A question I am often asked about real estate in Mexico is: Who Does the Notary represent in a Mexico real estate transaction?
First, you should know that your real estate team in Mexico could include many players: real estate agents, the notary, attorneys for buyer and seller, transaction coordinator and the escrow company. When needed, specialists such as land surveyors, structural engineers and tradesman, such as plumbers and electricians, can inspect the property.
With expats who need a trust, and nationals who choose to put their property into one, the additional team member is the bank administrator of the trust.
Who is the notary? He/she is a specialized attorney who is appointed to practice notary law in a Mexican state. The notary has other jobs besides handling the transfer of real estate property, including collection of capital gains taxes, witnessing wills, business contracts, leases, etc.
The notary does not represent the buyer or the seller, but is expected to not favor one over the other, to be fair and clear to all parties.
In the Puerto Vallarta market, transaction coordinators may work with the notary but are not employees. The transaction coordinator has become popular for bilingual communication with foreigners.
When the transaction coordinator is a part of the notary process, he/she is paid a fee by the notary to help bring in more business and process the paperwork. The notary has to sign and approve all formal documents.
A buyer or seller expects his/her real estate agent to be an advocate. The role of the attorney hired is to advise on the legality of the sale by examining the recorded documents of the seller and the new documents created for the buyer. The agent cannot do this due diligence, as he/she is not an attorney nor knowledgeable in the federal and legal requirements for transferring Mexican real estate.
Agents are not educated, trained or licensed in Mexico, as they are required to be in the rest of North America. The legal process for buying and selling property in Mexico falls under Roman law, in particular Napoleonic Code.
A foreign buyer or seller from the U.S. or Canada should not rely on what they understand about English Common law for a real estate purchase in Mexico.
A buyer or seller from Europe will have some familiarity with the notary system and the real estate agent requirements in the European Common Market. Notaries are used for real estate transfer in Europe and Latin America.
Here are my conclusions about this process:
Sellers or buyers should never assume the notary is their advocate nor think they do not need their own attorney. The notary represents the government and cannot be an advocate for a buyer or seller in the same transaction.
The transaction coordinator, in my opinion, should not be the attorney for either the buyer or seller. He/she should be a neutral third party to avoid conflicts of interest.
If a transaction coordinator is paid by the notary and by the seller or buyer (as their attorney), whom does the transaction coordinator represent? How can he/she represent the government and a principal to the transaction without a potential conflict of interest?
This blog is based upon public information and my personal experience in the Puerto Vallarta-Bahia de Banderas areas. I recommend that each potential buyer or seller of Mexican real estate conduct his/her own due diligence and review.