Advice for the snowbird or retiree considering at least a seasonal move
Alvin Starkman M.A., LL.B.
It took 8 years for my wife and I to find the right piece of land in the ideal location in Oaxaca, obtain good title, decide upon an architect/project manager, and commence and complete construction. Throughout the process the learning curve was significant, as were the frustrations and the simultaneous fits of disillusionment and excitement. Had I used my Canadian legal knowledge (as a litigator versed in construction law, contracts and land disputes) and life experiences in approaching the multitude of issues which arose, even with the differences in cultural and legal systems and business practices, the agony would have been significantly reduced.
Here in southern Mexico we’re tempted to follow neither gut instincts based upon a northern worldview nor the fount of knowledge we’ve accumulated in our earlier lives. Instead we are guided by a Mexican multitude of advisers, friends and tradesmen.
On the other hand, long ago I received sound advice that it’s imprudent to lay down permanent roots until you’ve lived in a city at least six months. While in our case we never rented for more than six weeks while on vacation, we nevertheless ultimately decided upon building. A dozen or so years vacationing in Oaxaca two or three times yearly reduced the importance of that counsel in our particular case.
Determine whether or not on balance you’ll feel comfortable in your prospective neighborhood. Chock up one point for initially renting, since you are not tied to a particular home or area of the city. You have the opportunity to get a sense of the life of the colonia (neighborhood), to determine whether or not you can tolerate the level of noise at night, to make an informed decision as to whether or not it will be overly burdensome for you living away from the zócalo and heart of the city, or for that matter too close to el centro with its unique set of issues. Finally, there’s the water issue which you may want to understand first-hand, especially if you won’t be blessed with a large cistern and don’t want to be at the mercy of the pipas (water trucks) which, during dry season, can take a couple of days to arrive after ordering.
Initially renting makes sense if you are in the fortunate position of not having to make an irreversible life decision, let’s say if you own a business and can have someone manage it while you’re doing a trial run so as not to burn a very important economic bridge, or if you’re an employee with marketable skills enabling you to go back and get another job if things don’t work out. The downside is that your money is “thrown away”, and you’ll be subject to inflationary factors since the cost of buying a home, or acquiring land and building, increases significantly on an annual basis, at least here in Oaxaca. Those who are former homeowners tend to lack that sense of comfort while in a rental, resulting in an unsettled feeling, the last thing you want when deciding upon a dramatically new lifestyle.
If you’ve previously rented in a certain colonia or have otherwise familiarized yourself with it, then buying an existing home in that neighborhood has many advantages. You avoid the dual problem of having to buy land and then build, and the plethora of pitfalls associated with the process. You know what you’re getting and have already decided that it’s what you want, or are willing to accept … you can look out and see the vistas (or lack thereof) from your bedroom window, rather than wonder based upon reviewing an architect’s plans, of which you can make little real sense. You’re not faced with the uncertainly of a landlord asking you to leave or not knowing when your home-in-progress will be ready for occupancy. Your home will have already stood the test of time in terms of resisting minor earthquakes and dealing with leaks during the rainy season. You don’t have to deal with many issues which frequently crop up when you build: you can hear the phone ring and know there’s phone service, turn on the light and know that there’s electricity, listen for water entering the cistern and know that there’s already a city water connection, and you can drive up to the house and know that you won’t have to wait years for pavement.
Whether you buy or build, ensure that you look out from the home / piece of land, and consider whether or not your exquisite view of the valley and mountains could possibly become blocked by new construction on the vacant lot next to you, or a two-storey addition onto the home of a neighbor. Building codes outside of the centro histórico are generally do not deal with aesthetics, and there will be little to prevent a new, tall structure from blocking your vistas.
On the other hand, with all of these and a multitude of other problems associated with building in particular, still nothing compares with fulfilling the fantasy of constructing one’s dream home in the mountains, which in Toronto or elsewhere north of the Rio Grande would be virtually impossible to achieve due to climatic, and much more importantly economic factors. While some may have gone through the building process, you are in the minority, especially when it has included searching for land and knowing that you’re building this one time, and never again. The phrase “wouldn’t it be great if we could…,” here in southern Mexico is not necessarily a pipe dream … but the process does take a lot out of you.
Some of my comments regarding process are applicable to purchasing a home as well as buying land and building, but in our particular case refer to the latter. As a representative of one of two loathed vocations (law and real estate), I have no difficulty generalizing that one ought to exercise the utmost caution in trusting real estate agents, anywhere. In any job where there’s potential to make a lot of money with little effort in a short period of time, there is significant potential for abuse, cutting corners and putting one’s own financial interests ahead of those of the client, especially when the relationship with the client is for a single transaction. The use of real estate agents is still in its infancy in Oaxaca, as compared to in the north (and the more popular retirement communities relatively close to Mexico City), and thus as one would expect, in a society with relatively little in the way of consumer protection laws, the regulatory framework within which agents work lacks the training procedures and checks and balances to which we are accustomed. Put another way, you have reason to be overly vigilant when working with an agent. Our realtor urged us to buy a lot in suburban Guadalupe Victoria, with services close-by … too close, as it turned out. It was only after viewing it for the second time with an architect friend that we learned that because of the wires running above part of the tract of land, we would be subject to restrictions and complications when it came to building. But the agent was from a then prominent realty company, so we stuck with her. Next time out, while climbing a brushy hill trying to determine the exact measurements of a smaller yet equally attractive property, our rep, with title papers in hand said: “Yes, this is it.” Then someone came by asking why we were on his land. After the proprietor and agent compared papers, we learned once again that the knowledge of the agent was suspect.
It is not only foreigners who can be deceived by unknowledgeable or less than forthright vendors of land or their agents. A Oaxacan friend purchased a piece of sloped land from a friend of his, whose family had been the landowner for years. It was only after excavation had begun that my pal learned that the lot had previously been filled, and that his “friend”, the vendor, knew it. The cost of construction immediately became much greater, and the proposed construction methods would have to be dramatically altered. My friend could no longer afford to build what he wanted, or how and when he wanted to do it, and is stuck with land that must now be sold at a discount.
After giving consideration to land in various colonias, ranging in size from 200 to 3,000 square meters, in fraccionamientos (gated communities) and otherwise, both fully and “soon-to-be” serviced, we settled on a lot in Guadalupe Victoria owned by Don Julio and his wife. We found it on our own, and after checking with an architect and negotiating price, executed the papers and provided our deposit to Don Julio personally (here, such deposits are often not held in trust by the attorneys), in our notary’s office, the deal to close as soon as government okayed subdividing, since the land was close to an ecological zone. The closing was to be completed within days (cince días or two weeks, as they always say). The deal didn’t close as a result of administrative issues, but some three years later, after several discussions and the execution of a release by us, Don Julio’s widow and children counted out that 10,000 peso deposit, late at night at their kitchen table, saying that they didn’t want to have to look the other way and run if they came across us on the street. Knowing that the likelihood of getting title was growing slimmer and slimmer, by that time we had already purchased another much smaller lot and on steeper land, but closer to downtown, serviced, and with a wonderful panorama … welcome Colonia Loma Linda.
Architects in Oaxaca are often also the project managers and builders, and as such may prepare plans, obtain permits, liaise with regulatory bodies and hire trades. Your architect should be hired before you buy land, since he should be consulted to determine the viability of what you have in mind for the land, any additional or unusual costs associated with building as a consequence of elevation, the subsurface composition or required municipal involvement in terms of pavement or sewer/water connections. In our case, that was one of the things we did right … that is, used architects at the outset.
Interview more than one architect. We walked through homes built by four, prior to deciding. Our error was not speaking to the owners about the relationship they had with their architects, problems with the finished houses not apparent to the eye, timeliness of completing the project, and financial issues, all of which became issues for us down the road notwithstanding that, and perhaps because, our architect was a friend first. Next rule is therefore, don’t befriend your architect. Keep the relationship as businesslike as possible, though this may be difficult in Oaxaca where business relationships quickly turn into friendships, and acquaintanceships frequently become solidified through compadrazgo (co-godparenthood, involving the appointment of godparents). In our contract our architect was to receive construction draws, with fee paid upon completion. Because of the pre-existing friendship, when she asked for a significant advance against her fee for some urgent family matter, we naively provided it. We lost the upper hand which resulted in ongoing problems, ultimately costing us an additional 100,000 pesos or more, and a year’s delay in completing the project. While I ought not generalize about lending money to friends, and I have done so in Oaxaca, at times without incident, if something doesn’t seem to sit right, follow your gut instinct. Surely our architect must have had closer friends than us from whom to borrow.
When contracting with an architect you should have someone with experience, from your camp, review and redraft the construction agreement. Be as exact and detailed as possible, no matter how long it takes to get it right and how many pages of verbiage are required. Take time to enumerate what type of wood and other construction materials will go where, the sizes, brands and models of appliances, tanks, pumps, etc., the type and quality of finishes, and a timeframe for reaching designated stages of completion. Include implications for missing or reaching deadlines, to create an incentive for the architect to finish on schedule. Go with her to the building supply outlets to choose. Let her factor into the timetable the weeks when trades will be off work in their pueblos with family for fiestas, how many times she’ll run afoul of regulations and be subject to an obra suspendida (stop work notice), and how much delay will result from unavailability of construction materials such as adobe during the rainy season. We indeed had a multi-page contract, but it failed to include all of the above. Had I been negotiating on behalf of a client, it would have been different. Get yourself a good, fully bilingual notary, or possibly a lawyer with a litigation background, to assist. A lack of solicitor-client confidentiality and conflicts of interest are not uncommon, so be careful to whom you say what, and ensure that there are no or limited connections between your architect and legal representative. Remember, you and your architect at this preliminary stage are adverse in interest. While certainly you can sue to attempt to obtain justice, recall that you are not dealing with the British Common Law system to which you are likely accustomed. In most if not all states and provinces we have legislated home ownership warranty plans to which home builders are subject, providing the new homeowner with speedy and effective recourse…not so here in Oaxaca.
The following is a short list of problems we encountered subsequent to moving into our home after our architect had been paid virtually all of her fee, which would have been covered by the standard warranty plan had there been one:
-leaky toilets, sinks and cistern;
-several areas where water pooled instead of drained; damp walls;
-a serious polilla problem (insects eating away at the wood and carrizo --- river reed akin to bamboo);
-a non-functional carport which had to be reconstructed at a cost to us of over 50,000 peso;
-both water and gas leaks.
But we do have our dream home, and look forward to years of ongoing expenses as further deficiencies become apparent, until the house is finally sound ... and it’s time to sell. Would we do it again knowing now what we didn’t know then? In a heartbeat, but taking my own advice!
Alvin Starkman received his masters in social anthropology in 1978, and his law degree in 1984. Thereafter he was a litigator in Toronto until taking early retirement. He and his family were frequent visitors to Oaxaca between 1991 and when they became permanent residents in 2004. Alvin writes about life and cultural traditions in Oaxaca, consults to documentary film companies, leads couples and families on tours to the sights in the central valleys, and together with wife Arlene owns Casa Machaya Oaxaca Bed & Breakfast ( http://www.oaxacadream.com ), a unique Oaxaca bed and breakfast experience combining the comfort and service of a four star downtown Oaxaca hotel with the personal touch and quaintness of country inn style lodging.