Entertainment Magazine: Mexico: Real Estate

Buying and financing property in Mexico

More homebuyers today are looking to purchase highly sought after Mexican Real Estate due to the strengthening of the housing market in the United States and Mexico.

Especially with the implementation of US title insurance and financing. These changes in the market place have created tremendous advantages and demand for real estate in Mexico.

The Restricted Zone

Foreigners may acquire direct ownership of property in the interior of Mexico; however, the Mexican Constitution regulates land ownership and establishes states that “…in a zone of 100 kilometers (about 62 miles) along any border or 50 kilometers (about 31 miles) along the coast, a foreigner cannot acquire direct ownership of this land.”

This zone is known as the “restricted zone” or “prohibited zone.”

Foreigners must use a trust to buy property within this zone.  A real estate trust must be set up to hold title for the foreigner.  Since foreigners are not able to enter into contracts to hold title to real estate in the restricted zone, they must have a bank act on their behalf. 

The Mexican Trust

Foreign investment in these restricted areas is possible through the use of a “fideicomiso” (fee-day-e-co-me-so), which is a Mexican real estate trust that was created by the Mexican government. The “fideicomiso” has been a legal document since December 28, 1993.

A Mexican bank must be nominated as the trustee and is required to hold the title to the property. The Mexican Government created the "fideicomiso" to resolve the problems involved in developing the restricted zone and to attract foreign capital.  Now foreigners, as beneficiaries of the trusts, can finance land located in the restricted zone without violating the law.

The trust agreement is executed between a Mexican bank and the seller of the property in the restricted zone. The bank acts on behalf of the foreign buyer, taking title to the real property.

The bank, as trustee, acquires the property for the foreigner, and then has a fiduciary obligation to comply with all instructions given to the bank by the foreigner, who is the trust beneficiary. The trust beneficiary retains and enjoys all the rights of ownership while the bank holds title to the property. The foreigner is entitled to use, enjoy, rent, remodel, profit (an example of this would be selling crops), and even to sell the property to any eligible buyer.

Typically, the trust has a fifty (50) year term renewable indefinitely with annual fees of about five hundred fifty United States Dollars ($550 USD).

There is a common misconception among foreigners investing in Mexico that once the trust term expires, the beneficiary loses all rights and benefits of the sale of the property held in trust. On the contrary, the beneficiary has a contractual right under the trust agreement with the Mexican bank to all benefits that may result from the use or sale of that property, even though he does not hold title to the property. Under Mexican Law, the bank has an obligation to respect the rights of the beneficiary.

All foreigners are required by the Mexican government to obtain a permit from the Ministry of Foreign Affairs; even though this is executed by the bank and trustee it is recommended that a foreign buyer obtain the permit before finalizing any legal binding contract. This permit can be obtained in a few days.

The bank is also expected to obtain a permit from the Ministry of Foreign Affairs. The reason for this is to ensure the trust’s beneficiary is granted the right of use concerning the property.

The Mexican Land Lease

A Mexican land lease for more than ten years is not legal and never has been legal in Mexico.

If a lease in Mexico that exceeds ten years is finalized and the landowner decides he wants his property back after the first ten years, he can disregard the agreement and legally take back the property regardless of the time period noted on the lease.

The leaser would have no alternative, because a lease that exceeded ten years was signed and finalized.

In this case, and under these circumstances only, can the Mexican Law take away the option to use the Mexican Court System.

We recommend a lease only if you have limited your total investment to an amount you feel comfortable with, knowing that at the end of the, up to ten year, period you could be asked to leave the property.

Today, the Mexican landowner may say he will renew your lease as many times as you want, but that may not be the case in the future.

Title Insurance

Title Insurance is not required in Mexico but, it is very strongly recommended. The policy is a “contract of indemnity” that guarantees a purchasers ownership rights and lien interest as established in the public deed (escritura publica). This policy insures the purchaser against any loss suffered by a defect or cloud on title.

The policy is the only guarantee that any buyer or lender can receive that protects their rights of ownership or lien priority as recorded in the Mexican public registry of property and commerce.

There are two title companies with a good solid reputation for doing business in Mexico and they are Stewart Title Company and First American. They apply a United States standard of title insurance on property by performing an extended title search (non-standard by Mexican Practice) and obtaining all relevant documents in the chain of title. They have more than 110 years of real estate experience in the United States and are traded on the New York Stock Exchange.

Notario Publicos are very good but they do not provide any type of guarantee in the event of a defect on title. They do not have the financial responsibility to pay the property owner or lender in the event they suffer a monetary loss due to fraud, impersonation, misrepresentation, recording error, litigation against the seller, a prior owner, a missed lien, encumbrance, and/or a secret heir or undisclosed spouse.

The insurance policy is a one time premium payment and the policy stays in full force and effect for as long as the purchaser owns the property. The company that issues the policy has the legal responsibility to defend the insured customer against any claims, losses, or lawsuits filed against the insured title holder. Normally they will respond within 30 days of any claim against title. Read more about Title Insurance in Mexico.

Financing Mexican Property

There is financing available through Mexican banks and now with US banks too. US banks have traditionally been reluctant to provide mortgage financing on Mexican property due to their inability to obtain title and potential difficulties with foreclosing in a foreign country. Purchases were limited to investors only with sufficient resources to buy real estate and had no need for financing.

Recently, this situation has changed dramatically. It seems there are more and more mortgage companies coming to Mexico. They offer seventy percent (70%) of the appraised trust amount. Interest rates vary yet most are two to three percent (2%-3%) above US rates and have up to fifteen (15) year amortization rates, although due to changes happening so rapidly the information you are now reading could be obsolete. It is best to check the current rates and see what the lenders are offering today.

The bank trust has become sufficient collateral and a simple notation is made on the trust document to protect the lender (If buying in the interior a lien is placed on the property, much like in the US). Everyday more and more lenders are realizing that their investment in Mexico is a safe investment. Their introduction of mortgage capital shows a vote of confidence in Mexican real estate.

Closing on property in Mexico

When an offer is made and accepted by all parties, a survey, current appraisal, and a letter of inspection are required. If the transaction is with a trust then the letter of inspection is sent to the bank and the bank will give you a letter that says all trust fees and requirements are met with the bank.

A file is opened with a notary, and a lien waiver certificate, property tax receipt for the current year, and a letter from the Home Owners Association are required. This validates that all fees are current and there are no pending assessments with the Association or the Federal Zone.

The Notary will also need from both parties of the transaction: proof of full names, marriage certificates, place of birth, official identification, and your visa to prove you are in Mexico legally. He takes all this information verifies it, along with a title search, and will not sign any document until everything is in order and within Mexican Law. Once everything is in order the notary will sign the document, record the transaction, and collect all government fees. The seller pays the capital gains tax, if any.

However, an arrangement can be made to have the buyer pay this fee. The Notary will inform you of the amount, almost to the cent. Cash changes hands the minute the seller signs over the deed and, customarily, the buyer pays notary fees, which must be paid when the title is signed over. At this point the transfer is executed. Now, the notary must take the escritura to the Registro Público de la Propiedad (Public Registry of Properties). This should be done promptly, as the transaction is not valid until registered. Finally, once this is done the transaction is complete.

The Mexico Notary Public

In Mexico a notary public (Notario público) is very different from an American notary public. He is a public official appointed by the State Governor. He has the capacity to attest and certify documents and legal transactions that require authenticity also providing strict security of original records and documents.

Accomplishments required of a Notary Public in Mexico:

  • Mexican citizen
  • Thirty-five years of age
  • Law degree
  • Three years experience working in a notary publics office
  • Take and pass an examination
  • Governor will grant him an appointment when he decides to do so

Every legal document such as deeds, wills, powers of attorney, constitution of corporations, establishment of trusts, and other documents must be made before a notary public in order to be valid otherwise it is not legal.

Other Useful Information

When buying real estate and you reach an agreement, go to the notary first. The buyer chooses the notary. If you choose not to hire an attorney, the notary is well qualified and legally authorized to perform the transaction.

Before entering into any binding contract, take a copy of the escritura to the notary to check if the deed is valid.

If buying from a developer, have the notary check if the developer has all his permits for the development and for construction. Do not accept a beautifully written certificate promising a deed at some point in the future. It is not a deed it is a sales contract.

Have the notary determine if the land is ejido land (communal agricultural land). This type of land can be purchased, but is risky because you are only allowed to use it.

Have all transactions made before a notary. Do not be pressured by someone who says you must put money down right away.

Most real estate transactions in Mexico are NOT fraudulent. The fraudulent deals are rare and defiantly not the norm. Any transaction done with a notary should not have any problems. The notary is responsible for having everything in order.

Sometimes people are so impressed with the natural beauty and climate of Mexico that they “throw caution to the wind” or “leave their brain at the boarder.” People who buy real estate in Mexico often invest their life savings in their “dream” retirement home. Please take a little time to educate yourself on the Mexican Laws.

Common safeguards on real estate purchase do not yet exist in Mexico as in the US or Canada. There is no credit bureau to check the developer’s financial condition. Make sure you are not financing his deal.

Mexico has a slower pace of life than most foreigners are accustomed to; it is extremely laid back professionally and personally.

The cost of living in Mexico s lower than what you are accustomed to. Some products/services have prices that are close to comparable to the United States but most items are significantly lower due to the manufacturing of goods in Mexico.

Copyright 2006 by GainClients, Inc.

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