Mexico´s beaches (federal maritime zone)

Mexico’s beaches are known as the “Federal Maritime Zone”. If you are thinking of buying property on the beach in Mexico, it is a good idea to understand what the Federal Maritime Zone is. This article will explain what the Federal Maritime Zone is, how it is measured and also go over some of the current legal and practical issues that are present today.

By DAVID W. CONNELL

 

_____________________________________________________________________________________________________________________

 

The Federal Maritime Zone is legally described as the 20 meter wide strip of land that is transitable and next to the beach (playa mar)”. Let’s break this down to make sure we are clear on what we are talking about:

1.- The Federal Maritime Zone is 20 meters wide. There are several types of Federal Zone. This article is only making reference to the Federal MARITIME Zone.

2.- It must be “transitable” land. We will explain what this means further on.

3.- It is measured from what the law considers a “beach”.

            First let’s look at where the 20 meters is measured from and what the legal description of “beach”is.  The law describes a “beach” (or what is called “Playa Mar”) as the land that is “covered and uncovered by the tides”, making the high tide mark the upper limit of the “beach”. For the effects of measuring the 20 meters of the Federal Maritime Zone the law says to use the “mean” or average high tide mark as the starting point to measure. The problem is that the “average” high tide is not a fixed point.

Any person that has ever lived on a beach knows that tides vary greatly. Which high tide mark is the “average” one? To add to this problem we have the fact that the high and low tide lines are greatly dependant on the amount of sand or sediment on the beach. Again we are faced with a “starting point” that is a moving target. We have dealt with cases where the physical high tide mark in the sand has moved more than 50 meters (over ½ a football field). We have also had cases where the sand disappears due to a storm and the high tide mark has met or encroached into the property line.

Since locating the “average” high tide mark present certain difficulties, the government now has maps of where they “consider” they Federal Maritime Zone to be located. These maps are a representation of UTM (Universal Transverse Mercator) coordinates and are available to the public in the offices of SEMARNAT (Ministry of the Environment and Natural Resources). Any surveyor you hire to locate the Federal Maritime Zone next to your property MUST BE USING THESE MAPS AS REFERENCE. If your surveyor does not express UTM coordinates from these maps, he is not doing his job correctly.

            MAJOR NOTE.- These UTM coordinates and maps in MANY CASES ARE EXTREMELY INCORRECT. Yes I did say “incorrect”. How bad are some of the mistakes? I have seen cases where the location of the Federal Maritime Zone is a good 100 meters (over a football field) off.

            Some authorities will tell you that these UTM coordinates and maps are the “official location” of the Federal Maritime Zone, but the rules pertaining to these UTM coordinates and maps only categorize them as “references” to the location of the Federal Maritime Zone. So if you think the map of the Federal Maritime Zone that correspond to your land are wrong, you have two legal options:

  1. Have SEMARNAT send a Verification Unit (group of appointed experts) to your property to verify that the UTM coordinates and maps are right or wrong. At the present time this is not really an option because there are no Verification Units. This was an option created under the law but until Semarnat creates these Verification Units, it really is not an option.
  2. File a legal claim that the UTM coordinates and maps are wrong. When you do this you need to have an expert in the field give an opinion as to: 1) How the Federal Maritime Zone is determined based on the law, 2) How it applies to your property and 3) What errors exist in the UTM coordinate and maps of Semarnat. If there is a clearly visible error in the UTM coordinates and maps of Semarnat (and you have competent legal counsel), you will win this action.

Ok we have gone over what a “beach” is and the issues of where the 20 meters of the Federal Maritime Zone should start to be measured from. Now we need to look at the other party of the definition of the Federal Maritime Zone and understand what “transitable” means. We need to remember that the definition of the Federal Maritime Zone says that it is a 20 meter wide strip of “transitable” land measured from the high tide mark inland. Unfortunately the law did not specifically give us a definition of the word“transitable” but it did give us some guidelines.

            To get the general understanding of what “transitable” means, we first need to look at how a dictionary defines this word. In accordance with the dictionary of the Real Academia Espanola, “transitable” (the Spanish word “transitable”) is defined as: “a place for which you can pass from one area to another”. In short an area you can “transit” or move across.

            So would a nice sandy beach be considered “transitable”? Of course it is. We all take walks on the beach. But what about a cliff area or rocky shore – is this considered “transitable”? The answer is “no” and this concept is backed up Article 4 of the Rules to the Use and Enjoyment of the Federal Maritime Zone, which states:

“Article 4.- The Federal Maritime Zone will be only determined in areas in which on a horizontal plane the angle of inclination is of 30 degrees or less.”

“In those areas that do not have beaches and where rocky or cliff formation are present, the Secretary (SEMARNAT) will determine the federal maritime land zone within the stretch of land next to the ocean, only when the inclination of such stretch is of 30 degrees or less in a continuous manner…”

            Article 4 is pretty clear in stating that there is ONLY a Federal Maritime Zone when the land directly adjacent to the high tide mark has an angle of inclination of LESS THAN 30 DEGREES.

            Please take into consideration that this 30 degree rule has only been around since 1991 and is often ignored by those who measure the Federal Maritime Zone. As a matter of fact the rules regarding how to measure the Federal Maritime Zone do not even make reference to the 30 degree rule. When I asked a very senior staff of SEMARNAT why the rules of measuring the Federal Maritime Zone did not mention anything regarding the 30 degree rule, I was told that there is no point in mentioning the 30 degree rule in the “regulations for measuring the Federal Maritime Zone” because if the land is of a 30 degree angle or more, there is no Federal Maritime Zone and therefore no need to establish a rule on how to measure something that does not exist. Fair enough but in practice there needs to be some rule are to how the 30 degrees is calculated or not calculated. Right now we are just stuck with the rule that says “if the angle is over 30 degrees, there is not Federal Maritime Zone”.

For this reason too often the authority argues that the Federal Maritime Zone is 20 meters, without exception – not even recognizing the existence of the 30 degree rule and the exception it creates. The fact of the matter is that the 30 degree rule does exist and must be respected by the authority.

Too often the authorities claim that houses and properties on cliffs are in the Federal Maritime Zone “because they are within 20 meters of the high tide mark”. In accordance with this 30 degree rule this is NOT THE CASE and is a very defendable argument. 

            There is talk of the government modifying the 30 degree rule so that this area would still be considered a type of Federal Zone, but as of the date of this article, nothing has changed Article 4 of the rules above mentioned and the 30 degree rule it establishes.

So to summarize: 1) the Federal Maritime Zone is 20 meters wide; 2) it is measured from the high tide mark (which in itself is a moving target and debatable); and 3) in areas where the slope of the land is over 30 degrees, currently there is no Federal Maritime Zone per Article 4 of the rules of the Federal Maritime Zone.

            Everyone who has ever thought of buying or has bought beachfront property knows how expensive it is. When you invest in that beach front property in Mexico, do not only make sure the title to the land is in order, also make sure you find out who has the rights or “concession” to the Federal Maritime Zone (beach) in front of you. Having a taco stand or beach massage parlor go up in your million dollar view hurts and can be avoided by understanding your rights to the Federal Maritime Zone and making sure the property you own has the exclusive rights to this zone.

            As a final note, I have put together the answers to some of the most commonly asked questions we get regarding the Federal Maritime Zone. Please let me know if you have any further questions or comments regarding this article.

1.- Can the Federal Maritime Zone be less than 20 meters wide? Yes, but the cases are very rare. 

2.- Do the rights of the Federal Maritime Zone pass automatically with the transfer of title to the property next to them? No, the government (SEMARNAT) has to approve the transfer and the process takes several months. Do not expect a seller to make closing contingent on the finalization of the transfer of the Federal Zone, however there are ways to insure that your rights are protected to this area prior to a transfer being made.

3.- If my lot line is not perpendicular to the Federal Maritime Zone, how do I measure the 20 meters; perpendicularly to the high tide line? Or do I just continue my lot line out until it hits the Federal Maritime Zone limit? This is a major issue and there is no official opinion, however the criteria that we have seen the courts and authority up-hold (in the majority of cases) is the theory of “equitable division” where the rights you have to the Federal Zone are those that are perpendicular to your beach front property line and NOT the continuance of your lot lines. Please see the following insert to better understand this point. 

4.- Can I build in the Federal Maritime Zone?  Building in the Federal Maritime Zone can be done as long as the proper Environmental Impact Studies are done, approved and any conditions that such approval are subject to are properly observed. Never attempt or allow anyone to convince you that you can build in the Federal Maritime Zone and LATER acquire your permits. Building in the Federal Maritime Zone is a Federal Crime if you do not have the correct permits to do so.

5.- What happens if I bought a property and later found out that part of the construction was in the Federal Maritime Zone? Always make sure that when you buy beach front property your appraisal and deed contains pictures of what the beach side of the property looks like. If you are unaware of the encroachment of the construction in the Federal Zone and you have pictures of what the property looked like when you bought it as part of your notarized and registered deed, the authority could attempt to fine you but you are not legally responsible for the encroachment and corresponding fines. You will however be obligated to regularize the Federal Zone by getting the corresponding concession.

6.- What happens if the authority tells me that my construction is invading the Federal Zone? The authority must notify you in writing of the encroachment and properly document it. If they do not notify you in writing, they are not doing their job properly. Second thing is that you need to get an independent surveyor that does Federal Maritime Zone surveys and get him or her to give you an opinion. Make sure that you get an expert in the area and that they give you a written, signed and dated opinion and survey, which contain photos and physical markers on the land and of the survey. If you verify that your construction is within the Federal Maritime Zone, you need to get a concession for that area which includes the construction.

7.- Do I have a legal obligation to get the concession for the Federal Maritime Zone in front of my property? No you do not, but it is recommended as it protects your interest to access to the beach as well as increases the value of your property.

8.- How long do Federal Maritime Zone concessions last? Federal Maritime Zone Concession typically are granted for 15 years and renewable as long as the concession holder has not violated the conditions of the concession, which include making the annual of bi-monthly concession fee payment. 

9.- Is there a national registry where I can check if someone has the concession to a certain area of the Federal Maritime Zone? Yes there is and in order to check who has the concession to a certain Federal Maritime Zone area, you will need the UTM coordinates of the specific area to get an answer.

            Since Federal Maritime Zone concessions are not “property titles”, the laws and rules which apply to them are different. Make sure you have good advice on what your rights and obligations are to the Federal Maritime Zone that borders on your beach front property.

This article was written by David W. Connell. Mr. Connell is a licensed Mexican attorney and the senior partner of the Mexican law firm of Connell & Associate, with office in Mexico City, Puerto Vallarta and Ixtapa/Zihuatanejo. More articles and seminars as well as information about Mr. Connell can be seen at www.mexicolaw.com.mx. The present article is property of Connell & Associates and its reproduction of use requires the express written authorization of Mr. Connell, who reserve all right over this work. Copyright 2010.