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Benoit

Jan 21, 2012, 3:42 PM

Post #1 of 11 (1569 views)

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Mexican foreign couple - Restricted Zone - Joint Property?

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Hi, my Mexican spouse and I (Canadian) are looking into buying some land and building a house in a beach area in southern Mexico. My understanding so far from reading this forum and many other resources are that a foreigner can't own any land in the restricted area, not even as joint property with a Mexican spouse. So, what would you all advise -- should he get it in his name alone, or should we set up a bank trust?

Option 1 sounds interesting, I could just take it on faith that someday I will move to Mexico for a few years and get citizenship, and that I won't need my name on it (even though I will be paying a lot/most of it). But who can know the future? In the mean time, if he died or if we divorced someday, would I have no claim to the property? There must be some solution to this, like a contract saying it would have to be sold or converted into a trust?

Option 2 also sounds possible. Do Mexican-foreign couples get bank trusts? Can you later turn it into direct ownership in the future?

I would much appreciate your advice. Thanks!

-Ben

mazbook1

Jan 21, 2012, 4:27 PM

Post #2 of 11 (1550 views)

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Re: [Benoit] Mexican foreign couple - Restricted Zone - Joint Property?

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You're looking and thinking of it like it's something you're familiar with in the U.S. or Canada and that just doesn't work in México.

Joint ownership is very, very uncommon in México, and may even not be legal in the state you're buying in. Only a registered, licensed Notario (a special type of lawyer who is licensed by the state to handle real estate transactions) can answer your question.

In Sinaloa, where I live, you would have two reasonably easy options:

1. Buy the property in your name, with a fideicomiso - bank trust - if it's within 100 km of the border (north or south) or 50 km from the ocean, or with a permiso - letter of permission - from the Mexican Dept. of State - SRE - and put your Mexican partner's name in the final papers as the alternate beneficiary in the case of your death. Your Notario does all of this for you. It's also advisable to have the Notario draw up a simple, legal Mexican will at the same time since only a Notario can write and register a legal will in México.

2. Buy the property in the name of your Mexican partner with your name as the alternate beneficiary. There should be a will drawn up for him at the same time. AND, very important!, a mortgage from you, the mortgager, to him, the mortgagee, that would only come due if the partnership should be dissolved. This sounds pretty cold, but it's the ONLY legal way to protect your interest in the property should something happen.

Joint ownership of property is possible in Sinaloa, but my Notario recommended against it because it's so unusual that it might be difficult to deal with in the future, as any official dealings involving the property might pass through bureaucratic hands of folks who had no idea how to deal with it.

There are other, much less commonly used ways for a foreigner to legally "own" property (or "own" a share of property) in México, but they are complex, usually expensive (in fees to the Notario) and rarely worth all the trouble, IN MY OPINION.

What you absolutely MUST do is to get the advice of a Notario BEFORE buying or even putting a binding offer on a deal to buy property. Not to do so could be very, very costly to you in the long run. That is not opinion, it's fact! My Notario even told me that if I ignored that rule, I would have to get another Notario, as he wouldn't handle whatever deal I made!

¡buena suerte!

(This post was edited by mazbook1 on Jan 21, 2012, 4:27 PM)

Benoit

Jan 22, 2012, 1:03 PM

Post #3 of 11 (1450 views)

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Re: [mazbook1] Mexican foreign couple - Restricted Zone - Joint Property?

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Thanks for the reply. Really they do not have joint property? From what I am reading on the Internet (I have yet to talk with a real notario, and there are so many conflicting things), in general for your property you can chose a community property regime (sociedad conyugal) or a separate property regime (bienes separados). If you have community property, you own 50% of everything with your spouse and he/she can't sell it without your permission, even if only one spouse's name is on the title. If you have bienes separados, you can buy and own properties separately.

Let's assume we have bienes separados (I don't know if, when you register your marriage in Mexico you get to choose again or if you have to follow the same regime you chose in the country of origin?) Bottom line, we can't own it together if it's in the restricted zone. Having him buy it alone sounds preferable in my opinion to having a trust, but it seems a little unclear to me still. How can he have a will whereby I would inherit something I am not legally capable of owning? And would inherit the property if he died and I wasn't naturalized yet? And are you allowed to have a mortgage to your spouse (assuming bienes separados)? That must be a very unusual situation...

Thanks so much for the advice. I really need to talk to a notario in the state we are looking at.

sfmacaws

Jan 22, 2012, 3:24 PM

Post #4 of 11 (1428 views)

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Re: [Benoit] Mexican foreign couple - Restricted Zone - Joint Property?

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A fideicomiso offers some additional protections in inheritance whether you have a will or not. Two unrelated people can own one fideicomiso and they designate who inherits their share. My partner and I have 2 properties in Fideicomisos, both are in both of our names, we each named the other as the first inheritor and then an agreed list of secondary inheritors. Since we are both women and not married, it's pretty clear that you don't have to be married to do it. I also think that a Mexican citizen can own part of a fideicomiso, I'm not positive on that though but you do need to check all of this with a good notario.

My personal opinion is that you would be better protected by having your name as one of the owners and getting a fidei.

Jonna - Mérida, Yucatán

mazbook1

Jan 22, 2012, 3:58 PM

Post #5 of 11 (1417 views)

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Re: [Benoit] Mexican foreign couple - Restricted Zone - Joint Property?

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Yes, IF you get married in México you can (and I and my Mexican wife did) choose the community property regime (sociedad conyugal). BUT the way it is applied in México is usually that the "he/she can't sell it without your permission" that you assume applies really doesn't (I've slightly researched this on Mexican Spanish-language sites, but haven't actually spoken with my Notario about it) seem to ever be applied. The husband controls everything is the normal way it happens in México. It seems that the wife has a very tough time—in court!—enforcing her rights in the case of a separation or divorce.

All that aside, I would certainly have a serious doubt that a marriage (even though completely legal in México and recognized as such by Mexican government and the Mexican courts) in a community property state in the U.S. would automatically be recognized as having the regime sociedad conyagal in México.

mazbook1

Jan 22, 2012, 4:03 PM

Post #6 of 11 (1415 views)

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Re: [sfmacaws] Mexican foreign couple - Restricted Zone - Joint Property?

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That's good to know, sfmacaws, good information from someone who has done that. My Notario says that YES, a Mexican citizen CAN have (and I assume that also includes "a part of") a fideicomiso, but it is of a type a bit more costly than the common fideicomiso used by foreigners to buy property in the protected zone.

mazbook1

Jan 22, 2012, 4:48 PM

Post #7 of 11 (1402 views)

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Re: [Benoit] Mexican foreign couple - Restricted Zone - Joint Property?

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Your question about the legality of your partner sharing in the ownership of a fideicomiso "Bottom line, we can't own it together if it's in the restricted zone" seems to have been answered by the other post, BUT only a Notario in the state where you buy the property can verify that!

You write, "I don't know if, when you register your marriage in Mexico you get to choose again or if you have to follow the same regime you chose in the country of origin?" The ONLY "registration" of a foreign marriage that I KNOW OF, is that you have to show (and give a copy to) Migración (INM) your original marriage certificate when getting your FM2 or FM3, which they MAY require an official translation of, but other than that you can't "register" your foreign marriage anywhere. In the U.S., if you get married in a community property state, you are automatically in a sort of "regime sociedad conyugal", something not stated on any marriage certificate I know of, and you would have to have a separate, legal pre-marital agreement to be in something like the "regime bienes separado" and vice versa if you got married in non-community property state. That's why I think that the community property thing, assuming that you got married in a community property state, that is mandatory—in that state—without some separate legal document negating it, would not necessarily flow through to legal recognition as being in the regime sociedad conyugal in México. No vice versa on that last thing, as the automatic assumption in México, until fairly recently when they began having a couple choose one or the other of the marriage regimes, was that upon marriage, the control of ALL of the wife's assets of any kind, went to the husband. That was from the Napoleonic Code, the code of laws behind the laws of México, just as English Common Law is behind the laws of the U.S.

You might think that odd, but in the U.S., the State of New Mexico (which was stolen from Estados Unidos Mexicanos in 1848) only changed from this same exact assumption sometime after World War II, and even then it was the early 1970s before all their laws governing marriage, even though it was a community property state, were changed to eliminate all the traces of the old Napoleonic Code based laws applying to a wife's marital rights that were still "buried" in the state law.

For sure, what you wrote last, " I really need to talk to a notario in the state we are looking at." is a must. Be sure you get recommendations from other foreigners where you a buying the property for a good, English-speaking Notario. That too is a must unless you are TOTALLY fluent in Spanish. Just having your partner with you to translate is not good enough, IN MY OPINION!

(This post was edited by mazbook1 on Jan 22, 2012, 4:49 PM)

Aaron+

Jan 24, 2012, 2:43 AM

Post #8 of 11 (1296 views)

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Re: [mazbook1] Mexican foreign couple - Restricted Zone - Joint Property?

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To be legally recognized in Mexico, a marriage outside of Mexico of a Mexican citizen and a non-Mexican needs to be registered at the Registro Civil for the area in which that couple lives in Mexico. Procedures and onerous documentation requirements vary by Mexican state and by the local Registro. A notary in our state, Yucatan, recommended a court ruling on the marriage as a spur to reluctant Registro officials. (We have not gone through the process yet, though it is recommended for enforcement of any Mexican will we finally get around to having down here.)

Our local INM office does not require any Mexican registration of a foreign marriage as a condition for applying for what was the FM3 or FM2.

mazbook1

Jan 24, 2012, 2:06 PM

Post #9 of 11 (1240 views)

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Re: [Aaron+] Mexican foreign couple - Restricted Zone - Joint Property?

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Wow! What an onerous thing to do! I had no idea, that it was even possible. I didn't mean that you actually "registered" your foreign marriage for INM to issue the FM2 or FM3, just that if you mark the box (or answer the question "yes") that you are married, the INM office should require a copy of the foreign marriage certificate (and some require an official translation) and a look at the original when you apply. It's not an actual registration of the marriage, though. There is a possibility that this is only required for a couple where both must get visas, but I wouldn't know about this.

When you say, "To be legally recognized in Mexico, a marriage outside of Mexico of a Mexican citizen and a non-Mexican needs to be registered at the Registro Civil for the area in which that couple lives in Mexico.", I'm reasonably certain that is not true for all purposes, but only a local Notario would know for certain. Although I married a Mexican citizen, it was in México, but I know mixed citizenship couples that have had considerable legal things taken care of here in Mazatlán, and they certainly didn't have to go through all that nonsense to have their foreign marriage legally recognized in México. I do know ONE couple who formalized their wedding both in Canada AND in México, but I don't think it was done for legal reasons, only for religious ones. Since their LEGAL marriage in México was not a religious marriage, and they wanted that, they went up to Canada where the bride had lots of relatives and had a LEGALLY recognized religious wedding up there. Off course, most who get married in México who want a religious wedding go from the Registro Civil wedding directly to their church of choice and get that religious wedding before the wedding reception. That's very common.

(This post was edited by mazbook1 on Jan 24, 2012, 2:23 PM)

YucaLandia

Jan 24, 2012, 5:40 PM

Post #10 of 11 (1210 views)

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Re: [mazbook1] Mexican foreign couple - Restricted Zone - Joint Property?

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In Reply To

...When you say, "To be legally recognized in Mexico, a marriage outside of Mexico of a Mexican citizen and a non-Mexican needs to be registered at the Registro Civil for the area in which that couple lives in Mexico.", I'm reasonably certain that is not true for all purposes, but only a local Notario would know for certain. ....

Aaron´s comment is how our State government and our INM office handles things. We have spoken with our attorney about this, and she also assures us that the only way for me to have full legal rights as the husband of my Mexican wife is for us to have our legal US marriage registered by our State Registro Civil. We had an older expat couple who are our friends have problems when one of them died and the remaining spouse tried to deal with the local government without the Registro Civil's approval of their US marriage 40 years before.

When the city officials, the State officials, local lawyers, and INM (federal) officials all say the same thing, I suspect they know what they are talking about.
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mazbook1

Jan 24, 2012, 7:45 PM

Post #11 of 11 (1185 views)

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Re: [YucaLandia] Mexican foreign couple - Restricted Zone - Joint Property?

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I suspect they do too! That's why I specified that the little that I knew about it was from friends' experiences here in Mazatlán, Sinaloa. Which could be quite different than Yucatán. Although I have a tendency to disbelieve what INM says about ANY legal thing that isn't directly under their control. I've heard an awful lot of BS that originated with INM employees giving advice about matters other than the ones directly under their control. Aduana and the Temp. Vehicle Importation Permit and Mexican Citizenship procedures to recount just two.