Most real estate transactions are open after a written purchase offer is accepted by the seller and when a purchase-sale agreement, promissory contract, is signed by both parties. In most cases, a deposit is required by the broker in order to transmit the offer to the seller. If the transaction is being conducted directly with the seller, it is highly recommended that a real estate broker or a lawyer be consulted before signing any papers or handing over any money.

In some areas it is common practice to deliver to the seller, as an advance payment, the equivalent to a 20-50%, including the initial deposit, of the total price upon signing the purchase-sale agreement which should contain a penalty clause applicable in case there is a breach of contract by any of the parties.

Normally, when signing the escritura or official deed, which needs to be certified by a Notario Pblico, the balance is paid and the property is delivered. This should not take more than 45 days. In certain resort areas the custon of using "escrow's" is being implemented.

Notary Public

The Notario Publico is a government appointed lawyer who processes and certifies all real estate transactions, including the drawing and review of all real estate closing documents, thus insuring their proper transfer.

Furthermore, all powers of attorney, the formation of corporations, wills, official witnessing, etc, are handled and duly registered through the office of the Notario Publico, who is also responsible to the government for the collection of all taxes involved.

In connection to real estate transactions, the Notario Publico, upon request, receives the following official documents, which, by law, are required for any transfer:

A nonlien certificate from the Public Property Registry based on a complete title search.
A statement from the Treasury or Municipality regarding property assessments, water bills, and other pertinent taxes that might be due.
An appraisal of the property for tax purposes.

Closing Costs

It is common practice that the buyer pays the transfer or acquisition tax as well as all other closing costs including the Notario fees and expenses, and the seller, pays his capital gains tax and the broker's commission.

Since January 1, 1996, the federal law regarding the real estate transfer tax, which was 2% for all the republic of Mexico, was modified in order to allow each of the Mexican States to determine its own tax. The range may be from 1 - 4 %, of the tax appraisal value, generally less than the sales value.

The rest of the closing costs, which exclude the transfer cost mentioned above, may vary from 3-5% of the appraised tax value or more, depending on the particular State. These percentages are applied to the highest value of the following:

The amount for which the property is sold.
The value of the official tax appraisal.
The value designate bye the property assessment authorities.

Real Estate Broker's Commisssion

Most real estate companies in Mexico charge a 5-7% commission based on the actual sale price of the property. However, different area broker rates reflecting higher broker expenses may be found, such as in the resort areas.

Capital Gains Tax

In Mexico, the concept of capital gains tax does not apply in the sense in which it is determined in the United States. Here, the gain from the sale of the property is considered as normal income at a tax rate of up to 35%. In order to determine the gain, the following costs and expenses are deducted from the amount for which the property is officially sold:

The original land cost and the depreciated construction cost, based on the number of years the property was held and adjusted for inflation according to the official consumer price indexes.
Additions, modifications and improvements, but not maintenance, made on the property (construction), adjusted as above.
Commissions paid to real estate brokers by the seller.
The closing costs, including all expenses, taxes and fees paid bye the seller.
The Notario will retain the calculated gain after deductions forwarding it to the Mexican tax authorities.

The seller will then deduct this amount against his her annual tax return, which becomes an adjustable tax credit in the U.S.

On the other hand, there is no capital gain tax in Mexico if there is conslusive proof the seller has had the property as his primary residence for the previous 2 years.