parties also must agree to the following conditions: Beneficiary agrees to the inclusion of the Calvo Clause Beneficiary agrees to be the holder of the beneficial ownership of the real estate without having actual title Beneficiary or whomever he or she indicates agrees to use and exploit said real estate for the duration of the trust Trustee agrees to submit a report to the Ministry in case of fiduciary substitution, assignment, or other change The duration of the trust is 50 years and it can be renewed before the term of the contract lapses The Ministry reserves the right to verify compliance with the conditions agreed to in the trust permit The use of the trust permit implies the unconditional acceptance of its terms and conditions Once the permit is granted by the Ministry with all these conditions, the bank/trustee will send instructions to a notary public to formalize the trust agreement in a public deed for execution by the trustor and trustee followed by registration in the Public Registry of Property in the municipality where the property is located. The instructions will have the following attachments: A trust agreement draft Original Ministry permit Personal information on the bank s trust delegate (bank officer executing the trust) Identification of beneficiary(ies) The following additional documents, delivered by the trustor, are required for the notary in order for him to formalize the trust agreement: Deed to the property Appraisal Real estate tax payment receipt Certificate of no tax liability Certificate of no encumbrances When the trust agreement is signed by the seller, title to the property is conveyed to the bank as trustee. It is at this time that the buyer should pay the consideration for the property. All banks require a trust permit fee depending on the duration of the trust and the value of the property. The 34 ARIZONA ATTORNEY MARCH 2002 WWW.AZBAR.ORG
fees could be for accepting to act as trustee and/or an annual fee. Required government fees are the foreign investment registration fee and the one-time fee for the duration of the trust. final observations There have been many cases of fraudulent conveyances in places like Rocky Point and other hot spots in Mexico s beaches. That is why federal, state and local authorities have been working hard to regulate this industry, which is one of the most important sources of income to Mexico s economy. One example of these efforts is the initiative in the Sonoran Congress to enact and regulate a law governing real estate services providers, such as real estate agents. Another is the creation by Rocky Point s mayor of an advisory council to determine whether resort properties have the necessary permits for developing and selling property and making that information public. Also, the Arizona Mexico and Sonora Arizona commissions officially announced during a fall conference in Hermosillo the creation of a real estate task force to promote the development in Sonora of real estate practices and to make investors aware of the caveats of buying property in Mexico. These commissions also published a practical guide for foreigners to purchase real estate in Sonora. Nevertheless, it is advisable to get title insurance for the property, which is now available through U.S. companies, to avoid any surprises. The Mexican legal system is no better or worse than that of the United States; it s simply different. The worst thing a purchaser can do is to remain ignorant of the law and procedures involved in the conveyance of real estate in a foreign country. Many believe that the use of real estate trusts will be eliminated in the future, making it one more reason why a foreign buyer should not worry about his or her investment. But in the meantime, all the requirements mentioned should be followed carefully. As the saying goes, Don t leave your brains at the border. Consulting a Mexican attorney is the right thing to do. Juan Moreno is a native of Sonora and is licensed to practice law in both Arizona and Mexico. He is an associate with Robbins & Green, P.A., and his practice centers around commercial transactions, including working with corporations, partnerships, real estate and cross-border related transactions. endnote 1. DENNIS JOHN PEYTON. HOW TO BUY REAL ESTATE IN MEXICO (2nd ed.), 2 10. Law Mexico Publishing (1997). WWW.AZBAR.ORG MARCH 2002 ARIZONA ATTORNEY 35