property rights tagged posts

Beach Entrance to Akumal Bay: Changes as of March 5, 2018

In light of the recent closure of the beach path through private hotel property and the various rumors and speculations on social media, it’s time to set the record straight. We’ve been getting various questions and have been working on getting the correct answers. Here is what we know so far:

Was the beach path in Akumal closed?

Yes. The illegal path that ran through private property was closed under a federal court order on Monday, March 5. However, there are multiple access points or “Ventanas al Mar” to get to Akumal Bay. (See the Urban Development Plan Akumal 2007-2032, page 98.)

Is Akumal Bay now closed?

No.

Is Akumal Bay now a private beach / privatized bay?

No. The beaches in Mexico are public beaches.

Why was the path by the arch in Akumal closed?

The path was illegally created two years ago through private hotel property by a group of commercial tour operators. It was never a government-recognized access point to the beach, and the property rights of the hotel were violated. It took two years in court proceedings for a resolution. Last month a federal judge issued a court order to return the property back to its rightful owner under the supervision of municipal police.

How do I access Akumal Bay now?

Image from the Urban Development Plan Akumal 2007-2032

There are two main options to access the beach:

  1. Through one of the government designated “Ventanas al Mar” or windows to the sea in Akumal. (Marked by blue diamonds on the map.) There are accesses to Akumal Bay both to the south and to the north.
  2. Through Centro Ecologico Akumal—the building beside the Akumal Dive Shop.

 

Is there a fee to access the beach?

Entering the beach through one of the “Ventanas al Mar” is free. (These windows to the sea are federal property and under the jurisdiction of the federal government.)

If beach-goers wish to enter and use the services provided at the Centro Ecologico Akumal building (washrooms, showers, lockers, lifeguards, palapas etc), they can do so according the following fee schedule:

  • Residents of Quintana Roo with identification: Free
  • Children under 6 / seniors with INAPAM identification card: Free
  • All other visitors or guests: $5USD/100 pesos.

In summary:

  • Akumal Bay/beach is not closed.
  • Akumal Bay/beach is not private.
  • Akumal Bay has several access points/paths.
  • Anyone can access the beach through the Ventanas al Mar or the CEA building.
  • “Quintanarooenses” can enter the beach through the CEA building at no cost.

As we become aware of more details, we will be sure to post.

Updates to the Illegal Beach Path in Akumal

Since 2016 when land was illegally taken from Hotel Akumal Caribe by a group of commercial tour guides and operators wielding chainsaws, axes, and machetes claiming their right to the private property, the process to reclaim the land has been in the courts. At the end of January, a federal judge passed the order that the land in fact belonged to Hotel Akumal Caribe, recognized through municipal and public records that the path to the bay is not a “window to the sea” (as the cooperatives/commercial operators claimed) and that the land is to be restituted back to the hotel.

Currently, the municipal president is defying the court order and some of the commercial operators are retaliating by launching false media campaigns.

Recently the following was published in QueQui newspaper. (Translation below.)

 

To the public opinion

Background: On August 31, 2016, various groups of commercial operators, in collusion with the City of Tulum, invaded private property belonging to the Hotel Akumal Caribe. Arguing that within said property there should be a public access to the beach (window to the sea). In the presence and with the consent of the municipal police, the merchants were introduced to the property with heavy machinery, chainsaws and machetes and demolished buildings, deforested green areas and even demolished the statue of Gonzalo Guerrero.

From the date on which this occurred, the invaded area has been used for the sale of turtle swimming tours, rent of vests and other offers of the informal vendors; This to the detriment of the ecology and the tourist image of Akumal.

The Hotel, firmly believing in the rule of law, sought to assert its property rights and the resolution of the conflict with strict adherence to the law. This process has been  long and expensive. Meanwhile, for more than a year and a half, the invaders commercially exploited the property, causing irreparable damage to the image and tourist offer of Akumal.

After a long legal process, the Second Collegiate Court of the Seventh Circuit, Cancun, Quintana Roo, determined that the ownership of the Hotel Akumal Caribe was taken illegally on August 31, 2016 and ordered its restitution. Among other things, the definitive resolution establishes that:

“… to restitute the complaining party with respect to the part of their property that was affected …”

We have full confidence in our legal institutions. The legal truth is now clear. We await the full compliance according to the law by the Municipality of Tulum. The validation by the municipal authorities of acts contrary to the law and the incitement to “continue with the struggle” is a clear challenge to federal justice and the laws of our country.

We will remain committed to the sustainable development of Akumal. Convinced that the best way to help the community is with generating jobs and attracting quality tourism. We should not devalue the tourist offer of Akumal for the benefit of the informal vendors; this does not contribute to its development. On the contrary, it directly attacks the investments that generate employment and the right of legitimate workers and businesses in the tourism sector of the entity.

Hotel Akumal Caribe

Owners, managers and workers.

Authority Confirms, No Public Access through Club Akumal Caribe

The following note was published in both PorEsto! and Novedades yesterday. Below is a translation.

THE AUTHORITY CONFIRMS THERE IS NO PUBLIC ACCESS THROUGH CLUB AKUMAL CARIBE.

ANYONE STATING CONTRARY TO THIS TRUTH IS LYING.

Some groups of Akumal are lying to manipulate public opinion and the people of Akumal when they say that the property of CLUB AKUMAL CARIBE SA DE CV is in litigation.

What they say and publish is completely “FALSE AND WITHOUT REASON.” The property of Club Akumal Caribe, S.A. of C.V. is not and has never been in litigation.

To understand the falsehoods and lies, it is important to understand the meaning of the word “litigation.” Litigation is a legal discussion before a Superior Judicial Body. The above should not be confused with “conflict” since to deny that there is a conflict would be a waste of time. However, the conflict that exists is caused by the inaction on the part of the Municipality of Tulum to enable the windows to the sea stipulated in the Program of Urban Development of Akumal 2007-2032.

The only thing that is in dispute is the constitutionality of the agreement of the Seventy-Fourth Ordinary Session of the previous Town Council of the Municipality of Tulum, Quintana Roo, held on August 29, 2016…which by the way was their last session.

The previous cabildo (town council) issued its agreement without giving any warning to Club Akumal Caribe when it had the legal duty to give a written notice to the legitimate owner of the property that was under study. This would have allowed the property the possibility to exhibit all the documents and elements of necessary proof and verify their rights and not leave it in a state of being defenseless, as in fact did happen at the moment they dictated the mentioned agreement of the previous cabildo.

Likewise, the act of the previous cabildo violates the constitutional rights enjoyed by all Mexicans. As established in Article 14 of the Constitution, it guarantees that “No one shall be deprived of liberty or property, possessions or rights, except through trial before the courts previously established in which the essential procedural formalities are complied with and in accordance with the laws issued prior to the fact.”

In addition to the above, on February 13, 2017 an official survey was issued (study for the delimitation of terrestrial surfaces) within the Research folder: FGE / QR / AMPTUL / UITUL / 09/17/2016, carried out at the request of the C. Agent of the Public Ministry of the Common Jurisdiction in Tulum, Quintana Roo, which confirms and demonstrates that within the property of the Club Akumal Caribe…THERE DOES NOT EXIST AND NEVER HAS EXISTED AN ACCESS OR PUBLIC PATH TOWARDS FEDERAL ZONE.

As a result of this official document, the agent of the Public Ministry of the Common Jurisdiction of the Municipality of Tulum granted an Order of Protection in favor of CLUB AKUMAL CARIBE SA DE CV.

Unfortunately, this order has not been complied with by the General Directorate of Public Security of the Municipality of Tulum, a situation that has generated more conflicts and intimidation on the part of some groups with personal interests and against CACSA staff as well as the repeated harassment of local visitors and foreign tourists who visit us, these occurring inside the same property of Club Akumal Caribe and before the complacency of the Municipal Police officers on duty who are supposed to protect the safety of the property.

Something very important that we have the moral obligation to clarify is that, “THERE HAS ALWAYS BEEN FREE ACCESS TO THE BEACH FOR ALL QUINTANAROENSE THROUGH THE UKANA I AKUMAL A.C. (CEA) AS WELL AS THROUGH THE 7 WINDOWS TO THE SEA ESTABLISHED IN PDU 2007-2032. “

However, it is completely false that “within” the property of Club Akumal Caribe exists or has ever existed a public access or a window of access to the sea as some groups with personal interests want to believe.

The inhabitants of the municipality of Tulum and especially the people of Akumal deserve to know the truth.

It is not fair that by false information of certain irresponsible groups the peace and tranquility of our people is disturbed. CLUB AKUMAL CARIBE only asks that what is right is respected, as legitimate owners…but above all, that irresponsible groups and the Municipal Authorities and the City of Tulum reconsider and act within the legal framework attached to the strict word of the law and not by simple populist acts outside any legal and moral order.

All this is and should be for the well-being of the people of Akumal.

Thank you very much

Akumal, Quintana Roo on March 29, 2017

Perimeter Fence in Akumal Disrupted by Threats and Property Damage

The following is the translation of the article printed in the PorEsto! on March 4, 2017

A Perimeter fence in the Ukana I Akumal Center

After a mesh fence was placed as delimitation of property, located in the Bay of Akumal, the Federal Office of Environmental Protection (Profepa) was observing the work, to verify if it meets the procedures and not expanding to the Federal Zone Land Maritime (Zofemat). The private property of the Ukana I Akumal, A.C. Center, also known as the Centro Ecológico Akumal (CEA), has been officially acknowledged by the Public Prosecutor’s Office of the Common Jurisdiction (MPFC) to protect private property.

So the work began on the installation of a perimeter fence that, it should be clarified, has nothing to do with public access to the beach. It was during the morning of Friday that there were moments of tension in the Bay of Akumal, on one side the established businesses and on the other side some inhabitants that work in that coastal part, although the presence of the Mexican Navy was noted as well as staff of Profepa who took photographs of the actions and in turn to verify if the functions carried out comply with the regulations. This dependency maintains

Supervision in the area; the municipal police was also present, and on the other hand the private security and lawyers to delimit the property.

On the 15th and 21st of February 2016, the Ukana I Akumal Center, also known as the Akumal Ecological Center, attempted to delimit the boundaries of it’s property which is an exercise of a legitimate right. Although it is fundamentally the right to do what each person considers appropriate with the things of his property, there has been a reaction from various informal commercial groups that prevented the property from fencing, threatening with machetes, damaging and destroying what is not their property although it was clarified that this measure has nothing to do with public access to the beach, as it is only a simple perimeter fence.

For this reason, the corresponding complaint was made to the competent Public Prosecutor’s Office, which issued an order on 25 February 2017. A protection measure is hereby applied in favor of Centro Ukana I Akumal Asociación Civil, also known as Centro Ecológico Akumal (CEA) (ic), represented by Javier de Anda Morales, Lot 01 Manzana 11 Región 1 Bahia de Akumal.

Rights vs. abuse of Rights

September 15, 2016

private-property-sign-group-enteringThe right of passage to the federal zone is just that. It’s intended for everyone, of any nationality, to be able to access the beaches of Mexico for their recreational use.

But imagine if this law was applied to every beachfront property along the coast, whether a house, a condo, a villa, a hotel, or a restaurant. The government of Mexico opened up the Riviera Maya for tourism, and never thought of that. They did not leave enough public beaches, with bathroom and lifeguard facilities, picnic areas, trashcans and security. Instead they sold all the land they could, and then realized they needed an Urban Development Plan for the area.

This Urban Development Plan was approved in 2007 for the period 2007–2032. At that time, they designated the “Windows to the Sea” in order to provide access to the beach for the general public.

The central part of Akumal Bay never had a “window” designated, because this area is private property. However, the general public is passing freely to the bay given the unique situation that one of the private properties is not a hotel or a restaurant or a house or villa or condo. It is an Ecological Center and had always been and continues to be open to the community and everyone visiting Akumal.

The government declared a Window to the Sea on the southern part of the Main Bay just down the beach to the south of Akumal Bay Resort, along with all the others they designated in the area. None of these Windows to the Sea were opened up on Private Property.

The original developer of Akumal, Pablo Bush Romero, bought the entire piece of land as one parcel. The subdivisions he submitted for Akumal were how he envisioned the area could be developed. At that time, the municipal and state governments approved the subdivisions without requiring Environmental Impact Studies, public beach accesses, or centralized sewage treatment to name a few. It was very fortunate that Pablo was not a developer, he was a Ford Dealer, and his hobby was underwater archaeology and exploration, and he fell in love with the area. He only developed a small portion of Akumal with very low density and today the family property fully complies with all Environmental Laws.

As the years went by, the government introduced environmental laws and agencies that required new developments/developers to apply for permits. The old subdivisions that had not been built on were no longer valid, and as each subdivision was sold, the developers had to submit a new proposal for the land and comply with all the new requirements. This included Aventuras Akumal, South Akumal, Jade Bay, and Punta Sur. Of those, the newer subdivisions now have Public Beach Accesses, because they were designed into them when the developers applied for their permits, thus not having to use anyone’s private property.

Today, there is a dispute over private property rights on the Main Bay of Akumal. Two pieces of land that were once one piece, and that were subdivided by Pablo Bush Romero are being challenged by a group of people that claim there is a public access there. One piece, he donated to a non profit organization, Club de Yates Akumal, which is now Centro Ukana I Akumal AC (CEA). The other, the family business Hotel Akumal Caribe. Both pieces of land were Pablo’s, and yet today the family is being challenged and their private property rights have been violated.

Private property is the right of a particular individual or entity to use, enjoy and dispose of within the limitations established by law.

In our legal system private property has been recognized as an individual guarantee from the Constitution of 1814. In the current Constitution there is reference to a number of fundamental human rights, protecting private property against arbitrary acts of authority.

Article 14 states that no person shall be deprived of liberty or property, possessions or rights without a trial before previously established courts in which due process is observed and in accordance with laws issued prior to the fact.

Furthermore, Article 16 says that no one may be affected in his person, family, home, papers or possessions, except by written order of the competent authority which is founded and motivated by legal procedural cause.

These provisions are fundamental human rights that are aimed at protecting private property from arbitrary acts of authority, which must respect and protect private property. The authority has the obligation to care for the property of individuals, acts or omissions made illegally through third parties or other arbitrary acts of authority.

Boundary lines between CEA and Hotel Akumal Caribe have been corrected over the years. This is very common as adjustments are made over time under new governments with new technology. The lines were first corrected by the Municipality of Cozumel, then by the Municipality of Solidaridad (Playa del Carmen) and more recently by the Municipality of Tulum. Each claimed that their instruments were correct, and the past ones were not. These certifications do not prove or indicate any wrongdoing, nor do these documents indicate or certify that there is a separate title for a public Access.

Certainly not by a group of citizens who push a vote by the Municipal council that is not the legal entity to decide on matters of Land Registry, thus violating several laws. Certainly not without a court order, and without the proper officials present to carry out a notification before they take land over. Certainly not by destroying private property.  The courts recognized the illegality of these actions on September 2, 2016.

Imagine if one day that a group of people representing a commercial activity in front of your property decides that they want to open up an access through your land to get to the beach. Imagine that you have all your paperwork to prove it is yours, and yet they allege that you stole land from the federal government through an adjustment in your property boundaries with your neighbour.

Imagine that the neighbor had been allowing access through his land for years through a pathway they have on their property. That pathway shows up on your Certification of Means and Boundaries document stating that the neighbouring property has an access to the beach, but it did not say a “Public” Access to the beach. Furthermore, that pathway is not in the Land Registry record, because it is only a reference to a pathway that the property has leading to the beach, and yet a group of private citizens say it is Public based on this.

And suppose that those arguments were used to have a group of private citizens come in and take over a portion of your land, tear down your palapas and whatever else is in their way, and take over that access and control it as if they were the government!  And imagine that no government official was sent to manage this so-called Public Access and that the government allows a group of private citizens to manage it; to tell people what they want, and carry out their business the way they see fit through this access. This is not a Public Access, this is an invaded piece of private property run and controlled by a group from the private sector that conduct snorkel tours in the bay.

You do not need to imagine any of this, because that IS what is happening today. The rights to access the main beach of Akumal have never been violated. There has not been one day that there have not been people freely going in and out of the main bay to the beach.

The rights of private property are being violated through the abuse and disregard of the laws of Mexico.


 

The following article was provided by the owner/operator of Hotel Akumal Caribe as a reflection on the recent events.