In general terms, an ejido is a collective
group of people that live and work on a determined piece
of property as a community. While the concept of the ejido
in Mexico is prehispanic, most of the fundamental ideas
and concepts that created what an ejido is today stem
from the theories of democratic communism.
Understanding this is very important when
dealing with ejidos. Most people reading this article
have grown up in a society based on democratic capitalism
in which the individual and not the community determines
what he or she is going to do. In a communistic society
the community determines what it is going to do, including
agreeing upon how the land they hold is to be used.
Taking into consideration the above, it
is not hard to imagine the confusions that could exist
when discussing ownership of ejido land. Most foreigners
associate the word “ownership” with terms
such as fee simple, private property
and Adam Smith, while the ejidatarios idea would
be more on the lines of community rights, right
to use and enjoy, and governmental concession.
Until ejido land is converted to private
property, foreigners cannot acquire “ownership”
of ejido land in accordance with their understanding of
the word “ownership”.
CAN EJIDO LAND BE CONVERTED INTO
PRIVATE PROPERTY?
There are two principal ways in which
ejido land can be converted into private property and
they are as follows:
1.- By filing a suit based on prescriptive
rights (adverse possession). This suit will only be
productive when the person wanting to acquire title
to ejido land can prove that he or she has possessed
the land in good faith for 5 years or in bad faith for
10 years. Many professionals argue that this rule does
not apply to foreigners. This article does not focus
on converting ejido land into private property in this
manner, however it should not be dismissed as a viable
option.
The legal institutions of prescriptive
rights or adverse possession are the methods
of acquiring complete ownership rights to property,
against the owner and other third parties, through possession
of the property for an uninterrupted period of time.
This time will be interrupted if the possession of the
property is left or if the legal owner or a third party
makes legal claims to the land. This method cannot be
used if a contract exists between the owner and the
person in possession of the property. Under the new
Agrarian Law “prescriptive rights” can be
used to acquire ownership to property. The “good
faith”, 5 year possession rule, in general terms,
means that you have to possess the property for 5 years,
be recognized locally as the owner, pay your property
taxes and not know who the true owner is. The “bad
faith” 10 year possession rule, in general terms,
means that you have to possess the property for 10 years
and you may or may not know who the owner is.
2.- By having the ejido agree to “certify”
the rights of each person who owns or possesses land
in the ejido and then convert the certificates to private
property titles. In order to accomplish this the ejido
must agree to enter and complete the following two procedures:
PROCEDE
PROCEDE or “Program of Certification of Ejido
Rights” is a government procedure by means of
which the government, upon the approval of the ejido,
certifies the agrarian rights to land within the ejido.
This is not an obligatory procedure and will only begin
when the majority of the ejido agrees to enter into
the procedure and the ejido does not have any legal
conflicts that prohibit it from entering into the program.
Some of the more common types of conflicts
that inhibit an ejido from entering PROCEDE include:
conflicting ejido boundaries, internal conflicts, pending
litigation and determination of actual number of ejido
members.
Once the ejido has agreed to enter into
PROCEDE, the government at no expense to the ejido,
will study the documents of the ejido and begin the
often time long procedure of surveying the entire ejido.
The surveying procedure often takes a long time due
to the fact that each individual lot, parcel and common
use land needs to be surveyed. These surveys are based
on radiolocation points and GPS and the maps are registered
with the corresponding governmental agencies.
Once the entire ejido is measured, an
ejido meeting or Asamblea is called to assign
each parcel and lot to the person the ejido recognizes
as the owner. If there are areas in the ejido in conflict
or that have not yet been assigned to a specific person,
the ejido can agree to leave such area to be assigned
at a later date. Once the land of the ejido has been
assigned, the government will issue the certificates
or titles that correspond to the land in questions.
Certificates and titles are not synonyms and different
rules apply to each one. One thing that must be understood
is the fact that in accordance with laws governing ejidos
there are three basic types of ejido land. These three
types are land are classified as follows:
1.- “Solores” or lots. These
are converted to private property through the PROCEDE
procedure and do not require the Dominio Pleno
procedure to be converted into private property titles.
2.- “Parcelas” or parcels.
Through PROCEDE parcels are given certificados
parcelarios or parcel certificates and which are
governed by agrarian or ejido law until converted to
private property titles through the Dominio Pleno
procedure.
3.- “Uso Comun” or common
use land. Common use land cannot be converted directly
into private property titles but can be converted into
either Solares or Parcels.
As soon as the government has issued the
majority of the ejido titles or certificates the second
procedure which is called Dominio Pleno can
begin and by means of which each individual ejidatario
can convert his parcel certificate into a private property
title.
Domino Pleno
The Dominion Pleno procedure is much less involved than
the PROCEDE procedure. Once the ejido legally
can enter into Dominio Pleno, an ejido meeting
has to be called and the members of the ejido have to
agree that each individual ejido member can, from the
date of the agreement, convert their parcel certificates
into private property. This does not mean that from
this moment on all the land in the ejido is now private
property. The only thing that the approval of Dominio
Pleno means is that each individual ejido member,
whenever he or she feels it is convenient, can convert
his or her parcel certificate into a private property
title.
Once the parcel certificate is converted
to a private property title and dully registered, the
ejido member can sell to persons outside of the ejido,
including foreigners, observing certain third party
legal rights.
Please understand, even though the Dominio
Pleno procedure is much less involved than the PROCEDE
procedure, there are many formalities that must be observed.
If these formalities are not observed the transfer of
the corresponding property title could be declared null
and void.
The fact that vast tracts of ejido land
can now be converted into private property, coupled
with the fact that recent reforms in Mexican legislation
now allow foreigners to secure title to land much easier,
add up to huge investment possibilities for people looking
for security through real estate investment with the
probability of large returns. Please contact me if you
have any questions regarding the above or are interested
in acquiring ejido property.
All right reserved 1998 David William Connell
If
you have questions on any of these items
and want to discuss them with a U.S. attorney
and CPA who is familiar with Mexican real
estate law call Don D. Nelson at (949) 481-4094
or email at dondnelson@yahoo.com
Mr. Nelson will work with Mr. Connell to
help you find answers and resolve your problems.
David Connell can be reached at inquire@mexicolaw.com.mx
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