Adverse Possession Rights in Agrarian Matters

By Jorge Ojeda

Adverse Possession Rights in Agrarian Matters

 In Mexico, lands subject to the social system known as “ejido” occupy more than 50% of the national territory. It is possible to acquire such lands by complying with a series of requirements, among them, that the owner/seller gives a right of first refusal as required by Article 84 of the Agrarian Law to “…family members of the seller, the persons who have worked the plots of land for more than a year, the ejido members, recognized neighbors, and the ejido…” The Agrarian Law establishes a particular method to notify such interested parties, including notification to an ejido board (Comisariado Ejidal). It also establishes that “if the notification is not made, the sale could be nullified.” It has been debated whether the violation of the right of first refusal involves the absolute or relative nullity of the respective sale. As a result, this article addresses the issue of the statute of limitation over agrarian rights in relation to the scope of the interpretation of said Article 84 of the Agrarian Law.

 

The plenary session on administrative matters of the Third Circuit decided, by majority vote, to contradict thesis 6/2015, subject matter of jurisprudence number 2011704, which is transcribed below:

 

“STATUTE OF LIMITATIONS OF A NULLITY ACTION FOR VIOLATION OF THE AGRARIAN RIGHT OF FIRST REFUSAL.  THE TIME PERIOD FOR COMPUTING THE STATUTE OF LIMITATION BEGINS UPON THE NOTIFICATION OF THE SALE OF THE PROPERTY. From the interpretation of Article 84 of the Agrarian Law, it is derived that whoever makes the first transfer of property over which there is fee simple ownership must notify their family members, the persons who have worked the plots of land for more than a year, the ejido members, recognized neighbors, and the ejido, in that order, to respect their right of first refusal, and if they do not do so, the sale could be annulled.  On the other hand, under the terms of article 1159 of the Federal Civil Code, of supplementary application to the Agrarian Law, the statute of limitation to enforce the nullity for violation of the right of first refusal, is 10 years counting from the date that the right should have been asserted.  Consequently, the term of the statute of limitations must be computed as of the notification of the existence of the sale of the land, which is the moment in which the right of first refusal was enforceable and not before. PLENARY SESSION ON ADMINISTRATIVE MATTERS OF THE THIRD CIRCUIT.”  

 

The contradiction of the referenced thesis is recognized in the semantics of Article 84 of the Agrarian Law, in which the legislature used the word “could” instead of “shall”, and that, by failing to establish a particular exception rule, the supplemental article 1159 of the Federal Civil Code should be applied relating to the general rule of a 10-year statute of limitations from the date the right was enforceable.  However, the thesis refers to the fact that such term runs from the date the notification is made of the “…existence of the sale…” and not from the date the sale was published, meaning, the date it was registered in the Public Registry of Property.

 

Based on the above, the jurisprudence partially resolves the debate as to the penalty for violations of the notification set forth under Article 84 of the Agrarian Law. On one hand, it recognizes that the semantic use of the word “could” refers to a relative nullity, which is subject to statutes of limitations and not to absolute nullity, which is not subject to statutes of limitations.  On the other hand, the thesis requires the notification of the existence of the sale of land instead of upon its publication through registration in the Public Registry of Property.

Sources and legal notice: The following sources, among others, have been used in the preparation of this document: Diario Oficial de la Federación, Banco de México, Suprema Corte de Justicia de la Nación, Secretaría de Hacienda y Crédito Público. The CCN MéxicoReport™ does not constitute legal or tax advice and shall not be used for other than informative purposes to the general public. For further information about the CCN MéxicoReport™, any of the matters discussed or in order to receive legal advice, please contact Rob Barnett (rbarnett@ccn-law.com) or Mario Melgar (mmelgar@ccn-law.com) at the phone number (210) 222-1642.

 

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