Given the outbreak of COVID and the home office policies that have been implemented throughout the world as a consequence of it, a lot of foreigners moved to Mexico –mainly to beach destinations, such as Puerto Escondido,– initially just to find a temporary, comfortable, and relaxing place where work, leisure, and personal life could be combined harmoniously. However, while the pandemic shutdown has been extended and foreigners have gotten familiar with the beauty of our natural surroundings and witnessed the exquisite lifestyle of the coast-mainly– the interest of acquiring land and property has increased significantly, and, given that a high percentage of the properties located along the coast is either part of an ejido or belongs to a community, we have considered it important to prepare a brief article that can either clarify certain myths or confirm realities about ejido or communal lands.
When the ejidos and communities were created, they were given a constitutional right which established that all native, indigenous peoples and agrarian communities that lacked land and water or did not have sufficient of it to meet their needs would be entitled to receive land and water from the Mexican Government (third paragraph of the former Article 27 of the Federal Constitution of the United Mexican States before its approved amendment in 1992). The former Article 27 was very restrictive in regards to (x) the sale and assignment of agrarian or communal rights: (y) the participation of the ejido or communities in corporation for the use and exploitation of the lands, and (z) private investment. Consequently, ejido and communal lands were exclusively for common and collective use of the members of the ejidos and communities; as common areas, they could not be transferred, alienated, seized and taxed, which limited its use in a radical way and impeded private investment in ejido lands. Although most of such restrictions are no longer applicable due to several amendments that have been made to the aforementioned article, still, there are a lot of myths out there related to either the acquisition of agrarian and communal lands or the assignment of the rights to use them.
As mentioned, in virtue of several amendments to the Federal Constitution of the United Mexican States from which spring the creation of a legal and regulatory framework to regulate land tenure, agrarian distribution, and the internal governance of ejiidos and communities, the ejido members- ejidatarios and members of the community –comuneros- are currently entitled to freely dispose of their land and rights derived thereto in accordance with the applicable agrarian law and its regulations, as applicable. Thus, they can actually (i) sell their lands; (ii) assign their rights to agrarian or communal lands; and (iii) participate in corporation and contribute their lands into the company’s assets. All of this, of course, subject to the implementation of different legal and social strategies that will help, not only to protect their rights, but also the rights of the investors. This implementation will also help minimize, to all extent possible, the probability of any claim, controversy, or litigation over the purchase, use or enjoyment of ejido or communal lands.
Acquiring real estate in Mexico may be cumbersome and time consuming, in particular for foreigners, yet when it comes to acquiring title to or the right to use an ejido or communal land, the acquisition transaction becomes more complex. It is worth mentioning that there are additional legal aspects that must be taken into consideration if you are considering purchasing property- either agrarian/communal or private- , such as environmental, urban, and social aspects. It is for this reason that proper guidance is imperative in order to ensure that due process will be followed and that the acquisition, either of title to property or the right to use it, will be in compliance with all applicable laws, and will, therefore, lower the possibility of any contingency arising.