It is time, once again, to visit the problem of Indian claims for certain land holdings in Upper Ajijic and Rancho del Oro, as well as the area beyond the Chapala Country Club. The indigenous people do have legitimate claims to certain land that borders Ajijic and in the Country Club area. There is a problem, however. Perhaps it would be better to say that there are several problems.
One problem is the exact line to which their property extends is less than exact. A defining map exists in Guadalajara, but that map is somewhat ambiguous. Markers on the ground are reliable but many markers have been removed. Very few people actually have a complete set of information concerning the extent of the Indian holdings.
Another problem is while the Indian property is registered in the official registry of private property, it is not registered as is other communal land. At least with the Ajijic holdings it is registered as a "proposal." This registry occasions yet another problem. When a notario checks to see if a given parcel of land has problems, he doesn't check "Section IV" in the registry. He only checks "Section I." There may be some legal questions for notaries in this regard, but those questions are still to be resolved. Some legal minds think that the notario is committing a grievous error by approving questionable land transfers; others think that until the Indian property is moved out of the "proposal" section of the register, the notario has done all he should.
It should be noted here, however, that the Indian land holding has certain characteristics that must be remembered. One is they have inalienable rights to the land. Another is time has no bearing on their claim. The Indian land is in reality federal land, which the Indians have been granted the right to use. As such, it cannot be owned by foreigners. It is not actually "owned" by the Indians, either. They have simply been granted the use of the land.
However, all ejido and communal land must also provide for several land uses. One use is urban. If a particular piece of property is, at once, sold as private property and encroaches on land designated as pertaining to the indigenous community, it can be re-designated as urban and, therefore, be owned by foreigners. But a process must be followed.
The indigenous community is in the business of "selling" its property - over and over again. In some ways their attitude has merit because they have been wrestling with the federal government over their right to land for nearly 400 years. In Ajijic their holdings once extended all the way to the shores of Lake Chapala and now are nearly as high on the mountain as the proposed "no build" zone. It is not in their interest, therefore, to make any "sale" permanent. However, the government agency charged with straightening out this mess has a different agenda.
The Commission Agraria must be involved with the urbanization process. This is not something that can be accomplished by the general public. There are steps that must be realized for the transfer to take place. A survey must be realized by the Commission. They know where the markers are and can use those markers to determine how much, if any, land is encroaching on indigenous holdings. They will broker a fair payment to the community. Once that is accomplished then both parties must submit their proposals to the Commission judge. He then makes the change official. No money should ever be paid until that judge makes the transfer legal.
Escritoras all have a clause that states the seller is held liable for "sanemiento." This means that if you sell a piece of property and you know that there is a conflict with the indigenous community, and the community should find it to their advantage to sue the next owner, you can be held liable for all the costs incurred. Even if you don't know or think you have made a deal, you can be held liable. The reason is unless the deal was sanctioned by the Commission judge, it wasn't a deal.
If you are experiencing problems with the indigenous community over land ownership, please drop me an e-mail. I've spent several years sorting through these problems and may be able to save you a good deal of time and provide you with contacts to help you solve your problem legally.
