PART 2: HOW DOES A FIDEICOMISO WORK?
The Bank reviews all paperwork of the current owner/developer to ensure that the documents are complete and legal. The Bank will not issue and form the Fideicomiso on behalf of the Beneficiary until it is satisfied that all the documentation is correct.
Closing costs for the seller include: payment of capital gains tax, trust cancellation, if applicable, and real estate fees. Capital gains tax is computed using the declared value of the purchase price in the seller’s deed and the tax value, together with the dates of purchase and selling, which form a basis to index appreciation or depreciation, and deduct allowable receipts to arrive at an amount of tax. Each individual case will be different and proper analysis by a qualified professional is necessary. This computation is usually done by the notary closing the sale.
A question that often arises – in the event the holding Bank should ever fail, be bought by an unauthorized Bank, etc., what happens to the Fideicomiso?
Answer – the Fideicomiso will be transferred to another authorized Bank.
Remeber: the Bank does not own the Fideicomiso (Trust), the Fideicomitente (Beneficiary) does!
Foreigners often worry about their land being expropriated by the Mexican government. Under the North American Free Trade Agreement, USMCA, Mexico may not directly, or indirectly, expropriate property except for a public purpose. This is the same as “Eminent Domain” in the U.S., where it is necessary and unavoidable to expropriate land and swift and fair market compensation must be paid, together with accrued interest.
DO MEXICAN BUYERS/SELLERS HAVE SPECIAL DISPENSATION UNDER THE LAW?
No, the Mexican Constitution guarantees nationals, as well as foreigners that are in Mexico legally, the same rights and obligations. Whether Mexican or foreign-owned, each property within the Restricted Zone must complete the due diligence process and the only way to sell property to non-nationals is either through a Fideicomiso or a Mexican incorporated company (a whole different process). Mexican developers DO NOT have any special dispensation under the law. If you do not have a Fideicomiso through an authorized Bank or a Mexican Company, then you have, at best, a lease. Any other form of “ownership” such as share of a corporation, owning with a Mexican national partner, or any other gimmick is not legal and is considered trying to circumvent the law with possible dire circumstances!
REMEMBER: The Mexican law is very specific about the Real Estate Fideicomiso. This Fideicomiso is designed specifically for non-nationals to own residential land in the restricted areas (beach, border region) and is the ONLY legal way to own this land. It provides the same legal rights and protection of ownership as a Mexican national has under the law. It bestows upon the Beneficiary of the Trust absolute and irrevocable control over the property.
Daniel Gold W., MBA