The Mexican Notary

The notaries here in Mexico are very traditional part of the process when you are buying a property

or when you perform a legal act that by law has the formality to be public (the legal effects of the

act have to transcend to third parties), in fact they are the only once that certify legal acts like title

deeds that content purchase of a property as per by law is mandatory. They are of course regulated,

and to be a notary is required to have a specialized license as he/she is an appointee from the state

government, and the number of notaries and issuance of licenses depends on population and size

of the state.

 

They are regulated by a local law called Ley del Notariado [Law of the Notary] as each state of the

Mexican Republic has it, and they certified each legal act that is performed before them, if not then

the lack of the element of his/her public faith shall damage the legal act itself turning it in to voidable

if we are talking about a definitive legal act like; title deeds, Power of Attorneys, Trusts, Certified

Statement Letters required by Authority, etc.

 

Now, the main purpose of notaries is to grant “public faith” or certify legal acts, that means that due

to his/her license, the law dotes them with those faculties and fulfils the formality required by law

turning the performed legal act before him/her a public force of statement against third parties,

meaning that the rights that you transfer or acquire before him/her, have validity before third

parties, meaning for example, that a person that purchased a house is the owner before everyone

only when it gets its title deed from the notary, or when someone grants a Power of attorney to

another person before a notary, meaning that with that power of attorney in hand, your proxy

he/she can perform legal acts according the POA granted against or with another third party,

representing and obligating you in terms agreed before the third party.

 

So, the notaries do not represent you or your interest in a legal act, they are there to certify and

explain the legal act, putting the element of validity to fulfill the requirements of the law, but they

do not defend or protect you interest regarding any kind of possible abuse of terms in a contract or

inadequacy if it transcends to a particular problem in the future, they only certifies the terms agreed

and take charge of compliance of the requirements of law according to the act performed if the

parties agree in the conditions that they agreed, as the notaries are not your attorneys, their role is

a middle point between parties as that’s the role that they have by law. That’s why till today still

exists the “prestanombres” [misleading ownership that parties agreed], “acciones de propiedad”

[misleading co-ownership as property shares], unlawful properties without fulfilling urban laws, etc.

Of course, the notaries criteria and ethics can go beyond his/her role, but that depends on each of

one, as the purpose of this article is to underline the role that the notaries have in Mexico and the

honorability of the figure that they have, as we respect.

 

One of the main subjects and examples that underlines the role of the notaries is in the offers or

presales agreements, as they are not involved in that first steps of transactions normally when we

are talking about purchasing property, and if they are certifying a private contract as a presale

agreement or offer, they are only certifying the signature of the parties who are signing, and not the

content of the contract, as they do when they stamp its certification, putting in their attest text that

they only certify the signature of the people involved in the private legal act, but do not attest the

content of the contract and terms agreed, as private legal acts do not have legal effects against third

parties, but only between the people involved in the legal act that they are performing, as the

notaries involvement is not necessary by law in private agreements, and that’s the most important

time of the process that a foreigner has to be careful with (in the terms agreed), due to private offers

or a presale agreement are binding, and obligates to fulfil the terms agreed. Therefore, before

signing any offer we suggest to contact your local lawyer, so he/she can evaluate the conditions of

your contract, practice the due diligence, reviewing the object of contract itself and the parties

involved, asking for proper legal documentation and advising you in the best way so the possible

risk can be cover, underline possible red flags, and giving you certainty and knowledge so you can

proceed and have a smooth closing of your transaction.

 

For more contact F-LEX.