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Real Estate Law

Real Estate Projects Delivered Incomplete in Tulum: Legal Options

March 15, 2026 — Enrique Benet-Gregg

The gap between what was promised in pre-sale and what was actually delivered constitutes, in the context of Tulum’s real estate boom, one of the most frequent and executively complex contractual breaches in the litigation practice of the XXVII Circuit. Its manifestations are documentable and recurring: structural deficiencies, unfinished works, non-existent amenities, and in the most serious cases, total absence of title deed registration. The buyer facing this situation is not unprotected, but the effectiveness of their legal options depends on the nature of the breach, the available contractual documentation, the legal structure under which the property was acquired, and the developer’s enforceable assets.

The starting point is the promise to sell contract or the purchase agreement with retention of title, instruments that in Quintana Roo must be interpreted in accordance with the Civil Code of the State of Quintana Roo (in particular articles 1791 to 1840 regarding contracts, and articles 2020 to 2080 on purchase and sale), as well as the provisions of the Code of Civil Procedure of the State of Quintana Roo regarding the enforcement of obligations.

When the developer is a legal entity and the transaction involves advertising, mass promotion, or financing through pre-sales, the Federal Consumer Protection Law (LFPC) comes into play, specifically its articles 7, 32, 35, 42, and 73 bis. Article 73 bis of the LFPC, in its current version in accordance with the reform published in the DOF in 2024, specifically regulates purchase and sale transactions of real property in the scope of consumer relations: it establishes pre-contractual information obligations on the part of the provider, including the delivery to the consumer of the plans, descriptive specifications and construction specifications; it imposes the obligation to register adhesion contracts related to real property before PROFECO; and it recognizes the consumer’s right to cancellation in cases of non-compliance with the conditions offered. PROFECO, with its procedural limitations, can be a first instrument of pressure, although in relevant amounts the ordinary judicial route or arbitration prove more effective, as analyzed below.

For developments subject to the condominium ownership regime, the Civil Code of Quintana Roo in its articles 951 to 1020, and the possible constitutive deed of the condominium regime, determine the developer’s obligations with respect to common areas, equipment, and infrastructure.

Grounds for Breach and Causes of Action

Contractual Resolution plus Damages

The implied power of resolution in bilateral contracts is provided for in the Civil Code of Quintana Roo through an articulated set of provisions. Article 1793, in particular, establishes the general principle whereby, in the event of breach by one of the parties, the performing party may choose between demanding forced performance or resolution of the contract, in both cases with indemnification for damages. This faculty must be read in accordance with articles 1791, 1792, and the general provisions on the effects of bilateral contracts contained in the code itself, given that resolution in contracts of successive performance or deferred execution may arise from a combination of said rules. It is recommended to verify the current text of the Civil Code of Quintana Roo (Decree No. 74 and its subsequent reforms published in the State Official Gazette) at the time of filing the lawsuit, in order to confirm the current numbering and cite all applicable provisions.

The action for resolution is appropriate when the breach is material, which the courts of the XXVII Circuit have interpreted by considering the significance of the obligations not satisfied in relation to the contract as a whole. A delivery without title deed registration, without access to services, or without completion of essential elements qualifies without difficulty as material breach.

Construction Standards, Construction Completion Certificates, and Proof of Material Breach

The quantification of material breach before the court requires proving not only the gap between what was promised and what was delivered, but also the technical and administrative standard that the developer was obliged to meet. In this context, official documents for municipal and state construction control acquire fundamental evidentiary value. The Notice of Completion of Works, which the developer must present to the competent municipal authority of Tulum or Solidaridad upon completion of the work, establishes the official record of the authorized construction characteristics. Its absence or its discrepancy with the physical condition of the property constitutes direct evidence that the work was not completed in accordance with the original construction license.

Of equal relevance is the Certificate of Habitability or its local equivalent, which the municipal authority issues only when it verifies that the property meets the minimum conditions for use and habitation. The non-existence of such certificate at the time of delivery, or its obtaining through statements that do not correspond to the actual state of the work, reinforces the appropriateness of the rescissory action by demonstrating that the property did not meet the conditions offered nor those required by applicable regulations.

Additionally, the applicable construction technical standards for residential developments, including the habitability and housing quality guidelines issued by the National Housing Council (CONAVI) and the sustainability criteria of the INFONAVIT program when applicable, serve as an objective parameter for the construction expert when issuing opinions on deficiencies. Non-compliance with these standards, accredited through expert testimony, transforms a subjective claim into a quantifiable technical demonstration of substantial breach.

Specific Performance

When the buyer prefers to retain ownership, the specific performance action allows judicial enforcement of work completion, execution of deed, or delivery of promised amenities. This remedy requires accrediting the existence and enforceability of the obligation, making it essential to have the contract, technical annexes, binding advertising pursuant to article 32 of the LFPC, and where applicable the corresponding construction license. The existence of an incomplete Notice of Completion of Work or an unissued Certificate of Habitability further strengthens the specific performance claim by demonstrating that the delivery obligation has not been legally perfected.

Liability for Hidden Defects

Articles 2056 et seq. of the Civil Code of Quintana Roo regulate warranty against hidden defects in sales. Regarding the prescriptive period, the Civil Code of Quintana Roo establishes a term of six months counted from the moment of physical delivery of the property to exercise the rescissory action or the quantum minoris action derived from hidden defects. This period coincides with the standard of the Federal Civil Code, although its exact calculation must be verified against the current text of the state code since reforms subsequent to Decree No. 74 could have modified such term. Unlike the general prescriptive period applicable to personal actions, the period regarding hidden defects is of special nature and runs from delivery, not from the discovery of the defect, unless the seller willfully concealed the defect, in which case courts have recognized the application of longer periods. Due to the brevity of the term, the action must be exercised promptly once defects are detected, and it is essential to document the defects through independent expert testimony before initiating any proceeding.

Arbitration Clauses and Alternative Dispute Resolution Mechanisms

A significant number of pre-sale contracts in Tulum and Riviera Maya developments include arbitration clauses, frequently referred to the Arbitration Center of Mexico (CAM México) or, in projects with foreign capital participation, to the rules of the International Chamber of Commerce (ICC) or CANACO Mexico City. The presence of a valid arbitration clause has determinative procedural consequences: the ordinary judge must declare itself incompetent if the defendant raises the arbitration exception, pursuant to the Commercial Code and the Model Law of UNCITRAL incorporated into Mexican law.

The enforceability of these clauses in standard real estate contracts may be challenged pursuant to article 90 of the LFPC, which prohibits clauses that impose inequitable conditions on the consumer or that are limiting of their procedural rights, an argument that has found receptivity in some federal courts when the designated arbitration proves to be of disproportionately costly access for the consumer.

The selection of arbitration does not exclude the possibility of requesting precautionary measures before state courts. Article 1425 of the Commercial Code expressly authorizes the parties to request precautionary measures before the competent judge before or during the arbitration proceeding, without implying waiver of arbitration. This means that, even when the contract contains an arbitration clause, the buyer may request the preventive annotation of the demand in the Public Property and Commercial Registry of Quintana Roo or the precautionary attachment of the developer’s assets before the civil court, in parallel with the arbitration proceeding.

Once an arbitral award favorable to the buyer is issued, its enforcement against real property located in Quintana Roo is processed before the Court of First Instance of the corresponding judicial district through the procedure of homologation and execution provided in the Commercial Code, the award being equivalent to a final judgment for these purposes.

Precautionary Measures and Asset Execution

A favorable judgment is useless if the developer has squandered or transferred its assets. The strategy must contemplate from the outset the request for precautionary measures: asset attachment, preventive annotation of the lawsuit in the Public Registry of Property and Commerce of Quintana Roo, and where applicable, precautionary seizure. Articles 278 et seq. of the Code of Civil Procedures of Quintana Roo regulate these measures. The preventive annotation of the lawsuit, also provided for in the Regulation of the Public Registry of Property of the State of Quintana Roo, limits the legal availability of the property against third parties during the proceedings.

In the practice of the XXVII Circuit, the coordination of precautionary measures in disputes with multiple buyers affected by the same developer requires a procedural strategy that contemplates the timing and order of precautionary seizures, the identification of all registrable assets of the developer and its related companies, and where applicable, the request for measures in more than one federal entity when the developer has assets distributed across jurisdictions. IBG Legal has coordinated this type of precautionary strategies in multi-buyer litigation in Tulum, including the identification and securing of registrable assets of developers with fragmented corporate structures.

Acquisitions through Banking Trust

A relevant portion of real estate acquisitions in the restricted coastal zone of Quintana Roo, particularly those made by foreign buyers, is structured through restricted zone banking trusts in accordance with the Foreign Investment Law and its regulations. In this structure, the banking institution acts as trustee and registered holder of the property, while the buyer holds the status of beneficiary with rights of use, enjoyment, and disposition.

This structure does not deprive the beneficiary of active legal standing to exercise actions arising from the developer’s breach of contract. The beneficiary fully retains the right to sue for termination of the purchase agreement or promise to purchase executed with the developer, given that such contract is independent of the act establishing the trust. The lawsuit must be directed against the developer as the breaching party to the purchase contract, without prejudice to the fact that the trust institution must be notified of actions that could affect the trust assets.

In cases of contract termination, the extinction of the trust and restitution of the price paid require coordination with the trust banking institution. The beneficiary must anticipate that the return of amounts delivered to the developer may also involve early termination of the trust and the associated costs of such termination, including pending trust commissions. In the judicial or arbitral proceedings, it is advisable to include in the relief requested a judgment condemning the developer to cover such costs as part of the compensation for damages.

Additionally, when the trust has been registered in the Public Registry of Property and Commerce of Quintana Roo, the preventive annotation of the lawsuit must be made on the real folio of the property affected by the trust, identifying both the trustee and the beneficiary, so that the measure is enforceable against third parties. IBG Legal has experience in the representation of foreign beneficiaries in termination and investment recovery proceedings, including coordination with trust banking institutions for the orderly termination of trusts in litigation against developers.

Collective Actions and Coordination among Buyers

The Federal Code of Civil Procedures, in articles 578 to 626, regulates collective actions in Mexico. When the same development affects multiple buyers with homogeneous contracts, diffuse or representative collective action may be more efficient than individual lawsuits: it consolidates evidence, reduces costs, and generates greater procedural pressure on the developer. Active legal standing rests with the Federal Public Ministry, PROFECO, or consumer organizations meeting the requirements established in article 585 of the same code.

Developer Insolvency and Commercial Bankruptcy

The most adverse scenario for the affected buyer is not prolonged litigation, but the formal insolvency of the developer. In the real estate sector of Tulum, where multiple projects depend on pre-sale cash flows to finance their own construction, the declaration of commercial bankruptcy of a development company is not a remote risk but a possibility that must be incorporated into the strategy from the outset.

When the developer is declared in commercial bankruptcy according to the Commercial Bankruptcy Law, the affected buyer becomes a creditor of the estate and must proceed to the credit recognition process before the appointed conciliator, presenting their claim within the deadlines provided in said law. The status recognized as a creditor determines their position in the payment ranking: if the buyer has a real right registered in the Public Registry of Property and Commerce of Quintana Roo, either as holder of a duly registered purchase promise or as a registered beneficiary, they may argue for the status of creditor with real guarantee, which grants them preference over unsecured creditors in the distribution of bankruptcy assets.

Conversely, the buyer who only holds an unregistered private contract will be recognized as an unsecured creditor, with lower ranking in the payment order. This difference underscores the importance of managing the registry registration of the contract or trust from the moment of acquisition, before any insolvency contingency materializes. In the bankruptcy proceeding, actions for contract rescission filed prior to the bankruptcy declaration may be suspended, so coordination between individual litigation strategy and the bankruptcy proceeding requires specialized advice.

Practical Implications

The First Chamber of the SCJN has held that binding commercial advertising integrates the contractual obligation content, so that visual representations, technical specifications and pre-sale materials form part of the program of services that may be required from the developer. This position, which finds its most precise expression in thesis 1a. CCXLVI/2013 (10a.), published in the Judicial Weekly of the Federation and its Gazette, Tenth Epoch, Book XXIV, September 2013, Volume 1, constitutes an isolated thesis of the First Chamber with an identifiable record in the IUS system of the Supreme Court. Said criterion strengthens the claims of buyers who received something materially different from what was offered, even when the formal contract contains ambiguous limiting clauses. Litigants must verify whether this criterion has been reiterated and elevated to binding jurisprudence at the time of filing the lawsuit, consulting the updated Judicial Weekly of the Federation.

On the evidentiary level, expert appraisal and construction evaluation is essential to quantify the gap between what was promised and what was delivered. Without this element, the claim for damages and losses is exposed to significant reduction by the judge.

Operative Conclusion

The buyer of an incomplete development in Tulum has a concrete legal arsenal: contract rescission with indemnification, specific performance, remedying for latent defects, and the possibility of joining other affected parties through class action. The effectiveness of any of these routes depends on the documentary quality of the file, the speed with which precautionary measures are adopted, the legal structure of acquisition (direct or through trust) and the real patrimonial solvency of the developer. Delaying legal action erodes both prescription periods and the availability of executable assets.

IBG Legal is a boutique litigation firm specializing in real estate and corporate law, headquartered in Cancún with offices in Mexico City and Querétaro. Our practice in high-complexity real estate litigation in Quintana Roo includes the coordination of precautionary measures in multi-buyer disputes against developers with fragmented corporate structures, the representation of foreign beneficiaries in resolution and investment recovery proceedings before courts of the XXVII Circuit, and the tracing and identification of registral assets to ensure the enforceability of judgments and arbitral awards. For specialized advice on the recovery of investments in non-performing real estate developments, contact us.

Sources and References

Legislation

  • Civil Code of the State of Quintana Roo, Decree No. 74, Official Gazette of the State of Quintana Roo; articles 951 to 1020 (condominium regime), 1791 to 1840 (contracts and implicit resolutory power, including articles 1791, 1792 and 1793), 2020 to 2080 (purchase and sale), 2056 et seq. (remedies for latent defects, six-month period from delivery). Last amendment published in the Official Gazette of the State of Quintana Roo. Verify current numbering against consolidated text available at www.po.qroo.gob.mx.
  • Code of Civil Procedure of the State of Quintana Roo; articles 278 et seq. (precautionary measures and precautionary attachment).
  • Federal Consumer Protection Law, published in the Official Gazette of the Federation (DOF); articles 7, 32, 35, 42, 73 bis (pre-contractual disclosure obligations, registration of adhesion contracts before PROFECO and cancellation rights in real estate transactions) and 90 (abusive clauses in adhesion contracts). Last amendment: DOF 2024.
  • Federal Code of Civil Procedure; articles 578 to 626 (collective actions). Last amendment: DOF 2023.
  • Commercial Code; article 1425 (precautionary measures in arbitration matters) and provisions regarding homologation and enforcement of arbitral awards.
  • Commercial Insolvency Law, DOF; provisions regarding recognition of credits and creditor priority with real security.
  • Foreign Investment Law and its Regulations; provisions regarding banking trusts in restricted zones.
  • Regulations of the Public Registry of Property of the State of Quintana Roo; provisions regarding preventive annotation of lawsuit.

Jurisprudential Criteria

  • First Chamber of the SCJN: Isolated thesis 1a. CCXLVI/2013 (10a.), Semanario Judicial de la Federación and its Gazette, Tenth Epoch, Book XXIV, Volume 1, September 2013. Criterion to the effect that binding commercial advertising integrates the obligational content of the contract, and the provider is bound to comply with the characteristics, conditions and benefits offered in pre-sale and promotional materials, even when the formal contract contains limiting clauses. Classification: isolated thesis. It is recommended to verify in the updated Semanario Judicial de la Federación whether the criterion has been reiterated and elevated to binding jurisprudence after the date indicated.
  • Collegiate Courts of the XXVII Circuit (Quintana Roo): Criterion in matters of material breach of real estate purchase and sale contracts, pursuant to which the substantiality of unperformed obligations is evaluated in relation to the set of contractual performance obligations, and rescission is appropriate when the breach affects essential elements of the transaction. Circuit-level criterion; verify registration in the Semanario Judicial de la Federación to determine whether it constitutes jurisprudence of a Collegiate Court or an isolated circuit thesis, and consult the registration number in the IUS system of the SCJN for its formal citation in the complaint.

Technical and Regulatory Standards

  • National Housing Council (CONAVI): Housing habitability and quality guidelines applicable as a compliance parameter in construction expert opinions. Available at www.gob.mx/conavi.
  • INFONAVIT: Technical criteria for sustainability and quality applicable to residential developments when relevant as a standard for expert evaluation.
  • Notice of Completion of Works and Habitability Certificate: municipal control documents issued by the authorities of Tulum and Solidaridad in accordance with their local construction regulations, relevant as evidence of the official condition of the work at the time of delivery.
  • Rojina Villegas, Rafael. Compendium of Civil Law: Contracts. Porrúa Editorial, Mexico.
  • Gutiérrez y González, Ernesto. Law of Obligations. Porrúa Editorial, Mexico.
  • Ovalle Favela, José. Collective Actions. Institute of Legal Research, UNAM, Mexico.

Official Sources

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