National Report Mexico - Notarius International

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Notarius International 3-4/2005 J. A. Márquez González, National Report Mexico 201 The Notarial Degree is governed by eight principles, i.e.: excellence, specialisation, legitimation, objectivity, professionalism, impartiality, sustainability and independence (article 50 of the Notary Law; article 53, notarial laws of Nayarit). 1.4.2. Public examinations Access to the profession invariably takes place through competitive examinations (although this is not a general rule throughout the country) and by satisfying a number of requirements contained in article 54 of the Notary Law. These include the following requirements: candidates must be native Mexican; they must be legal professionals and they must prove a minimum of twelve months' uninterrupted practice as notaries. There is an increasing tendency to require competitive examinations in the profession of notary. Currently a total of 27 federal states require an examination to be passed for access to the post, although we should clarify that in the states of Coahuila and Querétaro the requirements may be dispensed with by the state government in certain cases through an express legal order. The notarial laws of the states of Yucatán, Hidalgo and Puebla only require an examination for candidates to the profession, but not to obtain the post of notary of a notary public's office. The notarial law of Puebla also dispenses with the requirement to pass the candidates' examinations in the case of lawyers who already possess the university qualification of “notarios” [notaries]. In this federal state and also in the state of Veracruz, assistants are authorised to succeed to the post of notary public of a notary's office without any need for a competitive examination (articles 65 of the Puebla notarial law and 55 of the Veracruz notarial law). Finally, the states of Aguascalientes and Michoacán are the only states that do not require a competitive examination either to gain access to the post of notary public or for candidates to practise the profession. 1.5. Notaries' duties 1.5.1. Execution of public documents. In general, the duties of a notary are confined to the execution of public documents, which confers authenticity and legal certainty on the transactions that they witness at the request of the interested parties. “A notary is a legal professional authorised by the State to execute documents and who is responsible for receiving, interpreting, drafting and giving legal form to the wish of the persons appearing before him and conferring authenticity and legal certainty on acts and facts furnished to him for witnessing by recording them in public documents drafted by him. The notary keeps the documents in the files in his charge, reproduces them and witnesses them. He also acts as an auxiliary in the administration of justice as a counsellor, an arbitrator or an international advisor in the terms stated in the relevant legal provisions” (article 42 of the Notary Law and also article 42 of the notarial law of Nayarit). There can be no doubt that this function is of a complex nature: “... it is public inasmuch as it derives from powers of the State and the law, which enshrine professional activities of notaries and notarial documentation in the service of society. On the other hand, it is independent and free for the notary with the public capacity to witness who exercises it.” (article 26 of the Notary Law). Nevertheless, the function of the notary, thus conceived, is constrained by a system of incompatibilities, prohibitions and exceptions. Thus, article 32 of the Notary Law provides that the office of notary is incompatible with any public or private dependence or employment, post or commission and with professional practice as a lawyer. Neither may notaries be merchants, ministers of religion or economic agents of any type. A notary cannot be removed from his post. In accordance with the most refined national doctrine, a notary public's activities consist of listening, interpreting and advising the parties; and preparing, drafting, certifying, witnessing and reproducing the document. 2 1.5.2. Notaries' powers The most significant powers conferred on notaries include the following: - In civil law: to draft all types of agreements between private individuals, such as purchases and sales, exchanges, donations, loans, leases, condominium systems, creation of real rights, guarantee agreements, etc. - In family law: the execution of agreements between spouses on the marital regime, pre-divorce or judicial separation agreements, agreements on parental authority, custody, guardianship, changes of name, certificates of identity, donations between spouses, acknowledgements of paternity and creation of “patrimonio de familia” [family property]. - In law of succession: the making of wills, the processing of succession proceedings, testate and intestate succession proceedings, partitions and awards by inheritance. - In company law: documents incorporating companies, drafting of minutes of ordinary and extraordinary general meetings, transfer of shares, and dissolution and liquidation of companies, with the respective notarisation. - In agrarian law: participation in certain meetings relating to the system of communal (or community) ownership and transfers of plots. - In procedural law: processing of records to certify a range of factual situations that may be required by the interested parties in the procedure for prior formulation of evidence. In some federal states of the Republic, the notary plays an important part in procedural law, specifically in matters of voluntary jurisdiction. In the case of Veracruz, for example, the notary may take part in the following acts: 2 BERNARDO PÉREZ FERNÁNDEZ DEL CASTILLO, Derecho notarial (Notarial Law), Porrúa, México, 1997, page 149.
202 J. A. Márquez González, National Report Mexico Notarius International 3-4/2005 - Proof of facts and accreditation of rights; - Accreditation of residence, good conduct or financial dependence; - Verification of possession of a real right; - Voluntary change of name; - Voluntary procedure for survey and demarcation; - Voluntary creation and cancellation of family property; - Voluntary liquidation of property held jointly by spouses; - Voluntary creation and amendment of marriage contracts; - Testate or intestate succession, and - Unanimous waiver and appointment of executor (article 699-A of the Code of Civil Procedure of Veracruz). 1.6. Procedure for execution 1.6.1. Execution Articles 100-142 of the Notary Law describe in detail the procedure for notarial execution. Thus, deeds must be issued on indelible media with no abbreviations, except in the case of transcripts. No numbers must be written unless they are also stated in words and unused space must be crossed through. Corrections may be made using the method of writing between the lines, indicating the incorrect expression by means of a line, but in any case finally saving what is corrected. Changes and crossings out are strictly prohibited. The notary must draft deeds in Spanish, although in exceptional circumstances he may enter words in another language. He must state the place and the date, the full names of the appearers and the legal name of the act. He must also carefully record the antecedents, listing the respective titles of ownership, as appropriate, the registration particulars and the necessary administrative and tax documents. Likewise, he must describe the property or subject-matter of the business, as appropriate, in detail, list the powers or authorities for representation, draft in order the clauses agreed by the signatories and any waivers of rights. He must attach any documents that he deems important to the appendix and he must certify and attest that he knows the signatories (stating their general particulars), that he has assured himself of their identity, that he read the deed out to them and that he explained its legal scope to them. He must also certify the facts placed before him. He must do all this in clear, concise, precise legal language, with no obsolete or antiquated words or formulae. At the end of the deed, the notary must obtain the signatures or marks of the signatories and appearers and witness the deed with his signature, his stamp and the expression “Ante mí” (Before me). 1.6.2. Open or closed record When a document has been drafted, it is issued on folios or in books authorised by the local government, either in the form of an “open” record or a “closed” record. The folios making up the “open” record have a consecutive identification number and are subject to documentary security procedures consisting of watermarks or other distinctive marks. There is currently a decisive movement towards legislative reform in favour of “open” records. A total of 21 federal states now contemplate these records in their legislation as being either obligatory or optional and 11 states do not, although we should point out that 4 of them possess the record known as the “special open” record for executing deeds for immovable properties of “social interest” which other federal states have abolished, precisely to introduce the “open” protocol in a generalised manner. Interested parties have the right to obtain transcripts, certified reproductions and certificates of the document from the notary of either the full document or part thereof, provided that no damage ensues in this latter case. The transcripts executed by notaries are subject to security procedures on one cover, which identifies the notary, the number of his notary public's office, the respective jurisdiction and the local government to which it belongs. It is also common for the cover to show the notary's private logotype or letterhead. In turn, it is mandatory for the printed sheets of transcripts to bear the seal and the signature or paraph of the notary and, in some cases, the respective kinegram. 3 1.6.3. Public documents Public documents are documents that a public official who has been granted the authority to attest documents is authorised by law to draft, within the limit of his powers. Public documents are also those documents issued by public officials when discharging their duties. The classification of public is shown by the fact the document bears regular stamps, signatures or other external signs provided by law, as appropriate (article 129 of the Federal Code of Civil Procedure). 1.7. Notaries' tariffs There is no applicable general system of notaries' tariffs. In fact, such a system is established in few federal states, including the Federal District and Veracruz. It may be that in other states it is provided by law and although it has actually been issued, in practice it is meaningless either due to its age or because of the complexity of its application or because it is out of date due to the recent financial inflation in Mexico. 1.8. Professional organisations Most of the notarial laws in the Republic of Mexico contemplate an association as an institution that obligatorily groups together all the notaries in the federal state. From a national perspective, the association known as the Asociación Nacional del Notariado Mexicano (ANNM) 4 (National Association of Mexican Notaries) was founded in 1955. All of the notariates in the country 3 The new notarial laws of Veracruz, Tabasco and Nayarit already require the use of the kinegram (article 136 of the Veracruz notarial law) or hologram (article 40 of the Tabasco notarial law and article 148 of the Nayarit notarial law).
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National Report Mexico - Notarius International

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