Public Notaries In Mexico
By Peter Thompson, Attorney-At-Law
One the of the most fascinating differences in business transactions between Mexico and the United States is the role of the Notario Publico � the notary. THE UNITED STATE NOTARY In the United States, the main function of the notary is to place a notarial seal on a document and to state on the document that the person who signed the document was personally known by the notary or proved to the notary on the basis of satisfactory evidence (I.D. such as a Driver's License) to be the person who signed the document, and that the party acknowledged they signed the document. This procedure is called an "Acknowledgment." Notarization in the United States is primarily a formality which is intended to prevent forged signatures on deeds, powers of attorney, and the like. The fact that a document is notarized is not a guarantee by the notary that the facts stated in the document are correct, or that the document is written in a legally binding manner. Unless he or she is also an attorney, a notary should not and cannot legally advise the parties as to the legal consequences of the document they have signed. The most common reason to have a document acknowledged before a notary is that a document cannot be recorded at the office of the County Recorder unless it is notarized. Another reason for notarization is that it is a prerequisite for obtaining the state apostille if the document will be used in a foreign country. Virtually anyone can be a notary in the United States. The main requirements are that the applicant be at least 18 years old, a legal resident of the state, pass a short, simple written exam, submit a fingerprint card, pay the fee, and post a bond. THE MEXICAN NOTARIO PUBLICO It is not an exaggeration to say that a Notario Publico is one of the most important and respected persons in any Mexican city. The main reason is that all documents which are required by law to be "public documents" must be actually created and recorded by the notario, not merely signed by him like the U.S. notary does. Examples of public documents are deeds, general or limited powers of attorney, official actions by a corporation and Wills under most circumstances. Even in circumstances where a document like a private contact is not required by law to be drafted by a notario, creation by a notario is sometimes sought simply because of the high evidentiary value of a notarial instrument. In a Mexican court of law, a notarial document is proof that the parties had the necessary legal intent to enter into the agreement or make the Will, and that the statements and acts recited in the instrument did in fact occur. A Mexican notario must be a Mexican citizen by birth and he must be a lawyer. The number of notary positions in each geographical are is fixed by law. A notary license is issued by the government only to fill a vacancy upon the death or resignation of an incumbent notario or if population increases sufficiently to require more notarios. The competition for a vacancy is fierce and is based on a difficult exam. A notario cannot practice outside his territorial jurisdiction. But, his documents and acts can be used, and are valid, in other jurisdictions. A notario must serve anyone who requests his services. In addition to drafting or authenticating important documents, the notario has the duty to explain to the parties the legal meaning of the transaction. A notario thus acts on behalf of both parties to a transaction, in contrast to the U.S. attorney who is prohibited from representing both sides. A notario cannot represent a client in court or in an adversarial matter. Although the Mexican notario is a public official, he or she receives no salary from the government. Instead, he is entitled to collect fees from his clients according to a schedule of fees, which are usually a small percentage of the amount involved in the transaction. A notario cannot hold any other job or engage in other businesses except teaching, charities, serving as an officer or director of a company, or performing functions relating to his notarial commission such as guardianships, executiorships and arbitration. A public document is typed by the notario's staff into his record book (called a "protocolo") and remains there permanently. Certified and authenticated copies (called "testimonios") are transcribed by the notario and issued to the interested parties and for recording in the public register. I like to think of testimonios as "duplicate originals" because they are as valid as the protocolized original. A notario has certain other important functions in the Mexican system. He can serve as a court clerk in certain uncontested matters not involving a question of law. A notary can carry out the provisions of a Will as executor where the Will is uncontested and no heirs are minors. Perhaps most important for U. S. citizens interested in acquiring the use of land in Mexico, the notario is personally responsible to see that the required taxes are paid on transfers of property, and are acquired to give notice to the taxing authorities of transactions that are subject to the tax. A notario must be bonded to guarantee payment for any civil liability or fines for malpractice. However, the notario does not guarantee the validity of acts not solemnized before him, such as prior deeds in a chain of title. Therefore, it is best to hire a separate attorney to check the chain of title to any property you wish to acquire.
