Most of the questions I get from book owners start out, “Is it legal to…?”. Sometimes there’s a clear answer, because the condo law covers the issue explicitly. However, sometimes this isn’t the case. What then?
Basic legal principle
There’s a basic concept in civil law (the type of legal system used in Mexico) that at first glance seems very simple. It says that anything that isn’t specifically forbidden is allowed.
I said, “…at first glance.”
To be accurate, when you think about this, mentally expand it to, “anything that isn’t specifically forbidden by any governing law in Mexico is allowed” Therefore, the problem for condos is that this principal doesn’t just apply to the condo law all by itself.
The condo law in Jalisco is, in reality, a small section of the Jalisco Civil Code. When considering whether something is legal or not, you need to consider: municipal laws, the rest of the Civil Code, state laws, the Federal Civil Code, federal laws, and the Mexican Constitution.
Be very sceptical…
Be sceptical of people who say, “There’s nothing in the law that forbids this, so we can do it!” If they’re referring only to the condo law, they might not be correct.
If an issue clearly applies only to a condominium, then you’re likely safe in relying on the condo law, and nothing else. Such things as:
- the duties and responsibilities of the Administrator and Council/Board;
- obligations of a condo owner;
- the method of calling an assembly; or
- the quorum and voting needed at an assembly.
Other things are not so cut and dried.
For example, issues affecting common property are regulated in two places in the Civil Code. As they relate specifically to the peculiarities of a condo regime, they’re in the condo law. However, the rules in the condo law are in addition to basic regulations about all common property (condo or otherwise) that are set out elsewhere in the Civil Code (this section is in the “Jalisco Condo Law in English”). If your particular issue with common property isn’t covered by the condo law, then you must also check the general common property regulations before deciding you can go ahead and do something.
Some things might appear to apply only to a condo. When I looked at the issue of proxies at an assembly in an earlier post, this was an issue that the condo portion of the Civil Code was silent on. However, other parts of the Code were not.
Beware of reducing rights
Some actions you might be thinking about taking could impact a condo owner’s rights. Rights are taken seriously in Mexico. While there might be nothing in the condo law, these rights could be protected because they’re fundamental rights, real rights attached to the ownership of property, or rights given by another law.
Before doing anything that lessens or removes something that looks like it might be a right, make sure you have the law on your side. I strongly recommend that you get a written and cited legal opinion. If you get only a verbal opinion, it might not be correct, and the condo, not the lawyer, could be liable.
You also need legal citations that you can use in a court case if the person objects, and this becomes a legal issue. It’s also a good idea to quote these citations at the time you lessen or eliminate something that could appear to be an owners’ right (for example, in a by-law clause or in a letter to the owner). This gives you solid, defensible backup.
Don’t forget to check your by-laws
There could be an issue that isn’t covered by the condo law, or any other law, but might be regulated closer to home: in your by-laws!
By the way, while we’re on this topic, if one of your by-law articles contradicts the condo law or some other law, then it has no validity. So what exactly does this mean? It means that it can’t be enforced.
If you have an illegal by-law article, there’s nothing you can do to force any owner to follow it. Owners might not know it’s illegal, and could happily comply. Sometimes for years. But, if someone does not, you can’t impose fines, sanctions, or penalties (OK… you can try, but you can’t legally collect them if they don’t pay), you can’t successfully carry out a legal action, and you can’t force the sale of their house at public auction. You’re welcome to try any of these, but you won’t win in court.
Never assume knowledge
My final piece of advice is to not rely on your knowledge of condo laws and practices from other jurisdictions, or legal practices from the U.S. or Canada.
Each state in Mexico has its own condo law. While there are fundamental concepts that are the same, there can be significant differences. The same is true in the U.S. and Canada. Each U.S. state, and each Canadian province, has its own condo legislation, and these do vary.
It’s also important for foreigners to realise that Mexico, and the U.S. or Canada have significantly different legal systems. The U.S. and Canada use a common law system, while Mexico uses a civil law system. Many legal concepts and practices fundamental to the legal systems North-of-the-Border just don’t apply in Mexico.
Common law legal systems rely on a history of earlier judicial decisions (jurisprudence) as the main source of law. Under common law, the judicial branch has great discretion to interpret and create law over time.
In contrast, a civil law, or code-based legal system, relies mainly on the written law. Changes to the law come about through the actions of the legislative branch. Judges don’t usually have the discretion to interpret the law, or to take positions that differ from the law as it’s written.
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