Tables of Contents

• Introduction
• Rei Vindicatio Action
• A) What is Rei Vindicatio Action in Mexico?
• B) To whom Is this Action Presented?
• C) Civil Complaint’s Requirements (Demanda)
• D) Elements of Rei Vindicatio Action
• I.- Property or Ownership of the Thing Claimed
• II.- The Possession of the Thing Claimed by the Defendant
• III.- Formal and Material Identity
• E) Evidence Appropriateness
• I.- Testimonies
• II.- Expert Witness in Topography
• III.- Judicial Inspection With Photographic Series
• IV.- Documents Via Reports
• F) Common Defendant’s Defenses and Strategies
• I.- The Existence of a Personal Right
• II.- A Sexual or Family Relationship
• III.- Absolute Nullity
• IV.- Adverse Possession Action (Prescripción Positiva o Usucapión)

Introduction

One of the biggest myths in Mexican law concerns how owners can take back possession of an invaded house or property. It is often believed that just by calling the police, they will evict the invaders when this is nothing further from reality. Therefore, in this entry, I will dispel that myth and tell you your legal action for this problem, its characteristics, and defenses against it.

But first of all, I want to clarify that the reason why it is insufficient to stop the police or go to the attorney’s general office (ministerio público) so that they, without further delay, come to your home to evict the invaders is based on the fundamental rights of the ‘invaders’ of due process which implies, among other things, the right to be judge by an unbiased court; the opportunity to be heard and in general to defend themselves in court.

The right to be heard in a Mexican court implies that the parties involved in a conflict are given the opportunity to have their versions heard. In this specific case, the ‘invader’ has the right to explain why he is in possession of the property, which may be due to multiple assumptions that are also worthy of protection.

For example, because the property was sold, leased, etc to him. The above, regardless of whether such contracts have not been put in writing or ratified before a notary public, since, according to our legal system, a contract, even if verbal, exists and might be valid. So, given the urgency of the situation, it is pertinent for a judge to listen to the versions of both parties and decide if, in fact, it’s an illegal possession of the property or, if not, it merits the claim of invasion.

Having said the above, what should be clear to you is that if you intend to recover possession of your house or property, you must take legal action—rei vindicatio action— since, otherwise, the fact that you use force or with the help of third parties you evict the invaders, this is an illegal act that can even lead to criminal sanctions.

In any case, when you recover your property, you can—if you submitted it correctly—collect money from that invader for the months that he was in illegal possession of your property as if it were rent, in addition to the reimbursement of all the expenses you incur in your lawyer—legal fees—. All this with the figure that this entry deals (rei vindicatio) [acción reivindicatoria in Spanish]

Rei Vindicatio Action

A) What is Rei Vindicatio Action in Mexico?

It’s a civil legal action that the owners have with which it shall be made clear that they are the owners of the thing or property—generally real estate—and that the defendant holds it without any right, so its effect is to make that declaration of ownership and restitution of the property.

B) To whom Is this Action Presented?

Before a court with civil jurisdiction, which in the case of the state of Chihuahua is before a civil oral Trial in the exercise of an ordinary civil oral trial.

C) Civil Complaint’s Requirements (Demanda)

This civil action requires the same formal elements as for any type of civil claim—if you want to know more about the civil procedure in Chihuahua, I recommend a series I wrote about this topic, ‘Basics of the Ordinary Civil Trial in Chihuahua, Mexico. Part I’— with the still current Code of Civil Procedures of the State of Chihuahua, which are the following:

I.- Plaintiff shall mention the court before which the complaint is filed ( in this case, it’s the Civil Oral Court of Chihuahua’s State)

II.- The plaintiff must specify his name or company’s name (if the lawsuit involves a legal person) and his address to receive notifications.

III.- The name or denomination of the defendant and his address in which the service of summons shall be done.

IV.- What is claimed in court (in this case, the declaration by law that you are the legitimate owner of the property and the enjoin to recover its possession)

V.- Clear, precise, and numbered narration of the background on which the plaintiff bases his claims, specifying the public or private documents related to each fact and mentioning if he has those documents at his disposal. Likewise, he shall provide the names and addresses of witnesses who perceived the relative events of the background (if he fails to do so, witnesses shall not be admitted at the preliminary hearing)

VI.- Legal provisions, principles, and judicial criteria that support his claim.

VII.- The evidence the plaintiff pretends to present in court, expressing with clarity and precision the facts that he is trying to demonstrate with them. If he doesn’t meet the abovementioned requirements, his proof shall not be admitted at the preliminary hearing.

VIII.- Finally, his signature or of his representative. If he doesn’t know or cannot sign, he shall put his fingerprint, signed by another person on his behalf and at his request, indicating these circumstances.

D) Elements of Rei Vindicatio Action

The elements of the action that the plaintiff and their attorneys must prove in court to not only study the case on merits but also win the case are the following: 1) the ownership of the thing being claimed; 2) The possession by the defendant of the pursued property and 3) Its formal and material identity.

It should be noted that even if you, as the plaintiff, have the right to recover your property but cannot prove the elements mentioned above, whether due to omissions in your claim, insufficient evidence, or other negligence of your attorney in the trial, the judge, acting ex officio, shall consider your claim inadmissible, according to this biding precedent: CIVIL ACTION. THE SPECIAL CONDITIONS FOR ITS PROPRIETY MUST BE ANALYZED EX OFFICIALLY BY THE JUDGE IN THE FINAL JUDGMENT^[1]. So make sure you hire real experts and not newbies in Mexico.

Now, let’s delve into the elements of this action:

I.- Property or Ownership of the Thing Claimed

Although this element may be quite obvious, it is not always the case. Even though the ideal way to prove that the person filing the claim is the owner is through a public deed that states it, there are cases where this is not available for multiple reasons. A lawyer must thoroughly study how to prove this element, even undertaking a trial prior to the claim action, to ensure the right of ownership.

The most common examples seen in court are the following: 1) that the owner of the property has already died; 2) ownership of the property was obtained through a mere private purchase and sale contract; 3) although the purchase and sale contract was concluded in a public deed, the seller reserved ownership through a retention title clause (cláusula de reserva de dominio) and 4) there is a simple letter of possession issued by the public administration or a cadastral plan. In the first three cases, it would be possible to prove the status of the owner of the property, and in the last one, it would not be possible for the following reasons of each scenario:

In the first case, it would be possible to prove the element of ownership if the inheritance process of the deceased owner were opened—if you want to know more about this process, I recommend our entry about the subject: ‘An Overview of the Inheritance Processes in Chihuahua’—; where the executor of the state shall be appointed, and he will be the one that would represent the estate—therefore, there will be ‘standing’— and file the claim. Otherwise, the trial would be lost from the beginning due to a lack of legitimación activa en la causa—standing—, which, by necessity, the judge must study ex officio when resolving the trial according to this binding precedent: STANDING IN THE CASE. IT IS A NECESSARY CONDITION FOR THE PROPRIETY OF THE ACTION AND CAN ONLY BE ANALYZED EX OFFICIALLY BY THE JUDGE AT THE TIME OF ISSUING THE JUDGMENT^[2].

As for the private purchase and sale contract, it may also be suitable to prove the element of ownership as stated in some judicial criteria (for example, REI VINDICATIO ACTION. IT IS APPROPRIATE EVEN WHEN THE PROPERTY TITLE IT IS NOT CONTAIN IN A PUBLIC DEED OR IS REGISTERED IN THE PUBLIC PROPERTY REGISTRY^[3]), as long as it is known how to be offered in the trial and the private contract meet the criteria of ‘authentic date’ (fecha cierta) so the court is certain of its veracity pursuant the binding precedent of the Mexican Supreme Court of Justice: PRIVATE DOCUMENT OF A AUTHENTIC DATE. TO CONSIDER IT AS SUCH, IT IS ENOUGH THAT IT IS PRESENTED BEFORE A NOTARY PUBLIC AND THAT THE NOTARY CERTIFIES THE SIGNATURES EMBROIDERED ON IT^[4]. Hence, if this authentic date is not proven, the action itself may also be considered inadmissible due to doubts as to whether the contract was crafted with the sole purpose of exercising the rei vindicatio action.

The courts have discrepant criteria regarding the reservation of title. Some affirm that the purchase and sale contract with reservation of title is suitable to prove the ownership element, while others do not. See, for example, REI VINDICATIO ACTION. PURCHASE AND SALE WITH RESERVATION OF TITLE. PROPRIETY AGAINST THIRD PARTIES^[5] and REI VINDICATIO ACTION. THE BUYER WITH RESERVATION OF TITLE  LACKS STANDING TO EXERCISE IT^[6].

For our part, the firm has had to face a similar case, and we prevailed with the action, but only until reaching the final stage (Direct Amparo Proceeding) Namely, the first and second instances were lost due to this element. Hence, its approach is delicate; only well-prepared professionals should deal with this legal institution.

Finally, a mere letter of possession, even issued by the authority, or a cadastral plan accompanied by separate public and private receipts shall not prove the element of ownership because, with the aforementioned documents, only possession is proved, but this does not engender the right to claim the property. In any case, it will serve to determine the origin of what is known as a plenary possession action, but it is not the subject of this entry.

II.- The Possession of the Thing Claimed by the Defendant

The second element of this action also seems obvious and easy to prove since it involves demonstrating that the person you sued is actually the one who took possession of the property from you. However, this is not always the case if we consider the procedural attitudes that the defendant may adopt and the structure of the property. Let’s see why.

For example, on many occasions, several people dispossess their property owners, such as okupas’ movements. Similarly, without necessarily being a political and social movement, an entire family may possess the property, not just one person. There is also the case of people who dispossess other people’s property to, with all the insolence in the world, rent it or lend it to a third party who is not aware of that invasion.

In these cases, the question arises as to who should be sued. Of course, the answer depends on the specific case, but at least you should know that according to article 14 of the Code of Civil Procedures of the State of Chihuahua^[7], it allows you to sue, in addition to whoever you believe is in possession of the property, those people who by avoid the effects of the claim, they are replaced by another during the trial.

In any case, to play it safe, it is ideal that you do a detailed investigation of who is and may possess the property, either on your own or through a judicial procedure called information ad perpétuam.

Finally, I remind you that proving the elements of the action is important. Therefore, you must provide appropriate evidence for this purpose because if the defendant realizes your claim is weak and you and your attorney didn’t offer evidence to prove this element when the defendant answers the claim, it would be enough for him to deny that he is in possession of the property for you to lose the trial. What’s more, I can swear that 90% of the defendants will answer the claim by stating they are not in possession of the thing claimed.

III.- Formal and Material Identity

The highest Mexican courts have divided this element into two parts: formal identity and material identity. The first means that the property you intend to recover is included in the title or document with which you try to prove ownership of it. Material identity consists of identifying the property that is intended to be claimed, and that is possessed by the defendant.

This division addresses the rights of third parties since the judge should have no shadow of a doubt that the property that you claim to be yours is actually the one that the defendant or defendants possess. This avoids affecting third parties not involved in the litigation. Nor should it be the one indicated in the deed or the document that you exhibited to prove ownership.

Also, you must consider, for example, that many old public deeds do not clearly mention the property that is the subject of them but simply mention the latitudes and degrees of location. So, with these technical data, neither the judge nor the parties are clear about what asset is your property to know if it, in fact, corresponds to what the defendant is possessing.

Of course, public deeds now include the street name and number, neighborhood, and even a photographic series of the property being sold. Still, when this is not the case, great care must be taken to offer the appropriate means of proof to prove the formal identity and material of the property.

E) Evidence Appropriateness

One of the most objectionable things about lawyers, sometimes taken with scorn, is the famous response to advice with an ‘it depends’. But in reality, in legal matters, that is how it is. So many variables occur in a specific case that the actions that must be taken depend on the context.

Notwithstanding the above, even if you are not an attorney and you had to hire one, before signing the civil complaint, check that your claims contain the following types of evidence to prove the elements of rei vindicatio action listed above because, as I have already emphasized, If you do not prove them, even if the defendant is actually in possession of a property that belongs to you, you will not be able to recover it legally. Also, as a general rule, you cannot offer new evidence once the civil complaint is presented. Be careful.

I.- Testimonies

The most famous evidence in Mexican trials that, many times, has slight effectiveness in proving the facts of the claims. However, for the rei vindicatio action, it is important to offer it and, in addition to this, conduct a complete and pertinent interrogation of the witnesses.

This evidence strengthens the second element of the claim action: that the defendant or defendants actually possess the property intended to be recovered. Since there will rarely be other, more objective evidence to prove this element, and, as you will remember, I told you that the preferred defense in these types of lawsuits is to deny that the defendant or defendants possess the property.

However, this evidence must be offered collegially, that is, from two or three witnesses who confirm the facts and know how to explain them to the judge in the oral hearing. Testimonies that, in any case,  shall be weighed together with the defendant’s declaration (confessional evidence), especially to appreciate the omissions or evasion that may be incurred when answering.

Preparing and questioning witnesses is an art that few attorneys know how to do, but I won’t cover this subject here. However, what I want to make you understand is that if your attorney doesn’t add witnesses—at least two— in the civil complaint, you must ask him for an explanation (which there may be, but in very special cases)

II.- Expert Witness in Topography

This proof becomes necessary when the public deed does not properly detail the owner’s property. This occurs in old instruments where the street, neighborhood, etc., is not mentioned but simply provides the measurements and degrees to locate it. This proof is offered to demonstrate agreement regarding the formal and material identity that we have already mentioned.

You must remember that this element is intended to assure the judge that if the lawsuit is successful and you are put in possession of the property, a third party who was not involved in the litigation will not be disturbed due to the confusion of properties.

This evidence is so important that even the defendant’s confession that in a sense he possesses the property you intend to recover is not enough to prove this technical element of possession. Therefore, an expert witness is necessary according to the following precedents: REI VINDICATIO ACTION. INOPERANCE OF CONFESSIONAL AND TESTIMONIAL EVIDENCE. EXPERT EVIDENCE NEEDED^[8] and REI VINDICATIO ACTION. WHEN THERE IS DOUBT REGARDING THE IDENTITY OF THE CLAIMED PROPERTY, THE APPROPRIATE EVIDENCE IS EXPERT WITNESSES^[9].

Finally, all that remains to be said is that, on average, an engineer who provides the expert opinion in court will charge you  6,000 pesos for it plus 500 pesos to attend the oral hearing to present his conclusions. However, the price will depend on the size of the property and its commercial value.

III.- Judicial Inspection With Photographic Series

This evidence is also essential to prove the agreement between the formal and material identity of the property, almost the same as the expert witness in topography, with the difference that the court must weigh it with other evidence (especially reports). However, it is not recommended in all cases to rely on this strategy to prove the third element of the rei vindicatio action. This strategy only works when the measurements, directions, and boundaries of the property that is intended to be recovered are not a cause of doubt or controversy.

The above is according to the following precedents: REI VINDICATIO ACTION. PROVING THE IDENTITY OF THE THING CLAIMED^[10] and the jurisprudencia issued by the Mexican Supreme Court of Justice REI VINDICATIO ACTION. IT IS NOT AN ESSENTIAL REQUIREMENT FOR ITS APPROPRIATENESS THAT THE INITIAL CLAIM STATE THE SURFACE, MEASUREMENTS, AND NEIGHBORS OF THE PROPERTY THAT INTENDS TO BE CLAIMED^[11].

On the other hand, the practice of this evidence consists of a judicial official (actuario), accompanied by the parties subject to the litigation and their attorneys move to a certain place and describe in an act the points that were requested to be reviewed or verified by the judicial inspection. In this case, of course, it would involve moving to the material property that is the subject of the dispute and describing its location and characteristics.

The judicial inspection is only recommended to be offered when the public deed or document with which you accredited the property has the street, neighborhood, nomenclature, and photographic series of the property you own (which modern deeds do contain) and through the senses, it is possible that the judicial officer can verify that the property visited in the inspection is the same as the one contained in the public deed.

Also, when what you intend to recover is contained in another larger property, such as an apartment, warehouse, etc as is prescribed in this precedent: REI VINDICATIO ACTION. FOR ITS APPROPRIATENESS, IT IS NOT AN ESSENTIAL ELEMENT THAT THE CIVIL COMPLAINT INDICATES THE MEASURES AND BOUNDARIES OF THE PROPERTY CLAIMED WHEN IT IS STATED THAT IT IS CONTAINED WITHIN ANOTHER BUILDING WITH A LARGER EXTENSION^[12]. Thus, as an example, in a case where the firm won, the identity element was proven through an ocular inspection with a photographic series since what was going to be claimed were several invaded apartments within a larger building, which gave rise to identifying them without much problem.

Notwithstanding the above, you must be very careful when writing the points of the inspection to be addressed because the points are what the official who goes to the inspection will do, so this evidence must be written in as much detail as possible, but without technicalities of engineering—for example—, since the actuario is a law expert only.

As an example, you must provide the starting point, either by locating the actuario by telling him that the inspection will start from such a street such a neighborhood or by using a GPS application and indicating the exact location. Then tell him in plain terms where to go (left, right, go upstairs, etc.) At the same time, he must attest that what he has in view agrees with what you describe, such as that the façade consists of a three-story building, etc.

I recommend that when offering the judicial inspection, you also attach photographs of what you want them to inspect because one of the tricks that the defendant can play is to change the nomenclature—although it is illegal—and even the façade of the property so that the actuario gives faith different from reality or states it as if it were a different property.

Also, keep in mind that the official cannot—nor should—correct your points, much less expand them. Even though this evidence can save you unnecessary expenses on experts, if your attorney does not know how to offer it, you can still lose the trial. Be aware of who you retain.

IV.- Documents Via Reports

This kind of evidence is ideal for proving the second element of the claim action, that is, that the people you sued are, in fact, in possession of your property. This is so as long as you realize that they receive receipts for public and private services in their names and that the property that appears in them is identical to the one in your deed.

Therefore, you can request during the trial, for example, that the Federal Electricity Commission (CFE), Municipal Water and Sanitation Board (JMAS), etc., provide a report on who is the client of their services on the property that is the subject of the controversy. You can even request that they attach the contracts with which they hired their services and annexes (identifications).

These reports would be almost indisputable evidence of the defendant’s possession and would lighten the burden of the witnesses and the defendant’s own statements to reveal whether or not they are in possession of your property. All this is considering that one of the defendants’ favorite tactics is to deny that they are in possession of the property, as I already said.

Finally, in special cases, certain invaders request permits, licenses, etc., from the public administration to carry out a commercial activity, such as using the property as a parking lot. If this is the case, you can request the report from the respective authority to provide the data of the administrative act and thus prove to the judge during the trial that the defendant is indeed invading the property.

F) Common Defendant’s Defenses and Strategies

Although throughout this entry, I have briefly mentioned some strategies that the defendants use to counteract the rei vindicatio action, in this section I will briefly comment on the defenses that they commonly base their answers to win the case, which are the following: 1) arguing the existence of a personal right; 2) Arguing there is a sexual or family relationship; 3) absolute nullity and 4) adverse possession action.

I.- The Existence of a Personal Right

This defense is based on the fact that, in reality, there is a reason why the defendant is in possession of the property, which may be legitimate and even false. We call this a personal right. On the other hand, with this defense, the rei vindicatio action is neutralized since this personal right must be discussed in court, where it would resolve whether the possession of the thing claimed has merits. But first, I need to explain the difference between real and personal action to understand this defense.

As attorneys, we understand real action as the power that the owner has and derives from his objects or things, such as prosecution and restitution of the thing, to mention a few. Personal actions are those powers that derive from a certain person, generally through a contractual relationship. To illustrate the above, it is enough to present a fairly common example with the lease contract.

Many landlords want to be smart when renting a property, thinking that not entering into a written contract or providing payment receipts to the tenant will give them an advantage when they want to evict their tenants. As I said the entry ‘Lease Agreement in Chihuahua’, the effect is quite the opposite. They must always conclude their contract in writing.

Well, the normal consequence in a lease agreement is that if the lessee does not pay rent, it would be necessary to file a civil action to enforce the contract, evict the lessee, or rescind the agreement. But all these actions have the contract as their starting point, which in theory, benefits both parties by granting mutual rights.

Under this framework, many landlords, in order to ignore this contractual relationship, instead of filing the respective action based on the rental contract (personal action), decide to play it safe and exercise the rei vindicatio action, often confident that in the absence of a written contract or receipts on their part, the defendant shall not have a way to prove his legal possession of the property.

Although the difficulty increases in a case like this, this does not mean that the case is automatically won by the plaintiff. This is due to the fact that at the moment the defendant answers the civil complaint, he will be able to prove the existence of the lease contract or a different nature verbal agreement (purchase, sale, bailment, etc.), and if he does so, the rei vindicatio action shall be inadmissible in itself, pursuant the following precedent: REI VINDICATIO ACTION. INAPPROPRIATE WHEN THERE IS A PERSONAL RELATIONSHIP^[13].

Therefore, it is never good to misrepresent the defendant’s available defenses. Instead, as an owner, you must file the correct action (personal action) that derives from the contract relationship you may have with the defendant. Last, since even a verbal contract may be proved in court, you will certainly lose the case with it.

The above, regardless of whether in the lawsuit it is revealed that the defendant owes you money or another reason. It doesn’t matter. You took the wrong civil action as a plaintiff, which is enough to consider your claim inadmissible. Hence, you must reveal to your attorneys if the alleged ‘invader’ could have a cause with which to prove to the judge why he is in possession of the property because if there is one, it is enough for him to hire a good attorney to defend him and win the trial. Of course, I have done it several times and know what I’m talking about.

On the other hand, in rare cases, this same defense is also broached in a devious and illegal way. This is so because very frequently when the defendants are on the verge of being expelled from the property, they simulate contracts of a different nature. Unless their falsity is very evident—seldom the case— your attorneys must challenge the falsified contract by offering an expert witness in graphoscopy and documentoscopy.

II.- A Sexual or Family Relationship

This defense is relatively recent and similar to the previous one. It was born thanks to judicial activism of the Judicial Branch of the Federation and is no longer based on a personal legal relationship but in the plain sense.

This defense consists that when an owner starts a sexual-affective relationship with a third party who lacks the ownership of the thing claimed but, at the same time, due to this relationship, that third party possesses the thing, as owner, you cannot use the rei vindicatio action to recover your property back, but a family action under a family court.

This is so because the defendant’s possession of your property also has a reason for being, but it was born from a family or sexual-affective bond. Therefore, it is in that family jurisdiction that you must try to recover the property since if you decide to undertake the claim action and in the trial, it is proven that the defendant is your ex-spouse or ex-concubine, for example, the action shall be inadmissible under civil’s jurisdiction.

The last, pursuant to the following precedents: REI VINDICATIO ACTION. IT IS INAPPROPRIATE IF IT IS ATTEMPT AGAINST THE ONE WHO HOLDS THE POSSESSION THAT DERIVES FROM THE MARRIAGE BOND CELEBRATED UNDER THE REGIME OF SEPARATION OF PROPERTY, SO PERSONAL ACTION BASED ON THE DISSOLUTION OF THAT BOND MUST BE EXERCISED INSTEAD^[14] and REI VINDICATIO ACTION. IT IS INAPPROPRIATE WHEN IT IS FILED AGAINST SOMEONE WHO HAS POSSESSION DERIVED FROM A CONCUBINAGE RELATIONSHIP^[15].

Of course, not all sexual-affective relationships actualize the figure of marriage or concubinage, but that relationship (and especially its temporality) you should mention to your attorney before taking legal action against the defendant because even when, for example,  now a short courtship does not engender rights and obligations and, therefore, the rei vindicatio action is appropriate; this does not mean that these criteria are going to be static. In fact, there is so much judicial activism on this topic that civil and family attorneys must be constantly updated. See, for example: REI VINDICATIO ACTION. APPROPRIATE WHEN THE DEFENDANT OCCUPIES A PROPERTY DERIVED FROM AN AFFECTIVE RELATIONSHIP WITHOUT LEGAL SUPPORT^[16].

Furthermore, there is the example of a judgment issued by the Collegiate Court in Veracruz, which ruled that a rei vindicatio action against the daughter-in-law of the owner of the property was inadmissible since it considered that even though the owner granted possession to his son and consented for him to live with his partner, this would also have to be protected by the sexual-emotional relationship that allowed legal possession of the property. A judgment that became a no-biding precedent: REI VINDICATIO ACTION. IT IS INAPPROPRIATE IF IT IS FILED AGAINST THE ONE WHO HOLDS THE POSSESSION THAT DERIVES FROM THE RELATIONSHIP BY AFFINITY, SO PERSONAL ACTION MUST BE EXERCISED BASED ON THAT FAMILY RELATIONSHIP^[17].

While it is true that the previous criterion is not mandatory for the state of Chihuahua, it can serve as a complement to support and motivate a decision in our state in that sense. Therefore, you must inform your attorney about all the details regarding your relationship with the defendant, whether you have or had any family relationship with him.

III.- Absolute Nullity

Another starring procedural defense the defendants have, and use is absolute nullity which is more used while reconvienen—countersue—arguing that property title is null, either because there are actually defects in the contract or public deed (regarding the object or the consent) or because a knowledgeable attorney wants to buy the defendant time and scare you so they can negotiate.

This kind of defense is common among heirs who were not satisfied with the inheritance process and who commonly refuse to abandon the properties of their deceased relatives when the transfer of the real estate to third parties has already been made in the inheritance process.

Although this defense is common, you should know that absolute nullity is the most technical claim in the civil area, so unless it really has merit, it will not succeed. Due to its importance and particularities, I will discuss it later in a separate entry.

IV.- Adverse Possession Action (Prescripción Positiva o Usucapión)

Now it’s the turn to deal with the most used defense against the rei vindicatio action: the adverse possession action (if you want to know more about this topic, check the entry Adverse Possession Action In Mexico), which is opposed in almost 70% of the trials of rei vindication action, whether by bona fide or by simulation. Furthermore, this defense is the reason why there is an infinite number of real estate frauds in Mexico, and due to its importance, I will shortly do a special analysis of this type of civil action in another entry.

On the other hand, as I have already dilated too much in this entry, I only going to mention that adverse possession action, usucapion or acquisitive prescription (concepts coined by the civil law system) also constitute a civil action that can, in turn, be opposed as a defense when answering the claim—perentory plea—or in the ‘revoncención‘ —counterclaim—and that may have the potential change the ownership of the thing claimed with the rei vindicatio action.

This defense consists of proving to the judge, whether genuinely or falsely—which is used very frequently in response to the rei vindicatio action—that the defendant came into possession of the thing claimed as an owner, that is, that they did not rent, lend, etc., and that he has been inhabiting the property in a public, peaceful manner for more than 5 years.

To support the above, the way to prove why the defendant came into possession as owner is through a contract, which continues to be simulated in an unsightly manner to this date. That is, a contract is made with a date prior to the trial, generally 10 years ago, and the signature of the registered owner is also sometimes forged to simulate a ‘genuine’ private sale.

However, not everything is lost because faced with this abusive practice, the Mexican Supreme Court of Justice put a limit on these simulated contracts by requiring that they meet the concept of a ‘certain date’ in order to prevent them from being drawn up when answering lawsuits and defrauding the true owners of the property, by issuing this mandatory precedent: ADVERSE POSSESSION. THE PRIVATE PURCHASE AND SALE OF CONTRACT THAT IS OFFERED TO PROVE THE CAUSE GENERATING THE POSSESSION, MUST BE OF A CERTAIN DATE^[18].

In this way, the concept of certain date consists that even if the sale of the contract was not carried out in a public deed before the notary public, it must be considered as the actual date on which the contract was signed, not the one that it is contained there, but what must be counted after the following events: 1) its presentation before a public official or notary public; 2) the death of any of the contracting parties or even witnesses to the contract and 3) its registration in the Public Property Registry. All this with the intention of avoiding the fraudulent contractual simulations to which I have mentioned.

The above, according to the next binding precedents: PRIVATE DOCUMENT. THE COPY CERTIFIED BY A PUBLIC NOTARY MAKES IT ON A CERTAIN DATE FROM THE TIME HE HAD IT IN SIGHT FOR REPRODUCTION AND SOLELY FOR THE PURPOSES OF RECORDING THAT IT EXISTED AT THAT MOMENT^[19] and PRIVATE SALES DOCUMENT. FOR PURPOSES OF PROVIDING STANDING TO THE ONE WHO CLAIMS AS THE OWNER OF A PROPERTY IN AN AMPARO PROCEEDING, A CERTAIN DATE ACQUIRES WITH THE DEATH OF ANY OF THEIR SIGNING WITNESSES^[20].

Finally, I want to make you aware that in the state of Chihuahua, there is no express basis in the Civil Code to demand a certain date in the adverse possession action. This gave rise to multiple judges considering this action appropriate with any contract, even if it was patently false. Such flexibility became a national scandal, and legitimate owners lost their property with the acquiescence of the Judicial Branch.

Notwithstanding the above, once again, the Mexican Supreme Court of Justice issued a binding precedent that clearly requires lower courts to weigh the concept of a certain date in every private contract presented to them through the adverse possession action, even if local legislation has been regulated. This is, without a doubt, a great step to end fraudulent practices in real estate. Jurisprudencia that is the following: ADVERSE POSSESSION. EVEN IF THE APPLICABLE LEGISLATION DOES NOT REQUIRE THAT THE TITLE OR TRANSLATIVE ACT OF DOMAIN THAT CONSTITUTES THE CAUSE GENERATING THE POSSESSION IN GOOD FAITH BE OF A CERTAIN DATE, THE CERTAINTY OF THE DATE OF THE LEGAL ACT MUST BE RELIABLY PROVED BECAUSE IT IS AN ELEMENT OF THE FAIR TITLE^[21].

By Omar Gómez

Partner

beLegal abogados Sociedad Civil

Abogados en Ciudad Juárez, Chihuahua, México

Contact the firm at [email protected] or call (656) 774-75-73 for English assistance or (656) 271-41-43 for Spanish assistance

Visit my personal website at www.ogomezabogado.com

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^[1] Title: VI.3o.C. J/36. THIRD COLLEGIATE COURT OF CIVIL MATTERS OF THE SIXTH CIRCUIT. Ninth Judicial Epoch. Biding Precedent (jurisprudencia) Digital Record: 191148.

^[2] Title: I.11o.C. J/12. ELEVENTH COLLEGIATE COURT OF CIVIL MATTERS OF THE FIRST CIRCUIT. Ninth Judicial Epoch. Binding precedent (jurisprudencia) Digital Record: 169857.

^[3] Title: II.2o.C.78 C. SECOND COLLEGIATE COURT OF CIVIL MATTERS OF THE SECOND CIRCUIT. Ninth Judicial Epoch. Not binding precedent (tesis aislada) Digital Record: 197550.

^[4] Title: 1a./J. 44/2005. First Chamber of the Mexican Supreme Court of Justice. Ninth Judicial Epoch. Binding precedent (jurisprudencia) Digital Record: 178201.

^[5] Third Chamber (extinguish) of the Mexican Supreme Court of Justice. Sixth Judicial Epoch. Not Binding Precedent (tesis aislada) Digital Record: 269802.

^[6] Title: X.1o.4 C. FIRST COLLEGIATE COURT OF THE TENTH CIRCUIT. Ninth Judicial Epoch. Not Binding Precedent (tesis aislada) Digital Record: 204203.

^[7] Article 14.- You can sue in rei vindicatio action, in addition to whoever is the possessor of the thing claimed, to that person who, to avoid the effects of such action, stopped possessing, and to whom is obliged to return the thing or its value if the judgment is condemnatory, although it does not possess it. […].

^[8] The Abolished Third Chamber of the Mexican Supreme Court of Justice. Sixth Judicial Epoch. No Binding Precedent (tesis aislada) Digital Record: 269625.

^[9] Title: XI.2o. J/8. SECOND COLLEGIATE COURT OF THE ELEVENTH CIRCUIT. Eighth Judicial Epoch. Biding Precedent (jurisprudencia) Digital Record: 220945.

^[10] Title: VI.2o. J/202. SECOND COLLEGIATE COURT OF THE SIXTH CIRCUIT. Eighth Judicial Epoch. Binding Precedent (jurisprudencia) Digital Record: 219051.

^[11] Title: 1a./J. 104/2008. First Chamber of the Mexican Supreme Court of Justice. Ninth Judicial Epoch. Binding Precedent (jurisprudencia) Digital Record: 168237.

^[12] Title: XXVI. J/3. COLLEGIATE COURT OF THE TWENTY-SIXTH CIRCUIT. Ninth Judicial Epoch. Binding Precedent (jurisprudencia) Digital Record: 169989.

^[13] Title: I.3o.C.749 C. THIRD COLLEGIATE COURT OF CIVIL MATTERS OF THE FIRST CIRCUIT. Eighth Judicial Epoch. No Binding Precedent (Tesis Aislada) Digital Record: 209217.

^[14] Title: 1a./J. 89/2006. First Chamber of the Mexican Supreme Court of Justice. Ninth Judicial Epoch. Binding Precedent (Jurisprudencia) Digital Record: 173412

^[15] Title: I.5o.C.149 C. FIFTH COLLEGIATE COURT OF CIVIL MATTERS OF THE FIRST CIRCUIT. Ninth Judicial Epoch. No Binding Precedent (Tesis Aislada) Digital Record: 161408.

^[16] Title: I.9o.C.23 C (10a.) NINTH COLLEGIATE COURT OF CIVIL MATTERS OF THE FIRST CIRCUIT. Tenth Judicial Epoch. No Binding Precedent (Tesis Aislada) Digital Record: 2009370.

^[17] Title: VII.2o.C.23 C (11a.) SECOND COLLEGIATE COURT OF CIVIL MATTERS OF THE SEVENTH CIRCUIT. Eleventh Judicial Epoch. No Biding Precedent (tesis aislada) Digital Record: 2026874.

^[18] Title: 1a./J. 9/2008. First Chamber of the Mexican Supreme Court of Justice. Ninth Judicial Epoch. Binding Precedent (Jurisprudencia) Digital Record: 169830.

^[19] Title: 1a./J. 33/2010. First Chamber of the Mexican Supreme Court of Justice. Ninth Judicial Epoch. Binding Precedent (Jurisprudencia) Digital Record: 164080.

^[20] Title: 1a./J. 18/2016 (10a.) First Chamber of the Mexican Supreme Court of Justice. Tenth Judicial Epoch. Binding Precedent (Jurisprudencia) Digital Record: 2012310.

^[21] Title: 1a./J. 82/2014 (10a.) First Chamber of the Mexican Supreme Court of Justice. Tenth Judicial Epoch. Binding Precedent (Jurisprudencia) Digital Record: 2008083.