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| BUYING INFO REAL ESTATE IN MEXICO INDEX II. Purchasing your Dream Home in Mexico III. Buying Real Estate in Mexico IV. How Secure is your Investment in Mexican Property? V. Ejidal Property…a bargain? or a Problem? VI. Fideicomiso….The Mexican Bank Trust V. Title Search and Insurance in Mexico VI. The Legal Aspects of Living in Condominium VII. Preparing to Sell your Mexican Property IX. The Manifestation-an important detail if you are building a house X. The Mexican Corporation – The Vehicle for Business Dealings in Mexico XI. The Apostille, Making a document legal for use in Mexico XII. The Mexican Capital Gains Tax XIII. Enjoying Income From Rental Properties XIV. Agency and the Real Estate Agent XV. Resolving Real Estate Problems in Mexico Through Mediation and Arbitration Escrow and consultation services for buyers and sellers of real estate located ANYWHERE in Mexico One-Stop Service We are an independent neutral third party depository
with more than seventy-five years of experience in property titles and
transfers. We coordinate and perform all the operations required from
the time the signed and accepted purchase offer is complete until the
registered deed is delivered to the buyer. Our volume of business helps
us negotiate attractive notary fees, lower bank administration fees,….
And to process the entire transaction more effectively than others who
perform these services less frequently.
Members: AMPI Mexican Association of Real Estate Professionals NAR National Association of Realtors (United States) FIABCI International Real Estate Federation CANACO Chamber of Commerce, Mexico PROFECO CERTIFICATION, File No. 63/96. México: 01-800-627-5130 from the U.S.: 1-877-214-4950 Tel: (011-52)612-123-5056 Fax: (011-52)612-123-5242 E-Mail: info@settlement-co.com Website: http://www.settlement-co.com
PURCHASING YOUR DREAM HOME IN MEXICO by Linda Neil Mexico is an exciting place to live for those who are retiring, for those who are working from home on a computer link with their company, for those who are looking for a vacation home or an outstanding investment... above all, for those who dream of a better quality of life! Home... the word represents security and comfort for the majority. All too often the word, when used in conjunction with a purchase of property in Mexico creates stress, worry and, at times has been associated with financial loss. This needn't be the case. Procedures in searching titles and transferring property are similar to those of the United States and Canada. The buyer of a house, condominium or lot in Mexico must ask the same questions, and should receive answers similar to those received when buying a property elsewhere. RULE NUMBER ONE: SELECT THE COMMUNITY AND THE COMPANY THAT FITS YOU In considering the purchase of something so important as a home it is necessary to have the right people representing the buyer and his interests. This can be accomplished by first selecting the general area where you think you'd like to live. A review of the local newspaper or telephone directory will give a listing of the real estate companies in the area. Through NAFTA agreements, the Association of Mexican Real Estate Professionals (AMPI), is now affiliated with the U.S. National Association of Realtors (NAR), the Canadian Real Estate Association (CREA), and the International Real Estate Association (FIABCI). These important national real estate organizations are working to achieve standardization of real estate practices and procedures throughout the world. The company you select to represent you in your Mexican property purchase should be a member of AMPI. Not only is the AMPI member company required to operate under a higher standard of care, and to adhere to a code of ethics, but also it may have access to an increasing number of the properties available for sale through computerized data bases. Once the area is selected and a list of the AMPI companies
operating there has been obtained - interview the owners and operators
of the companies. Ask for references, ask for a professional resume. Interview
carefully the persons that most impress you. The person you select should
be familiar with area, with basic real estate principles... and should
impress you with his or her honesty and drive to find what YOU are looking
for. Once you have found the person you feel comfortable with, stick with
him or her and let him do his job. The sales person who knows you aren't
shopping around will generally work harder to find exactly what you are
looking for. Remember, it is your money and your commitment. Do not be
pressured by someone who is charming but who does not listen carefully
enough to understand YOUR special needs. EXAMINE THE NEIGHBORHOOD Once you have selected the right community, an agent with whom you feel comfortable, AND a possible property, check out the neighborhood. Is it new? Is it old? What will it look like in ten years? Are highways or other development projects planned for the future? Where are schools, churches, shopping facilities? Are there homeowner fees for maintenance of common areas? If so, how much are they and when are they paid? Are all the utilities in and paid for? What does the developer have left to do? What building restrictions are there? Are there covenants and conditions registered for the usage of the land? In many parts of Mexico there is no enforcement of a master plan or building codes. This can affect the changing face of the neighborhood you have selected. RULE NUMBER THREE: BUDGET FOR YOUR PURCHASE, CHECK TITLE AND UNDERSTAND THE MEXICAN BANK TRUST (FIDEICOMISO) CLOSING COSTS: Closing Costs will range from 4% to 30% (yes, 30%!) of the total cost of your property. The higher the price of the property, the lower the percentage of total costs for closing. This is because certain expenses for permits and certificates are fixed, regardless of the value of the property. Costs of transfer include title search, transfer taxes, bank fees, government permits and notary fees. Your seller may assist in some of these; especially those related to title search and insurance. Be sure to get a written estimate so that you will not have unwelcome surprises at the date of transfer of title! While YOUR MEXICO REAL ESTATE agent may know the procedure, his or her specialty is to identify the correct property for you and to negotiate advantageous terms for the purchase. The technicalities of the transfer; negotiations for permits, registrations and so forth are generally more objectively and thoroughly handled by a neutral third party who does not have a financial interest in the transaction. CHECK THE TITLE: Does your seller have a registered title to the property? Many foreign buyers, in order to avoid the closing costs, or through ignorance, have paid for their property, taken possession of it, and have never obtained a registered title! Ask for a copy of your Seller's title documents and reserve the right to examine them prior to the release of any part of your payment. If they are in Spanish have them translated and, if in doubt consult with a neutral third party about their probable validity. It should be added that if the seller has never acquired title to the property he is selling, it can often be remedied. The buyer should be aware of this condition, however, and be certain that the person who accepts his offer is truly the holder of the title. Additionally, he should make arrangements for the additional costs, if any, involved in this double transfer. UNDERSTAND THE MEXICAN TRUST - FIDEICOMISO Payment of the purchase price is not enough. In order to have a valid ownership interest in the property which you are buying it is necessary to have the title recorded. This puts the rest of the world on notice that the property is yours. If you are a foreign person purchasing property in many parts of Mexico, including the entire Baja peninsula, the property will transfer not to your name but to the name of a Mexican bank as trustee for your interests. The Mexican constitution prohibits direct ownership of real property by foreigners in the "prohibited zone", a strip of land thirty miles wide along its seacoasts and sixty miles wide along its borders with the United States and Guatemala/Belize, as well as the entire Baja peninsula. This is the reason for the bank trust, the "fideicomiso", which has been established under the guidelines of the Mexican government so that foreigners may be protected in their property acquisitions. Whether you are purchasing in a zone requiring a bank trust or in an area where title can be taken directly into your name, it is necessary that this transfer take place and your interest registered as soon as possible after the successful conclusion of the negotiations to purchase your dream property. Until this transfer takes place you are vulnerable: the seller may die, the heirs may be unwilling to recognize your rights in the property, you may become involved in a lengthy and expensive probate proceeding. Meanwhile, your interest may not be recognized by the authorities should you wish to obtain a building permit, by the bank should you wish to borrow money and use the property as collateral or as part of your assets; by the courts should a third party also claim an interest in the land, or, very importantly, should you later decide to sell it. The prudent buyer of real estate in the United States or Canada would not consider leaving his title "in limbo" in either of those two countries; one should not do so in Mexico either. The foreigner purchasing real estate in Mexico is buying personal, not real property if the acquisition is on the Baja Peninsula, within thirty miles of any coastline on the mainland, or within sixty miles of any border. The acquisition is personal property. How does personal vs. real affect the foreigner who acquires property under a Mexican bank trust? The effect is negligible. Instead of using the words; "transfer of title" one should more properly say "transfer of trust rights", or, "assignment of trust rights". In practical terms the beneficiary has full control of the property. He may direct the trustee bank to 1.- lease the property, 2.- mortgage the property, or 3.- sell the property. The foreign owner enjoys full rights of usage and may do anything to the property permitted under Mexican law. He enjoys the same rights of dominion as any Mexican citizen who has direct title to the property. He may construct a building, tear it down or modify it in compliance only with the local zoning and planning ordinances or, if applicable, the homeowner's condominium regime. A permit to acquire the rights in the property must be obtained from the Secretary of Foreign Relations and the terms of the permit form a part of the deed. Currently, the term for a trust is fifty years. Multiple renewals are permitted under the law. By requesting extensions each fifty years a property may be controlled by a family or business entity for generations. RULE NUMBER FOUR: INVESTIGATE THE STATUS OF THE CONDOMINIUM REGIME A word of caution for those who are considering the purchase of a condominium or a lot in a subdivision. Just as in other countries, the unit, or lot must be legally described and an individual property tax number issued. This individual property must be registered in both the Property Tax Office and in the Public Registry of Property. Often, a developer will spend time and energy on promoting the sale of the properties prior to completing the establishment of the Condominium Regime. Until this is completed, legal title to an individual unit or lot cannot be granted since there is nothing to describe! Be sure to investigate the status of the condominium regime prior to completing the offer to purchase! RULE NUMBER FIVE: INSIST UPON RECEIVING A REGISTERED TITLE The purchase/sale document signed by buyer and seller is generally legally valid between the parties to the transaction. It most likely contains the description of the property, the price to be paid to the seller, and any other special terms and conditions. It may be drawn up by the parties, their agent(s), or by a third party. It should be considered as an interim contract, however. Until the final deed is drafted by and signed before a Mexican Notary Public and duly registered, the transfer WILL NOT provide valid notice to third parties. This final deed must be recorded in the Public Registry Office of the municipality in which the property is located. Mexico's land registry system functions in much the same manner as those in the United States or Canada. Unless the deed for the rights of the beneficiary has been recorded, there may not be a remedy for the purchaser who neglected to obtain a registered deed... his interest, his investment, may be lost. When a foreigner is acquiring residential property for which a bank trust is required, the purchaser should receive a deed which has been signed by the bank trustee before a Mexican Notary Public. This will name the beneficiaries and substitute beneficiaries of the trust in accordance with the purchaser's instructions. A full description of the property must be included, seller's capital gains taxes paid and buyer's acquisition tax paid. These receipts should be included in the deed document which may consist of eight or ten pages, or more. The final page of the document should bear the stamp of the Public Registry, together with Book and Page numbers and the date on which it was recorded. If this stamp is not on the document, the transaction has not been completed, the buyer is not fully protected. CONSIDERATIONS IF FINANCING YOUR PROPERTY: Until recently, most homes and condominiums were for sale for all cash or financed by the seller. With the advent of NAFTA however, several mortgage companies have entered the Los Cabos and Cancun, Riviera Maya marketplaces and offer long-term financing for qualified buyers. If you are considering financing your purchase, and are buying in a location where financing is offered, it makes sense to investigate the terms and plans available, select the company of your choice and make lender approval a condition for the purchase. If the seller will be financing your purchase, request that title be transferred to you and a pledge guarantee contract executed guaranteeing payment. Traditionally, sellers have preferred to hold title to the rights in their name and transfer title to the rights only upon receipt of payment in full from the buyer. Meanwhile, however, the seller may die, may disappear, may go bankrupt... a risky situation for the buyer. The prudent buyer will insist upon a transfer of title and registration of a mortgage or pledge in which he gives his rights in the property as security for payment of the remaining purchase price. In the event of default by the buyer, the seller must conduct a proceeding similar to a judicial foreclosure in the United States and Canada. It is troublesome, as is any foreclosure in any country in the world but not notably more problematical. The registered title and recorded pledge or mortgage provide the buyer a greater comfort level in his investment. The lender also enjoys protection in having his loan recorded and will have an established legal proceeding to follow in the event of default by the buyer. CLOSING COSTS.... OR HOW TO AVOID UNPLEASANT SURPRISES. Mexican law says that taxes must be paid on the higher of the following: purchase price OR appraised value. Since many appraisals are lower than the actual selling price your taxes will be considerably lower if the appraisal value is declared. Payment on this basis has taken place for many years in many parts of the country. It is, however, illegal. Should you choose to pay your costs based upon this basis, please be aware that: 1. it is violation of the law and 2. your tax base will be low for declaration of value in the property when you sell it. Furthermore, if you are financing your property through an institutional lender, full value must be declared. Following is an example of some of the steps involved in obtaining a registered title. The costs for same will vary with the property and a written estimate should always be obtained prior to initiating the process. OFFICIAL APPRAISAL:. The appraisal must be made by an appraiser who is usually an architect and who is recognized as a Perito Valuador, Official Appraiser, by the property tax authorities in the municipality where the property is located. This is required prior to completing any transfer of title. If an institutional lender is involved, a commercial appraisal may also be required. FOREIGN RELATIONS PERMITS: If the property you are purchasing is already in a trust (fideicomiso) you may either: request assignment of the rights to you, or may request a new trust for fifty years. If a new trust, a permit from the Secretary of Foreign Relations is required. Whether a new trust or an assignment of rights, the deed in the new buyer’s name must be registered in the National Foreign Investment Registry. When considering a new trust or an assignment of rights, the factors to be considered are: 1. Remaining term of the existing trust - when will it need to be renewed?; and 2.-What are the annual bank fees under the existing trust? If the permit has an unexpired term of less than fifteen or twenty years and/or the annual bank administration fees are more than $500.00 U.S. dlls., it probably makes sense to obtain the permit for a new fifty year trust with a bank offering more attractive fees.. NOTARY FEES - The Mexican Notary Public is an attorney who has practiced his profession for at least five years and has been appointed by the governor of the state in which he is practicing. His duties and obligations include; drafting of the deed, calculation of seller’s capital gains taxes and buyer’s acquisition taxes and to "give faith" to the validity of signatures. The persons signing before him must prove they are who they say they are. Because the responsibility and potential liability for the actions of the Mexican Notary Public are considerably higher than those of Notaries Public in the U.S. and Canada, the notary’s fees will also be substantially higher than those charged on the other side of the border. These fees are based upon a rate schedule reviewed and approved annually by the College of Notaries Public and are tied to the amount declared in the property transfer. I.V.A. - The Impuesto Sobre Valor Agregado (I.V.A.) is a value added tax which is charged on all services. It is 10% of the value of services provided on the Baja Peninsula and 15% for services provided on mainland Mexico. Many trustee banks are headquartered on mainland Mexico, thus the I.V.A. charged on their services will be 15%. IVA taxes must be paid on services provided by the Notary, the appraiser and any other professionals whose services you use BANK ADMINISTRATION FEES: If title to your property is in a bank trust there will be annual fees for the administration of same. Over the past few years there has been a substantial decrease in annual fees and it makes sense to shop around for the most favorable rate for the property being purchased if a new trust is contemplated. If an assignment, new rates may possibly also be negotiated. Traditionally, trustee banks have not sent annual statements. It is important to request a statement from your trustee bank at least ninety days prior to the anniversary of the trust and pay on time to avoid penalties, or to contract with a company providing this payment service. TITLE SEARCH AND INSURANCE: A title search is always a worthwhile investment. An investigation will generally indicate the registered owner, the chain of title, and will indicate liens, if any, against the property at the time of the investigation. Title insurance, issued when the new deed is registered, guarantees the marketability of the property and is a requirement by most institutional lenders. There are currently three US title insurers offering policies on Mexican properties. In the event there is a problem with title, the insurer is obligated to defend the owner’s rights in the property and/or indemnify the owner against financial loss. Investment in a title policy puts the financial risk on the insurer, not the buyer who may not be able to defend the property as well as a major insurance company. PROPERTY TAXES: are a municipal tax and income benefits the municipality. Typical rates for residential dwellings is 6.5 (pesos) per 1,000 and 13 per 1,000 for properties destined as rental units. Vacant lots are rated at 26 per 1,000 with an increase of 2.6 per annum for each year there is no construction declared on the lot. Maximum amount is 52 per 1,000. Valuations for property tax purposes are generally made every two to three years or at the time of sale of a property. Property taxes must be brought current prior to transfer of the title. ACQUISITION TAX: The acquisition tax, or transfer tax, is generally paid by the buyer. It is currently 2% of the declared value of the property in most parts of the country. CAPITAL GAINS TAXES: A foreigner who sells property in Mexico is liable under special rules, much like the United States, for the payment of the I.S.I.R. (Impuesto Sobre la Renta) which is the Mexican equivalent of the Capital Gains tax. Liability is either 20% of the declared value of the transaction or 33% of the net value, taking into consideration the length of time held, the improvements made, commissions paid and other allowable expenses. The formula is complicated and the tax should be figured both ways and confirmed by the Notary Public who will be having the documents recorded and making the tax payments. This is a seller tax and title cannot transfer to the buyer under this tax has been paid. SETTLEMENT FEES: Attorneys and Notaries Public often oversee parts of the previously described required steps to a transfer. The buyer, however, usually has to do certain of his own legwork and can certainly do so if he has a good command of the Spanish language. Unless the buyer has a lot of time to spend on the activity, it may make sense to hire a company whose sole purpose is to supervise and coordinate the permits, tax payments and other myriad of details so necessary to obtain full legal right to the property being purchased. Fees for these services will vary with the value of the property and the complexity of the situation. It is important to always request a written estimate of all the expenses prior to beginning the transfer! # # # # # # # Articles.Dream.2004/Copyright,
2004, Consultores Phoenix, S.C. Reproduction prohibited without permission Linda Neil is the founder of the settlement company â . It is the first company in Mexico dedicated to counseling buyers and sellers and to supervising the closings and registrations of real estate for non-Mexicans. The company provides title investigations, due diligence and legal services for buyers and sellers, as required, for properties and corporations holding real estate located anywhere in Mexico. Mexico is a wonderful and very beautiful country. If you enjoy your visit you may begin to think about acquiring a bit of our paradise. We have mountains, lakes, rivers, forests, deserts and seashore in Mexico. We also have history, ancient cultures, handcrafts, folklore and many other wonderful things to share. Buying property in ANY country can be stressful. A property purchase in Mexico can be just as safe and secure as in the U.S. or Canada… IF it is done correctly! Here are some guidelines for success
in a real estate acquisition in Mexico: 2. Insist that the person representing you, represent ONLY you, the buyer, and not also the seller unless you understand, agree to and sign an agency disclosure agreement. 3. Consider only the purchase of PRIVATE property. Ejidal property is often offered at a far lower price but it cannot legally be sold or promised to be sold until it becomes private property. 4. Be certain that you and your agent are dealing ONLY with the owner of record or his or her legitimate power of attorney. Insist upon receiving a copy of the seller’s deed as a condition of your offer. If you and /or your agent don’t understand Spanish, get it translated. 5. . Avoid costly and time consuming litigation, insist upon including a binding arbitration clause in your contracts with the seller and other parties involved. 6. Get a title investigation and buy title insurance for the full amount of your purchase price. While the initial search may seem expensive for some areas, the title policy transfers risk to the insurance company, and minimizes yours as the buyer. 7. Think carefully about how you acquire title in order to avoid or minimize probate and transfer costs in the future. 8. Closing costs may run from 13% to 20% of the cost of a $50,000. dll. property! The multimillion dollar property will be about 3.5% of purchase price. Certain costs are fixed regardless of value. Be sure to budget for closing costs and get a full estimate in writing from the company supervising your transfer. 9. The major portion of your payment for the property should be withheld or held in escrow until the deed has been signed by the seller and, if applicable, the bank trustee (if a fideicomiso). 10. INSIST upon receiving a registered title document for your property. If the seller is financing the property, sign a document protecting his interests in the event of your default. Be SURE you know the amount which is declared in your deed and understand the tax implications of same. 11. Use an experienced neutral third
party to supervise the transfer of title to you. HOW SECURE IS YOUR INVESTMENT IN MEXICAN PROPERTY??? All too often citizens of the United States, Canada and other countries ASSUME that property purchases are carried out automatically in Mexico in a manner similar to that of their native countries. The first law of property purchase in Mexico is DON'T ASSUME anything! Purchasing property is NOT the same as in other parts of the world. Would you purchase a property in your hometown which is not registered in the local public registry or land titles office? Would you hand a complete stranger, without an office or an established business entity, a check for perhaps hundreds of thousands of dollars to pay for a property? Why do so many foreigners do this when they purchase in Mexico? Many do not realize that Mexico has a complex and complete legal system and a court system that is as well organized as any that exists in the United States, Canada or Europe. It is essential that you have an idea of how the system works and what to expect when considering a purchase of property in Mexico. Don't leave your brains at the border! Article 27 of the Mexican constitution prohibits ownership by a foreign individual or business entity of real property (real estate) within the "restricted" zone which is an strip of approximately 30 miles from any coastline and 60 miles from any border. Recognizing the demand by foreigners for ownership of property and recognizing the importance of making desirable properties available to foreigners for potential positive impact on the economy, the Mexican government implemented a series of Foreign Investment Laws beginning in 1973. The law was modified in 1989 and again in December 1993, to incorporate the provisions of the NAFTA treaty passed in late 1993. For those who are acquiring property for residential usage, the law requires that title to the property in the restricted zone be transferred to a Mexican bank, as trustee, in the establishment of a trust (fideicomiso) in which the foreigner is the beneficiary. The bank is the titleholder of the real property and the foreigner is the owner of the rights of usage of the property. The bank owns the real property rights and the beneficiary owns the personal rights of usage. Ownership of these personal rights is evidenced through a deed prepared by a Mexican Notary Public and signed by a representative of the trustee bank. Currently the term for a trust is fifty years. The Foreign Investment Law of 1989 provides for renewal by filing an application. Multiple renewals are permitted under the law. By requesting extensions every fifty years, a property may be controlled by a family or business entity for generations. For those foreign individuals or companies buying property in the interior of the country, not in the restricted zone, no bank trust is required but authorization from the Secretary of Foreign Relations must be obtained and ownership must be registered in the National Foreign Investment Registry located in Mexico City, as well as in the municipality where the property is located. AVOID TAXES AND EXTRA COSTS, LEAVE THE DEED IN THE SELLER’S NAME: This is wrong! Until the buyer is formally named as the owner in fee simple or in the bank trust in a public document before a Mexican Notary Public, title to the rights in the property remain with the persons named in the previous property deed. Their signatures are required to transfer title. If the buyer fails to obtain hisor her own deed he/she will be required to obtain the titleholder's signature before a sale and transfer to another buyer. This can be costly, frustrating, dangerous and time consuming. THE IMPORTANCE OF REGISTRATION OF THE DEED FOR BENEFICIAL RIGHTS. The purchase/sale document signed by buyer and seller is generally legally valid between the parties to a transaction. It most likely contains the description of the property, the price to be paid to the seller, and any other special terms and conditions. It WILL NOT, however, provide valid notice to third parties unless it is recorded in the Public Registry Office of the municipality in which the property is located. Mexico's land registry system functions in much the same manner as the Public Registry offices in Podunk, North Dakota, Los Angeles, California, Ottawa, Canada or places in between. Many foreigners purchasing property in Mexico do not understand the importance of registration of their interest in property. They believe that it should be left in the name of the property developer, in the Master Trust, or in the name of the previous holder of title. What if the developer goes bankrupt? What if the corporation and its principals, disappear? Who then owns the property? Who can sign as the representative of the property? What happens if an unscrupulous seller sells the property to someone else? While title is in the name of the seller, it is HIS/HER asset; she may mortgage it, he may sell it again, it may be attached in satisfaction of a judgment, she may die without a will. Unless the deed for the rights of the beneficiary has been recorded, there may not be a remedy for the purchaser who neglected to obtain a registered deed...his or her interest and investment, may be lost. To obtain the deed an appraisal, a property tax certificate,
and a no-liens certificate must be obtained. Notarized bank instructions
must also be obtained if property is in the "restricted " zone.
Seller's capital gains tax and Buyer's acquisition tax must be paid. The
deed transferring rights to the buyer must be registered and stamped by
both the tax office and the public registry. If this process is not complete,
the buyer is not fully protected. The buyer's ultimate protection is
registration in the Public Registry office record, NOT the Notary Public
or the trustee bank! When property is sold with a down payment and the balance to be paid over a term of years, many sellers prefer to hold title to the rights in their name and transfer title to their rights only upon receipt of payment in full. Meanwhile, however, the seller may die, may disappear, may go bankrupt... again risky situations for the buyer. The prudent buyer will insist upon a transfer of title and registration of a mortgage or pledge in which he gives his rights in the property as security for payment of the remaining purchase price. In the event of default by the buyer, the seller must conduct a proceeding similar to a judicial foreclosure in the United States and Canada. It is as troublesome as a foreclosure in any country in the world but not notably more problematical. The registered title and recorded pledge or mortgage provides the buyer a greater comfort level in his investment. The lender also enjoys protection in having his loan recorded and will have an established legal proceeding to follow in the event of default by the buyer. copyright, April 2003 Consultores Phoenix, S.C., Updated
August 2004. reproduction prohibited without permission EJIDAL PROPERTY….. Is it a bargain? Or a problem? by Linda Neil EJIDAL (EEEE-heee-doll) properties were established in Article 27 of the Mexican Constitution of 1917 as an outcome of the revolution and represent probably 50% of all the land in Mexico. After the revolution hundreds of millions of acres from the original Spanish land grants were expropriated by the government and classified as "ejidal" properties. The state retains ownership of these lands and the peasants, or farmers, have the right to use them, to live on and to grow their crops on them. The rights of usage pass from father to son, but ejidalthese properties cannothave never been able to be sold as private property. In Baja California Sur alone, there were 100 ejido groups occupying 5 million 375 thousand hectares, according to the Ejidal Census made in 1991 by INEGI, the federal government statistical bureau. Only six other states in the entire country have more ejidal land. The average amount of land for each ejido in BCS is 53,758 hectares. That's about 134,395 acres for each ejido or almost 210 SQUARE MILES of land for each ejidal group! Per decree published on February 26, 1992 in Diario Oficial, Mexico's Official Newspaper, certain ejidal lands can now be converted to private property through a process known, in Spanish, as the PROCEDE, (the procedure). This is a seven step process that may take as much as five years to accomplish, and consists of the following: 1. Resolution within the ejido. A two-thirds majority must decide to convert parcel lands to private property. This does not pertain to human settlement or communal property, also a part of ejidal land. This pertains only to the individual parcels. 2. Mapping, allowing for streets, gardens, other donated lands, human settlements and communal lands 3. Allotment of a parcel to each ejiditario (farmer). 4. Application to Agrarian Reform, Mexico City 5. Approval by the Agrarian Reform 6. Transfer of parcels to the individual ejiditarios. After this process is completed and registered with the Agrarian Reforms, the ejiditario who wishes to sell to an outsider must first notify other family members, those who have worked the property for more than one year, then other ejiditarios in the group, neighbors, and the ejidal government before completing a sale to the outsider. These parties have the right of first refusal and notifications must be made following a specific procedure. ONLY after all correct notifications have been made does the EJIDITARIO receive a deed. ONLY then may he in turn transfer in fee simple to third parties, nationals or foreigners. If the property is in the restricted zone ONLY then can an ejidal property be acquired by a foreigner, PROVIDED the Secretary of Foreign Relations will grant a permit for same. THIS IS FOR PROPERTIES WHERE THE EJIDAL group agrees in an assembly to convert its parcel property to private property. What about the ejidal group who chooses NOT to convert its parcel land to private property? Can it be used by outsiders? Article 45 of the law states that ejidal properties may be the object of any type of contract in association or use contract made by the ejidal group, or by individual ejiditarios on common lands or parcel lands. Contracts made with third parties may be granted for a term up to thirty years and can be renewed. Under the Mexican Civil Code the maximum lease for residential property is ten years. Thus it can be said that the ejidal properties have an important advantage over private RESIDENTIAL property when it comes to leasing. There is, however, a substantial difference between OWNERSHIP and LEASING. It is important not to confuse the two. OWNERSHIP, even in the prohibited zone, where ownership is a PERSONAL right of use and enjoyment, permits indefinite usage through multiple renewals (every fifty years) of trust permits, and a clear-cut right to rent those rights, to sell those rights, and to collect a profit therefore. Annual costs under a trust (fideicomiso) are limited to bank administration fees and property taxes and the owner has full rights to all improvements on the land. LEASE RIGHTS from an ejidal group can be for a maximum term of thirty years and can be renewable. The annual lease cost, however, is often a monthly or annual payment and, while it may be fixed for the first lease term, (up to thirty years) costs upon renewal are not usually negotiated for the following lease term, and may be increased to any amount that the leaseholder, the ejido, requests. Failure to pay the amount requested by the holder of the lease means that lessee (the tenant under the lease) must vacate the property and, of course, must leave behind ALL improvements affixed to the property. In a rental situation, the tenant never owns the improvements and the amount of the rental will probably be determined by market conditions. Copyright, 2004, Consultores Phoenix, S.C. Reproduction prohibited without permission. THE BANK TRUST FOR OWNERSHIP OF REAL PROPERTY IN MEXICO Article 27 of the Constitution of the Republic of Mexico prohibits foreign ownership of real property located within 30 miles of any coastline or 60 miles of either border. This is referred to as the restricted zone. In 1973, recognizing that many Americans would enjoy the rights of ownership, and bring needed dollars to the country, President Echeverria approved the bank trust, fideicomiso, form of ownership which is available to non-Mexicans. This regulation was further expanded in the Foreign Investment Law of 1989. Properties located within the prohibited zone, which includes the entire Baja Peninsula, may be acquired by a foreigner through a Mexican bank trust naming the buyer of the property as the beneficiary of the trust. Naked title is placed in the name of the bank selected by the buyer, as his trustee. The bank administers the property according to the instructions of the buyer/beneficiary. The buyer/beneficiary has full ownership rights: he may build on the property, tear down existing buildings, modify them, rent, lease or sell at anytime conforming only to the general laws of the country established for all persons. The term of the trust is fifty years and can be renewed for additional fifty year periods, after which it must be transferred to "one entitled to hold property" in Mexico. In other words, title to the property may rest in one beneficiary indefinitely, provided that it is renewed within the terms established by the law. The procedure for establishing the fideicomiso, the bank trust, is as follows: a permit must be obtained from the Secretary of Foreign Relations which includes a description of the property to be placed in trust, the use for which it is intended, and personal data on each of the beneficiaries. Once granted the bank draws up the trust document which is recorded in the municipality where the property is located. The costs for the permit to establish and register the bank trust are currently about $1,700. US and annual administration fees are generally $250.00 to $700.00 per annum. There are additional closing costs, however, and it is wise to request a written estimate prior to beginning the transfer process. Copyright, 2003,2004,2005, Consultores Phoenix, S.C. Reproduction prohibited without permission. TITLE SEARCH AND INSURANCE IN MEXICO by Linda Neil Title insurance, so common in many parts of the United States and Canada, is in its infancy in Mexico. While the Public Registry system operates in much the same manner as in other parts of the world, the actual work is still performed manually in many places in Mexico. Deeds are handwritten into large books, a computerized system is still a dream and title plants are non-existent. Maps of subdivisions and properties are often uncommon or incomplete. Thus, information available to create a chain of title for a specific property requires a visit to the local public registry office in the municipality where the property is located, and may require hours of laborious research and investigation to determine if the property is private property, who the sellers are, and if there are liens or encumbrances on the property. Several major United States title insurance companies are doing searches in certain parts of the country and are offering title policies. For those who wish title insurance, it is necessary to provide a general description of the property, the name of the current holder of title, preferably a copy of the deed, and the approximate amount to be insured. With this information, we are able to investigate the existence of any existing title data and confirm whether or not title insurance will be available for the specific property. Many people have said that title insurance is unnecessary in Mexico. This is not correct. Those who acquire title in fee simple - in the interior of the country, rely upon the Notary Public to search title. Title search, in this case, consists of requesting and receiving a Certificate of No-Liens on the property, which is issued by the Public Registry Department. This certificate, plus the Seller’s declaration in the deed that the property is being delivered free and clear of liens and encumbrances, are the only assurances that title is valid. Should the Certificate of No-Liens be issued in error or due to oversight, or should the seller misrepresent the property, a civil suit against the seller may be the only legal remedy for resolving problems. Those who acquire property in the Mexican Bank Trust (fideicomiso) have felt comfortable in relying upon the trustee bank to research title. This is also inappropriate. The standard fideicomiso (bank trust) document will have a disclaimer in which the bank will supply a power of attorney to the legal representative of the beneficiary of the trust in order to settle title matters or problems, but the trustee bank will not be the responsible party if, indeed, title problems arise. A title insurance policy will guarantee four important matters: 1. That title to the estate or interest described in the policy is as stated therein; 2. That there are no defects, liens, or encumbrances (registered easements, etc.) other than those stated in the policy; 3. That title is marketable; 4. That there is right of access to and from the land. The standard exclusions from coverage in both the U.S. and Mexico are: 1. Laws, ordinances or regulations restricting the usage of land (zoning, construction, environmental protection - contamination) 2. Rights of eminent domain - unless recorded prior to date of policy 3. Defects, liens, encumbrances, adverse claims a. Created, suffered or agreed to by claimant b. Not a matter of public record but known to claimant c. Created subsequent to date of policy 4. Taxes or assessments not shown as existing liens 5. Facts, rights, interests or claims not shown by the public records but which could be ascertained by an inspection of the land or by making an inquiry of persons in possession thereof. 6. Easements, liens or encumbrances, or claims thereof not shown by public records but could be discovered by a physical inspection thereof, 7. Discrepancies, conflicts in boundary lines, shortage in area, encroachment or other facts in which a correct survey would disclose. Exclusions from coverage (Mexico only) 1. Water rights or claims or title to water (All water rights are owned by the Mexican government); 2. All substances and deposits described in article 27 of the Mexican constitution, the dominion of which is reserved to the Mexican government; (i.e.) minerals, petroleum and related hydrocarbons, salt and precious gems; 3. Confiscation or expropriation by insurrection, rebellion, revolution, civil war, military or usurped power, through the efforts of a political, revolutionary constituted government of the nation or one of its sub-entities; The powerful reasons for obtaining a policy of title insurance are to insure against error by searchers, fraud and forgery in deeds. If a mortgage or pledge guarantee is involved and the lender is a foreign institution, a policy of title insurance will generally be required in order to make the loan. copyright, April, 2003 Consultores Phoenix, S.C., reproduction prohibited without permission
THE LEGAL ASPECTS OF LIVING IN A CONDOMINIUM or what to expect when you buy a condominium
in Mexico! Changing life styles have changed ownership patterns over the past fifty years. Two working parents, single parent families and the rising popularity of multiple family homes have created a great demand for ownership in condominium. In these cases the individual free-standing dwelling on a lot has been exchanged for shared walls, shared entryways, communal recreational facilities and shared maintenance. When many live closely together rules and regulations become important. In Europe and the East coast of the United States, condominium ownership has been regulated for many years. In the west the first laws were enacted in 1965, in Canada in 1975 and Mexico’s first condominium laws were published in 1972, the same year as the bank trust (fideicomiso) law was enacted. In 1985 California’s Davis-Stirling Common Interest Development Act became a model for the rest of the western world. In the same year Mexico updated its condominium law and enacted the establishment and operation of common interest developments. This step was highly important for Mexico City but also for vacationers in Acapulco, Cancun, Manzanillo, Puerto Vallarta, Mazatlan and Los Cabos. Because of built in maintenance provisions it has become the preferred ownership for vacationers in Mexico who may spend only a few weeks a year at their homes and prefer to spend the time in fun rather than in maintenance duties. .In the common interest development, it may be either commonly owned property or common rights that may be enforced as restrictions against separately owned property. For example the pool, hallways, gardens and other public areas are commonly owned property at the Las Mañanitas project in San Jose del Cabo. Owners of the individual condominium units acquire a proportional ownership interest in all the recreational facilities, as well as in the service areas, bearing walls and utility features at the project. In other developments such as La Jolla and Terrasol, the developers retained ownership of certain areas destined for recreational use by the condominium owners and common areas are limited to the sidewalks, utilities, ducts and other construction features of the properties. An example of rights and restrictions against separately owned property would be the building or design codes which are built into the condominium regime which prohibit for sale signs in windows, or drapes and window coverings different from those of the other units. The presence of either element; rights or commonly owned property, makes the project a common interest development. In Mexico direct ownership of the common property is the general rule. This means that certain property in the complex is owned in common in undivided interests by the individual homeowners. As an example, 25 condominium units and a common swimming pool and tennis court, in direct ownership each condominium owner owns his private space and a percentage of the the common areas. SWISS CHEESE: When the owner sells, leases, mortgages his own lot or condominium his or her percentage of the common area must be included. The common property cannot be severed from the individual lot or unit! It is rather like Swiss cheese: The owners own a separate interest in the holes and an undivided interest in common in the cheese itself. The common interest in the building normally will incude: the foundation, roof, exterior walls, bearing walls even if located within the unit, common hallways, chimneys, exterior doors, windows and all utilities and the pipes, ducts and wiring for same. The individual owner’s unit will generally include all interior fixtures, improvements and personal property which is located within the three dimensional block of airspace. This will include built-in cabinets, plumbing fixtures, lighting fixtures and interior doors. THE CONDOMINIUM REGIME: This is the legal document which must be completed before an individual title can be granted out of the development. It must be made before a Mexican Notary Public and registered in the Property Tax office and Public Registry of Property. By law it will contain the Descriptive Memory of the project. This means the measurements and description of the land, of each and every private unit and a description of the common property for the entire project. It also must include the Condominium Rules and Regulations. This part outlines the rights and obligations of the condominium owners, it defines the type of administration to be in place and contains the necessary rules and regulations to promote the well-being of the community. Article 27 of the law provides for a annual meeting of homeowners. Homeowners are to be notified of the time and date of the meetings through registered mail ten days prior to the date of the meeting. This notification should also be published in a local newspaper and posted in a prominent place in the condominium project. If 90% of the homeowners are not present, subsequent meetings can be called for the same day and decisions can be made on important issues by those present which will affect every owner in the complex. Articles 27 of the Law of the Condominium Regime also provides for voting in proportion to the percentage of common property held by each owner. Voting must be direct and personal unless otherwise provided in the Regime of the individual project. In other words, no proxies are permitted unless specifically stated in the law. A surveillance committee consisting of one to three parties must be elected at an annual meeting and is composed of owners who oversee the work of the administrators. A reserve fund must be established with funds invested in securities and readily available for required long – term repairs. Maintenance fees must be paid for all common areas (swiss cheese) and failure to pay can result in loss of the unit.The law- provides that legal action may be taken against homeowners who fail to make THREE payments of monthly maintenance fees. Repreated failure to pay fees can result in putting the unit up for auction. Even if the homeowner is not happy with the administration of the complex, monthly maintenance fees must be paid. Absentee owners with property in a foreign country should spend a few minutes to review the financial reports for their complex on a regular basis. When staying in the unit, they should open their eyes and review the condition of the complex. Is it well maintained? Or is maintenance being deferred? This will affect the value of the complex, and the value of the unit. More and more, absentee owners are selecting professional management companies to perform all administration and maintenance services rather than having these services performed by the Homeowner Association or its Board of Directors. This makes sense especially when properties represent a second or third home for the owners who are busy and wish to spend their limited time at the unit enjoying it….not managing it! Living in a Condominium.2004. Copyright, 2004, Consultores Phoenix, S.C. Reproduction prohibited without permission. Preparing to Sell your Mexican Property Buying Property In Mexico … Made Easier Buying Property In Mexico … Made Easier Buying and selling property can be stressful. Here in Mexico it can be both stressful and challenging, As in any country, if you do your homework and use the service of a professional title service company, life will be easier for you. Unfortunately some sellers don’t have all their title documents in order. Perhaps someone on title is deceased and probate is required, or a special filing with the trustee bank is required. Possibly the ownership interest has not been registered in the public registry or foreign investment registry in Mexico City. Sometimes a subdivision permit hasn’t been obtained, or property taxes are in arrears. Things like this can create delays that last, months or even years and can cost a great deal of money in lost time and penalties. Meanwhile buyer/seller money changes hands and the real estate agent may receive his/her commission without the transaction being completed and the new owner having a registered title. Transfer of title in Mexico normally takes about ninety days. On occasion, it can be done more quickly if the real estate companies involved in the transaction do the necessary work before the sale is made. At a recent meeting of Multi List LosCabos, an agent reported a transaction where the title transfer had been accomplished in sixteen days. This was achieved, because all title documents were in order BEFORE the property was listed for sale with a real estate company. The Settlement Company will review documents for people who want to offer their property for sale and will provide a report on what is required to be sure everything is in order at the time a buyer is found. There is no charge for this review. Sellers who are interested in this guidance should submit a copy of their deed, the latest property tax receipt and statement from their trustee bank. Documents will be received and reviewed, generally within two to three days after received, together with an estimate of costs to make the adjustments and corrections necessary to obtain a quick closing at the time of sale. This article is written by personnel from The Settlement Company. It is the first escrow company in Mexico, and is dedicated to processing the trusts and title transfers of Mexican real estate for foreign buyers and sellers for properties located ANYWHERE in Mexico. The company frequently sponsors seminars on the various aspects of real estate ownership in Mexico and holds membership in AMPI, NAR and FIABCI and PROFECO Certificate 00063/96. The transfer of title in a Mexican real estate transaction can be confusing for foreign buyers, especially if their understanding of the Spanish language is less than perfect. Prior to the establishment of escrow companies in Mexico, buyers hired attorneys, did the work themselves or, in many cases, just didn’t worry about receiving a title! The guidelines for the operation of an escrow company in Mexico are found in Articles 273 to 308 of the Mexican Commercial Code and Article 2569, Chapter II of the Civil Code for the Federal District. These rules provide for strict accounting of funds, strict compliance with buyer-seller instructions and full responsibility by the parties handling the escrow. As of this date there are no provisions for the licensing of escrow companies or their agents, however. It is therefore important that persons dealing with companies offering these services check out company references and inquire as to their standing with PROFECO, the Mexican consumer protection agency. While the escrow concept is understood and is a common practice in the western United States, some easterners and Canadians are not familiar with this process. Following are questions frequently asked, and their answers, which provides an overview for the uninitiated.
When used in the context of transfer of title, the escrow generally involves three parties - the buyer, the seller and a neutral third party. It often involves the deposit of monies from the buyer and documents from the seller, to be exchanged and delivered upon the execution of the instructions. The neutral third party is often called "the stakeholder". The Buyer/Seller instructions are prepared by the escrow company in compliance with the terms of the purchase/sale contract. They are then signed by the buyer and the seller and authorize the neutral third party to handle the details of the transfer. The escrow company must comply with Articles 273 to 308 of the Mexican Commercial Code in its dealings with its clients.
They can be and, sometimes, are. When strangers are doing business, however, they often feel more comfortable doing business through a neutral third party. This is especially true when the completion of a transaction involves a lapse of time from beginning to end; such as when taxes and/or liens are to be paid from proceeds, title is to be searched and permits are to be obtained.
The company holding the funds, the documents, executing the instructions, does not have a financial interest in the property involved in the transaction. It is not directly affected by the potential profits or losses or consequences of the purchase/sale and therefore can be more objective, more impartial, and follow more strictly the buyer-seller instructions.
It is a contract for the performance of services. What services and how and when they are performed are drawn from the terms established by the buyer and seller in their purchase/sale negotiations. It is a contract in which each party authorizes the release of funds and/or documents upon the occurrence of certain events or the completion of certain duties and tasks. It outlines the general conditions under which these instructions will be carried out.
Some of the more common duties include; the ordering of a title search, requesting issuance of a policy of title insurance, certifying that taxes are paid, preparation of promissory notes and mortgage documents, if required, application for trust permits, if required, holding funds in a neutral depository account, issuing payments to others as instructed, supervision of the registration of deeds and providing a full and final accounting of all funds to the parties to the transaction.
The Buyer, the Seller, and the neutral third party. Sometimes a mortgage lender is involved. These are the principals, the main parties to the transaction and are the ONLY persons who may amend the Instructions. If real estate agents represent the parties they may obtain copies of documents to the transaction, but all matters are treated as highly confidential with respect to outsiders seeking information.
Then the Instructions prepared will be "uni-lateral", one sided and the escrow agent will be ethically bound to protect, first and foremost, the interests of its one client; the buyer or seller who has contracted the escrow services.
With the advent of fax, E-Mail and efficient courier services each party may be in a different town, or even in a different country! Because the procedures and customs for transfer title, whether fee simple title, or in a bank trust, are very similar throughout the entire country of Mexico, the neutral third party may be located anywhere in Mexico. 9-Why can’t a real estate company act as the escrow agent? It can and often has done so in the past. Many details, such as paying taxes, requesting loan information, reviewing documents, preparing financial statements, however, are time consuming and take time away from the main purpose of most real estate companies; that of marketing and selling property. Generally, however, the real estate company represents the buyer, the seller, or both. It has a financial interest in collecting a sales commission and even the most professional agents recognize they can sometimes be less objective than an escrow company. Sophisticated buyers and sellers also realize this and often feel more comfortable having the neutral third party act as "stakeholder". # # # # # # # # # # In response to the tremendous need for a neutral and independent third party who could process these transfers efficiently and economically, Mexico’s first escrow company, the settlement companyâ was established in 1991. It has established policies and procedures as guidelines for real estate transactions in Mexico. It observes the same professional practices and ethical standards followed by escrow companies in the United States. EscrowinMexico. Copyright, 2004, Consultores Phoenix, S.C. Reproduction prohibited without permission. THE MANIFESTATION……….an important detail if you are building a house by Alicia Parra For those brave souls who are building their home in Mexico, an important part of the process is the Manifestation. This is a notification made before the local property tax department. It signals the termination of the construction and tells the world that the house is ready to be occupied. All too often, this notification is not made in a timely manner and can cause problems and additional expense, especially when the house is being sold. The Manifestation must be prepared on a printed format supplied by the property tax office and will require detailed information about the lot: measurements, total surface area, etc. and detailed information about the house or other construction being manifested. Copies of the property tax payments, construction license, plans and the deed to the property must be presented. This same form will request information about the types of materials used in each room and the utility distribution. The value of the construction must be stated in the manifestation. This can either be in the form of a contract with the builder in which the total amount paid for the construction is shown, or through official invoices showing the cost of materials and social security (IMSS) statements on amounts paid for the workers. This value is highly important since it will establish the basis for tax calculations when the property is sold. The cost of manifestation is minimal if done in a timely manner. Not only does it establish a date for calculation of capital gain taxes (ISR) upon sale, but also it lowers the property tax rate from that of a vacant lot to that of a residential dwelling which can result in lower property taxes even though the overall value of the property is higher. # # # # ABOUT THE AUTHOR. . Ms. Parra is Chief Closing Officer for The Settlement Company. It is the first escrow company in Mexico, and is dedicated to processing the trusts and title transfers of Mexican real estate for foreign buyers and sellers for properties located ANYWHERE in Mexico. The company frequently sponsors seminars on the various aspects of real estate ownership in Mexico and holds membership in AMPI, NAR and FIABCI and PROFECO Certificate 00063/96 E-Mail: info@settlement-co.com Web Site: http://www.settlement-co.com copyright September 2004, Consultores Phoenix, S.C., reproduction prohibited without permission.
THE MEXICAN CORPORATION – THE VEHICLE FOR BUSINESS DEALINGS IN MEXICO THE MEXICAN CORPORATION – THE VEHICLE FOR BUSINESS DEALINGS IN MEXICO "XYZ Company, S.A. de C.V." – What does all THAT mean? by Linda Neil The Sociedad Anonima de Capital Variable, translated literally is an anonymous society of variable capital. This is equivalent to the U.S. corporation in which there are stockholders. In Mexico it is governed by the Law of Mercantile Societies. More and more, foreigners are forming Mexican mercantile corporations which end with the initials, "S.A. de C.V.", to do business and to achieve their financial goals in Mexico. The SadeCV is similar to the "Inc." of the United States and Canada. Another version of a corporate entity is the Limited Liability Company which has become more common in recent years. The Mexican counterpart is the SRLde CV, the Limited Responsibility company with variable capital. While there are differences between the S.A. de C.V. and the S.R. L. de C.V., for our purposes here, both are included under the term "corporation" in this article. As of December 1993, the corporation formed in Mexico is considered as "Mexican" even though all shareholders may be foreign persons. When should a corporation be formed? It will make sense if the shareholders wish to perform services or sell goods for profit, build a hotel, or if they wish to develop a property for resale in lots or condominiums. The corporate entity permits the principals to obtain working papers and to obtain working papers for other foreigners who provide services not easily obtained in the local job market. Care must be taken, however, to set up the financial reporting system, to obtain invoices for all pre-operating expenses and to have an accountant who is knowledgeable to make the required declarations in Hacienda, México’s version of Uncle Sam or Revenue Canada. The minimum capital investment in a Mexican corporation is $50,000.00 Mexican pesos Evidence of this capital contribution must be in cash or in assets which equal the total amount of the start up capital. It is important to make the declaration of all assets which are to be included from the start up of the corporation. Do not select the minimum amount just because it is the minimum. If you do it may later be difficult to establish the true amount of initial capital invested. Once the initial capital is established, additional investment may be added by making a declaration before a Notary Public, without requesting permission to do so from the government. This is the Variable Capital portion of the equation. It is important to include in the corporate charter a statement of purpose (objecto social) that is very general. It should mention all activities that may be of interest to the shareholders; better to have an ample charter, permitting many business activities, rather than to have it limited to one activity. It is also a good idea to include export and import of all types of merchandise and technology in the charter. This makes bringing equipment and or supplies in from another country simpler. A minimum of two shareholders is required to form a corporation. These shareholders will be required to sign the corporate charter before a Mexican Notary Public. If they come into Mexico as tourists to sign the documents they should obtain an FM-3 or FMN document at their local Mexican Consulate prior to coming so they may perform a business activity (signing the document) in a legal manner. Once the corporation has been formed it is necessary to obtain a federal tax registration number for the corporation and the administrator or board of directors must obtain the FM-3 permit to work in the activities of the corporation. If the corporation includes or is composed of foreign stockholders it will include a clause in which the foreigners promise to be considered as Mexicans in the eyes of the law and not to invoke the aid of their government in the event of a dispute. Administration of matters of the corporation may be either through a sole administrator (administrador unico) or through a board of directors. A Comisario must be appointed. This is the person responsible for the accounts and tax payments and should be a Mexican accountant. The comisario does not need to be a shareholder. The duties of the administrators, whether sole administrator or board of directors need to be clearly defined. Will they be able to enter into lawsuits? Obligate the corporation for loans? Hire and fire personnel? Generally it is wise to provide a list of five names, in order of preference, for the corporation for submission for the permit for incorporation. The first name which has not been used previously by another company will be designated. Upon confirmation of the name, the corporate documents must be prepared and signed before a Notary Public within ninety days or the authorized name will become invalid and the process must be begun again. Together with the name request, permission to incorporate, where foreigners are involved, must be obtained from SECOFI, the Secretary of Industry and Commerce. Upon completion of the corporate document, it must be recorded in the local registry of Business and Commerce, the National Foreign Investment Registry and the business enrolled in the local Chamber of Commerce or Industry Chamber. Monthly declarations must be filed with tax authorities. Additionally, the corporate accountant must file an annual statement with the National Foreign Investment Registry regarding the business activity for the previous year. If the corporation is used for property development or is not active, the Mexican accountant will probably charge about $600. Dlls. per year to do the required filings. If the corporation is active the accounting charge may be $300. to $500. Dlls. per month, or more. Copyright, December 2004 Consultores Phoenix, S.C., reproduction prohibited without permission
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