Notarios and their role in Mexico
real estate transactions

Mexico’s land registration system, in which notarios play the key role, was inherited from Spain, along with the remainder of Mexico’s legal system.   Where the US system is centralized, typically by county, in Mexico it is decentralized, and most of these functions are delegated to notarios.   

These men and women are a very elite group of attorneys who have taken extensive additional training, passed rigorous tests, and obtained lifetime appointment to one of a limited number of positions in any particular locale.   The number of notary positions is related to population, much like the US apportionment of congressmen or federal judges.   Thus, obtaining an appointment is desirable and lucrative. 

Mexican notaries’ duties go far beyond merely certifying the identity of the parties.  They are the official recorders of land transfers and many other matters of public record, and it is the “book” of the notario in which the parties’ signatures transferring the property are actually recorded (it is at this point that title transfers – although there a number of further steps that must be taken to “perfect” the transfer, culminating with recordation of a copy of the same document with the notary’s signature and seal in the municipality’s registration office).

The notario also is the one who drafts the trust document itself and obtains advance approval of it from buyer, seller, and the trustee bank, prior to actual signing.   To draft it, he or she must collect certificates of no lien, current status of taxes, homeowner fees and trustee fees if there is an existing trust, an appraisal, and other documentation including formal proof of the identities of everyone who will sign the document, plus a detailed description of the property itself and some of its title history, all of it recited verbatim in the text of the trust.

The fideicomiso document itself is also thus much more lengthy – from 25 to as many as 50 pages -- than the typical US statutory warranty deed – which is usually little more than a single sentence plus the legal description (see the separate article on the trust and its content).   

The notario has complete fiscal responsibility to the government as well.  He or she calculates the amount of capital gains tax, if seller owes any, and the acquisition tax and any other taxes due, collects or withholds all these funds, and remits them to the government.   And the notario, in the end, certifies and personally guarantees that the title transferred is as described and is free and clear of liens and adverse claims.

There are some functions typically handled by the closer in US transactions that are NOT handled by the notario.  He or she will not handle your purchase money, nor prepare comprehensive closing statements, nor generally act to coordinate the actions of others.  Three US title companies, and some independent escrow offices as well, provide the service of escrowing funds in US accounts under control of the buyer and seller, and Century 21’s closing department will provide the necessary coordination of the efforts of everyone involved, and supply a closing statement accounting for all funds for both buyer and seller.