The Mexican bank trust is an instrument commonly used for non-Mexican nationals, such as U.S. citizens and Canadians, to purchase coastal land in Mexico. This bank trust in Mexico is known as a “fideicomiso”.
Most people use the term “bank trust” simply because it is easier to pronounce than fideicomiso, but when talking in Spanish, you should expect to hear and use the term “fideicomiso”.
How Does the Bank Trust Work?
- Three parties are involved in the trust.
- The Trustor (The owner / developer of the original property.)
- The Trustee (Which is the bank.)
- The Beneficiary (The person who will receive the benefits of the trust.)
The Trust does not give direct ownership to the foreign beneficiary. Instead, it establishes the legal basis by which the bank holds legal title to the property in order to act on the foreigners behalf. This trust deed assures the foreign buyer of all rights and privileges of ownership.
The Foreign Investment Law, a Constitutional amendment created in 1973 and amended again in 1994, allows the trust to be established for a term of 50 years and is renewable any time during its existence, forever.
The Bank (trustee) holds the trust deed for the person who purchases the property (beneficiary). The property is not part of the bank’s assets and cannot be liened by the Bank or attached for any other obligations.
You, the purchaser, are the beneficiary and have all rights of enjoyment of the property including the ability to remodel, lease, mortgage, and pass to their heirs or sell the property at any time.
What was the Bank Trust Made For?
The Mexican government established the bank trust system as a protection for foreigners interested in owning property in Mexico.
By making ownership pass through the trust process, the bank is required to check ownership, insurance, and liens against the property. There would be an automatic review of the transaction, thus ensuring
- Valid Ownership
- No outstanding indebtedness of the Property
Bank Trusts may be granted and extended in 50 year periods. If you purchase property, the existing trust deed may be assigned or a new 50 year trust created. Bank trusts are renewable at any time by simple application.
The costs to establish a Fideicomiso vary from bank to bank. However, the range is approximately $1,000 to $1,500 U.S. dollars for the trust set up and about $300 to $500 U.S. dollars for each year’s maintenance of the trust.
These fees are paid directly to the bank that has your trust.
Bank trusts are established by a Mexican Notario (Notary), following the receipt of a permit by the Minister of Foreign Affairs.
This procedure is routine due to the large number of foreign property owners. The forms are standardized and the entire process is usually completed by the notary as part of the closing procedures.
What does the Bank Do?
It is an important link between the foreigner and the government. The bank accepts full technical, legal and administrative responsibilities and protects the beneficiary’s interests.
While the bank is the technical owner of the property, they have a statutory responsibility to follow the beneficiary’s (YOUR) instructions concerning the property.
Therefore, the control of the property is in your hands – not the bank’s. To sum it up, the Mexican land trust is as safe as the deed to your home in the US or Canada.
What can the Foreign Beneficiary expect from the Trust Agreement ?
- The beneficiary can occupy the property for the life of the trust. Trust is good for 50 years and it can be renewed.
- Title to the property can be transferred to the foreign beneficiary in the event that he acquires legal capacity to hold such property, or to any legally qualified person he/she may designate.
- The trust can also be heired to your family by naming them as substitute beneficiaries in the event of your death. The property can also be sold to a person legally authorized to own land or to a foreigner via a trust.
- The property may be rented.
- Beneficiaries are allowed to modify their property. Construction, in accordance to local zoning regulations, is permitted at the owner’s expense.
The closing process begins once your offer of purchase and sale has been accepted. To validate the Offer of Purchase and Sale, a deposit (normally 10% of the purchase price) is required. The money is held preferably in an escrow account.
These funds are held during the time needed to close. The balance is payable upon the signing of the trust deed at the office of the Notary.
Most real estate agents have one or two notaries with whom they usually deal.
In order to obtain the trust deed, the notary will:
- Ensure the property is free and clear by checking the Land Registry Office. This is guaranteed by obtaining a non-lien certificate and tax statement from the treasury. Additional checks are made for outstanding utility bills and municipal taxes.
- Obtain a permit from the Minister of Foreign Affairs to establish the trust deed.
- Prepare all documents for both buyer and seller.
The entire closing process takes between 30 and 60 days.
The Closing Costs
The closing costs re paid by the Buyer and depend on the value of the property purchased.
They include a transfer tax (ISAI) of 2% which goes to the Mexican government, and an average of 2% for legal Notary fees. They also include a registration fee of .05% of the assessed value of the property, fees for the tax certificate, title search fees and property appraisal, as well as miscellaneous office expenses. Basically 5 to 6 percent.
The Seller pays all capital gains taxes and realtors fees. Capital gains taxes are 35% of the difference between assessed values at the time of purchase and sale. Take in count some adjustments made for inflation and capital improvements.
Capital Gains Taxes
As noted above, the seller pays all capital gains taxes. As a buyer you are eligible for a one time exemption from capital gains tax if you establish residency for 5 years after your purchase prior to selling.
To establish residency, you must have lived in the property for 5 years and all utility and phone bills in your name for 5 years.
The Mexican Notary
In Mexico, Notaries must be attorneys for at least 5 years and are appointed by the Federal government, and their services are required for the legal transfer of real estate.
They are an unbiased, official representative of the government and have a fiduciary responsibility to both parties they collect the real estate taxes, review, and approve all real estate transactions.
The property tax is very low here and it is known as “predial”. It has a rate of .08% of the assessed value, paid yearly.
The assessed value is determined at the time of the sale.
Historically, property taxes have always been low because they have never been perceived as a source of revenue for the government.
How does the Corporation Work?
Ownership of property through a Mexican corporation is an interesting and potentially lucrative alternative.
First of all, as long as there are two or more parties to the corporation, a Mexican corporation can be wholly owned by foreigners.
A Mexican citizen no longer needs to be part of a Mexican corporation to be valid.
Secondly, a Mexican corporation can own property outright, eliminating the need for a Fideicomiso trust and their respective fees.
This means that you, as sole owner of the corporation, own the property essentially in “fee simple,” similar to the U.S.
Establishing a Mexican corporation for the purpose of purchasing real estate is relatively simple and can be accomplished within 1-2 weeks and generally costs from $1,500 to $2,500 USD, depending on the complexity and number of partners involved.
By establishing the property in a corporation, you can then legally rent out the property. Thereby generating attractive income if you are in a prime vacation destination such as the Riviera Maya.
Mexican corporations are set-up similarly to those in the U.S., with by-laws, articles of incorporation and the issuance of stock.
You should discuss the pros and cons of forming a Mexican corporation with an attorney in Mexico who is familiar with the process.
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