Bank Trust cont’d
Another benefit everyone can take advantage of when using the fideicomiso is for estate planning purposes. A fideicomiso can name multiple beneficiaries in the trust. Thus, in the event that the primary beneficiary passes away, the secondary beneficiary is already on the title. Therefore; there is no sale of the property when the heir takes control of the property and no associated estate or capital gains taxes.
There is a set up cost and an annual maintenance cost paid to the trustee, Mexican bank, for acting as a trustee. Assume $500 to $1000 to establish the trust and a $500 per year maintenance fee.
Effective since December 28, 1993, the Foreign Investment Law is a major step toward bringing ownership of Mexican real estate in line with other industrialized countries. It allows fee simple (direct) ownership of nonresidential properties in the country’s restricted areas; provided that such property is intended for commercial uses.
Additionally, the Law also extended the duration of the fideicomiso term for third-party residential properties from 30 to 50 years, and provides for a one time renewal of another 50 year period upon request. If the 100 years are up, the beneficiary of the property can then enter into a new trust and restart the 100 year timer.
However, this scenario is highly unlikely for two reasons, on average, Americans do not hold property for 100 years and the Mexican government will probably do away with the 50 year periods allowing the trust to be valid into perpetuity.
Property Already in a trust
When a property has already been placed in a fideicomiso, the new buyer may want to assume the existing trust, instead of creating a new trust; this is called Assignment of Rights (cesion de derechos). The main thing to think about is the length of time remaining of the trust. The buyer in essence, is acquiring the seller’s rights to the fideicomiso that holds title to the real property.
Ultimately, buyers and sellers get to the point where they are ready to have the transaction consummated and take title to the property.
In México, all real estate transactions and the legal conveyance of any type of property must involve the participation of the Notario Publico for it to be official.
Although their title translates to “public notary,” the Notario Publico’s responsibilities greatly exceed their counterparts in the United States.
Notarios are highly trained attorneys who must pass two extensive examinations to receive their appointments. A notario is appointed by both the governor of the state and the executive branch of the federal government. The appointments are for life and are valid for transactions in the area in which they were appointed.
The Notario is the central figure in a real estate transaction and works with the buyer, seller and trust bank to formalize the property transfer.
Without the Notario, there is not legal transfer of title. If someone tells you otherwise, run……
The notario’s duties include:
(1) To examine the documents of the selling party to ensure their accuracy and legitimacy.
(2) To verify title
(3) To search the public records to determine the status of the seller’s title to the property and the existence of liens against the property.
(4) Calculate and collect all applicable property taxes, capital gains taxes and government transfer taxes, and
(5) After the property transfer has been formalized, the notario will record the trust or deed with the public registry of property where the property is located.
This last step is the most important, because if the property is not registered with the public registry, then there is no official record of the transaction.
Notarios will typically only look at the last publicly recorded deed to verify the chain of title. While they will state that the title is clean, as a publicly appointed figure does not insure title to the real estate nor does he have any legal responsibility for title defects.
In short, a purchaser cannot seek restitution against a notario in the event the purchaser suffers a monetary loss because of a title defect unless fraud, misrepresentation or gross negligence could be proven in a Mexican court of law.
While comparable property is significantly less in México than the US, closing costs are significantly higher. Expect closing costs to be 4 to 6% of the transaction.
Notario fees, transfer taxes and title insurance make up the majority of the costs. Even though title insurance is not required, the peace of mind is immeasurable and México Properties believes the savings are not worth the risk.
Additionally, with the mortgage market taking hold in México, title insurance will be required with any externally financed investment.
For years foreign purchasers have been persuaded to “purchase” ejido parcels or beach front lots without fully understanding that they can’t legally own ejido property nor can the ejidatarios (those individuals who have the beneficiary interest in the land) legally sell it.
Hence, most of the horror stories one hears about Mexican real estate involves ejido property. However, if done properly, ejido property offers the best value for land, but requires significant due diligence, patience, understanding of the law, and political savvy.
An ejido is an old communal farm formed when the campesinos (farmers) of every village in México were given property to form a co-op. The reason was two fold: first, to minimize the amount of aid the Mexican government needed to provide peasants and second, to prevent future uprising.
The Constitution of 1917 proclaimed that all land in México would either be ejido (communal) or owned by Mexican nationals. The ejido is not owned by any one and worked by everyone–not unlike a huge community “pea patch” in the United States that no single person owns yet many use as a garden to grow flowers and vegetables for whatever reason they please.
However, in many cases, the ejido property is divided into separate family holdings, which could not be sold, but could be handed down to heirs.
In 1992, recognizing the inherent value of most ejidos because of their geographic, border or coastal location, coupled with the development potential they created, the Mexican government enacted a Constitutional Amendment in order to “regularize” agrarian lands.
Under the auspices of the Office of Agrarian Reform, the Mexican government has created a process to legally convert the ejidal regimen to one of private regimen. In other words, ejidatarios now have the right to take land that they did not own and convert it to private property; thereby benefiting monetarily from the ensuing regularization process.
This process is highly regulated and has specific steps that must be followed in order to obtain clean, private title. Once the process is completed, governing control of the property goes from the Agrarian courts to the civil courts and the first public title of the property is created at the public registry.
Since this is the first title on the property, it is the cleanest title one can obtain, because the chain of title starts with you.
If one desires to purchase ejido property, hire a very competent Mexican attorney that is very accustom to ejido transactions. The money spent upfront will be well worth it over the long run.
When you buy real estate in Mexico, you would do well to consider taking out Title Insurance on the property. Title Insurance covers you should the property you buy subsequently turn out to have liens associated with it.
This especially relevant if the property you are buying has been privatized, having previously been classified as being “Ejido” lands, but even if this is not the case, Title Insurance will protect you if any other previously unforeseen lien or charge is brought against the property before you took possession of the Title Deed.
Rates for Title Insurance are around US$5 – US$5.50 per US$1,000 of the property’s value; pay-able once only at the point of purchase. A good Estate Agent in Mexico will be able to advise you further about Title Insurance.