Real Estate Law Guidelines for Investments in Commercial Real Estate

Transcription

1 Real Estate Law Guidelines for Investments in Commercial Real Estate 2 nd edition

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4 Real Estate Law Guidelines for Investments in Commercial Real Estate Editor: Editorial: Design: LEGALINK Jakoby Rechtsanwälte, Dr. Markus Jakoby, Berlin Claudius Herwig, Berlin 2 nd edition LEGALINK

5 Real Estate Law Guidelines for Investments in Commercial Real Estate 2 nd edition 5

6 Introduction Two years ago when compiling the first edition of this book, we saw governments all over the world trying to stabilize the financial systems in their countries with huge amounts of money after the sharp decline of almost all markets. In particular, the governments helped the banking industry which struggled with severe cash flow problems because markets had suddenly stopped buying financial instruments which are now widely regarded as intentionally designed to obscure the huge risks associated with them. From a global perspective, governments were all in all quite effective with their measures and 2010 saw the start of a broad recovery not only in the financial industry, but also in the commercial real estate market in almost all business centers worldwide. As a consequence of the last financial crisis, investors and all other players in this field became more cautious and real estate-related financial products are now more transparent. In parallel to the market recovery, a new phenomenon became reality: the markets asked if the governments of the countries which had organized the rescue of their major banks would now have the financial strength to re-pay the bonds they had sold to finance the bank rescues and other economic programs. In particular in Europe, countries like Greece, Spain, Portugal and even Italy now have to face high interest rates on their bonds and are suffering because their economies are not growing fast enough to balance all the competing economic interests. On the other hand, interest rates for real estate project financing are lower than ever before in countries which were not severely affected by the financial crisis during the last few years and inflation in those countries is higher than the interest rates banks pay on simple monetary investments. Therefore, in addition to investments in the stock markets, we see broad investments in real estate in countries like Germany where prices continue to increase, while in other countries like Spain, real estate prices decline. In this situation it is more than ever necessary to carefully evaluate the long-term viability of investments in real estate, keeping in mind that history shows that if the investments are professionally reviewed and professionally executed, then most are ultimately successful. We are very happy to have in our growing Legalink network, which has more than 3000 lawyers in independent law firms located in most business centers on all five continents, experts in the field of real estate acquisition and finance. These lawyers are ready to advise and assist investors in all aspects of invest- 6

7 Introduction ments and transactions involving commercial real estate, and other real property issues, as well. The experts of the Legalink network know each other personally from attending at least two meetings a year, which include meetings with colleagues in special interest groups focused on real estate practice, and from working together on cross-border projects. In discussions with our clients, we found that many of them, as well as other potential investors, would like to receive an introduction to the rules governing investing in commercial real estate throughout the world, as well as other aspects that have to be taken into account in commercial real estate transactions. In this book, we are pleased to give potential investors a first overview of various factors which must be taken into account when investing in commercial real estate in many countries of the world in which they might be interested. Of course, every single placement has to be reviewed in detail by specialists. You will find contact data of the firms within this book and on the website of our Legalink network (www. Legalink.ch). All firms are pleased to assist in this field and will give you professional advice. If you require a cross-border analysis of diverse law aspects, a joint effort to facilitate a cross-border transaction, or if you have any questions concerning how our network can get you the most advantageous solutions for investments in commercial real estate, please do not hesitate to contact us. We will be happy to refer you to the specialists of our network who can best assist you in your case. Berlin, October 2012 Markus Jakoby Jakoby Rechtsanwälte Maria Nogueira Chief Administrative Officer Legalink 7

8 *A word of caution: the goal of this project is simply to provide the reader with a general idea of what needs to be taken into consideration about the law pertaining to investments in commercial real estate. This book does not provide legal advice, which can be obtained only by discussing specific facts with a qualified lawyer who is expert in this subject matter in the jurisdiction in which you are doing business. What may be perfectly acceptable in one country may be an invitation to legal liability across the border. Please also remember: laws change. This book is being published in October Although we may publish an update sometime in the future, the only way to know that the information you are reading still is current is to talk to a qualified lawyer in the relevant country. 8

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10 Index Introduction... 6 Index Questions Australia I Australia II Austria Belgium Brazil I Brazil II China Colombia Cyprus Czech Republic England and Wales Finland France Germany Hong Kong Hungary India Indonesia Italy Japan Korea

11 Index Luxembourg Malaysia Mexico The Netherlands Norway Panama Peru Poland Portugal Russia Singapore Slovakia Spain Sweden Switzerland Thailand Uruquay USA California USA District of Columbia USA Texas Vietnam

12 Questions I. Procedure of a real estate transaction 1. Could you give a short outline with regard to the formal procedure of a real estate transaction in your country starting from the signing of the purchase agreement (including the closing) until formal ownership vests in the purchaser? 2. Does your legal system permit different sorts of ownership like ownership of the whole land and construction or ownership for example only of one unit or lots of units (condominium) of the improvements? 3. Does the legal system of your country permit joint ownership of real property? Which kind of entities can be owner of real property in your country? 4. In some countries the ownership of a building is implied in the ownership of the land. Is it this way in your country as well and/or is it possible to have different owners of the land and the building erected on it? 5. Is the land and/or the building registered in a formal register and is a good faith purchaser protected with regard to the entries in this formal register? II. Costs for transaction 6. What tax aspects are directly involved in a purchase of real property, for example real property transfer tax and what is the percentage of it? 7. Do you have to hold the property for a specific time with respect to tax reasons or is it in this context no problem to buy and sell property on a short term basis, for example within a year? 8. Can the seller get his money out of your country after the transaction (repatriation of funds)? 9. If you buy real estate that is leased to one or more persons are you allowed to terminate the lease contract(s) or which restrctions have to be taken into account? 10. Are you allowed to change the use of a building from residential use to office space or do you need official approval for doing so or is it not allowed at all? 11. To get a feeling as to the amount of costs involved, what costs should be taken into account if a foreign investor bought an existing building (and land) for a purchase price of EUR 5 Million, particularly 12

13 Questions notarial costs? land register? real property transfer tax? advising lawyer (due diligence )? estate agent? others? III. Costs for holding real estate 12. What tax aspects are directly involved when holding a property, for example yearly land tax after the transfer of ownership and what is the percentage of it? 13. What are the costs you have to calculate as a foreign investor, if you engaged a professional caretaker for the purchased property? How does the caretaker normally charge for their work? IV. Foreign investors 14. Would you advise foreign investors at the moment to invest in your country directly in real estate? through real property funds, open or closed ones? through other clear and secure financial products? at the moment not because of the impacts of the world wide financial crisis? 15. Is any individual person and legal entity allowed to buy property in your country or are there restrictions with regard for example to nationality or registered office of legal entities? If there are restrictions are there ways to organize a domestic entity for the purchase on a valid legal structure notwithstanding? 16. If a foreign investor buys a plot of land in your country to run a business there, what kind of official approvals are needed and what time and effort are needed normally to get it? 17. Could your firm assist foreign investors in Finding interesting real estate and related valid investment products in real property in your country where required through personally known estate agents and other advisers? Developing construction projects? All legal aspects involved in these contexts? 13

14 Australia I Behan Legal Francis Ruggiero Level 1, 270 Bay Street PO Box 745 Port Melbourne Victoria 3207 Australia Phone: Fax: ruggiero@behanlegal.com

15 Australia I I. Procedure of a real estate transaction 1. Outline about the formal procedure of a real estate transaction in Australia starting from the signing of the contract (including settlement) until formal ownership vests in the purchaser. Australia is a Federation of six States and two Territories: Victoria, New South Wales Queensland Tasmania South Australia Western Australia Australian Capital Territory Northern Territory Each State or Territory has different laws dealing with the sale and registration of property. Australia follows the Torrens system that allows a purchaser to become registered on title showing that he has an indefeasible right of ownership, subject to any mortgage or other encumbrance known when transacting the acquisition. This paper deals with the laws of the state of Victoria and Behan Legal can provide further details on specific transactions in particular states on request. In Victoria, for example, before parties can execute a contract of sale of real estate, the vendor must provide a disclosure statement to a purchaser, which forms part of the contract. The purchaser must acknowledge and sign receipt of the disclosure statement before executing a contract of sale. The disclosure statement deals with statutory obligations of disclosure that the vendor must give before selling real property. A contract of sale of land is unenforceable if the purchaser does not first sign the disclosure statement. The contract of sale contains general conditions, special conditions, warranties, procedures for settlement, agreement on payment of Goods and Services Tax, finance terms, property condition, and procedures on default. The contract will have a particulars page identifying the selling price and the settlement date, which is the date the transfer of ownership, takes effect in equity, as the purchaser must register the transfer to complete the legal transfer. Estate agents often negotiate the sale. They will obtain the signature of both the Vendor and Purchaser to bring a binding Contract into effect. If there are no estate agents, lawyers can exchange signed contract counterparts to bring 15

16 Legalink Investments in Commercial Real Estate the contract into force with the purchaser paying the deposit on signing the contract and the balance paid at settlement. The purchaser submits the legal document that is necessary to transfer the title in the period between signing and settlement by the purchaser. The Vendor ultimately hands the executed transfer to Purchaser s representatives at settlement, along with a stamp duty declaration from the Vendor used in assessing stamp duty a tax paid by the Purchaser on the transfer of land. On settlement day, the vendor receives the balance of the purchase price in exchange for the Certificate of Title to the land, which is the deed that denotes ownership in the land registry office, a government body that keeps record of ownership of land in the state under the Torrens System of registration. All outgoings for the property including land tax, water authority service charges, local council rates, rents, and Owner s Corporation fees are adjusted proportionately between the Vendor and Purchaser. The parties notify the authorities by either a Notice of Acquisition or Disposition. Once settlement occurs, the estate agent, Vendor or representative hands over the keys to the property and give vacant possession (unless a lease is in place). Once the purchaser obtains the transfer document and the declaration for stamp duty, the duty for the property is paid and stamped on the transfer document so it may then be registered at the land registry office and legal title passes to the purchaser. 2. Does the Australian legal system permit different sorts of ownership like ownership of the whole land and construction or ownership for example only of one unit or many units (condominium of the improvements)? Ownership allows ownership of the land as a whole including the building, or portions of the land/building specified in the Certificate of Title. A strata plan of subdivision of a block of land can issue separate Certificates of Title for each unit or apartment, which confers the applicable rights for the land on the proprietor registered on that title. In this situation, there is often common property which confers rights on proprietors of each unit or apartment in relation to that common property and is generally managed by an Owners Corporation responsible for decision making, maintenance, etc. of the common property. 16

17 Australia I 3. Does the Australian legal system permit joint ownership of real property? Which kind of entities can be owner of real property in Australia? It is possible for ownership of property by two or more people or corporations or other legal entity. Co-ownership can take the form of Joint Tenants, which under the rule of survivorship means that if one owner dies or ceases to exist, the title to the property passes to the surviving proprietor or proprietors as specified on title. Alternatively, co-ownership can exist as Tenants in Common where a fraction of ownership exists on the title registered, and this portion can be disposed of by the owner in any way available to them. Under this form of ownership, if a Tenant in Common dies, they can bequeath their fraction of ownership to whom they wish by way of will or otherwise. 4. In some countries, the ownership of a building is implied in the ownership of the land. Is it this way in Australia as well or is it possible to have different owners of the land and the building erected on it? Ownership of land includes ownership of any building on the land, as well as ownership of a limited space below the boundaries of the land and above the land. Technically, under the strata scenario, it is possible to own independently part of a building. However, if this were the case, any accessible land on which the building is erected, the Owners Corporation would own being common property. A Certificate of Title exists for each unit, and the accessible land detailed on title will indicate it is common property, therefore the ownership of that land is not held in the same manner as the unit itself. 5. Is the land or the building registered in a formal register and is a good faith purchaser protected with regard to the entries in this formal register? Certificates of Title are registered at the land registry office. The doctrine of indefeasibility of title means that the registered proprietor of land specified in the land registry office s registry has a paramount interest (subject to any encumbrances such as mortgages, easements etc.) in the land. The registered proprietor is protected from losing title to a good faith purchaser who purchases the property without notice of the current owner s title to the property. 17

18 Legalink Investments in Commercial Real Estate II. Costs for transaction 6. What tax aspects are directly involved in a purchase of real property, for example, real property transfer tax and what is the percentage of it? Each state or region has different tax structures applicable to land acquisition and ownership. In Victoria, the two main sources of revenue derived from real property are land tax and stamp duty. Land tax is an annual charge on owners of land at midnight on 31 December of the year before the year of assessment. The State Revenue Office assesses on a calendar year basis on the unimproved value of the land determined by general valuations carried by the relevant council every two years. There are some exemptions to land tax but it is generally payable on investments properties and vacant land. As an example, the 2010 general land tax rates for Victoria are: Total taxable value Tax Rates 0 < $250,000 Nil $250,000 < $600,000 $275 plus 0.2% for each dollar over $250,000 $600,000 < $1,000,000 $975 plus 0.5% for each dollar over $600,000 $1,000,000 < $1,800,000 $2,975 plus 0.8% for each dollar over $1,000,000 $1,800,000 < $3,000,000 $9,735 plus 1.3% for each dollar over $1,800,000 $3,000,000 and over $24,975 plus 2.25% for each dollar over $3,000,000 State Revenue Office assesses stamp duty on the greater value of the consideration or unencumbered value of the land at the time of entering the contract of sale. The Duties Act sets out the following formulae for calculating the stamp duty: Dutiable Value of Property Transferred Duty $0-$25, % of the dutiable value of the property $25,001-$130,000 $350 plus 2.4% of the excess over $25,000 $130,001-$960,000 $2870 plus 6.0% of the excess over $130,000 $960, % of the dutiable value of the property Stamp Duty is payable before a purchaser can register title, and in some states, it is payable before settlement can take place. 18

19 Australia I 7. Does a purchaser have to hold the property for a specific time for tax reasons or is it in the context no problem to buy and sell property on a short term basis for example within a year? Capital gains taxation on the sale of real property is payable at the owning entity s normal marginal tax rate. It is possible to offset capital losses from the capital gains in a financial year to calculate the net capital gain for a specific entity, which could mean a smaller liability amount for this tax. 8. Can the vendor get his money out of Australia after the transaction (repatriation of funds)? There are no general rules or restrictions on repatriation of funds from Australia under normal circumstances involving a sale of real property. 9. If one buys real estate that is leased, are you allowed to terminate the lease; or which restrictions have to be taken into account? When a property owner of freehold interest in the land disposes of that interest, any lease applicable to that land will remain in force, and its particulars disclosed in the Contract of Sale and vendor disclosure statement. The new property owner will generally stand in place of the previous owner and have the same rights and obligations in relation to the tenant of the land. 10. Is one allowed to change the use of a building from residential use to office space or does one need approval for doing so or is it not allowed at all? Local councils define the use of land in any particular area within their planning scheme by zoning. The zones include residential, business, industrial, parks and recreational, mixed zones and more. Each zone type carries with it requirements, permitted, and prohibited uses of the land within that zone. Each zone has uses that are permitted without a permit, uses that require a permit, and uses that are prohibited or have conditions attached to them. If a use is not permitted under a particular zone, a person may apply to the Minister to have the planning scheme amended. Depending on the circumstances of the amendment, this could prove quite difficult to achieve. 19

20 Legalink Investments in Commercial Real Estate 11. To understand the amount of costs involved, what costs are likely if a foreign investor bought an existing building (and land) for a purchase price of EUR 5 Million, particularly: Notary s costs Land register Real property transfer tax Advising lawyer (due diligence) Estate agent Other Lawyer draft the contract of sale and vendor disclosure statement for a sale of real property, and handle the conveyance of the land for the entire transaction. The type of property and its intended use determine the complexity of the transaction, and there are many variables in determining legal fees. The legal fees will usually be determined on an hourly or item basis or mixture of the two. Therefore, the more complex the transaction and attendances required to complete it, the higher the legal fees. The stamp duty on the legal transfer of the property differs from state to state. As an example, in Victoria, in the case of EUR 5 Million ($7,153, AUD) this would equate to $393, AUD or EUR 274, The registration of the new proprietor s name on title is calculated by another table of formulae, when used for the amount specified (EUR 5 Million), it would equate to $1, AUD or EUR , which is the maximum fee for registration of a transfer. Estate agents fees are negotiable and usually a percentage of the sale price generally around 2 to 5% of the sale price. III. Costs for holding real estate 12. What tax aspects are directly involved when holding a property, for example yearly land tax after the transfer of ownership and what is the percentage of it? Land tax is levied and is payable on a yearly basis. Land tax forms a charge on the land; calculated on the unimproved value of the land determined every two years by local councils. This varies from state to state. There are some exemptions to land tax such as property used for primary production or as a principal place of residence. Land tax usually applies to 20

21 Australia I investment properties and holiday houses. A surcharge may apply if a trustee of a trust, with certain exceptions, holds the land. 13. What are the costs one has to calculate as a foreign investor, if one engages a manager for the purchased property? How does the manager normally charge for their work? Real estate agencies that organise a tenant for a property generally manage that property for the duration of the lease. Fees can vary but are usually approximately 5% of the gross monthly rent. In the case of a unit dwelling or condominium; the Owners Corporation is responsible for the management of the common property, and will levy annual fees. This fee will vary greatly depending on the quality and services of the common property (gym, pool, etc.). IV. Foreign Investors 14. Would you advise foreign investors now to invest in your country? Directly in real estate Through real property funds, open or closed ones Through other clear and secure financial products At the moment not because of the impacts of the worldwide financial crisis There are factors to consider when investing in real property, as the prospects of capital gains can vary depending on where the property is located. Potential purchasers should make their own financial enquires as to whether the investment best suits them. Purchasers should seek the advice of licenced financial advisors who are the only professionals allowed to give advice on financial products. 15. Is there any individual person and legal entity allowed to buy property in Australia or are there restrictions for example to nationality or registered office of legal entities? If there are restrictions, are there ways to organise a domestic entity for the purchase on a valid legal structure notwithstanding? If a foreign person wishes to acquire land in Australia, they must give notice to the Treasurer of their proposed acquisition. If there is an objection to the 21

22 Legalink Investments in Commercial Real Estate acquisition, the Australian Government will provide that advice and make an order prohibiting it. If a person is required to give notice of their intention and they fail to, they may be liable for criminal charges. There are controls and restrictions on the ability of non-residents being able to own property in Australia even using a company. The ability to contract for the acquisition of property is subject to approval from the Foreign Investment Review Board. Any foreign person wishing to invest in Australia must consider whether there is a requirement to notify, or obtain government approval under its foreign investment policy. The proposals that require approval are: 1. Transactions involving certain foreign interests, and 2. Where the government considers few benefits accrue from foreign investment and where the proposal exceeds the $50m threshold. It is critical to understand the Purchaser s property intentions to determine if it will come under the threshold arm, however it falls under the foreign interest arm, and a foreign interest includes: 1. A natural person, not ordinarily resident in Australia, and 2. Any entity in which there is a substantial foreign interest, which is defined as an interest of 15% or more in ownership or voting power held by a single foreign person (including associates), or an interest of 40% or more in the aggregate ownership or voting power held by more than one foreign person (or their associates). Proposals involving the acquisition of interests in Australian urban land are subject to special scrutiny. The definition of urban land is wide and includes leaseholds and these proposals are subject to examination by the F.I.R.B, irrespective of value. 16. If a foreign investor buys a land in Australia to run a business there, what kind of official approvals are needed and what time and effort are needed normally to get it? Subject to the issues stated above, a foreign company can also register with ASIC as a foreign company under the Corporations Act. It is important to note that if a foreign person intended to come to Australia from overseas to work in the business, strict guidelines on obtaining a working visa must be adhered to and the visa must be granted before this can occur. 22

23 Australia I 17. Could Behan Legal assist foreign investors in: Finding interesting real estate and related valid investment products real property in Australia where required through personally known agents and other advisers Developing construction projects All legal aspects involved in these contexts Yes, Behan Legal deals with numerous and diverse real estate transactions including construction projects and organising legal and corporate structures to assist clients in their property holdings. Behan Legal Francis Ruggiero Level 1, 270 Bay Street Port Melbourne Victoria 3207 Australia Phone Facsimile Postal Address: Behan Legal PO Box 745 Port Melbourne, VIC 3207 Australia ruggiero@behanlegal.com 23

24 Australia II Piper Alderman Level 23 Governor Macquarie Tower 1 Farrer Place Sydney NSW 2000 Australia Tel: Fax:

25 Australia II I. Procedure for a real estate transaction 1. Could you give a short outline with regard to the formal procedure of a real estate transaction in your country starting from the signing of the purchase agreement (including the closing) until formal ownership vests in the purchaser? (a) Prior to Contract (i) Role of agents/brokers Interests in real estate are normally marketed by licensed real estate agents or land brokers appointed by and acting in the interests of the vendor, who will normally advertise the property online and usually in combination with various other marketing techniques designed to encourage the greatest possible potential buyer interest. (ii) Methods of Sale Properties are conventionally offered for sale at public auction, by private treaty (direct negotiation) or by way of select or open invitations to tender. Where the value of the property or the extent of interest in it is difficult to gauge, a prior procedure known as submissions of a non binding expression of interest is sometimes utilised. (iii)activities prior to contract During the period prior to formal contracts being entered into, purchasers normally conduct their due diligence, satisfy themselves as to the state or condition of the property, confirm availability of finance if necessary to complete the purchase and negotiate any required alterations to the conditions of sale. As a great deal of risk in relation to the property passes to the purchaser on entering into a formal contract, issues such as the quality or characteristics of the property or the conditions on which it is sold and accepted need to be satisfied prior to the contract being entered into. (iv)formulation of contract Generally the parties are not bound to proceed with a real property transaction until formal contracts are entered into and the property transaction laws governed by each relevant State in Australia mandate compulsory requirements as to matters which must be disclosed prior to contract are complied with, so as to provide intending purchasers with a minimum required level of disclosure concerning the property. (v) Role of Purchaser s advisors 25