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In looking at real estate for sale in Mexico the use and purpose of
notaries is very different than that in the United States and other
countries. There are many similarities in purchasing Mexico real estate
for sale as compared to other countries and some very big differences.
One of these is the use of Notaries (Notarios) in México.
Below is an article written by John Haggerty, who is
a sales agent for the Casa del Mar office of Coldwell Banker Realty,
explaining some of those differences
“Why, I could get that notarized at my bank for free!
Notaries are everywhere. They’re a dime a dozen.”
Yes, you could, and they are, in the US.
But what a notary in Mexico is and does is very different from anywhere
in the United States.
In virtually all US jurisdictions land transactions
are recorded in a single location, usually county by county.
Closing offices act as money escrows and also prepare the deed,
receive loan documents from the lender, obtain the parties’
signatures on all documents, and prepare a comprehensive closing
statement that shows all of the funds involved and their
disposition.
More below...
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Mexican
notaries’ duties also go far beyond merely certifying the identity of
the parties. They are the official recorders of land transfers,
and it is the “book” of the notario (notary) in which the transfer is
actually recorded (a notice of recordation is later filed with the county
registration office as well, but the official record is the notario’s
book). The notario is usually the one who drafts (or has another
attorney draft) the document of transfer itself and obtains advance
approval for it from the buyer, seller, and the trustee bank prior to
actual signing. At the culmination of the process, the notario
records the signature of each interested party, and keeps the
original of the document. The deed itself (for foreigners,
a “fideicomiso”, for Mexican citizens an “escritura”) is also much
lengthier than the typical US statutory warranty deed -- which is
little more than a single sentence plus the legal description.
It recites much of the legal history of the property, and the
identities and
positions
of each person signing, as well as a detailed legal description.
The notario also collects collateral documentation including certificates
of no lien and certificate of current property taxes paid.
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The closing officer, or
another person in the office, will be a notary, and will notarize the
parties’ signatures on the documents (essentially, certify that the
person signing is actually who he or she claims to be). Then,
when all the documents are ready and all they funds are in place, the
closer records the deed (and mortgage or deed of trust, if it’s financed)
with the county recorder or equivalent. This part of the
process is usually physically handled by the title company, which will
have issued a preliminary title report, and which will issue its actual
title policy once recording is completed. Once the recording numbers
are reported back to the closing agent (usually the same day), he or
she disburses the funds based on the closing statement and the transaction
is completed. Thus, the recording system is centralized
and the handling of the transaction is also centralized.
Mexico’s land-registration and closing system is different,
and the role of the notary is also very different, having been developed
from a Spanish model along with the remainder of Mexico’s legal system.
Notaries in Mexico are very elite attorneys who have
taken additional training, passed rigorous examinations, and obtained
appointment to one of a limited number of positions in any particular
city or municipality. The number of notary positions is related
to population, much like the US apportionment of congressmen.
Obtaining an appointment is thus very desirable and also very competitive.
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Finally, besides carrying out these functions, the notario also
calculates the amount of capital gains tax (for which he is
solidarity responsible), and the transfer tax and any other taxes
due, collects the funds, and pays the funds to the government. And the notario, in the process of carrying out all these functions, certifies
that the title transferred is as described and is free and clear of
liens and adverse claims.
What notarios do NOT do is equally important: Most notarios
will not handle your purchase money (some exceptions exist), and they
do not prepare comprehensive closing statements, so some third party
must carry out these roles. Also, they will not follow up
with trust bank fees nor with any homeowner association dues. Too often,
this means that you simply won’t get a full closing statement, unless
a third party performs one for you. The Pacific Closings Company,
a subsidiary of Pedregal, offers the buyer and seller a comprehensive
closing statement among the other ancillary services mentioned above.
We also generally recommend the use of an independent US escrow to handle
the purchase money for all transactions (for sales of Pedregal inventory
we do handle funds if the clients prefer), making disbursals under the
parties’ written instructions.
When you see that large figure after the notary’s name
on your closing, you’ll now have an idea why it’s so much bigger than
you would expect based on your US real estate experience.
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