Tourist Rental Contracts: Essential Clauses and Digital Platforms

Legal Framework Applicable to Tourist Rental in Mexico

Vacation rental through digital platforms operates in a regulatory space where federal civil law, tourism legislation, the tax regime applicable to digital economy activities, and in the case of Quintana Roo, specific local provisions converge. The absence of a legal instrument that comprehensively regulates this segment has generated heterogeneous contractual practice and, frequently, structurally deficient arrangements. Identifying essential clauses and understanding the obligations arising from the use of intermediary platforms is not merely a matter of form: it is the difference between a fiscally correct operation and one with significant patrimonial exposure.

Civil Regime of the Tourist Rental Contract

The vacation rental contract is governed, in its civil structure, by articles 2398 to 2496 of the Federal Civil Code and, subsidiarily, by the Civil Code of the State of Quintana Roo insofar as applicable to real property located in that entity. Tourist rental is characterized by its temporality, generally less than thirty days, and by the incorporation of ancillary services that may reconfigure the legal nature of the relationship, bringing it closer to a lodging service provision regulated by the General Tourism Law (published in the Official Gazette on June 17, 2009, with amendments as of May 20, 2021). The function of registering tourism service providers is distributed in articles 56 to 62 of said law, in relation to the National Tourism Registry (RNAT), whose operation corresponds to the Tourism Ministry (SECTUR) in accordance with the RNAT operating regulations. Article 3, paragraph XVI, defines lodging activity for purposes of the law, while articles 56 to 62 establish the framework of the registry and the obligations of registration with the RNAT as an operative regulatory mechanism.

When the real property is located within the Federal Maritime-Land Zone or in developments subject to a condominium regime, the General Law of National Assets (articles 119 to 128 regarding use and exploitation of ZOFEMAT) and the constitutive deed of the condominium regime, whose use restrictions are enforceable against the tenant and owner with equal effect, must be additionally considered.

Restrictions on tourist use of condominium units merit specific analysis due to their frequency in Riviera Maya developments. When such restrictions are contained in the constitutive deed of the regime and registered in the Public Property Registry, their enforceability against subsequent third-party purchasers and tenants is complete, in the sense held by various Circuit Collegiate Courts; see, as a verifiable analogous criterion, thesis I.3o.C.1042 C, Judicial Weekly of the Federation and its Gazette, Tenth Epoch, Book 31, June 2016, Volume IV, page 2814, which addresses the enforceability of condominium regime clauses registered in the Registry against subsequent purchasers. This criterion has direct implications for property owners in Riviera Maya developments that market their units on digital platforms without first verifying the condominium regulations.

A particularly controversial situation arises when the condominium assembly adopts restrictions on tourist rental after acquisition of the real property. In this case, legal analysis must distinguish whether the restriction modifies the constitutive deed of the regime, in which case it requires notarial formalization and registration in the Public Property Registry to be fully enforceable against third parties, or if it only modifies the internal regulations of the condominium, which has a different normative hierarchy and effectiveness against third parties of lesser scope. This distinction is determinative for investors who acquired their unit before the assembly introduced such restrictions: the absence of registry recording of the modification may constitute a valid argument of unenforceability in judicial or arbitral proceedings.

Regarding the limits of freedom of contract in rental matters, the First Chamber of the Supreme Court of Justice of the Nation has held that such freedom yields to rules of public policy, a criterion adopted, among other precedents, in thesis 1a. CCXLVII/2016 (10a.), Gazette of the Judicial Weekly of the Federation, Tenth Epoch, Book 34, September 2016, Volume I, page 515, relating to the limits of the principle of freedom of contract in the face of public policy. By analogy, this criterion is applicable to tourist rental insofar as tax provisions and consumer protection rules provided in the Federal Consumer Protection Law integrate applicable public policy when the tenant acts as a final consumer in the tourism market.

Essential Clauses of the Contract

A structurally sound tourist rental contract must contain, at minimum, the following elements:

• Object and description of the property: cadastral identification, public deed number, real property folio of the Public Registry of Property and specification of personal property included in the lease.
• Term and renewal conditions: specification of the entry date, exit date, and applicable regime in case of unilateral extension or improper occupancy, including the corresponding penalty clause in accordance with article 2117 of the Federal Civil Code.
• Rent, security deposit and payment method: exchange rate applicable when the price is agreed in foreign currency, retention mechanism by the intermediary digital platform and consequences of non-payment.
• Use limitations: maximum number of occupants, prohibition of subletting, restrictions on commercial or mass entertainment activities, and express reference to condominium regulations when applicable.
• Liability regime: distribution of responsibilities for damages to the property, required insurance coverage, and mechanism for dispute resolution, including arbitration or mediation clause in accordance with articles 1415 et seq. of the Commercial Code.
• Tax clause: identification of the principal obligor for purposes of income tax and VAT, tax transfer when applicable, retention mechanism applicable when a digital platform intervenes, and express distinction between retention assumptions based on the tax registration status of the lessor with the SAT.

Digital Platforms: Tax Obligations and Withholdings

The 2020 tax reform, effective as of June 1 of that year, incorporated into the Federal Tax Code, the Income Tax Law (articles 113-A through 113-C) and the Value Added Tax Law (articles 18-B through 18-J) a specific regime for technology platforms that act as intermediaries in the provision of services, including real property leasing. Under this regime, platforms such as Airbnb and VRBO are required to withhold and remit to the SAT income tax at a rate of 4% on the income paid to the lessor.

Regarding VAT, the treatment is not uniform and its correct understanding is essential to avoid contingencies. In accordance with article 18-D of the VATL, the platform withholds the corresponding VAT, but the rate and withholding mechanism vary depending on the tax status of the lessor. When the lessor provides their RFC with property rental activity duly registered, the platform withholds the percentage of VAT corresponding to it in its capacity as a withholding agent, and the lessor retains the obligation to credit, transfer and declare complementary VAT in accordance with its general obligations. When the lessor does not provide their RFC or does not prove to be registered with specific rental activity, the platform withholds VAT at 16% on the consideration and remits it as final payment, thereby displacing in that case the lessor’s obligation to declare the tax for that transaction. The distinction is critical: a registered lessor who assumes that the platform’s withholding extinguishes their VAT obligation may incur in failure to file and in differences payable as determinable in audit.

The natural person lessor may choose to consider withholdings made by the platform as final payment when their monthly income does not exceed 35,000 pesos, in accordance with article 113-A, second paragraph, of the ITRL. When income exceeds that threshold, the taxpayer must file a complementary monthly return and accumulate income in general terms. The omission of this distinction in the contract, and its inadequate reflection in the tax clause, is a direct source of tax contingencies documented in SAT review procedures.

Additionally, the State of Quintana Roo applies the Lodging Tax in accordance with the Tax Law of the State of Quintana Roo, at a rate of 3% on the total value of accommodation. The specific provisions regulating this tax are found in the articles relating to lodging tax in said law; the most recent reform with verified publication corresponds to the Official Journal of the State of Quintana Roo, Extraordinary, of December 30, 2022, without prejudice to modifications published in the 2024 fiscal year, whose edition number of the Official Journal and exact date must be verified in the official edition in force at the time of consultation. Digital platforms operating in the state have reached collection agreements with the state authority, but the subsidiary responsibility of the owner lessor remains in effect when the platform does not properly remit the tax.

Municipal Registration: Registry of Lodging Service Providers

A regulatory layer that is frequently omitted in the structuring of vacation rental operations is mandatory municipal registration with the registry of lodging service providers. In the municipality of Benito Juárez (Cancún), the registration obligation is based on the Regulation of Tourist Services of the Municipality of Benito Juárez and on the provisions of the municipal Economic Development and Tourism Department, which require the registration of the property designated for tourist use as a condition to operate lawfully. The procedure involves the submission of the property deed or trust title certificate, proof of land use compatible with tourist or lodging use issued by the Urban Development Department, and a statement of compliance with applicable civil protection standards. The absence of registration may result in administrative orders for temporary closure, imposition of fines, and in cases of recurrence, permanent closure of the property for tourist use.

In the municipality of Solidaridad (Playa del Carmen), municipal registration requirements follow an analogous structure but processed before the Solidaridad Tourism Department, with land use verification before the municipal Urban Development Department. Both municipalities have intensified supervision in recent fiscal periods of units offered on digital platforms without municipal accreditation, which increases operational risk for property owners who have not formalized their situation at this level. Verification of permitted land use is, in practice, the first filter that determines the legal viability of the tourist operation in both municipalities.

Practical Implications for Investors and Property Owners

A property owner who rents their property through digital platforms without a structured contract assumes three types of concurrent exposure: civil, due to the absence of adequate liability and criminal clauses; tax, due to non-compliance with the federal withholding regime and the state lodging tax; and administrative, due to failure to register with the RNAT and with the municipal registry of the corresponding municipality. In the case of properties subject to a bank trust in a restricted area in accordance with Article 11 of the Foreign Investment Law, the trustee bank may impose additional restrictions on the use of the trust property that must be verified before entering into any vacation rental contract.

Properly structuring these operations requires coordinating the analysis of the condominium regime (including verification of whether current restrictions are recorded in the property deed or only in internal regulations), the property owner’s tax situation, the type of intermediary platform, the nature of the property, and its situation regarding the RNAT and municipal registry.

Summary of Obligations by Scenario: Operational Assessment Guide

Upon concluding the analysis of the preceding sections, the property owner or investor may self-assess their exposure in accordance with the following verification sequence:

1. If your monthly income from tourist rental exceeds $35,000 pesos: platform withholdings do not constitute a final ISR payment; you must file a monthly supplementary return and accrue income in general terms pursuant to article 113-A LISR. Additionally, you must verify whether your income level triggers invoicing and VAT declaration obligations beyond platform withholding in accordance with article 18-D LIVA.
2. If the property is located in the Federal Maritime-Land Zone (ZOFEMAT): the concession title must be verified to confirm that tourist or lodging use is authorized; violation of concession terms may result in its revocation pursuant to articles 119 to 128 of the General Law on National Property, regardless of the civil validity of the rental contract.
3. If the condominium regulations do not expressly permit tourist or short-term rental use: it must be determined whether the restriction is recorded in the constitutive deed registered in the Public Registry (full enforceability) or only in the internal regulations (limited enforceability and potentially challengeable). If the restriction was adopted by assembly after the acquisition, analysis is required as to whether it was formalized by notary and registered, as otherwise it may be subject to challenge.
4. If the property is not registered in the National Tourism Registry (RNAT) of SECTUR: the operation may be subject to federal administrative penalties pursuant to articles 56 to 62 of the General Tourism Law; registration with RNAT is independent of municipal registration and both are enforceable concurrently.
5. If the property does not have municipal registration in the lodging registry of Benito Juárez or Solidaridad: the tourist operation may be subject to administrative closure, fines, or suspension of activities by the Urban Development Department or the Tourism Department of the corresponding municipality.
6. If the property is subject to a bank trust in a restricted zone: the contract with the trustee bank must be reviewed to confirm that tourist use is within the authorized purpose of the trust; operation without trust authorization may constitute a contractual breach against the bank with consequences for the trust’s validity.

Sources and References

Legislation

• Federal Civil Code, articles 2117, 2398 to 2496. Last amendment published in the DOF on January 11, 2021.
• General Tourism Law, articles 3 section XVI and 56 to 62 (regime of the National Tourism Registry). Last amendment published in the DOF on May 20, 2021.
• Income Tax Law, articles 113-A to 113-C. Amendment regarding digital platforms published in the DOF on December 9, 2019, effective as of June 1, 2020.
• Value Added Tax Law, articles 18-B to 18-J, with special reference to article 18-D regarding differentiated withholdings based on lessor registration status. Same amendment and effective date.
• Federal Tax Code, articles 17-K and concordant provisions. Last amendment published in the DOF on November 12, 2021.
• Foreign Investment Law, article 11. Last amendment published in the DOF on August 15, 2016.
• General Law on National Property, articles 119 to 128. Last amendment published in the DOF on January 19, 2018.
• Federal Consumer Protection Law. Last amendment published in the DOF on January 28, 2022.
• Commercial Code, articles 1415 et seq. regarding arbitration. Last amendment published in the DOF on January 27, 2017.
• Treasury Law of the State of Quintana Roo, provisions regarding the Lodging Tax. Amendment verified in the State Official Gazette of Quintana Roo, Extraordinary Edition, of December 30, 2022. The modifications corresponding to fiscal year 2024 must be consulted in the current edition of the State Official Gazette of Quintana Roo at the time of review, as the edition number and exact date are subject to verification from the official source.

Judicial Criteria

• Thesis I.3o.C.1042 C, Judicial Journal of the Federation and its Gazette, Tenth Epoch, Book 31, June 2016, Volume IV, page 2814. Analogous criterion on the enforceability of condominium regime clauses registered in the Public Registry against subsequent purchasers and lessees. Applicable by various Collegiate Circuit Courts regarding condominium restrictions on tourist rental.
• Thesis 1a. CCXLVII/2016 (10a.), First Chamber of the Supreme Court of Justice of the Nation, Gazette of the Judicial Journal of the Federation, Tenth Epoch, Book 34, September 2016, Volume I, page 515. Criterion regarding the limits of the principle of freedom of contract against public policy; applicable by analogy to tourist rental regarding tax obligations and consumer protection.

Doctrine

• Rojina Villegas, Rafael. Mexican Civil Law, Volume VI: Contracts. Editorial Porrúa, multiple editions.
• Tax Administration Service (SAT). Guide for taxpayers obtaining income through technology platforms. Official publication, 2023 update.

Official Sources

• Official Journal of the Federation (DOF): publications cited in the legislative section.
• Official Gazette of the State of Quintana Roo: State Tax Code, verified reform of December 30, 2022 and applicable reforms to the Lodging Tax for fiscal year 2024, subject to verification in the official source.
• Ministry of Tourism (SECTUR): National Tourism Registry (RNAT), operative regulations and registration obligations for lodging service providers.
• Public Registry of Property and Commerce, Benito Juárez and Solidaridad offices, Quintana Roo.
• Urban Development Department of the Municipality of Benito Juárez and Tourism Department of the Municipality of Solidaridad: regulations and procedures for registration in the municipal registry of lodging service providers.

IBG Legal advises national and foreign investors in structuring vacation rental programs under bank trust schemes in developments adjacent to the ZOFEMAT, in reviewing condominium restrictions adopted after acquisition, and in defense before the SAT in audits concerning withholdings by digital platforms. If your property is subject to a bank trust or condominium restrictions and operates on Airbnb or VRBO, contact us for a review of your contract and tax situation.