The Real Estate Law Review Editor David Waterfield
Law Business Research
The Real Estate Law Review Reproduced with permission from Law Business Research Ltd. This article was first published in The Real Estate Law Review, 1st edition (published in April 2012 â€“ editor David Waterfield). For further information please email Adam.Sargent@lbresearch.com
The Real Estate Law Review
Law Business Research Ltd
Publisher Gideon Roberton business development manager Adam Sargent marketing managerS Nick Barette, Katherine Jablonowska marketing assistant Robin Andrews editorial assistant Lydia Gerges production manager Adam Myers production editor Joanne Morley subeditor Anna Andreoli editor-in-chief Callum Campbell managing director Richard Davey Published in the United Kingdom by Law Business Research Ltd, London 87 Lancaster Road, London, W11 1QQ, UK © 2012 Law Business Research Ltd No photocopying: copyright licences do not apply. The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. The publishers accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of February 2012, be advised that this is a developing area. Enquiries concerning reproduction should be sent to Law Business Research, at the address above. Enquiries concerning editorial content should be directed to the Publisher – firstname.lastname@example.org ISBN 978-1-907606-29-8 Printed in Great Britain by Encompass Print Solutions, Derbyshire Tel: +44 870 897 3239
The publisher acknowledges and thanks the following law firms for their learned assistance throughout the preparation of this book: Advokatfirman Vinge KB Almeida Bugelli e Valença Advogados Associados Bonelli Erede Pappalardo Creel, García-Cuéllar, Aiza y Enríquez, SC De Brauw Blackstone Westbroek NV DE PARDIEU BROCAS MAFFEI DRYLLERAKIS & ASSOCIATES EDWARD NATHAN SONNENBERGS INC Ferrere Abogados Hengeler Mueller ILA Pasrich & Company Jorge Avendaño & Forsyth Abogados Kim & Chang Krogerus Attorneys Ltd Lee and Li, Attorneys-at-Law LENZ & STAEHELIN Liedekerke Wolters Waelbroeck Kirkpatrick Loyens & Loeff, Avocats à la Cour MARVAL, O’FARRELL & MAIRAL
Mason Hayes & Curran Morais Leitão, Galvão Teles, Soares da Silva & Associados Nagy és Trócsányi Ügyvédi Iroda Nishimura & Asahi Papadopoulos, Lycourgos & Co LLC Paul, Weiss, Rifkind, Wharton & Garrison LLP SAYENKO KHARENKO Schoenherr Attorneys at Law Schoenherr si Asociatii SCA Shepherd and Wedderburn LLP Slaughter and May SNR Denton & Co Soewito Suhardiman Eddymurthy Kardono Uría Menéndez Wiersholm Mellbye & Bech, Advokatfirma AS
��������������������������������������������������������������������������������������������vii David Waterfield
Argentina����������������������������������������������������������������������� 1 Hernán Slemenson
Austria��������������������������������������������������������������������������� 14 Peter Madl
Belgium�������������������������������������������������������������������������� 25 Yves Delacroix
Brazil������������������������������������������������������������������������������ 36 Marcelo José Lomba Valença
cyprus����������������������������������������������������������������������������� 45 Nicolas Papaconstantinou
Czech Republic���������������������������������������������������������� 55 Martin Kubánek and Pavla Šlapáková
England & Wales������������������������������������������������������� 66 David Waterfield
Finland�������������������������������������������������������������������������� 78 Samuli Palin and Rami Salonen
France���������������������������������������������������������������������������� 85 Pierre Gebarowski and Guillaume Rossignol
Germany������������������������������������������������������������������������ 96 Ingo Klöcker
Greece�������������������������������������������������������������������������� 106 Paraskevi A Anargyrou and Stella G Yannika
Hungary���������������������������������������������������������������������� 115 Péter Berethalmi and Kata Molnár
India������������������������������������������������������������������������������ 124 Amir Singh Pasrich
Indonesia�������������������������������������������������������������������� 136 Dyah Soewito and Denny Rahmansyah
Ireland������������������������������������������������������������������������ 149 Kevin Hoy
Italy������������������������������������������������������������������������������� 158 Alessandro Balp
Japan������������������������������������������������������������������������������ 169 Norio Maeda, Tomohiro Kandori and Yasuo Asami
Korea���������������������������������������������������������������������������� 183 Yon Kyun Oh, Ann Seung-Eun Lee and Heung Suk Oh
Luxembourg�������������������������������������������������������������� 195 Véronique Hoffeld and Marc Meyers
Mexico�������������������������������������������������������������������������� 204 Carlos de Icaza Aneiros, Carlos del Rio S, Francisco Montalvo G and Jorge Torres Benítez
Netherlands������������������������������������������������������������� 215 Annemieke Wessels, Maarten Tinnemans and Max van Drunen
Norway������������������������������������������������������������������������� 227 Tom Rune Lian and Alexander Daae
Peru�������������������������������������������������������������������������������� 238 Francisco Avendaño
Poland������������������������������������������������������������������������� 248 Paweł Halwa and Michał Gruca
Portugal��������������������������������������������������������������������� 258 Filipa Arantes Pedroso
Romania����������������������������������������������������������������������� 266 Silvia Popa and Ionuţ Sava
Scotland�������������������������������������������������������������������� 274 Michael Henderson and Nick Ryden
South Africa������������������������������������������������������������� 289 Andrew Bembridge
Spain������������������������������������������������������������������������������ 298 Diego Armero and Rodrigo Peruyero
Sweden������������������������������������������������������������������������� 310 Patrick Forslund and Niclas Winnberg
Switzerland�������������������������������������������������������������� 319 Andreas Rötheli and Cécile Berger Meyer
Taiwan�������������������������������������������������������������������������� 328 Yi-Jiun Su and Doris Lin
Ukraine������������������������������������������������������������������������ 338 Konstantin Gribov
United Arab Emirates�������������������������������������������� 349 Ibrahim Elsadig and Joe Carroll
United States������������������������������������������������������������ 360 Meredith J Kane
Uruguay����������������������������������������������������������������������� 372 Carlos Falco
About the Authors����������������������������������������������� 382
Contributing Law Firms’ contact details���� 400
In an age that has seen ownership of real estate become increasingly international, it is more necessary than ever to appreciate the basic framework of real estate law in different jurisdictions. This book aims to give readers a general feel and overview of some of the key substantive and practical considerations in the major markets around the world. Each contributor to The Real Estate Law Review is a distinguished legal practitioner in his or her own jurisdiction, and this review represents an immediate and accessible summary of the most important and relevant issues across the many countries covered. The Real Estate Law Review seeks to identify distinctions in practice between the different jurisdictions by focusing on key developments that highlight particular local issues â€“ we believe that this will help practitioners to develop their understanding of practice beyond their own borders. As both domestic and international clients become ever more sophisticated in this regard, real estate practitioners need to be familiar with the issues in the markets that are most relevant to the interests of their clients. Overseas investors have for some time been key influences in most jurisdictions and it is therefore vital that practitioners are able to advise on a particular transaction in the light of an understanding of the investorâ€™s own home forum. In addition to bringing together topical cross-border real estate issues and practical information on real estate practice around the world, The Real Estate Law Review also seeks to offer an overview of activity levels in each jurisdiction and, therefore, the global real estate investment market. The impact of events such as the collapse of the US sub-prime residential mortgage market and the Eurozone crisis has demonstrated how complex and inter-related investment markets have become. It is no longer possible to ignore globalisation and view real estate markets in isolation. The financial and economic turmoil of the past few years will continue to affect the international real estate investment market; the scarcity of debt finance seems likely to continue for the foreseeable future and investors with funds will increasingly look to a global real estate market for value and safety.
Editorâ€™s Preface I wish to express my deep and sincere thanks to all my distinguished colleagues who have contributed to this first edition of The Real Estate Law Review. I would also like to thank Gideon Roberton and his publishing team for their tireless work in coordinating the contributions from the various countries around the world. David Waterfield Slaughter and May London February 2012
cyprus Nicolas Papaconstantinouâ€Š1
INTRODUCTION TO THE LEGAL FRAMEWORK
Cyprus is a business-friendly country with a strong economy. It is located in the eastern Mediterranean at the crossroads of Europe, the Middle East, Asia and Africa. In 2004, Cyprus became a member of the European Union, and in 2008, joined the Eurozone. The location of Cyprus, its reliable legal system, and the developed infrastructure are some of the advantages that Cyprus has to offer to foreign investors. Furthermore, the recent adoption of the euro has made the trading of land significantly easier than before. The countryâ€™s legal system is closely related to that of the United Kingdom. Most statutes regulating business issues and practices are based on English common law. Cyprus has developed an excellent legal system for real estate, which is on a level with the systems of other economically advanced countries. i
Ownership of real estate
There are three types of ownership in Cyprus: freehold, leasehold and shared ownership. Freehold is the most common manner by which real estate is owned in Cyprus; it is an estate in fee simple absolute. Freehold offers the owner of that interest the exclusive right to the land for an indefinite period of time. This is usually the most complete ownership of interest that may be owned in real estate property. Even in freehold, however, land ownership rights could be limited in several ways. Ownership rights may be restricted by legislation, by contract or by tenure. Leasehold is an interest for a specific term of years that is absolute; in this case, one party purchases the right to occupy land for a specific duration of time.
Nicolas Papaconstantinou is an associate at Papadopoulos, Lycourgos & Co LLC. The author would like to dedicate this chapter to the memory of his late father, Thasos, who passed away unexpectedly during the course of his working on this chapter.
Cyprus Under Cyprus law any leaseholds with an unexpired term of 15 years or more may be registered at the Department of Land and Surveys; however, the registration of a lease agreement must comply with certain conditions and requirements that are provided in the law. Such registration would entitle the lessees to sell, mortgage, transfer or pass on to their heirs the leasehold. Shared ownership is where real estate is owned in undivided shares by more than one person. ii
System of registration
Cyprus uses the system known as the registration of title to land, a system that safeguards the rights of the owners of an immoveable property and at the same time provides security for the immoveable properties transactions. This system of registration is under the control of the state; its subject matter is the parcel of land shown on cadastral plans that are linked to each other and cover the entire country. All lands, both state-owned as well as privately owned, appear on the register. Land registration is exercised by the Department of Lands and Surveys of Cyprus under the Ministry of the Interior, which is considered to be the oldest department of the public sector (its operation commenced in 1858). The advantage of registration lies between an indefeasible title and a defeasible title. In other words, registration renders the registered person as indefensible owner of the land and gives it absolute title to ownership; however, this absolute title to ownership is subject to both the inherent power of the courts to order an amendment, and also to the Lands and Surveys Department directorsâ€™ powers to correct mistakes or omissions. All transfers or charges of immoveable properties must be registered with the District Office of the Department of Lands and Surveys in order to have legal effect. The title is not covered by a state guarantee and there is no provision for an indemnity fund; however, the Cyprus system of registration is highly respected and trusted among the public. iii
Choice of law
There is an abundance of laws in Cyprus that apply to transactions involving real estate. These laws fall into two broad categories: general and specialised. General laws Despite the fact that they do not directly control issues related to real estate, the laws involved in this category include provisions that apply to transactions concerning real estate. These include, in alphabetical order: a the Administration of Estates Law, Cap. 189; b the Central Bank of Cyprus Law, No. 138(I)/2002; c the Civil Procedure Law, Cap. 6, and Rules; d the Constitution of Cyprus; e the Contract Law, Cap. 149; f the International Trusts Law No. 69/1992; g the Movement of Capital Law, No. 115(I)/2003; h the Probates (Re-Sealing) Law, Cap. 192;
Cyprus i j k
the Stamp Law, No. 19/1963; the Trustee Law, Cap. 193; and the Wills and Succession Law, Cap. 195.
Specialised laws These are laws that are introduced specifically for regulating real estate issues. This category includes, in alphabetical order: a the Acquisition of Immoveable Property (Aliens) Law, Cap. 109; b the Capital Gains Tax Law, No. 52/1980; c the Compulsory Acquisition of Property Law No. 15/1962; d the Immoveable Property (Tenure, Registration & Valuation) Law, Cap. 224; e the Immoveable Property (Towns) Tax Law, No. 89/1962; f the Immoveable Property (Transfer and Mortgage) Law, No. 9/1965; g the Immoveable Property Tax Law, Cap. 322; h the Rent Control Law, No. 23/1983; i the Streets and Building Regulations Law, Cap. 96; j the Sale of Immoveable Property (Specific Performance) No. 81(I)/2011; and k the Town and Country Planning Law No. 90/1972. II
OVERVIEW OF REAL ESTATE ACTIVITY
Despite the fact that Cyprus has not been affected by the global financial crisis to the degree that many other countries have, the crisis did not leave Cyprus untouched. Cyprus enjoyed a housing boom that lasted for a decade and ended in 2008; since then, the property market has declined, the main reason being the decrease in demand from British buyers who used to constitute more than half of foreign buyers in Cyprus. The delays in obtaining title deeds in combination with the fall in the value of sterling against the euro, as well as the UK recession, drove British buyers to look for investments outside Cyprus and the Eurozone. The prices of residential properties have decreased in certain circumstances up to 30 per cent2 in the past four years, with the most affected areas being those that were popular among the foreigner buyers, such as Paphos. Areas that rely mainly on local buyers such as Nicosia and Limassol have been recording significantly smaller drops. With sterlingâ€™s value starting to recover against the euro and the governmentâ€™s measures to speed up the process of issuing title deeds, there is a positive outlook on the future demand for properties. The most important and far-reaching development has been the recent discovery of oil and natural gas off the southern coast of Cyprus, which creates major opportunities for the recovery and growth of the Cyprus economy and, of course, the property market.
There are no long-standing property price statistics in Cyprus yet; the Royal Institution of Chartered Surveyors (RICS-Cyprus) released its first Property Price Index for Cyprus in January 2010.
Cyprus Last year, the US company Noble Energy announced the discovery of an estimated quantity of natural gas that, according to officials, could be enough to meet Cyprus’s gas needs for the next two centuries. On 11 February 2012 the EU’s Official Journal published the government’s announcement for the launch of the second licensing round for offshore oil and gas exploratory drilling in the remainder of Cyprus’s delineated economic zone. III
DEVELOPMENTS IN REAL ESTATE PRACTICE
Over the last few months there have been several important developments in Cyprus real estate law. Through the recent introduction of certain laws, the government took an important step towards the modernisation and effectiveness of the legal procedures that lead to the issue of updated title deeds, in order to permanently solve the ‘title deeds issue’ (delays in issuing title deeds and the resultant difficulties caused to purchasers). i
Many of those important developments were introduced through the three amended laws regarding a building amnesty,3 which came into force on 8 April 2011. The expectation of the authorities was that the chronic problems and bottlenecks that prohibited the registration of thousands of properties would be resolved as a result of the new laws forming the building amnesty. The need for the introduction of a building amnesty arose from the fact that thousands of buildings and divided building plots in Cyprus could not be registered by the Land and Surveys Department and the relevant title deeds could not be issued. This was due to several reasons, the most common one being the need to legalise (in many instances just minor) irregularities. By implementing the new legislation, the intention of the government and the Parliament is to enable the owners (or co-owners) and purchasers of property in joint ownership through a described simple and brief procedure to legalise minor irregularities in order to obtain the certificate of approval and updated title of the property, or the unit in cases of building complexes. This will further safeguard the rights of thousands of purchasers who remained trapped without title deeds for many years and at the same time will enhance the reputation of the Cyprus property market abroad. The key features of the amended laws as outlined in the bulletin prepared by the Ministry of the Interior are as follows: a The amnesty applies to all buildings completed prior to the 8 April 2011 with a town planning or building permit and without the relevant certificate of final approval. The law provides that interested parties must submit their intention to apply for the amnesty within a period of six months, which has been extended for another six months to the 7 April 2012, and have a further period of three years to submit the actual application.
The three laws that were amended to introduce the building amnesty are: the Immovable Property (Tenure, Registration & Valuation) Law, Cap. 224; the Town and Country Planning Law No. 90/1972; and the Streets and Building Regulations Law, Cap. 96.
The legality of the building ceases to be a prerequisite for the issuing of a title deed. It is now probable that an updated title deed be issued for a building with given irregularities. Nevertheless, those irregularities must be described on the title deed. It applies, inter alia, to existing additions or alterations to an existing building resulting to an unlicensed building density up to 30 per cent over the approved covered area, to an increase in the height or the coverage ratio of the building and to failure to comply with the minimum required distances between buildings. If what is required is additional building density because the approved surface of a building or unit in a building is exceeded, the applicant will have to pay a compensation levy, which will be equivalent to the market value of the additional density. It can also apply in circumstances where occupiers of other units in a common project have made illegal additions or alterations. Those owners or purchasers of units that have no illegalities can now apply for the certificate of final approval irrespective of the fact that other parts of the project have illegalities. In cases of very serious irregularities, a note will be registered in the title prohibiting the transfer of the property to another person until those irregularities are removed. The right to initiate procedures for the issuing of an updated title deed is now extended beyond the owner to the purchasers and the relevant authority. If the registered owner or developer does not take the required steps in order to have the certificate of final approval issued, any purchaser of a unit in the property or co-owner can apply directly. Further, the relevant authorities from now on may liaise with each other directly and will no longer depend on the owner’s initiative. The amended laws enable the relevant authorities to impose administrative fines on owners who fail to submit the required declarations or applications in a way that will encourage them to comply with their legal obligations. Specific Performance Law
Further important developments were introduced by the government through the implementation of the new Sale of Immoveable Property (Specific Performance) Law No. 81(I)/2011 (‘the Specific Performance Law’), which recently replaced the Sale of Land (Specific Performance) Law, Cap. 232. The Sale of Land (Specific Performance) Law has safeguarded purchasers for a considerable time. Once the purchaser lodged the contract of sale with the district office of the Department of Lands and Surveys (‘the district office’), the vendor (or the developer) was prohibited from reselling the property to a third party. The law provided that once the contract of sale was duly lodged, if an application was brought before a competent Cyprus court, the court could issue an order requiring the parties to the contract of sale to perform their respective obligations undertaken in the contract. Despite the protection that the law provided to the purchasers, it was nevertheless recognised that the law had a number of loopholes that enabled dishonest vendors to take advantage of their positions. For instance, since there is no obligation for a vendor to
Cyprus remove the existing mortgage that it might have imposed on a property, many purchasers were left with the threat of losing their properties as a result of the vendor (or developer) becoming bankrupt. To eliminate such anomalies, the Specific Performance Law was approved by parliament and came into force on the 29 July 2011. Its main provisions are as follows: a A contract of sale of real estate can be lodged with the district office within the extended period of six months from the date of signing. This period was previously two months from the date of signing. b Any purchaser of real estate may assign its rights and obligations under the contract of sale to an assignee. The assignment agreement can be lodged with the district office within two months of its signing, provided that the original contract of sale has already been lodged with the same district office. Prior to lodging the assignment agreement, a tax clearance from the Capital Tax Office must be produced at the district office. In this way, the assignment agreement will have the same legal status as the original contract of sale. c The real estate vendor must lodge a purchaserâ€™s contract of sale with the district office before it encumbers the real estate (by way of mortgage, for example). It is a criminal offence for the vendor to fail to comply with the above requirement. d If there is a clause in the contract of sale that prohibits it from being lodged with the district office, that clause is considered to be void ab initio. e In situations where there is an existing mortgage in a property, the purchaser of a unit in the property may pay to the lender the portion of that mortgage attributable to the specific unit. The lender must accept the payment and provide the purchaser with a mortgage release. Consequently, the contract of sale will take precedent over the mortgage, irrespective of whether the complete amount of the mortgage has been repaid. In terms of the contracts of sale that were signed or lodged with the district office prior to the above law coming into force, the provisions for these arrangements can only be made provided that written approval is obtained by both the vendor and the lender. f The encumbrance created by the lodge of the contract of sale with the district office secures each sum that the purchaser paid towards the purchase price or the given value of the subject matter at all times. g The court may consider issuing a specific performance order under given circumstances in cases where the contract of sale is not lodged with the district office or in cases where the agreement is verbal. In order to do so, the court must consider that it is fair and reasonable, and at the same time that the rights of third parties from prior encumbrances are not affected. IV
REAL ESTATE AND FOREIGN INVESTMENT
The ownership of real estate by overseas investors in Cyprus is regulated by the Immoveable Property Acquisition (Aliens) Law, Cap. 109. On 16 December 2011, this law was amended in such a way that the restrictions concerning the acquisition of secondary residence by nationals of EU Member States were no longer applicable.
Cyprus Under the new provisions, EU and EEA nationals, as well as legal entities incorporated under the laws of any EU or EEA Member State that have their registered office, central management or principal office in an EU or EEA Member State will not fall within the definition of an ‘alien’. This means that they need not apply for permission from the Council of Ministers in order to purchase immoveable property in Cyprus. With regard to non-EU nationals, however, the previous restrictions still apply. Under the law, no alien (non-EU national) may acquire immoveable property in Cyprus, other than by reason of death, without the prior permission of the Council of Ministers, a power that has been delegated to the district officer of each district. The approval procedure takes between three and six months, however, purchasers are entitled to occupy the property in the meantime. Such permission is required for both the purchase of immoveable property as well as for leases exceeding 33 years. Normally, such permission is granted bona fide to alien individuals to purchase one apartment, one house or a building plot or land up to 4,014 square metres in size. It is at the discretion of the Council of Ministers (now the district officer) to give permission to foreigners to acquire a larger piece of property if the land is to be used for specific purposes such as tourist development, or if the land is in an area where the government wishes to encourage the tourist infrastructure. The government, in its effort to attract foreign investments, has recently introduced policies allowing full-residency permit through investment. The ‘Category F’ visa permit applies to third-country nationals who will not be working in Cyprus but will stay in Cyprus as permanent residents. The main prerequisites for applying for the above permanent permit are to have a certain level of secured annual income and to have purchased a residence for self-occupancy in Cyprus worth at least €300,000. Further, third-country nationals can even obtain a Cyprus citizenship and passport by exemption, based on their investments and financial affairs in Cyprus. One possible investment requirement to constitute an eligible application is direct investment in Cyprus, such as in real estate, of at least €25 million. V
STRUCTURING THE REAL ESTATE INVESTMENT
Cyprus enjoys the lowest corporate tax rate in the EU, which is 10 per cent. Therefore, instead of purchasing real estate in the name of a physical person, a typical investment structure from a tax point of view is to form a limited liability company in Cyprus and purchase the immoveable property in the company’s name; the tax payable by the Cypriot company is then calculated upon the net profit earned at a rate of 10 per cent. With regard to rental income produced, there is an allowance of interest paid as well as a 3 per cent wear-and-tear allowance in addition to any other expenses. Further, if the company issues dividends to shareholders not residing in Cyprus, the whole amount of the dividend is exempt from tax. For shareholders who are residents in Cyprus, however, there is a special defence tax payable at 20 per cent on the dividend received. Another advantage is that a company that owns real estate can transfer its shares into the name of the purchaser instead of transferring the real estate itself. In this way, no
Cyprus transfer fees are payable, but there will be a capital gains tax payable on the profit made by selling the shares. VI
REAL ESTATE OWNERSHIP
i Planning The Department of Town Planning and Housing, which is a government department under the Ministry of Interior, is responsible for planning control in Cyprus. The main purpose of the department is to regulate urban and spatial planning under the provisions of the Town and Country Planning Law of 1972. Cyprus is divided into different planning zones such as residential, agricultural, green belt, industrial, animal rearing and tourist. Certain zones constrain or forbid the construction of houses. The planning zone determines the building coefficient, the nature of use that is permitted, the number of storeys allowed and the site coverage. Before purchasing land in Cyprus it is essential to visit the actual site and seek expert advice to determine its characteristics and its planning restrictions. ii Environment Under the Law of Control of Water Pollution 106/2002 as amended, the contamination of underwater or soil constitutes a criminal offence. The Law expressly prohibits the following: a disposal or distribution into a stream, dry river bed of any stream, coastal waters, lake or dam of any type of object or substance that pollutes or tends to pollute their water; b disposal or distribution on the soil or subsoil of any object or matter in a way that pollutes or tends to pollute coastal waters or underground waters, stream water or the water of a lake or dam; c the placement of any object or matter in a position from where it is probable to drop or be transmitted into a stream, a lake or a dam, in a way that would pollute or tend to pollute their waters; d disposal or allowing the disposal of any liquid waste, mud or other semi-liquid or solid waste from any kind of installation that is on or in the ground or underground; e disposal, placing or allowing the disposal from any installation into any waters over the ground or coastal waters, of any liquid or solid waste, or any other liquid enclosing floating substance; and f disposal, placing or allowing the disposal of mud into the sea or any other substances that arises from the waste treatment. The law provides that persons are found guilty of any of the above offences, they will be liable for a maximum sentence of three yearsâ€™ imprisonment or a maximum fine of â‚Ź85,430 or both.
Cyprus iii Tax Transfer fees Transfer fees are levied upon the transfer and registration of the property in the name of the purchaser. The transfer fees are payable by the purchaser to the Department of Land and Surveys. The amount payable is based on the market value of the property at the time of purchase as determined by the Department of Land and Surveys (which usually is the same as the purchase price). Transfer fees are calculated according to the following rates: a up to €85,430: 3 per cent; b €85,430 to €170,860: 5 per cent; and c above €170,860: 8 per cent. In order to stimulate the sales of new property, Parliament has voted to abolish or reduce transfer fees for a period of six months. The changes came into effect on 2 December 2011 and will remain in force for a period of six months, until the end of May 2012. The law provides that: a those who pay value added tax (‘VAT’) on the purchase of their property, will not be obliged to pay any transfer fees; and b for those who do not pay VAT on the purchase of their property, property transfer fees are to be reduced by 50 per cent. In Cyprus, VAT is imposed on newly built properties whose town planning permit was submitted after 1 May 2004. Stamp duty Cyprus stamp duty on contracts is levied at the rate of 0.15 per cent on the first €170,860 of the consideration, and 0.2 per cent for consideration values above €170,860. Stamp duty is capped at €17,086. iv
Finance and security
The most common form of security granted in Cyprus over real estate is a mortgage. The mortgage constitutes a charge on the real estate in the benefit of the lender for the security of a debt. The Immoveable Property (Transfer and Mortgage) Law 1965 regulates mortgages in Cyprus. As previously discussed, all charges of immoveable properties including mortgages must be registered at the Department of Land and Surveys in order for them to have legal effect. Where a charge is created over the property of a company, it is required by the Companies Law, Cap. 113 that the details of the charge be forwarded to the Registrar of Companies, accompanied by the charge itself within 21 days of the date that the charge is created.
LEASES OF BUSINESS PREMISES
In Cyprus, there are no special provisions for leases of business premises as opposed to other types of premises. Property leases in Cyprus are generally governed by the provisions of the Contract Law subject to the restrictions introduced by the Rent Control Law of 1983 in terms of rent increase and protection of tenants against eviction. Terms such as the length of the lease and the rent are freely determined by the parties to the lease agreement rather by any provisions of law. Throughout the agreed term of the lease (including any agreed renewals) the tenant may enjoy the security of tenure given that it complies with the terms of the lease. The Rent Control Act in Cyprus applies to tenancies of Cypriot (and European) nationals of both residential and business premises that are within the ‘controlled areas’ as defined by the law. Currently, controlled areas include properties constructed before the 29 December 1999 within defined areas in towns, suburbs and rural centres. The law provides that after the first tenancy has expired or been terminated, the rent can be agreed to increase by maximum of 8 per cent of the existing rent, every two years. If there is no agreement among the parties, the rent control tribunals will determine the ‘reasonable rent’ taking into consideration several factors. In addition, the Law controls the eviction of a tenant; it introduces the norm of ‘statutory tenant’ who can only be evicted under special circumstances. Furthermore the landlord may be ordered by the rent control tribunal to pay to the tenant damages of between nine and 18 months’ rent or damages for the loss of goodwill, or both. Another particular aspect that is common in regard to leases of business premises in prime locations, is to have a lump-sum payment made by an incoming tenant to the sitting tenant in order to persuade the sitting tenant to give up the premises. It is a locational goodwill payment, locally known as an aeras, which means ‘air’ in Greek. VIII OUTLOOK AND CONCLUSIONS Despite the world financial crisis, the aforementioned anticipated developments are expected to have a positive impact on real estate in Cyprus in 2012. The government’s recently introduced measures such as the building amnesty, the constant updating of the country’s legal system, the abolition or decrease of transfer fees for a period of six months, the incentives for permanent residence permits and other tax incentives are expected to stimulate the property market. At the time of writing, many important projects are under development that are expected to boost the market, including a 1,000-berth marina with residential and leisure facilities under construction in Limassol, and an interesting joint-development project in Nicosia between the Cyprus government and Qatari Diar Real Estate Investment Company is about to start. Most importantly, the discovery of large natural gas deposits as previously discussed provides great prospects for Cyprus in the economic, social and political sphere. The oil and gas prospects create massive investment potential for the future of the Cyprus property market.
About the Authors
Nicolas Papaconstantinou Papadopoulos, Lycourgos & Co LLC Nicolas Papaconstantinou is an associate in the real estate practice group at the law office of Papadopoulos, Lycourgos & Co LLC, in Nicosia. He focuses his practice on real estate, wills and succession and related litigation. He also deals with specialised transnational corporate and commercial matters. Mr Papaconstantinou achieved a BSc degree with honours in economics and politics at the University of Bath and attended postgraduate studies at the London School of Economics where he achieved a masterâ€™s degree in science in real estate economics and finance. In 2008, Mr Papaconstantinou graduated in law (LLB with honours) from City University in London. His real estate, economics and finance background has added value to clients on several cases on which he worked as an advocate. Mr Papaconstantinou is also a certified real estate valuer registered with the Scientific Technical Chamber of Cyprus (ETEK). He was admitted to the Cyprus Bar in 2009. Papadopoulos, Lycourgos & Co LLC Capital Centre, 7th Floor 2-4 Arch. Makarios III Avenue 1065 Nicosia Cyprus Tel: +357 22 676126 Fax: +357 22 674201 email@example.com www.paplyclaw.com
The Real Estate Law Review is an annual publication that gives readers a general introduction to and commercial analysis of some of the key...