What’s Legal and What’s Not?

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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.

Writer of books about running a condo in the Mexican state of Jalisco, and following the state condo laws. Also the laws and processes involved in buying and owning real estate in Mexico. Author of the "Jalisco Condo Manual" and the "Jalisco Condo Law in English." His web site: JaliscoCondos

9 Responses to What’s Legal and What’s Not?

  1. Is it legal to run a condo without a lawyer? We have a small one, and if everything was open, transparent and we all got along, would it be possible?

    • You don’t need a lawyer to run a condo. A lawyer is only needed to prepare legal documents and file lawsuits.

      The only requirement to run a condo is a Council elected each year at an ordinary assembly, and an Administrator appointed each year at the same assembly.

  2. Hi Gary…..this FB page is very helpful. My partner and I bought a condo in Puerto Vallarta last year. We love it there. I’ve been going to PV since the mid 1990’s.
    I’m hoping you can help. Last November we let our property manager stay at our condo for a weekend with a friend of hers. Our property manager is Canadian and so is her friend.
    We received an unsubstantiated complaint about her and her friend during that stay. It was all hearsay. The police weren’t called and no formal complaint was filled.
    The board president said, even though she was formally hired as our property manager, the board banned her and any of her staff from ever entering the building. There are no minutes to show a special meeting was ever held to formally address and decide on this.
    Can he/the board legally do this? It’s our understanding that even if he and/or the board have given themselves this authority in the by-laws, it’s not enforceable or legal.
    We found a new person (a Mexican national) to do the meet and greets and manage the condo. When this new manager arrived at the building 2 days ago, the board president and the general manager grilled him for over half an hour asking him who he worked for. They demanded to see his identification even though we gave them prior notice that this person was coming and had our permission to enter the condo. We were also emailed by the board president demanding we give him our new manager’s contact details. He said this was so that he could give it to the bonding company. We were told this was bogus. No such demand was made with the 2 prior managers.
    If we’ve identified someone to manage our property, can he/they do this legally? It’s our understanding they can’t. But not having an understanding of the law regarding condos in Jalisco, it would be good to know where we stand legally.

    • In my opinion, the condo administration cannot tell you to whom you are allowed to give access to your private property.

      A condominium has no control over a private unit, and there are many other sections of various codes and laws (including the Constitution) that give you rights over your own private domain.

      You should have the right to use and enjoy your private property in any way you see fit, as long as it doesn’t disturb others, affect the security of the condo, or violate the usage rules set out in the establishing document (such as carrying out business activities in a residential condo).

      If a person does cause a disturbance, the police are called, and the person is charged, then they might have grounds. But this should only apply to this one individual.

      I cannot see how they have the right to vet the credentials of anyone you give permission of access to, unless they have some sort of probable cause to do so, the reason is legitimate, and is clearly expressed and presented.

      Further, you are right that any condo by-law article giving authority to the administration that is not legal, is null and void, and cannot be enforced.

      This sounds like you should consult a lawyer.

  3. Hi Mr. Musgrave,

    We have consulted a lawyer. And, for the moment, he’s backed off. But your response is extremely helpful.
    Thank you!

  4. You quote Article 29-A of the Codigo Fiscal de la Federacion on page 185 in your new Condo Law book, it says “requirement for electronic tax receipts or facturas” ~ do all receipts need to be electronic? I see that on page 186 the law says that the manager should issue an electronic factura, but what about receipts from independent contractors (repairing washing machines, etc), accountant, employees… do all these need to be electronic or just a written receipt will do?
    Many thanks, your books are so needed…..and appreciated!

  5. Is there any law about whether home owner association fees should be assessed by the percentage of overall building space a unit contains, or is it legal to charge each unit the same fee?

    If no agenda has been provided by the president or administrator, is the board meeting a legal one?

    • Yes, both condo fees and voting at assemblies must be done in accordance with the percentage rights owned by each condo unit. These “condo rights” represent the portion of the common property owned by a given unit. These are spelled out for all units in the escritura constitutiva (establishing document) for the condo, and for each individual unit in their deed. Generally, these are calculated based on the percentage of area of the condo unit out of the total condo’s area.

      While there is a legal requirement to provide an Agenda (Order of the Day) for an assembly in advance of the assembly, there is no requirement for doing so for a board meeting. That said, it is just good meeting practice to prepare and distribute an agenda for a board or committee meeting in advance so that the meeting participants know the topics to be discussed, and can be prepared. It is also good transparency to distribute this same agenda to the community as an attachment to the notice of the board meeting so that an owner can know if there is a topic being discussed for which they may want to be at the meeting.

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