Proyectos turísticos: la importancia de las zonas federales marítimo-terrestres

By Santamarina Steta

The federal maritime-terrestrial zone (ZOFEMAT) is a space of great relevance for specific projects, as it is usually the main attraction of some hotels and real estate developments in coastal areas since it is linked to what is commonly known as the beach.

The ZOFEMAT is the 20-meter wide strip of land delimited by the Ministry of the Environment and Natural Resources (SEMARNAT) from the maximum sea level (known as high tide), which must be passable and with a slope of no more than 30°. Once the ZOFEMAT ends, the private property zones are found.

Federal maritime-terrestrial zone

Although any person can transit and use the ZOFEMAT, if it is intended to have a particular use to place some facilities or tourist works, such as swimming pools, beach clubs, and deck chairs, among others, it is necessary to have a concession title issued by the SEMARNAT.

It is necessary to mention that obtaining such concession title and complying with the terms, conditions, and bases established therein is a complex task. Based on our experience in this matter, we would like to make the following recommendations:

1. The ZOFEMAT changes according to the high tide. The maximum sea level is not definitive; therefore, the delimitation of the ZOFEMAT will depend on the delimitation made by SEMARNAT based on the high tide.

In this sense, if the high tide enters the land, SEMARNAT will establish a new delimitation of the ZOFEMAT, crossing it inland. However, if the new delimited strip overlaps the property of third parties, these lands and their buildings will cease to be private property and will give way to the new ZOFEMAT, without any right of indemnification for the former owner.

As a result of the above, it is recommended that the neighboring properties to the ZOFEMAT be attentive to the delimitations that SEMARNAT may establish concerning the high tide and the ZOFEMAT, especially if they have built any work directly in the ZOFEMAT or close to it.

If the ZOFEMAT affects private property, it is appropriate to ask the Secretariat for the studies that led it to establish this new delimitation. If there is any error in these, it is possible to file a defense action so that the authority recognizes the validity of the delimitation before the one that affects private property.

2. It is only possible to issue one concession for each strip of ZOFEMAT. This is one of the most common reasons SEMARNAT may deny the concession title since some concession applications have partial or even total overlaps with other previously issued concessions.

3. It is not necessary to be the owner of the property neighboring the ZOFEMAT to obtain the concession for this strip. Any person may request a concession title for a ZOFEMAT strip and carry out some economic activity in this area, for example, the provision of tourism services.

In this sense, if someone is a neighbor of the ZOFEMAT, it is recommended to request the corresponding concession title from SEMARNAT to prevent third parties from carrying out economic activities in front of the property and, above all, so that in the future, it will not be the concessionaire who prohibits the owner of the neighboring property from carrying out economic activities in the ZOFEMAT.

4. There are no private beaches. Being the holder of a concession only gives the right to carry out some economic activities in the ZOFEMAT, in addition to the fact that the goods built and/or placed in this area can only be used by those who are allowed to do so by the concessionaire, for example, the areas of bunks or tourist facilities. However, prohibiting the passage or use of the ZOFEMAT to persons outside the tourist development is grounds for SEMARNAT to revoke the concession title and impose fines.

5. Carrying out an economic activity in the ZOFEMAT generates the obligation to obtain a concession title and pay fees. It is important to comply with this payment since in case of any non-compliance it could result in fines, updates, and surcharges.

6. The use of the ZOFEMAT indicated in the concession must be respected. The applicable regulations establish three possible uses for this area: (i) protection or ornamentation, which is recommended for environmental preservation activities. In this sense, economic activities cannot be carried out; (ii) some productive activity, such as fishing, and agriculture, among others; and (iii) general use, which allows the development of all economic activities, including the construction of some projects.

It is important to mention that the payment of fees corresponds to the type of use to which the ZOFEMAT is destined. Fees in the protection and ornamental area are quoted at up to MXN$ 45.57 per square meter, while for general use they amount to up to MXN$ 163.31 per square meter of ZOFEMAT.

7. If the ZOFEMAT is used without a concession title or with an expired concession, administrative, fiscal, and criminal liabilities could arise. We recommend paying attention to the delimitations of the high tide and ZOFEMAT established by SEMARNAT and to the term of the concession title, which, although it is about to expire, may be extended. It is important to mention that the loss of a concession entails the loss of rights for a specific use in the ZOFEMAT.

Therefore, the owners of the properties neighboring the ZOFEMAT should obtain a concession title over it. In addition, adequate planning and legal advice are the keys to taking advantage of the use of this zone, protecting private property from adjacent projects, and taking care of one of the main attractions of this type of project: the beaches.

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