In my almost 20 years as a real estate attorney and broker, I have found several issues in the owner´s deed that makes it difficult or impossible to close on a property, unless legal paperwork or procedures are done.
When I list a property for sale, I review the deed and, if I see any issues, I immediately start working on fixing them. Same thing when buyers hire me to represent them in a FSBO or when the owners have their own agent.
In some cases, the sellers do not have the right to sell the property and they don’t even know it. In other words, the person who is going to sign the deed is not entitled to do it.
I am listing several scenarios to be aware of, followed by my advice on what to do on each case:
Scenario 1: The owner has died.
It is very common in Mexico that a close relative manages a property of a deceased person. Usually the spouse or one of the children believe they could legally transfer or lease the property. This is not true, unless they do a trial (probate procedure) called “juicio sucesorio” to get heirs recognized and an executor called “albacea” appointed by the court. Depending on the situation, the heir or the “albacea” could sign the new deed on behalf of the deceased.
Scenario 2: The owner is married.
There are two different ways to handle the property for a married couple in Mexico. It could be “community property” or “separate property”. The couple should decide this before getting married and the marriage certificate should have a note about it. In the “separate property” system, each spouse could sell property without the other spouse’s permission. However, under the “community property” system, even if the property is under one spouse’s name, the other spouse must agree on the sale. In other words, the other spouse must sign the deed even if their name is not in the deed.
Scenario 3: The owner is divorced
The owners were married when the property was purchased, but now they are single by divorce. They should show their divorce certificate and the property division agreement. Even if the marriage was “separate property”, the judge might awarded the property to the children´s guardian parent, so be careful and always ask for the final divorce decree.
Scenario 4: The owner´s name in the deed does not match his/her ID document.
Have you noticed that we Mexicans have very long names? (i.e. Yolanda Rocio de Jesus). Sometimes people´s names are different in the baptism certificate than in the birth certificate records. In this case, they use one, two or the three names for different purposes, and then they end up with Id´s that don´t match. Another common case is for women named Maria Guadalupe or Maria Socorro or Maria Isabel. In this case, in some legal documents their first name Maria was written as “Ma” including deeds.
If the name on the deed does not match the owner ID, the Notario could fix it by an affidavit called “acta destacada” or maybe a special trial or procedure might be needed.
Scenario 5: The owner is a widow.
If the owner was married in a “separate property” system and the spouse died, the owner can sign the new deed with no further paperwork to be done. However, if the owner was married in a “community property” system, the 50% rights of the deceased spouse should be defined by a trial (probate procedure) as I mentioned in scenario number one.
If there are two or more owners make sure to review all the issues for each one of them.
I have just mentioned some, but there could be a lot more issues, so be careful and get legal advice or professional representation before you invest your money in Mexico.
The previous information comes from one of the chapters of my online course “How to Buy Real Estate in Mexico“. If you would like to know more about purchasing property in this country, I recommend that you check it out. You can find it on udemy here. You can also find my courses on Skillshare by clicking here.
