Q. How does the process of buying a place in Mexico differ from buying a home in the U.S.?
A. Along the coastline and near the border of Mexico, foreigners can hold title through a fideicomiso (often called a “bank trust”) vs. Mexicans who can purchase this property outright (or “fee simple”). The property is held in a trust through a Mexican bank, wherein the bank is the trustee, you are the beneficiary and you designate substitute beneficiaries upon your demise. The fideicomisos are active for 50 years and are renewable after that. (Do not be confused, this is NOT a “lease”.) In fact, the original fideicomisos were effective for 30 years and many are currently in the process of being renewed to 50-year fideicomisos at this time. The process of renewal is relatively simple and inexpensive. Furthermore, in the event of death, the heirs do not need to go through probate as the property is in trust and they are already designated as the substitute beneficiaries. There is a process that is necessary with accompanying fees, but it is fairly simple.
While the offer process itself is relatively similar, the escrow and title processes are somewhat different. The offer process is effectively the same with the exception that most agencies use a dual-column bilingual format so that the contract is in Spanish and in English, with the Spanish side prevailing under Mexican law. A counter-offer process follows and is very similar to that of the U.S., with the exception of back-up offers and multiple offers.
Once an offer has been agreed to by all parties, an earnest money deposit is placed in escrow with a reputable title company, such as Fidelity National or Stewart Title. These companies will hold the escrow funds (which are 10% of the purchase price for the earnest money deposit and the subsequent 90% funds for the balance of the purchase) until the closing and will disburse these funds according to a mutually agreed upon letter of disbursement signed by both the buyer and the seller.
In the event you have a loan secured by your Mexican property, the lender will require that they either have a mortgage (“hipoteca”) against your property or, more commonly, establish a “fideicomiso en garantia” (referred to as a “guaranty trust). The lender will be placed in first position as the first beneficiary and you, as the borrower, will be on title as the secondary beneficiary. You still have the substitute beneficiary according to your designation.
It is important to note that anybody can be your substitute beneficiary, they do not have to be blood relatives. In addition, you can even have a charity as your substitute beneficiary, but the documentation will be extensive. If you wish to do this, you will need to plan ahead and provide this information to the Notario as soon as possible so that the fideicomiso bank will have sufficient time to review and approve the documentation.
The entire process can be as short as 30 days and most commonly is between 45 and 60 days. If the escrow includes any holidays, please make sure you plan accordingly, as governmental offices, including Notarios, may be closed, thus causing delays.
All of this is coordinated through your Realtor and the Notario Publico. While it sounds somewhat complicated, a good Realtor will make the process virtually effortless for you, only requesting certain documentation that will be necessary to complete the process. Pursue the adventure and enjoy the process of buying your new home in Mexico!
Q. What questions should I ask when selecting a Realtor in Mexico?
A. Selecting a Realtor is as important as selecting a doctor, attorney, or other professional advisor or confidant in your life. Purchasing a home is the single most important financial decision you’ll make in your life, so it stands to reason that selecting the professional that is going to guide you through that process is the most important aspect of making the right real estate decisions and getting the proper guidance. When selling a home, the Realtor selection process is perhaps even more critical.
Let’s look at the purchasing side first. Since purchasing a home is a lengthy process overall, from reviewing the market, to previewing the properties, to deliberating and negotiating once you’ve found the right property, to the entire escrow and closing process, a relationship is being formed with you and your Realtor. It is important that you are working with somebody that you trust and feel comfortable with as you’ll be very closely connected with them for months at a time. Often times, the bond that is created with a Realtor will continue on for years after as a friendship can easily be formed during this entire process.
The Realtor with whom you’re working must also understand you and what you’re looking for in a home. A good Realtor will listen to all your needs and wants in your prospective new home and will create a picture in their mind. From that picture they’ll rely on their research materials, such as the MLS, and their connections in the industry, to properly describe your desired home to others and search through all the listings available, weeding out those that don’t fit the primary criteria and alerting you to those which are most likely to suit your needs.
In the home search process, your Realtor should be able to respond to your questions, and/or get you the information from reliable sources that you need to make an informed decision. A seasoned Realtor knows that it’s not about making a sale – it’s about providing you with all the tools to make the proper decision for you. Only then will the sale come. Therefore, a good Realtor will not resort to pressure tactics. However, it is important to keep in mind that while you may be pressured in a particular situation because “another offer is coming” or “somebody else is interested in this property”, it may simply be the Realtor keeping you informed, and not intentionally applying pressure.
From a selling side, experience, expertise, and professionalism would be the most critical elements to consider. While these are valuable in a buying situation, they are essential in a sales side. How many years has the agent been in business or in the area? How are they determining the value of your property – verifiable comps or “from the air”? What type of presence and reputation does he/she or, perhaps more importantly, their brokerage have in the community? Since the MLS is a primary means of marketing a property, are they a member of the MLS and the local real estate board (in Mexico, it’s called AMPI)? Have they sold your type of property before or, in some cases, your price range? What will they do for you in the realm of marketing? Will they be present at showings or are they just going to hand out keys? These are only some of the questions to ask and to have responded to with your satisfaction in order to determine who the best Realtor would be to work with in regard to selling your property. Of course, sometimes it just comes down to a gut level feeling and that’s OK too.
Q. I keep hearing conflicting rumors about changes in the Mexican Capital Gains Tax. Can you help clear up the confusion?
A. The law regarding capital gains taxes has indeed changed, has always and will continue to change. Mexico is no different than any other country who levies taxes in that it will continue to modify its tax codes to meet its needs. That said; let’s look at what has changed, what has not, and what may continue to be the outlook for change for this aspect of real estate. The terms used herein are not the necessarily the legal terms under the law but are used for our discussion herein.
The modifications that have been made have effectively created three levels of capital gains taxes where there used to only be two. These levels are: total exemption; partial exemption; and no exemption. All areas have been modified, and the partial exemption is the newest category. Let’s look at each.
No Exemption: Simply put, if you don’t qualify for exemption of either type, you must either pay 25% of the gross sales price or 28% of the net gain (that’s 1% less than last year). Deductions that can be applied to get to your net gain include brokerage fees, capital improvements verified with facturas or an independent appraisal, and even an inflationary allowance.
Total Exemption: Total exemption means no tax due at all on an unlimited amount of gain if you resided in the property for five years or more and have the following documentation: FM-3 or 2, working status (with an RFC number, and maybe even with a copy of your tax returns for either FM status), escritura and receipts (such as telephone or electricity). Keep in mind that the exemption, whether partial or total, is intended for residents, thus these requirements are intended to be able to prove residency status to the Notario, and in turn, to Hacienda.
Partial Exemption: The same documentation as above is required, with the exception that it is only needed for a period of 6 months or more. However, only a portion of the value is exempt from taxes. The calculation is relatively complex and is based on an instrument called an UDI. UDIs were a financial instrument created at the time of the devaluation to bring economic balance and structure given the rapid decline of the peso. At this time, the UDI has a valuation of approximately 3 UDIs to the peso (this changes daily). The new tax law reflects that there is a partial exemption of up to 1.5 million UDIs, although this is not as simple as it seems. There is a fairly complex calculation that is involved and will need to be addressed fully in another article. Let it be said that for a full and accurate calculation of your capital gains tax obligation, whether partial or not, you must seek the counsel of a Notario Publico.
It is important to note that the Notarios do not make the law; however, they are empowered by Hacienda to enforce it and collect the taxes on behalf of individuals. The requirements for individual Notarios can vary, although they are attempting to standardize their documentation requirements for exemption to alleviate the need for shopping and consequently getting a different answer depending on the Notario with whom you speak. Also remember that the selection of the Notario is the choice of the buyer – after all, they are paying the bill. AT ANY TIME the tax law can change, so please ask your AMPI Realtor or Notario what the current law holds for you in relation to your capital gains tax obligations.
The partial exemption is based on an instrument called an “UDI”. The law states that you can “exempt” up to 1.5 million UDIs (which rate changes daily). As of this writing, the rate of the UDI was at 3.825206 to the peso, or approximately $5.7M million pesos, or $520,000 USD. However, the exemption is based on a percentage calculation. Below, I’m going to show you two different sales. Both have the same sales price for today, but different purchase prices: one at $5,000,000 pesos (or approximately $455,000 USD) and another at $7,000,000 pesos (or approximately $635,000 USD). The calculations are for foreigners, as for Mexicans they can be different based on the Mexican’s tax base rate. The calculations assume an 8% brokerage fee.
(All prices listed above are in Pesos) Note that the Adjusted Purchase Price does NOT include any fiscal adjustment that would also be applied since the purchase of the property, which would effectively reduce the taxes to be paid. As to the real estate commission, IVA is not factored in for this calculation.
Now, let’s think about this for a second. In the first scenario, your REAL profit is approximately $3.3 million pesos ($9M, minus $5M, minus brokerage fees). That means that your REAL tax rate is just over 10%! ($332,833 divided by $3,280,000) – remember, that’s all pesos. If EVERYBODY had a 10% flat tax, I think we’d all be pretty happy about it. In the second scenario, it’s the same – just over 10%. While there are still criteria to meet for this, you don’t have to meet the most difficult criteria item, which is to reside in the home for 5 years; only 6 or more months. All things considered, this is not such a bad deal.
As you can see, despite the fact that some think that the 1.5M UDIs is an “exemption” to that amount and then you pay taxes on all the value that exceeds that, this is not the case. So despite the fact that you may have purchased a property exceeding the UDI exemption, the current law does have benefits for you too.
These figures are based on the law as of today and can change at any time. In addition, you MUST confirm all calculations in your particular situation with the Notario Publico in your transaction as each case is different and there may be idiosyncrasies of your deal that may affect your particular situation. As you can see from these examples, owning property in Mexico is still a very good investment.