In many cases, it is easy to question the role of the notary public in formalizing the sale of real estate in Mexico, which leads us to analyze the scope of the notary’s services and the legal certainty provided by notaries public in transactions of this nature. The notary public in Mexico isa lawyer who receives an additional license as a notary public, which allows him/her to be a notaryin different types of transactions and legal acts, including those relating to real estate sales transactions. The notary participates in the legal transaction, that is, he/she renders his/her signature to formalize a contract, drafts the contract or revises the legality of the contract provided by the parties. The notary’s primary functions, include: (i) identifying the needs and intentions of each party; (ii) identifying the property’s chain of title and making the appropriate references in the public instrument; (iii) requesting and obtaining any certificate(s) of liens or no liens regarding the property from the Public Registry of Property (Registro Público de la Propiedad) and presenting it to each party; (iv) verifying that the property has no outstanding debts in regards to property tax or water supply services; (v) identifying the parties to the transaction and, when applicable, their legal representatives, as well as their legal capacity to enter into the contract; (vi) calculating and performing necessary acts for the return and paymentof taxes accruing to the parties as a result of the sale; and (vii) filing the deed of purchase with the Public Registry of Property that corresponds to the property’s location. At first glance, this may seem like a very extensive process for real estate sales transactions; however, it is important to mention some of the relevant aspects of the responsibilities of a notary public:
1. The notary certifies the legality of the transaction and the legal capacity of the parties to enter into it, that is, that one party is the seller and the other the buyer. It is worth mentioning that the notary public may not individually represent either party.
2. The notary checks the seller’s legal title and obtains a certificate of no liens from the Public Registry of Property; though they have no obligation to review the property’s chain of title in addition to the seller’s title, it is recommended that this be checked for the period of at least the previous 20 years.
3. Unless the transaction directly involves the sale of communal property (ejido), the notary does not check the previous condition of the property or the fulfillment of all legal requirements.
4. The notary does not verify the zoning/land use of the property and its compatibility with the buyer's specific project.
5. The notary does not check or verify the availability of public utilities on the property; he/she merely confirms that there is no balance owed for the water supply services and any property taxes, in accordance with the law.
6. The notary checks neither the environmental condition of the property nor the requirements for the development and use of property.
In conclusion, the involvement of a notary public in real estate purchases is a legal requirement in Mexico, and its function is of great importance in the execution of the transaction. However, in some transactions it is an essential but complementary service to the role of various specialists,including outside counsel, engineers, environmental consultants, surveyors, etc.Original article from the CCN Mexico Report™