According to the National Institute of Statistics and Geography (INEGI), abandoned or empty homes in Mexico total 6,150,000, which has increased over the last decade. The reason for the increase varies, including the rising number of vacation or second homes purchased by Mexicans and foreign nationals who don’t use the properties often or are waiting to develop the properties. Abandoning or leaving a home empty can leave the property at risk of property encroachment.
What is an encroachment?
In general terms, an encroachment refers to a situation where something, such as a physical structure or an activity, extends or intrudes onto another person’s property, beyond the legal boundaries or rightful limits. It involves unauthorized use, occupation, or interference with someone else’s land, airspace, or subsurface rights.
Common cases of encroachment involve clients who acquire a property and do not occupy it for several years or months leaving it open to someone taking over the property and living it as if it were their own. For example, perhaps family members have been managing the property for years and refuse to surrender it to the legal owner.
Take preventive measures
There are a few things you can do to protect yourself and your property from encroachment. If you have someone managing or caring for your property, it is always advisable to draw up a legally binding contract between you and the managing party.
Finally, if you own property in Mexico, you should have a Mexican will in place identifying who is the rightful owner of your property in the event of your death.
What to do if you decide to pursue legal options?
Claim of ownership
1. Claiming action:
A revindication action is one in which the plaintiff alleges that he is the owner of the property that the defendant possesses and, consequently, requests that the defendant be required to return the property. The action in certain cases also allows the restitution of expenses.
Requirements for its exercise:
- Proof of Ownership / Property Title – The title of the property will be used as proof of ownership.
- Proof of unjustified possession of the property by the defendant
- The identity and description of the property
- If the plaintiff is found to be the legal owner of the property, the defendant is obligated to return the property and may be required to pay restitution
2. By prior agreement in the lease contract:
If a property owner is leasing their property to someone, the best way to protect themselves is through having a contract. Leasing contracts should state that the lessee will vacate the premises as soon as the contract is terminated whether for lack of payment or the reasons in which both parties have agreed.
These clauses are the fundamental proof of the right to demand the agreed obligations, and it is sufficient for the plaintiff to prove the existence of the contract and to have proof of the reason for terminating the contract – either the lack of payments or other reason noted in the contract. This will allow the owner to proceed with the action of eviction and delivery of the leased property and the payment, if applicable.
Configuration of the criminal action:
Trespassing is a punishable offense in Mexico with penalties ranging from fine to jail depending on the facts of each case.
It is important to consult with a qualified legal professional in Mexico for specific advice regarding trespassing issues, as laws and procedures may vary depending on the jurisdiction and circumstances involved.
If you are having problems with trespassing or need help with contracts for the caretaker of your property, our highly experienced real estate attorneys at Mexlaw can help.