The role of a Mexican notary public in the acquisition of Mexican Real Estate

June 5, 2011
The role of a Mexican notary public in the acquisition of Mexican Real Estate

In many cases, it is easy to question the role of the notary public in formalizing the sale of real estate in Mexico, whichleads us to analyze the scope of the notary’s services and the legal certainty provided by notaries public in transactionsof this nature. The notary public in Mexico is a lawyer who receives an additional license as a notary public, whichallows him/her to be a notary in different types of transactions and legal acts, including those relating to real estatesales transactions. The notary participates in the legal transaction, that is, he/she renders his/her signature to formalize acontract, drafts the contract or revises the legality of the contract provided by the parties. The notary’s primaryfunctions, include: (i) identifying the needs and intentions of each party; (ii) identifying the property’s chain of title andmaking the appropriate references in the public instrument; (iii) requesting and obtaining any certificate(s) of liens orno liens regarding the property from the Public Registry of Property (Registro Público de la Propiedad) and presentingit to each party; (iv) verifying that the property has no outstanding debts in regards to property tax or water supplyservices; (v) identifying the parties to the transaction and, when applicable, their legal representatives, as well as their legal capacity to enter into the contract; (vi) calculating and performing necessary acts for the return and payment oftaxes accruing to the parties as a result of the sale; and (vii) filing the deed of purchase with the Public Registry ofProperty that corresponds to the property’s location. At first glance, this may seem like a very extensive process forreal estate sales transactions; however, it is important to mention some of the relevant aspects of the responsibilities ofa notary public:1. The notary certifies the legality of the transaction and the legal capacity of the parties to enter into it, that is,that one party is the seller and the other the buyer. It is worth mentioning that the notary public may notindividually represent either party.2. The notary checks the seller’s legal title and obtains a certificate of no liens from the Public Registry ofProperty; though they have no obligation to review the property’s chain of title in addition to the seller’s title, itis recommended that this be checked for the period of at least the previous 20 years.3. Unless the transaction directly involves the sale of communal property (ejido), the notary does not check theprevious condition of the property or the fulfillment of all legal requirements.4. The notary does not verify the zoning/land use of the property and its compatibility with the buyer's specificproject.5. The notary does not check or verify the availability of public utilities on the property; he/she merely confirmsthat there is no balance owed for the water supply services and any property taxes, in accordance with the law.6. The notary checks neither the environmental condition of the property nor the requirements for thedevelopment and use of property.In conclusion, the involvement of a notary public in real estate purchases is a legal requirement in Mexico, and itsfunction is of great importance in the execution of the transaction. However, in some transactions it is an essential butcomplementary service to the role of various specialists, including outside counsel, engineers, environmentalconsultants, surveyors, etc.

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