Throughout my professional practice I have noted several times that foreign clients—especially those who come from a country with a “Common Law” legal system, such as the United States—believe that Mexican notaries are very expensive, in comparison with a U.S. notary’s fee.
There is a very good reason for this. Although notaries in both countries are invested with some kind of public faith, the main difference is that American notaries, in most states, are regular people who after a simple process have obtained a license to act as a notary in a determined area or state, and his or her duties are basically to identify, witness and acknowledge something that has happened before them, (i.e. the signing of a contract) but they do not need to know or understand the legal scope or duties that the parties are acquiring through that contract.
On the other hand, a Mexican notary is more than an average person who identifies parties, witnesses and acknowledges something. The Mexican notary is an expert of the Law. They are an attorney who has gone through a lengthy and difficult process to obtain a license (patente) to act as a notary. They have the obligation to make sure that whoever is requiring his or her services understands the legal scope of the act or fact that is passed before them. Notaries in Mexico also must make sure that the action that it is being performed before them is legal according to the current laws. They must make sure that the parties involved, or whoever is acquiring any obligation, understands what they are doing, and understands and acknowledges that any false declaration in front of a notary is against the law and could be punishable with jail. One of the biggest differences between Mexican and U.S. notaries is the liability. Mexican notaries are subject to harsh penalties if found to be acting incorrectly, their license can be revoked and they can even be legally prosecuted. All documents passed before a notary must be written in Spanish: no other language is valid. If any of the parties do not speak Spanish or are not fluent enough, it is the notary’s responsibility to make sure that this person is assisted by a translator (at the client’s expense) who must also legally sign the same document. In some cases (i.e. a house purchase) you are required by law to use the services of a notary: you do not have a choice in this.
There are many more differences, but in order to understand better, it is helpful to understand where the Mexican notary comes from. Since Mexico has a “Civil Law” tradition, the Mexican notary is similar to figures found in many Latin American countries and some countries in Europe. In Mexico, the Notary Law is a state affair, therefore every Mexican State can decide how to rule and name notaries. In the area of Ixtapa–Zihuatanejo there are four notaries and they are subject to the Notary Law of the State of Guerrero. Although it is a State Law, notaries in this State can perform their duties only inside a determined area, which in the case of Ixtapa-Zihuatanejo’s notaries is the “District of Azueta”, which encompasses the municipality of José Azueta and the municipality of Petatlán. This does not mean that you must hire their services if you are purchasing a house in the area; you can take your case to a notary serving in a different area and even in a different State, but in the end this could be more expensive.
All the acts, deeds, by-laws, faith of acts or any other document passed before them must be printed into a book, which after it is signed can not be modified in any way. Once all of the parties or their legal representatives sign the book, and once the notary has reviewed and explained the legal scope to the parties, the notary must also sign the deed. Depending on the kind of document passed before the notary he or she will have to proceed to make sure that all the taxes are paid to authorize the document and if the document is subject to any kind of registry will have to record it in the corresponding Public Registry. The original document will always remain printed in the book. Notaries here have several books and once there are no more pages to print on, they close it and keep it in their offices for a few years, after which they will send these books to the General Notaries’ Files Office of the State of Guerrero, where the books will remain. Despite that there is only one original, after all the parties and the notary have signed the book, the notary is able to issue immediately a copy of the signed document, which is almost as valid as the original because it was issued by the notary. Once the document is signed by the parties and the notary, the document is authorized, all the taxes are paid, and all the requirements of the law have been fulfilled, the notary is able to issue a Testimonio which is the most effective and legal document, second only to the original, that is kept in the book.
After reading the above, some of you might think that since the notary is an expert of the law and often you are required to use them, perhaps you do not need to hire your own attorney. This is not actually a very good idea; having your own attorney looking out for your best interest is always better. The notary certainly has the obligation of explaining to you the legal business you are entering into, but he or she also has the same obligation to the other party as well, and must be impartial. Your own attorney, on the other hand, is there solely to take care of your interests, which can not only save you time and money but can help make sure you have made the right decisions. Having good and personalized advice from your own representative is always the best way to avoid a bad experience.
-Originally published in January 2007
