Understanding the “Act of God” gambit is a critical step to protect your property in Riviera Maya from unnecessary and costly development delays.
You’ve invested in the dream: a sun-drenched property in Tulum, a chic condo in Playa del Carmen, the promise of a paradise lifestyle in the Mexican Caribbean. The contracts are signed, and excitement is building. Then, an email arrives from your developer. It contains a phrase that sounds both dramatic and definitive: force majeure.
Suddenly, your project is delayed, and the developer claims it’s due to an “Act of God,” an unforeseeable event beyond their control. But is it a legitimate catastrophe, or a convenient excuse? For foreign investors, knowing the difference is fundamental to how you protect your property in Riviera Maya.
At PeninsuLawyers, we’ve seen this scenario play out time and again. While genuine force majeure events do occur, this legal concept is sometimes misused as a shield for poor planning and mismanagement. This article, drawing from the insights in Chapter 19 of our legal guide, “The Foreign Investor’s Legal Guide to Riviera Maya Real Estate,” will help you understand this concept and empower you to challenge its misuse.
What is Force Majeure and Caso Fortuito in Mexico?
In Mexican law, force majeure (superior force) and its close cousin, caso fortuito (fortuitous event), are legal concepts that can excuse a party from fulfilling their contractual obligations. For an event to truly qualify, it must generally meet four strict criteria:
- Unforeseeable: The event could not have been reasonably anticipated with ordinary diligence when the contract was signed.
- Unavoidable: Even if it could be foreseen, its consequences were impossible to prevent or overcome.
- External: The cause must be completely outside the developer’s control and not a result of their own negligence or error.
- Impossible Performance: The event must make fulfilling the contract physically or legally impossible, not just more difficult or expensive.
A massive, unprecedented hurricane that shuts down the entire region for a month might qualify. A typical rainy season? Not so much. The burden of proof always falls on the developer to demonstrate that a true force majeure event has occurred.
The Developer’s Orchestra of Excuses: Common Misuses of Force Majeure
Unfortunately, some developers invoke “force majeure” with a certain creative license to cover up avoidable delays. Being able to identify these weak arguments is a key strategy to protect your property in Riviera Maya. Watch out for these common refrains:
- “It Rained… A Lot”: The Riviera Maya has a well-known rainy season. Developers are expected to plan for it. Unless the weather event was truly exceptional and catastrophic, normal seasonal rain is a business risk, not a force majeure event.
- “Supply Chain Problems”: While global disruptions are real, general material shortages or price increases are often considered manageable business risks. Poor planning or failure to secure suppliers does not typically grant a developer a free pass on delays.
- “Permit Purgatory”: Delays in obtaining government permits are a classic excuse. However, if the delay was caused by the developer submitting incomplete applications or failing to comply with regulations, the fault is their own. This is a critical area for due diligence.
- “Labor Shortages”: Unless tied to a massive, unforeseeable regional event, managing labor is a standard part of the development business.
Challenging these excuses is not just about being difficult; it’s about upholding the terms of your contract and ensuring the timely delivery of your investment.
Your Shield and Sword: How to Contractually Protect Yourself
The best defense against the misuse of force majeure is a strong offense, drafted directly into your purchase contract. This is a non-negotiable step to protect your property in Riviera Maya from the very beginning. Your independent lawyer should fight for clauses that:
- Narrowly Define Force Majeure: Your contract should list specific, qualifying events (e.g., major earthquakes, widespread government-ordered shutdowns) and explicitly exclude foreseeable issues like normal weather patterns, material price fluctuations, or delays caused by the developer’s own subcontractors.
- Establish Clear Obligations: The contract must require the developer to provide you with prompt written notice and compelling evidence of any claimed force majeure event. It should also obligate them to demonstrate their efforts to mitigate the delay.
- Set a Long-Stop Date: A crucial clause should give you the right to rescind the contract and receive a full refund if a legitimate force majeure event delays the project beyond a specified period, such as 12 months. This prevents your investment from being tied up indefinitely.
If a developer presents you with a contract containing a vague, all-encompassing force majeure clause, consider it a significant red flag.
What To Do When a Developer Claims Force Majeure
If you receive that dreaded notice, don’t just accept it at face value. This is a critical moment where your actions can help protect your property in Riviera Maya.
- Do Not Panic, Do Not Agree: Acknowledge receipt of the notice but do not agree to its validity.
- Request Evidence: Immediately ask the developer to provide detailed, verifiable evidence of the force majeure event and explain exactly how it makes their performance impossible.
- Consult Your Lawyer: This is the most important step. Your lawyer will analyze the developer’s claim against the terms of your contract and the strict standards of Mexican law. They can advise you on whether the claim is legitimate and draft a formal response challenging it if necessary.
Remember, a simple delay is not a force majeure event. A developer’s failure to plan is not your emergency. Your investment deserves to be protected by a clear, fair, and enforceable contract that anticipates these very scenarios.
Facing a real estate dispute in the Riviera Maya? Don’t navigate it alone. Contact PeninsuLawyers to protect your investment and secure your property rights.
