Of all the stories of gringos being evicted from their homes in Baja because of disputed land ownership, most all center around incidents in the Punta Banda area outside Ensenada. We have gathered numerous posts that provide a history of this situation... which surprise, surprise... was overblown by the US Media.
Read and learn... ask questions.
Americans Evicted From Baja Homes
Michael Bircumshaw, editor of the Baja Sun is a long time resident of Ensenada and wrote this article about this ongoing saga. This article was originally written in the year 2000 when the evictions of the residents (expatriate and ejido) were done. The evictions were started on October 30th, 2000.
In mid-October 1999 Mexico’s Supreme Court ruled that nearly thirty years ago a bureaucratic error stripped Mexican landowners of their land when it was included in a grant to a peasant collective known as an ejido. Approximately 100 miles south of the Mexico-US border the ejido of eight -five families gave long term leases to foreigners to build their homes on the land in an area called Punta Banda. Punta Banda, about 35 km southwest of Ensenada is sandy peninsula jutting into beautiful Bahia Todos Santos in Baja California Norte. Over the years several dozen North Americans, mainly Americans built their retirement homes with values ranging anywhere from $50,000 to several million dollars US.
It is painfully regretful that the eviction of the Estero Punta Banda home owners had to occur and it is even more painful to know that many of the (lower income) residents of the area are now homeless and many are without resources, having nowhere to go and no way to get there.
The specific reason for this article is to hopefully enlighten and inform our readers about land usage/ownership in Mexico so as to avoid, that which has now come to pass here on the northern end of this magnificent peninsula...
In brief (hopefully) this is the actual scenario and background.
1. Certain people, mostly from the USA, acquired property, beginning in the late 70s, early 80s, that they were led to believe belonged to an Ejido group called Ejido Coronel Estaban Cantu located on the finger of sand known as Estero Punta Banda about 12 miles south of Ensenada.
2. A portion of the land involved did not belong to the Ejido and the “Ejiditarios” had no right to rent, lease or sell the property, but they also believed that it was their land due to the allegedly corrupt actions of one Carlos Teran and his associates which managed to get an “extra” 180 acres of privately owned property included or added to a legitimate Ejido grant that involved about 15,000 acres in the adjoining and immediate area. In any case Ejido land could not be sold in any form until December of 1994 when the new Investors Law, Article 27, was approved by the Mexican government and published in the Diario Oficial - Mexico’s Congressional Record.
3. The 180 acres of “acquired” property actually belonged to several, possibly as many as ten, private owners, who upon discovering that their property had been illegally assigned or awarded to the Ejido began legal actions to regain that which was legally theirs from the get-go. They began suing in the Mexican courts for the return of their property in the early 1980s. After 13 years or so of fighting for their legal property they finally won their case in the Supreme Court of Mexico. They then informed all who had built homes to negotiate a “new deal” with the legal and proper owners or to vacate as they were being dispossessed. Some did, some did not, make a new deal with the proper owners. Those who did not were faced with certain eviction as they now illegally occupied property to which they had no claim, even though they felt that since they had obtained possession of the land in “good faith”, they should not suffer any negative consequences. In late October of this year, following various warnings and messages from virtually every form of communication, including the BAJA SUN, the Mexican Federal Government summarily proceeded with the evictions. We (the BAJA SUN) did not foresee the evictions as it was reasonably thought that the homeowners would proceed with making a new deal with the proper owners and get on with their lives. Some had made deals, others had (at least) obtained legal counsel.
4. The controlling Ejiditarios were also evicted from the property, which they had been claiming.
It is most regrettable that this situation came to pass. However such are the laws of every country that has any form of Democracy. The least culpable in this matter are the original owners who were deprived~ of their property and the potential income of their property for nearly fifteen years.
In second place of least culpability would be the Ejiditarios as they neither stole the land in the first place nor were they necessarily aware the committed fraud. However, it is now alleged (since knowing of the Supreme Court decision) that the Ejiditarios had threatened some or all of the now evicted home owners saying that they would take actions against those same home owners should the home owners make a deal with the “proper” owners. Actions allegedly threatened included blocking the roads or cutting off services to the homeowners. The reasons being that the Ejiditarios were collecting monthly or annual rents from the homeowners. Reports indicate that the rents were as high as $1500.00 a year, which is not a bad price for a property that might be worth $500,000.00 - $1,000,000.00 in the USA.
The homeowners themselves are next in line up the line of culpability. Ask yourself just a couple of rather easy questions that apply to anywhere you may choose to build your home or plan to retire, or invest up to $1,000,000.00 in a residence.1. Would you do so without having title to the land?
2. Would you do so without having Title Insurance?
3. Would you do so without understanding “something” about the laws of the land or the country in which you were investing?
4. Why would you do so in Mexico if you would not do so in your home country?
Next in line has to be those who falsely represented the property to the buyers (home owners) as it is alleged that the buyers were promised many things that could simply not be ‘delivered such as Bank Trusts. And their sentences would have to be modified since they were operating under the instructions and information of the “selling” or “leasing” agency, Grupo Kostero and others.
At the top of the list must be the ones who committed the fraud in the first place, as they clearly knew that they were illegally taking private property. The Mexican government must share in the blame for not having the necessary controls and legal instruments in place for avoiding exactly this type of situation, and at the same time the government must be applauded for returning the land to the proper and correct owners. As unfortunate as the personal situations are it clearly shows that the law applies to everyone and when the law is properly pursued it is correctly carried out.
All of the evicted home owners have not necessarily lost their homes completely, as in most cases what they need to do is negotiate a new deal with the current and proper owners. At the same time it is apparent that some of the proper owners are not now willing to negotiate as they are considering other options, possibly as part of a new resort development, which would not include the existing private homes. The final chapter is yet to be written on Punta Banda and the bottom line is that it all points to Due Diligence on the part of the buyer, any buyer, anywhere.There are three specific types of land in Mexico:
1) Government owned,
2) Ejido owned and
The Baja peninsula undoubtedly has more Ejido owned land per square foot of area than anywhere else in Mexico, it is also the most dangerous type of land to deal with as it requires significantly more paperwork and bureaucracy than any of the other two previously mentioned types and all “Ejido” deals are more at risk than private or government property deals.
From worst to best here are the options for foreigners to acquire land in Baja California or Baja California Sur.1. Absolutely the worst Presta Nombre
This where the “foreign” buyer makes a purchase using the name of a Mexican citizen.. Guess what, the owner is the one with his name on the title.2. Second Worst: A rental contract on land
All of the rental contracts that I have reviewed or seen indicate an “indefinite” time period. In Mexico this means one year and on a monthly basis thereafter. I have never seen a rental contract that did not contain a 30-day termination clause.3. Third Worst. A lease
Residential leases in Mexico are valid for no more than 10 years minus one day. Period. It does not matter what the paper says nor who has signed it, the preceding sentence is all that there is ... and it is not renewable. Period. You may get a new lease, and then again you may be homeless. Period.4. The best: A Fideicomiso (Bank Trust)
This is an instrument backed by a Mexican bank that gives the buyer the rights to the property for 50 years and it is renewable twice for an additional 50 years each time. You can leave it to your heirs, you can sell it, you can trade it, and most of us will never be concerned with renewing it. You cannot use it for a business unless the proper taxes and registrations are in place.Myths...
Recently printed in several prominent US newspapers.First Myth: A foreigner cannot own land in Mexico.
Truth: Yes a foreigner can own land in Mexico, see #4 Fideicomiso above. Actually foreigners can own land in Fee Simple Title outside of the restricted area near borders and the ocean, but it is best to do it with a Fideicomiso, as that requires a banking institution to guarantee the title.Second Myth: A foreigner cannot own oceanfront property in Mexico.
Truth: Yes a foreigner can own oceanfront property in Mexico, see #4 Fideicomiso above. Where some of the oceanfront confusion lies is in the proper handling of the “Federal Zone”, a part of the beach measured by the high tide line plus 20 meters, wherein a Federal concession is required to control this particular area. The concession is available to foreigners.Third Myth: Mexico is out to rip off foreigners and theft laws are anti-foreigner.
Truth: The laws of Mexico apply to all within her borders, Mexicans and foreigners alike. The really simple truth is in conservative estimates that 8,000 of the foreigners living in Mexico are living here illegally and “illegals” have no rights, or best-case a lot less rights than those choosing to do it the correct way. Note from a webmaster in Chapala:
Here at Lake Chapala foreign buyers can own property in two manners. One is the Fideicomiso (Bank Trust) which is described above and the only safe option for coastline properties. However, here many foreigners purchase their property using a second manner called a Direct Deed in their own name. This is the same way a Mexican national would own his real estate property. Since Lake Chapala is located in Central Mexico and not in the restricted zones near an international border or coastline, this option is legal for foreigners.Tri-National Development Corp. Announces Positive Legal Ruling for Punta Banda Homeowners
October 29, 1999
SAN DIEGO, CA--Tri-National Development Corp. (OTC BB: TNAV) announced Wednesday that its Mexican attorneys received a federal court order which stops the eviction of the approximately 300 homeowners of the popular real estate development Baja Beach and Tennis Club, located in Punta Banda in the Municipality of Ensenada, Baja California, Mexico.
Additionally, the court orders the case to be reopened and reviewed. The eviction had been widely covered in local and national press and was scheduled for Friday October 8 and Monday October 11, 1999. The ensuing public perception is that this type of problem for Americans is wide spread throughout Mexico. In fact, there are approximately 70,000 American residing in the 70-mile stretch in between Tijuana and Ensenada, including these 300 American homeowners at Punta Banda. This press release was issued with the anticipation that the subsequent halt to the eviction and possible solution generate as much media coverage as the problem itself to allow the public to see that the Mexican legal system does work if addressed properly. Search news items at Yahoo.com (NASDAQ:YHOO - news) or AOL (NYSE:AOL - news).
Tri-National has significant holdings and real estate developments in other parts of Baja California, and though not directly involved with Punta Banda, recognized the need of those homeowners for additional support under the Mexican legal system to preserve their legal rights and fight the eviction. Consequently, Tri-National volunteered it's legal resources to attempt to stop the current eviction action, which according to it's legal counsel in Mexico will now be suspended until the case is reopened and reviewed, as the court order states, which could take up to 18 months. During that period it is believed that a solution can be forged which preserves the rights of all parties involved. Tri-National's attorneys believe that since the American homeowners purchased in ``good faith'', which is a key element under Mexican law, they should ultimately prevail and maintain their homes.
Lic. Bersain Gutierrez Zenteno, V.P. and Legal Counsel for Tri-National's Mexican Operations, said: ``It is important to recognize that U.S. title insurance, which is now available in Mexico, was not available to these homeowners when they contracted for their properties. They were also caught in a complicated battle involving third parties and issues outside their control, which we are working to help resolve. Now that U.S. title insurance and U.S. mortgage money is available to U.S. citizens purchasing real estate in Mexico, these types of problems can be avoided and allows purchases to be made safely and fully insured.''
This release contains forward-looking statements that involve risks and uncertainties. The Company's actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors.
FOR MORE INFORMATION SEE http://WWW.TRI-NATIONAL.COM
Tri-National Development Corp. is an international real estate development and management company.
The New York Times
October 26, 2000 Mexican Official Downplays Eviction
By THE ASSOCIATED PRESS
Filed at 12:32 a.m. ET
MEXICO CITY (AP) -- A top Mexican official said he expected
hundreds of American retirees to be able to remain in the homes they
built along the Baja California coast on disputed land, despite a court
order that the property be returned to its rightful owner.
Agrarian Reform Secretary Eduardo Robledo said that government
representatives would go to the Baja California port of Ensenada in the
next two weeks, not to evict the Americans, but to mark out boundaries
and formally hand over title of the land to its legal owner, a Mexican
``I sense they (the homeowners) will be able to reach new agreements
with the real owners. I see no reason why not,'' Robledo told a news
The Mexican Supreme Court on Monday threatened to oust Robledo if
he did not execute a long-standing order to return the land to its rightful
owners within 10 working days. On Tuesday, Robledo's department said
it would comply.
Robledo admitted that the Americans who built on plots leased from a
farm group, which was later found by courts not to be the legitimate
owner of the land, could be vulnerable to legal action by the original
Those owners could, after receiving title, go to a court to request eviction
But he stressed that in all five previous cases, where similar land
restitution orders had been enforced at Punta Banda, the owners had
negotiated new lease contracts which allowed the residents to stay.
He said he was under no legal obligation to inform either the farm group
or the American residents when he intended to act.
``I must return the land legally and materially. What happens after is a
matter for the new owners and the residents,'' Robledo said.
Any attempt at eviction is likely to draw protests from either the
Americans or the Mexican farm group, which blockaded roads leading to
Punta Banda on Wednesday to protest the handover.
The farmers said they would avoid violence but would maintain the
roadblock until authorities showed them documents that supported the
land claim, the government news agency Notimex reported
The dispute dates to 1973, when a presidential decree granted the farm
group ownership of an area bordering Punta Banda; land on the spit was
later wrongly drawn into their property grant on an official map in 1987.
But Robledo insisted that contrary to first impressions, the return of the
land to its original owners should increase the confidence of foreigners
thinking of investing along Mexico's coast.
``The message we are sending is that we are consolidating legal security
in land ownership. What foreign investors need is to feel the rule of law is
upheld,'' he said.
The court decision directly affects only 28 houses and a hotel, but is also
relevant to 500 to 600 residents -- most of them U.S. retirees -- who
built homes on Punta Banda, based on assurances from Mexican officials
at the time that their land-leases were legal.
Under Mexican law, foreigners are banned from owning property within
65 miles of the border or 35 miles of the coast, but about 60,000
Americans in Baja California have bought 50-year, renewable leases that
are held in a bank trust.
It appears that the leasing contracts between the Punta Banda American
residents and the farm group were less formal, leaving the retirees without
protection in the land dispute.
Thursday, October 26, 2000
LA TimesMexican Peasants Barricade Enclave in Baja CaliforniaDispute: Communal group resists recent court ruling evicting tenants on 250-acre land grant near Ensenada.
By: CHRIS KRAUL
TIMES STAFF WRITER
A peasant group in Baja California whose American tenants face eviction from their beachfront homes barricaded the enclave with earth berms and two dozen vehicles Wednesday and vowed to resist the imminent takeover of the property by federal officials.
In an increasingly tense dispute, leaders of the communal group Ejido Coronel Esteban Cantu said they would not surrender the 250-acre site to the government without further negotiations.
"We're waiting for them. We aren't going anywhere," president Ramiro Moreno Quintero said. He said the 98 members of the peasant group, or ejido, have requested a meeting with government officials to show new documentary proof of its claim to the site. Without such a meeting, the ejido won't budge, Moreno said.
The land was confiscated from its original owners and given to the ejido in a 1973 presidential decree. The ejido subsequently leased lots to Americans, mostly Californians, who built some 200 homes about 85 miles south of the U.S.-Mexico border near Ensenada.
There have been ongoing title challenges throughout Mexico involving ejidos, most of which don't involve Americans or other tenants. The government says about 248 such cases remain unresolved out of about 5,200.
Some challenges are from within the ejidos, by ejido members who have newly defined rights to pieces of the communal properties, and from outside, by original owners whose lands were confiscated to provide the ejido land grants.
In the Ensenada case, the original owners have prevailed in government proceedings, leading to an eviction order last year aimed at the American residents. When federal officials attempted to evict them, ejido leaders blocked access.
On Monday, the Mexican Supreme Court ordered the federal Agrarian Reform Ministry to enforce the 1999 eviction order within 10 days or be fired from their jobs.
Meanwhile, U.S. Embassy officials in Mexico City said Wednesday there is nothing they can do to help about 200 homeowners caught in the dispute.
They remained in limbo and have not been notified of a date or time when they are to be removed, by force if necessary, from the development on Punta Banda. Their case has become an object lesson in the hazards of investing in Mexican real estate and the powerlessness Americans have in foreign legal systems.
"We're really being shafted by the Mexican government. They are the ones who put us in there, and we have documentation that everything was legal and so forth," said West Hills attorney B.J. Adams, a 13-year resident of Punta Banda who owns a $500,000 house there.
In Mexico City, Agrarian Reform Secretary Eduardo Robledo said the government is under no obligation to inform the residents when the evictions will take place. He said the government is organizing an eviction force that includes municipal, state and federal police.
The evictions will apparently come in stages, with the first to include the 100-room Baja Beach and Tennis Club hotel and 23 surrounding homes, which are to be taken over and returned to a partnership of the original owners called Purua Punta Estero SA.
Several residents have been trying to negotiate individually with original land owners to remain on the property. Robledo said that is the only way residents would be able to stay. But most of the original owners are said to want to redevelop the site.
Gerardo Limon, a Mexico City attorney and Purua Punta Estero investor, said Wednesday that he expects the evictions to take place Nov. 1 or 2, which would be at the end of the 10-day deadline set by the court. But the residents say they have yet to be informed.
U.S. Embassy spokesman Steve Morisseau in Mexico City said efforts by the U.S. government to foster a solution to the problem have come to naught.
"Our efforts have been to encourage the parties involved to reach an amicable agreement. We have no role as mediator," Morisseau said. "My understanding is that, at this time, no agreement has been reached."
A knowledgeable source said the government can intercede formally only when Americans are targeted unfairly in foreign countries or when U.S. citizens are the victims of law violations. "I have heard no one say that Mexican laws have been violated or that Americans have been targeted in this case," the source said.
Jorge A. Vargas, professor at University of San Diego School of Law, said the case is particularly troublesome because the Americans seemed to have been prudent in their dealings.
"There is nothing the American residents can do once the Supreme Court has decided. The decision is final, definite and unappealable and must be enforced," Vargas said.
But Tijuana attorney Dennis Peyton, who represents 23 of the homeowners, said he plans to file an action under provisions of the North American Free Trade Agreement claiming "unfair non-reciprocal treatment and lack of due process."
"I hope that by filing the action, the Mexican government will stay the evictions," Peyton said.
From the Los Angeles Times - http://www.latimes.com
Friday, September 3, 1999"Americans Face Eviction From Baja Resort Homes;
Mexico: 150 homeowners, many of them California retirees, are caught up in a complex land grant dispute.;"
By: CHRIS KRAUL
TIMES STAFF WRITER
"In a hard-luck case that illustrates the perils of owning Mexican real estate, about 150 Baja California homeowners, most of them U.S. citizens from Southern California, face mass eviction on Oct. 11 from a picturesque beachfront development just south of here, homes in which many have invested their life savings.
The looming evictions at the surf-side community known as Punta Banda, 85 miles south of the U.S.-Mexico border, provide a wrenching example of how life in Mexico can turn risky or even tragic. U.S. tourists are increasingly caught up in a wave of carjackings and kidnappings sweeping Mexico, and just last month three U.S. residents in Baja California were slain in separate robbery incidents.
The pending loss of the Punta Banda homes, ranging in value from $50,000 to upward of $1 million each, is a cautionary tale for Americans who are thinking about buying permanent or vacation residences in Mexico.
It should also cause the estimated 63,000 Americans who already own property in Baja California to reflect on how ownership can be like the shifting white sands of the beaches here, and how powerless U.S. authorities are to intervene when disputes arise.
While foreign residents cannot own Mexican land within 65 miles of the U.S. border or 35 miles of the Mexican coastline, they can lease and build on land in those areas for terms of up to 50 years, owning the improvements.
That loophole has spawned an invasion of U.S. citizens in recent years, many of them retirees, attracted to the inexpensive, carefree Baja lifestyle.
The sheer numbers of U.S. buyers make property disputes inevitable, especially when naive or careless U.S. investors collide with unscrupulous Mexican developers and fly-by-night U.S. marketers, as is sometimes the case in south-of-the-border real estate deals.
So, if the 150 Punta Banda homeowners are evicted from their homes next month, they would not be the first Americans to lose their shirts in Mexico. $25 Million Worth of Property at Stake
But the scheduled action could rank as Mexico's largest single eviction of U.S. homeowners on record, with about $25 million worth of property involved.
It certainly would stand as one of the most heart-rending, since many of those facing eviction are elderly retirees with no other place to call home.
"We wouldn't have enough to buy another house if we lose this," said Alejandro Sanchez, 67, a retired Yuma, Ariz., bank executive who lives at Punta Banda full time. He was one of 40 homeowners who attended a meeting with an attorney at the development Wednesday to discuss their options. "We put most of our money into this."
The crux of the case is the Mexican federal government's practice of making land grants, called ejidos, to peasant and indigenous groups, which accelerated in the 1960s and '70s.
But those grants are now the focus of many legal challenges from outsiders claiming ownership, and from within by ejido members who claim their rights have been abused.
The residents of Punta Banda, whose houses are built on a disputed ejido, are caught in the middle.
"Ejidos are in a legal state of flux so it's very risky for anyone to invest in one," said Jorge A. Vargas, a professor at the University of San Diego School of Law. "A serious problem all have is the validity of the land title, because there were in many cases fraudulent transactions, inadequate registrations and collective claims. It's a very complicated situation involving many actors."
The government created the 250-acre Ejido Colonia Esteban Cantu in 1973 on a sandbar known as Punta Estero peninsula, which was once an isolated and unpopulated beach haven known only to fishermen, campers and surfers.
By the late 1980s, the 80 ejidatarios, as members of the communal ownership group are called, had leased most of the peninsula to Americans looking for a piece of paradise in laid-back Baja.
Ensenada developer Carlos Teran acquired rights to build the Baja Beach & Tennis Club and dozens of surrounding home sites that Americans found appealing.
But seven original landowners filed suit in 1987 challenging the legality of the ejido, saying it had been illegally formed. In 1996, the Mexican Supreme Court concurred with the original owners and ruled that the developers who sold the home sites never had legal title to the ground. Eviction Notices Arrive From Court
It took until last week for the court to issue eviction notices. While most of the residents knew of the property dispute, most were hoping that somehow they would be allowed to stay.
Now, with the Oct. 11 eviction deadline looming, many Americans here admit to having been in a state of denial and are confused about what to do next.
"To have us sitting here with our stomachs in a knot, not knowing what will happen next, it's so mentally confusing that people, myself included, are walking around in a daze," said Grant Hoel, 78, a San Juan Capistrano retiree who has owned a house here since 1996.
"I feel terrible, haven't slept for weeks now, worried about this whole situation," said Marcel Boussala, 72, a retired real estate developer from Los Angeles who stands to lose the $600,000 he has invested in a home and three lots. "There are so many people who have nothing except these homes."
With the Mexican high court's verdict apparently the final word, homeowners are torn between whether to stay on their property until the bitter end or to continue their legal battle.
They are confused by the conflicting legal advice and by the always byzantine Mexican legal system.
At the homeowners meeting this week, Ensenada attorney Rosamaria Sandez urged the homeowners to hire her to file another injunction that she said could stall the evictions for several months.
She also said that residents are entitled by Mexican law to receive "fair value" for their homes before eviction.
But Ensenada attorney Carlos Mendoza, the official notary whose job it was to deliver the eviction notices, had a different take, saying that the homeowners' seeking an injunction would be futile because a Supreme Court ruling cannot be stayed.
And the landowners have no obligation to pay the residents because there is no "contract" obliging them to do so, Mendoza said.
Like many of Punta Banda's residents, Joe Maruca, superintendent of the Imperial Unified School District in El Centro, never thought it would come to this.
He will retire from his post this month and was planning to spend his golden years at the Mexican beach house, for which he paid $80,000 cash in 1996. Now, he says, he's "sitting here holding the bag."
"We thought somehow the Mexican government would make U.S. investors whole, since the ejido was a federal project," said Maruca.
"I don't think anyone has any idea of what to do," he said. "I haven't the slightest idea with whom to cut a deal. We don't know who to hire to do what and against whom.""
October 27, 2000EXCLUSIVETHE STORY BEHIND THE PUNTA BANDA STORY:
A MEXICAN LAND SCANDAL.
October 27, 2000Part I - Punta Banda, Ensenada, Baja California: A Mexican land scandal.
Baja Beach and Tennis Club owner sues Mexican government.
By Patrick Osio, Jr.
The Mexican Supreme Court has held against residents, most of them retired American expatriates, in a section of Punta Banda within the municipality of Ensenada, Baja California ordering their eviction. The court ruled that though the residents had entered into land-use-trusts or lease agreements in good faith, those with whom they entered into those contracts were not the legal owners of the land and thus the property rights of the lawful owners take precedence over the residents rights of occupancy.
The developers of the land with whom residents entered into contract, and either leased or built homes on those properties it would seem, are guilty of a shameful real estate scam.
But are they? Or were they victimized by a cabinet level Secretariat in the Mexican Federal government, and the ejido from whom they contracted for the rights to develop the site at considerable cost and investment?
A civil suit was filed on behalf of two enterprises, one operating the Baja Beach and Tennis Club (BBTC) and the other the residential developer surrounding the BBTC in the Punta Banda zone. Named as defendants are the (Federal) Secretaria de la Reforma Agraria (Secretary of Agrarian Reform), and the Ejido Coronel Esteban Cantu, the farming commune from whom the land was obtained for the BBTC and residential development.
The civil suit seeks payment for the value of two land parcels, which make up the BBTC land and the residential development, as well as their improvements. The second demand for money is for the improvements to the land and infrastructure including roads. The third demand includes costs and damages caused by the acts and omissions of the defendants. And the last demand is for court costs and attorney's fees incurred by the plaintiffs.
A copy obtained by HispanicVista.Com of the civil suit signed on December 9, 1999, by Carlos Teran del Rio, as the Sole Administrator of GRUPO KOSTER, S.A. DE C.V., and of HOTELERA PUNTA ESTERO, S.A. DE C.V., and filed with the Tenth Circuit Court for Baja California in Ensenada, alleges in detail how the two enterprises and resulting subsequent clients were victimized by the two defendants.
Though the documents filed with the court are a one sided presentation of facts as interpreted by the plaintiffs, sufficient supporting documentation is presented with dates and names. Government letters and documents are further identified with the official number given to every letter and/or document originating or received by each of the government offices, as mandated by the government for filing and easy tracking.
The court documents detail how in 1986, Dr. Ulises Lanestosa Zurita then Director General of Agrarian Promotions for the Secretary of Agrarian Reform, invited Carlos Teran del Rio as representative of Koster to investigate a number of opportunities for investment in lands forming part of farming communes (ejidos) not usable for agricultural purposes, but deemed usable for tourist related development.
According to Teran, the invitation was extended because of his previous experience in another agrarian project within what is now the municipality of Rosarito, in those days a part of the Tijuana municipality. There Teran invested and developed within Ejido Mazatlan the Quinta Chica hotel.
Teran was presented with various potential projects, from which after deliberation, he selected the one meeting parameters for successful tourist related development. The property measuring approximately 160 hectares (395 acres) is known as "Lengueta arenosa de Punta Estero," also known as "Medanos de Punta Banda." The acreage is located in the zone known as Punta Banda in the Delegacion Municipal de Maneadero, Municipio de Ensenada. (Municipal District Maneadero within the city/county of Ensenada).
The representations made to Teran by the Agrarian office were that the acreage formed part of the Ejido Coronel Esteban Cantu. In fact, according to Teran, he was presented with property boundary and topographical maps showing the property within the limits of the ejido.
The acreage was described, as a long arm penetrating into the sea providing the formation of the Estereo de Punta Banda that is today an important ecological preserve. The locale was abandoned and completely desolated, without infrastructure or vegetation, and its only structure was the ruins of a massive half-constructed building (originally destined to be a hotel, construction came to an abrupt and unexplained halt in the early 1960s).
Administrators of the Ejido and personnel of the Secretary of Agrarian Reform provided documentation on the legal land boundaries.
Originally, the Ejido was legally recognized by the then Governor of Baja California making up 10,110.10 hectares (24,981.81 acres). This was modified by the President of Mexico, Luis Echeverria Alvarez, extending the Ejido holdings to 15,005 hectares (37,077.355 acres) on August 30, 1973 and making it official by the publication of the modification in the Diario Oficial de la Federacion (Federation's Daily Gazette) on November 17, 1973.
The boundaries allocated to the Ejido were apparently determined by the Agrarian Consultant Corps on August 17, 1973, and were consistent in showing the parcel "Lengueta Arenosa de Punta Estero" as part of the Ejido land. (The majority of the Ejido's acreage is located south of a two-lane road intersecting the land from Punta Banda.)
Teran further details that on August 24, 1987, the Ejido was given the executed Presidential Resolution donating the land to the Ejido Coronel Esteban Cantu. The Resolution has detailed topographical and land boundary maps. These include on site entries and measurements marking all property boundaries by the civil engineer commissioned by the Secretary of Agrarian Reform. Here again the "Lengueta Arenosa de Punta Estero" was included as part of the Ejido holdings.
The administrators and other ejido members were present at the public presentation of the Presidential Resolution donating the lands to the Ejido. After the ceremony the Head of the Ejido Committee related his satisfaction for the work that had been done, and with that let it be known that they were aware of the engineering records indicating the boundaries of their Ejido holdings.
The Ejido represented to Teran that the parcels he was invited to investigate for possible tourist related development were part of their holdings. He was also told that there were no liens or land disputes connected to those parcels. In support, Teran was given a certificate executed by the Registrar of Property showing that as of the 23rd of July 1981, which showed no liens or disputes on the land.
In addition, Teran was provided with letters from Armando Fierro Encinas, Adolfo Espinoza Garcia and Ing. Francisco I. Montijo Grijalva, all officials of the Baja California State's Secretary of Agrarian Reform each letter containing an identical paragraph reading:
"….. TO WHOM IT MAY CONCERN: It is attested to those who may have an interest in Presidential Resolution of August 30, 1973, and the land maps approved by the Agrarian Consultant Corps dated August 17, 1973, that for the benefit of the Ejido Coronel Esteban Cantu, Municipality of Ensenada of this federal entity, that among other parcels those known as the "Lenguete Arenosa de Punta Estero" are included……"
Teran went through great pains in his court documents in itemizing his case against the Ejido and the Secreatary of Agrarian Reform to show that since the inception of the invitation to invest in those parcels, he was given every assurance that the land belonged to the Ejido, and that there were no liens or disputes as to ownership.
Teran then relates how after numerous meetings, trips to Mexico City, Mexicali the capital of Baja California, and other places, on August 26, 1986, his enterprise signed the first of two contracts with the Ejido. The contract before its execution was approved by the Ejido general assembly on July 22, 1986.
The contract was signed by the Ejido Commissioners on behalf of the Ejido, by Teran on behalf of his company, and witnessed by Ing. Ruben Huerta Gallegos, an Agrarian Delegate in the State of Baja California, and by Ing. Celestino Salcedo Monteon, the Secretary General of the League of Communities and Agricultural Syndicates in the State of Baja California.
Teran reiterates that all the assurances regarding the inclusion of the land under the contract were included as part of the contract and that the contract met all the legal requirements imposed by Mexican laws in such matters.
The first contract included the usage of 18 hectares (44.48 acres) for a period of 30 years. The contract allowed the start of construction, the drilling for water and construction of an aqueduct, a sewage treatment plant and usage of the reclaimed water for landscape irrigation (with permits from proper authorities), electrical power plant, an airplane landing strip, ingress and egress roads, and the development of a marina, were some of the items mentioned by the court documents. All improvements were at the expense of Teran's enterprise.
The third clause in the contract authorized the creation of a trust for the land for a period of 30 years. (The court documents did not address what would occur thereafter.)
The seventeenth clause stipulated that the Ejido was delivering the land free of all encumbrances, disputes or any other problem.
From the Teran court documents, assumptions may be made that the Ejido was not aware that the land was not a part of their holdings, and they too were victimized by the Agrarian department. Though conceivable, one must ask what motive there would be for victimizing those whose obligation it is to protect and help, and outside investors? As in most cases of fraud, there is an economic gain at stake by one or more parties. More Americans evicted in Baja as hope dwindles
By Anna Cearley
UNION-TRIBUNE STAFF WRITER
November 1, 2000
PUNTA BANDA -- The future of this scenic seaside neighborhood and the hundreds of Americans who built their homes here now lies squarely in the hands of the land's new owners.
At noon yesterday the last of the eviction notices were taped to the doors of the houses while crammed moving vans rumbled along the dirt roadways. Since Monday, the Agrarian Reform Ministry, supported by hundreds of Mexican police, had been carrying out a Supreme Court order that returned the land to its original owners.
Clint Wright, a spokesman with the U.S. Consulate in Tijuana, said that because of its scope and drama, the Punta Banda land dispute had stirred up concerns about foreign ownership of land in Mexico that go far beyond the fate of the homeowners here.
Read this entire story in The San Diego Union Tribune.
Note from The Timeshare Beat: this story is timeshare related in that the Baja Beach and Tennis Club, where timeshare was sold, is located on the contested land and has been turned over to the new owners along with the rest of the properties.
November 3, 2000 Punta Banda: Background notes and update.
Numerous readers requested HispanicVista provide some background on the Punta Banda land problem faced by Americans who entered into land lease or right to use contracts on the site. Background.
Punta Banda is a small peninsula consisting of approximately 70 hectares (172.97 acres) within the municipality of Ensenada. In Mexico, municipalities describe both a city and equivalent of a county. Ensenada is, thus, both. Punta Banda is located south of the Port of Ensenada (about 85 miles south of the US border on the road to La Bufadora, a well known ocean water spout popular with tourist and locals.
The Punta Banda land juts out north from the road creating a peninsula in the Todos Santos Bay with Pacific Ocean frontage on the west side, and frontage on the Estero Lagoon on the east side. The parcel is also known by a number of other names, but Punta Banda is the predominant.
The Ejido Coronel Esteban Cantu is a farming commune. Mexico created such communes as a way to provide land to families who would in turn work the land. The ejido land is under the protection of the Secretaria de la Reforma Agriaria (SRA). When first established, ejido land could not be sold or in any way be encumbered. The individual communes could enter into contracts for land usage by third parties, but such contracts needed to be approved by the SRA.
The Ejido Coronel Esteban Cantu was established in 1973, by Presidential decree. The land provided was originally over 10,000 hectares, later changed to 15,005 hectares (37,077.355 acres). The Ejido claims the land in Punta Banda is part of the ejido land grant. In support, they have the SRA's written assurances and engineering calculations provided by the SRA, which indicate the land is part of the ejido.
On August 26, 1986, Grupo Koster, S.A. de C.V. entered into the first of two contracts with Ejido Coronel Esteban Cantu for the development of 18 hectares (44.478 acres). Koster would build on and offsite improvements and a hotel with numerous amenities plus a residential subdivision. The project was called "Baja Beach & Tennis Club." Both the Ejido general assembly and the SRA approved the contract.
On April 10, 1988, Koster, and Hotelera Punta Estero, S.A. de C.V., a marketing company created and controlled by Koster, entered into a joint-venture contract with the Ejido for the development of an additional 52 hectares (128.492 acres) in Punta Banda. This area would contain 143 individual condominiums and additional housing.
The Ejido general assembly and the SRA also approved this contract with some changes.
Marketing was geared towards Americans wishing to either retire full time or wanting a second vacation home. Approximately 300 Americans entered into contracts over a period from the late 1980s through 1995.Events.
In 1987, eight different parties filed a legal suit in Tijuana claiming ownership of parcels covering most of the land within Punta Banda. Carlos Teran del Rio, General Director of Grupo Koster and Hotelera Punta Estero, claims that he was given assurances by the SRA that the suits had no merit, and for his companies to continue with their investment and marketing plans, which they did.
In February 1991, Bancomer resigned as the fiduciary trustee nullifying the land-trust under which foreigners could have possession of land within Mexico's "forbidden zone" (approximately 35 miles from any ocean coast).
In March1991, a Mexican federal district court held in favor of the claimants. This was appealed.
In December 1991, the equivalent of an Appellate court upheld the district court's decision in favor of the plaintiffs. Appeals were filed.
During 1994 and 1995, the court upheld the lower court's decision.
In 1999, the Supreme Court upheld the lower courts and ordered the return of the land to the plaintiffs.
On October 1999, the SRA notified American residents that they had to vacate, but did not enforce the court's ruling.
On December 1999, Grupo Koster, and Hotelera Punta Estero filed suit for loss of investment, revenues and other damages against the SRA and Ejido Coronel Esteban Cantu. (Case is pending. Papers filed are used as the basis for these articles.)
On December 27, 1999, the SRA issues a press release announcing that the Ejido has established a working group with the three levels of government (municipal, state and federal) to bring resolution to the problem.
October 23, 2000, the Supreme Court gives the Secretary of the SRA 10 days to comply with the eviction and return of the land to the rightful owners or face removal from office.
October 30, 2000, federal officers reinforced with local police take possession of disputed land. Evictions begin.
October 31, 2000, 200 American investors on Punta Banda property file legal suit in the Tijuana court against Grupo Koster and the SRA seeking $75 million in damages.
Copyright © Hispanicvista.com, Inc. 2000
November 17th, 2001ARTICLE - Punta Banda Dilemma, and other issues revisited
BAJA INFORMATION UPDATETHE REAL FACTS YOU NEED TO KNOW
BY RICK SIEMAN
There have been some frightening headlines lately regarding Baja. The big one has been about the people losing their homes in Punta Banda and the other eyeball-snapper was about the un-insured American who had a traffic accident and was held for 18 hours. I've read the headlines in the US papers about both things, and have watched the TV news and heard much about these things on the radio, as well. Much of what I've heard has been completely wrong, and the media people reporting it were uninformed. Recently, I spent a considerable amount of time with a Mexican business professional friend of mine, helping him prepare a newsletter for his insurance customers. In the process, we explored Mexican law to a great extent, spent time with various Baja agencies and officials and got some real facts. So, if you want to learn something, read on. Be warned, much of what you will read will be on the "dry" side, but this piece is designed to inform, not entertain. THE PUNTA BANDA HOME NIGHTMARE
About 300 Americans living in Punta Banda ( a beachside community just south of Ensenada) are having huge problems. They're being evicted from their homes, and are screaming long and loud for justice. When I first heard about the situation, it sounded bad. Further investigation revealed some alarming facts. First off, for those who don't know, I've lived in Baja for 6 ½ years. I have purchased three homes and sold two, with no problems whatsoever. The reason my purchases (and sales) were no problem, is that I found out what was required (by Mexican law) to acquire property without a hassle. Before I even looked for a home in Baja, I spent an hour with an American who was a Mexican lawyer. The cost was $100. I then spent an hour with a good Mexican attorney, who verified what I had been told by the first attorney. They cost was $20. All told, time and money well spent.
THE FEDERAL ZONE
You've heard that no Americans can own beachfront property in Mexico. Guess what? No one - including Mexican citizens - can own land in the Federal Zone. The Zone is the land that is 20 meters from mean-average high tide; about 66 feet. In other words, if you drew a line in the sand where the average high tide was, and then took another measurement 20 meters back from that, all that land cannot be owned by anyone - period. You can, however, use the land for a guaranteed period of time with a Federal Zone Concession. It will cost you an application and processing fee, a monthly fee, and a renewal fee whenever the term for the Concession has expired. The average fee will be between $3500 and $5000 and will depend on the amount of land. The average monthly fee will be about $70 every two months. The reason I know about Federal Zone Concessions is that part of my first house was right on a cliff over-looking the ocean, and allegedly in the Federal Zone. Allegedly? Well, in 1994 (could be wrong on the year?) a little known law was passed that exempted property from the Federal Zone if the land was on an angle - or cliff - more than about 30 degrees. The reasoning was that you could not reasonably be expected to utilize land on a steep cliff. This ruling had no effect whatsoever on people whose land was on a normal flat beach. In fact, many homes in Baja are split on both normal land and Federal Zone land.
LAND OWNERSHIP AND BANK TRUSTS
No foreigner can own land in Mexico (corporations excepted) that's within approximately 30 miles from the border, or the coastline. To get around this barrier, Mexico has come up with a Bank Trust. Here's how it works:
You select the property you want and contact a Mexican bank.
They do all the paper work (with the help of a notary publico) and make sure the title to the property is free and clear, with no leins or encumberances.
They charge you a one-time fee for the trust, which varies, depending on the value of the property.
Figure about $4000 for a nice house.
There's a yearly fee of about $250 to $300 to maintain the trust.
You get a title called a Fidecomiso that is a legal binding document.
The bank is the registered owner and you are the beneficiary of the property. You can live in it, or sell it, or even rent it out if you want.
You get all the benefits.
The Trust is good for 50 years, and is easily renewable for another 50, and another after that.
You can leave the house to your kids (or anybody else) if you die.
You are protected with a bank trust and people do not lose their homes when they have a bank trust.
In effect, the responsibility for a clean hassle-free title (trust) is with the bank. It's up to them and that's what they charge you for.
This is the way to acquire property in Baja.
NOW, THE WRONG WAY!
The worst way to acquire property in Baja is to rent it.
The next worst way is to lease it.
The longest a lease is legal in Mexico is one day less than ten years.
Any lease longer than ten years is illegal and does not have to be honored.
All the stuff you've heard over the years about 33-year and 99-year leases is simply not valid. Sure, people have made deals over the years with Mexican landowners for ultra-long leases and have had no problems. It's because they were dealing with an honorable person who lived up to the lease. However, you must be aware that the long-term leases are no more binding than a hand-shake.
If you rent or buy land in Mexico, you must have some sort of a resident permit, normally an FM-3.
Therefore, even if you bought land and then let your FM-3 expire, you lose your right to that land until you renew it.
SO WHAT HAPPENED IN PUNTA BANDA?
The people who bought (?) the land in Punta Banda violated nearly every rule I just pointed out. Not one of them acquired a Bank Trust! In addition, they did the following:
Many of them rented land, then built homes on that land.
Many of them signed long-term leases.
It was common knowledge that the land they "acquired" was in dispute, and had been in dispute for a very long time. One family had a legal claim to the land, yet the land had been give to an "ejido" (workers cooperative) group.
Why anyone would build a home on leased or rented land, knowing that the courts were fighting over the ownership, puzzles me greatly.
In fact, one former US attorney, retired, rented a lot in Punta Banda, built a home on the lot, and is now complaining that the real land owners want him to leave the rented lot so they can sell it. The court recently decided on the rightful owners.
These people "acquired" the land at a really low cost. That's how they got sucked in on the deal.
The price was just too good to turn down.
Some of them put a fortune into building a home on rented lots with illegal leases.
While I feel genuinely sorry for the plight of these people, they didn't do their homework when coming to a foreign country. And now they're paying the price. Would they use this approach if they retired to Germany, or France, or Italy? Think about it. You're moving to a foreign country to live and you do not take the time to learn what you need to know! In the US, no one would think about even buying a car without getting a clear title, and these folks built luxury homes on rented and leased lots.
WHAT WILL HAPPEN?
Right now, a few of the Punta Banda residents have simply given up and left. Others are fighting the authorities who want them to leave. No one has been forcibly removed as of this date, which shows amazing patience from the Mexican government. The incident is already generating ugly press, and they don't want to provoke any more. The rightful land owners say they are willing to work out some kind of a deal, but details are fuzzy on this. The Punta Banda group is asking the US government to intervene for them. Consider this: What if you bought a boat in Mexico without a title, and then the real owner found out that you had his stolen boat and wanted it back? Would you ask the US government to help you out of this predicament? I'll post more on this situation as things develop.