3-4/2005 UINL - Notarius International

Notarius International 3-4/2005 J. A. Márquez González, National Report Mexico 203
are voluntarily affiliated to this body and it also includes,
in accordance with its statutes, the Presidents of the local
notarial Associations and Councils throughout the country,
which means that it is highly representative at a national
level, although it is true that not all notaries are affiliated
to it.
2. Civil Law
2.1. Civil law in general
The Código Civil del Distrito Federal (CCDF) [Civil
Code of the Federal District (CCFD)] has been in force
since 1932 and has been subject to considerable changes
in recent years. It continues to be profoundly influenced
by the Napoleonic code of 1804 and is, in general, structured
in quite a similar way.
All the codes in the Republic are very similar, but that
does not mean that there are no differences between
them. Some of those differences are quite significant.
For example, most of the codes contemplate the doctrine
of “legal act”. In fact, articles 1792, 1973 and 1859
of the CCFD contain the definitions of agreement and
contract, obeying in this regard the French theory enshrined
in the Code of Napoleon. Nevertheless, some
codes differ from this system of doctrine. This is the case
with the civil codes of Quintana Roo (articles 135-425),
Coahuila (articles 1899-2198) and Guerrero (articles
1593 et seqq.), which adhere to the theory of “legal business”.
The oldest civil codes in the country are those of Veracruz
(1932), Nuevo León (1935), Michoacán (1936),
Chiapas (1938), Hidalgo and Sinaloa (1940), Campeche
and Oaxaca (1943), San Luis Potosí (1946), Aguascalientes
(1947), Durango (1948), Sonora (1949), Colima
(1953), Guanajuato (1967), Baja California and Chihuahua
(1974) and Tlaxcala (1976). The newest are those of
Quintana Roo (1980), Nayarit (1981), Puebla (1985), Zacatecas
(1986), Tamaulipas (1987), Querétaro (1990),
Guerrero and Yucatán (1993), Morelos (1994), Jalisco
(1995), Baja California Sur (1996), Tabasco (1997), Coahuila
(1999) and, finally, Estado de México (2002).
2.2. Property law
Book Two of the CCFD deals extensively with possession,
ownership, usufruct, use, habitation and easement
and is not until the Second Part (Various types of contract)
of Book Four (Obligations) that it examines the alienation
of immovable property in each of the specific
contracts in question.
In our law, the contract of purchase and sale is consensual.
In fact, in accordance with the provision contained
in article 2248, “A purchase and sale will exist when one
of the parties to the contract agrees to transfer the ownership
of a thing or a right and the other party, in turn,
agrees to pay a certain price for them in money”. In general,
the sale is perfected when the parties have agreed on
the considerations, even though these may not yet have
been physically delivered.
2.3. Alienation of immovable property
2.3.1. Requirements in terms of form
A contract of purchase and sale is required to adopt a
certain specific form when it deals with real estate properties.
The CCFD provides that alienations up to the value
of 365 times the minimum general daily salary of
Mexico City (approximately $ 16,100 pesos, equivalent
to approximately USD 1,500) may be carried out in a private
document before two witnesses, with the signatures
being confirmed before a notary, a judge or a registrar.
This is also the case with operations of creation of transfer
of real rights for the same sum. Contracts relating to
alienations carried out by the government for poor people
may, on the other hand, dispense with the witnesses and
the certification of signatures. It should be clarified that
these social-interest contracts are almost always granted
a 50% reduction of the tariff. All contracts that exceed
that amount of USD 1,500 must be executed in a public
deed before a notary.
2.3.2. Execution in a public deed
To sum up, the procedure for executing a public deed
may be summarised as follows:
- First, the notary is obliged to obtain a certificate from
the public registry office relating to the existence or
otherwise of encumbrances in connection with the
property to which the transfer relates.
- This request also serves as a preventive notice in which
the disclosed transaction is mentioned. The registrar issues
a note of submission, which is valid for 30 calendar
days.
- When the deed has been signed, another preventive
notice is issued by the notary, but now with the addition
of the date of the deed and its signature.
- The notary must then continue with the procedure of
payment of fees and taxes relating to the transaction in
question and when they have all been paid, he must issue
the respective transcript for its final entry on the
public register.
2.3.3. Entry on the register
The institution of registration operates according to
the principles of public recording, entry, speciality, consent,
successive intervals, request, priority, legality and
presumption of accuracy of the register.
Article 3042 of the CCFD states that the following acts
must be registered:
- Titles whereby dominion, original possession and other
real rights on immovable property are created, declared,
recognised, acquired, transferred, amended,
restricted, encumbered or extinguished;
- The creation of family property;
- Contracts for lease of immovable property for a period
of over six years and leases in which more than
three years' rent is paid in advance; and
4 Internet: www.notariadomexicano.org.mx/