Source: Santamarina y Steta SC
Executive Summary:
- The Supreme Court of Justice of the Nation (SCJN) has modified its criteria by allowing disputes related to real estate leases to be processed through commercial channels, provided that it is determined that they are for commercial speculation purposes, considering them acts of commerce under a broader interpretation of article 75 of the Commercial Code.
- This change provides greater clarity in procedures for commercial leases, but also creates challenges, since the classification as a civil or commercial act will depend on a specific judicial interpretation, which could create uncertainty regarding the applicable rules.
For many years, the jurisprudence 1a./J. 63/98 of the Supreme Court of Justice of the Nation (“SCJN”) established a clear rule: disputes arising from real estate leasing should be processed exclusively through civil proceedings. According to this criterion of the SCJN, real estate leasing should not be considered an act of commerce since it is not listed among the acts that article 75 of the Commercial Code considers as commercial.
This interpretation was revised and abandoned by the First Chamber of the SCJN on April 30, 2023, through jurisprudence 1a./J. 170/2023 (11a.). Thus, the SCJN ruled that, under certain conditions, the commercial route may be the most suitable for resolving conflicts related to the leasing of real estate. This change responds to the need to recognize that some leases are for commercial speculation purposes and are essentially acts of commerce.
The starting point for determining the admissibility of the commercial route lies in defining whether the specific real estate lease constitutes an act of commerce. In this regard, the SCJN highlighted that the list of acts of commerce contained in article 75 of the Commercial Code is not exhaustive, but merely illustrative and, therefore, there may be commercial acts that are not explicitly mentioned in said section –such as real estate leasing-. Likewise, our Supreme Court specifies that section XXV of the article in question provides that commercial acts include both those expressly included as well as those analogous ones carried out for commercial speculation purposes.
It was therefore determined that, although real estate leasing is not explicitly classified as an act of commerce, it could be considered as such by analogy. Indeed, if the leasing has a commercial speculative purpose, it must be considered as an act of commerce, which leads to any related dispute being resolved by commercial means.
This change of approach has several implications. On the one hand, it provides greater certainty to the parties involved in a commercial real estate leasing dispute, since there is a clearer criterion on the procedure to be followed in these cases. However, it may generate uncertainty about the nature of the act, which, in turn, would generate doubts regarding the substantive and procedural rules that must be applied in the event of a dispute.
In this sense, although this new position of the SCJN offers an approach more in line with reality, it also poses the challenge of operating in an environment where the admissibility of the route will depend on the judicial interpretation of the type of act –civil or commercial-.
In conclusion, the new SCJN criterion opens the doors to processing real estate lease disputes in the commercial court and marks a significant change in the Mexican legal field. By abandoning the jurisprudence that restricted these disputes to the civil court, and by allowing, under certain conditions, the commercial court, the possibility of certain leases is recognized –those for commercial speculation purposes– may be considered acts of commerce.
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