• OBJECT OF A CRIME: The BMW vehicle that was stolen from your friend (this being understood as the property that was recently directly affected).
  • INSTRUMENT OF THE CRIME: The property that was used in the Colonia to sell narcotic substances; the light aircraft that was used to transport packages of marijuana. (This is understood as the property that serves as a tool to allow or favor the planning and execution of a criminal act).
  • PROCEEDS OF THE CRIME: The Mercedes van that the “Wachicolero” bought with the profits obtained from selling gasoline illegally. (This is understood as the result or profit derived from a criminal act).

And what if I had no knowledge that the house I was renting was being used as a safe house for kidnapped people?

The federal legislator tried to shield individuals who act in good faith and who are effectively unaware of the activities that their “tenants” carry out in the properties that they “rent” to them, by subjecting the exercise of such action to the existence of “PRIOR KNOWLEDGE OF SUCH SITUATION”, that is, the legislator intended to establish that if a person was unaware that some criminal activity was being carried out in the property owned by him, he had the opportunity to demonstrate such unawareness and thus the inadmissibility of the action.

For which purpose, the law on the matter established such exceptions in articles 7, section V, article 9, point 4, all of the National Law of Extinction of Ownership; however, in the recent Action of unconstitutionality 100/2019, resolved on June 21, 2021 by the Plenary of the Supreme Court of Justice of the Nation, it was determined to invalidate all these normative portions tending to demand the accreditation of the subjective element “NOT KNOWING” by the owners of such property.

The foregoing, on the grounds that, article 22 of the constitutional text before its reform in March 2019 “DID require in a certain assumption the accreditation of subjective aspects, such as: the good faith of the owner of the property”; however, the constitutional rule in force “NO LONGER REQUIRES that in the event that the property subject to extinction of ownership is used for the commission of crimes by a third party, the owner or holder of the property MUST INVARIABLY ACCREDIT, that is to say, IN ALL CASES, THE GOOD FAITH IN HIS ACTION”.

This rule of law that is constantly repeated in article 22 of the Constitution is that the defendant (OWNER OF THE PROPERTY) affected by the exercise of the extinguishment action, if he wants this action not to succeed “HAS THE BURDEN TO PROVE ONLY ONE ASPECT, THE LEGITIMATE PROVENANCE OF THE PROPERTY, NOTHING ELSE” this allows us to highlight that from the text of the supreme norm the reforming power of the constitution sought that the evidentiary burdens for the parties (plaintiff and defendant) no longer involve the demonstration of subjective elements, such as: THE KNOWLEDGE that the owner or holder of the property HAD or COULD HAVE HAD regarding its use by a third party for the performance of unlawful conduct.

Under this logic, the provisions related to proving subjective elements (the knowledge of the owner or holder of the property) contravene the constitutional text, since they intend to regulate the demonstration or presumption of a subjective element (good or bad faith in the actions of the owner or holder of the property) which is no longer required by Article 22 of the Federal Pact in force.

That is to say, the elements to be accredited for the proceeding of the action in question, in terms of article 9 of the special legislation, are:

1. The existence of an unlawful act;

2. The existence of any property of illicit origin or destination; and,

3. The causal nexus of the two previous elements.

The fourth element being invalidated:

4. The knowledge that the owner has or should have had, of the destination of the property to the Unlawful Act, or that it is the product of the unlawful act. This element will not be considered as fulfilled when it is proven that the owner was unable to know it.

In conclusion, the ministerial authority is empowered to exercise the action of forfeiture of ownership against any property that is the object, instrument or product of a crime -as long as it is within the crimes that were previously described-, therefore, the importance of being attentive that if we lease a property, it is used for a lawful purpose; Likewise, as soon as we have the slightest suspicion that any illicit activity is being carried out therein, we must notify the authorities in order to avoid the prolongation or consummation of crimes, which could lead us to lose our properties.

Likewise, it is necessary that we are careful to watch the “legal origin” of those goods that we acquire (movable and immovable), in order to avoid that by a “mistake or ignorance” we acquire any product, object or instrument of the criminal conduct described above and that as a result the authority seizes it from us.

Do you need a lawyer?

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At Law In Cabo  we seek to satisfy the different legal needs of our clients, both in their business and personal matters. Contact us at: (+52)8119384461, where we will gladly advise you.

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