Legal appearance in cases where there is a third party buyer or a property bona fide purchaser
How many times we have run into a case where a seller makes the same transaction for the same property, more than once to several buyers, where both buyers yield of a certain price for the thing on seller favor, fulfilling the formalities the civil legislation foresees to do such action?
Law observes several assumptions to defend the bona fide third purchaser, where inherently uses the figure of legal appearance, which works in the Mexican positive system, as an exception rule; this means, for the appearance effectiveness in the legal matter, it’s needed the existence of a rule that authorizes it. Not a general principle of law as the bona fide case.
The legislator, since Roman law up until now, has ruled and protected fact situations such as possession or right, without knowing that with them has given its protection to legal appearances.
The legal appearance can be defined as the legal fact recognized by the legislator, consistent with the members’ or a certain person perception, regarding the situation where something is in relation to the environment it is placed, or the situation where another member is or something this one possesses, giving to that something or the person, features and qualities that might or might not have actually according to a legal standard, and makes act according to what’s perceived.
In this sense, for the present case, the legal appearance operates for the situation that both buyers perceive that the seller is the seller is the owner of the property right, before all members of the social circle where it is, of the property object of the operation where the bona fide third purchaser comes.
In such considerations, although the Civil Code doesn’t specify in a legal system the legal appearance, in many cases it regulates its effects as in this case the defenses where the third buyer or the bona fide purchaser is, where the effect may include but is not limited to the following:
When the bona fide third party, acquires a right for consideration, from the one that appears as the owner of the Property Public Record.
For this case must be taken into account that all real an personal rights granted to a third party over a property by a person that came to be the owner because of the annulled act are left without any value and can be claimed directly from the current owner, while the prescription is not fulfilled, observing the dispositions for bona fide third-party purchasers.
- When the owner sells a property in a private contract and subsequently sells it in a public deed to a different third party. In this case, it must be taken into account that if the same seller sells the same thing to different people, if the thing sold is real, the sale that was first registered will prevail.
- In the case of sale of another person’s property. In this regard, the sale of another’s property is null and the seller is liable for the damages and losses if it proceeds with fraud or bad faith, having to take into account what is provided in the title relating to the Public Registry for bona fide purchasers.
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