The Fonatur administration opted for a transactional agreement, to avoid a “risky” lawsuit, of at least four years against the ASUR.
In 2009, ASUR acquired the land identified as lots 1 and 2 in Bahía del Órgano de Bahías de Huatulco.
The contract entered into with Fonatur established the obligation to submit an architectural project for authorization by the Fund, as well as dates for the start and completion of the tourism project to be developed.
In 2013, Fonatur’s Contractual Follow-up Subdirectorate issued an official letter SSC/SDR/043/2013 in which ASUR’s obligations to present the Architectural Project, Start of Work, and Completion of Work, and conventional penalties were removed.
As of March 2013, ASUR no longer had any obligation to build or develop on the land acquired from Fonatur, nor could conventional penalties be charged.
In 2020, in a review of the execution of works in the Integrally Planned Center of Bahías de Huatulco, it was detected that the only bay and macro lot without any development or construction was the one acquired by ASUR.
The record of the sale was analyzed and the following was found:
- The sale was agreed upon in 2009 with the obligation to present an architectural project, start date, and completion date.
- In 2013, the Contractual Follow-up Subdirectorate eliminated said obligations, in accordance with the Administration Manual, and the faculties at that time, it had the faculties to eliminate said obligations.
- ASUR had in possession and ownership of strategic land for the development of the Integrally Planned Center that increased its value with the investments made by Fonatur, without ASUR being obliged to build or develop.
INDAABIN was asked to appraise the properties and it resulted in more than 700 million pesos.
Fonatur’s legal options were the following:
- Attempt to collect conventional penalties that in 2013 Fonatur itself had taken from ASUR and initiate a trial of at least 4 years considering that the sale was dated 2009 and Fonatur’s right to sue could be considered prescribed.
- Rescind the contract and recover the land at the value paid in 2009, when the land already increased its value by 300%.
ASUR was notified of the termination and a Transactional Agreement was entered into to recover the land at the 2009 price, without trial, and Fonatur acquired a land reserve worth 286 million that in 2020 INDAABIN valued at more than 700 million, which are now part of of Fonatur’s heritage.
A very risky lawsuit was avoided for Fonatur, which if won would have represented approximately 60 million conventional penalties, in a period of less than 4 years.
A commercial land reserve worth more than 700 million was obtained for a third of its value.