What is the main legislation relating to commercial real estate ownership?
Real Estate (2nd edition)
- Registered Land Law (2018 Revision)
- Registered Land Rules (2018 Revision)
- Strata Titles Registration Law (2013 Revision)
- Strata Titles Registration Regulations (2006 Revision)
- Development and Planning Law (2017 Revision)
- Development and Planning Regulations (2018 Revision)
- Building Code Regulations (Revised)
- Stamp Duty Law (2013 Revision)
- Land Holding Companies Share Transfer Tax Law (2016 Revision)
- Property (Miscellaneous Provisions) Law (2017 Revision)
- The Prescription Law (2018 Revision)
- The Public Lands Law, 2017
- The Limitation Law (1996 Revision)
- The Land Acquisitions Law (1995 Revision)
- Roads Law (2005 Revision)
- Local Companies (Control) Law (2015 Revision)
- The Trade and Business Licensing Law (2018 Revision), as amended by The Trade and Business Licensing (Amendment) Law, 2018
The legislation of the real estate ownership is essentially laid down in the civil code and the regulations of the land registry.
Interests in land: German Civil Code (Buergerliches Gesetzbuch, BGB), which governs all legal aspects of owning, purchasing, selling and transferring ownership of a property.
Land register: The Land Register Ordinance (Grundbuchordnung, GBO) sets out the main legislation for registration of land interests as well as for encumbrances in Germany.
Leases: Again, the German Civil Code (BGB) is decisive. Besides that, there are some local ordinances regulating mainly restrictions for residential landlords (including restrictions on sale and rent increases and reviews etc.).
The Conveyancing and Property Ordinance (Cap. 219) which regulates the ownership, proof of title, transfer, and mortgaging of properties in Hong Kong is the main legislation. Apart from the above, other governing legislation include
(a) the Land Registration Ordinance (Cap. 128) which regulates the documents registration system in Hong Kong;
(b) the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) which regulates the relationship between lessors and lessees; and
(c) the Government Leases Ordinance (Cap. 40) which regulates the regime of leasing land from the Hong Kong government.
The following main statutes apply to commercial real ownership in Hungary:
- Act no. 5 of 2013 on the Civil Code which sets out the most fundamental rules of property law (including land the principles of land registry law),
- Act No. 141 of 1997 on Land Registration and Decree of the Agricultural Ministry No. 109/1999. (XII.29.) on Implementation of the Land Registry Act which set out the detailed rules of the land registry procedure, specifying, among others the rights that may be registered and the facts that may be recorded in the land registry,
- Act No. 78 of 1993 on Lease and Alienation of Apartments and Premises, which mainly regulates lease of apartments and business premises in general, but also regulates the alienation of apartments and premises owned by the state or the local municipality.
The Civil Code, dated 1889 (as amended and updated over the years) which governs the nature of land ownership and interests, third party interests and rights and different types of contracts over land and real estate assets.
The Mortgage Act, dated 8 February 1946, and Mortgage Regulations, dated 14 February 1947, which establish the main rules for registration of land interests and mortgages in Spain.
The Urban Lease Act, dated 24 November 1994, which governs commercial leases in Spain.
The Horizontal Division Act, dated 21 July 1960, governing the horizontal division regime.
- Real Estate (Regulation and Development) Act 2016 – which has been introduced to protect the interest of consumers in the real estate sector by establishing the Real Estate Regulatory Authority to regulate the sector and ensure the sale of plots, apartments and buildings in a transparent and efficient manner and to establish an adjudicating mechanism for dispute redressal as well as an Appellate Tribunal to hear appeals.
- Transfer of Property Act 1882 – which regulates the transfer of movable and immovable property including by way of sale, mortgage, lease, exchange, gift and transfer of actionable claims.
- Acts governing the ownership of flats (for example, Maharashtra Ownership Flats Act 1963 – which provides for the liabilities of developers who construct apartment buildings for the purpose of sale of apartments - and Maharashtra Apartment Ownership Act 1970 – which provide for the rights and responsibilities of apartment owners who have chosen not to form a company or co-operative society).
- Co-operative Societies Acts applicable to the relevant States – which provide for the registration of co-operative societies, the rights and liabilities of its members, the management of societies and the settlement of disputes.
- Rent Control Acts applicable to the relevant States – which provide for the fixing of standard rent and permitted increases in certain cases, which provides for specific cases in which a landlord may evict a tenant, which regulates sub-tenancies and which provides for compulsory registration of lease and leave and license agreements.
- Indian Stamp Act 1889, and the relevant State Stamp Acts – to provide for the payment of stamp duty to the government upon certain instruments including agreements for sale, conveyances, reconveyances, agreements relating to the deposit of title deeds, gifts, leases, surrender of leases, leave and license agreements, mortgage deeds, powers of attorney, releases, etc.
- Registration Act 1908 – which provides for the compulsory registration of certain documents and sets out the procedure for registration.
- Land Revenue Codes which regulate land tenures and conditions of grant of Government owned lands.
- Regional and Town Planning and Municipal Acts which regulate land use and construction.
- Foreign Exchange Management Act 1999 and relevant regulations framed under it – which consolidate the law relating to foreign exchange.
- Succession Act 1925 – which regulates testamentary and intestate succession, in cases where the personal laws of the deceased do not apply.
Irish law was historically based on old legislation which predates the establishment of the Irish State in 1922, such as the Conveyancing Acts, 1881–1911 and the Settled Land Acts, 1882–1890. The Land and Conveyancing Law Reform Act, 2009 replaced much of the old law, including the pre-1922 statute law, and modernised the law and conveyancing practice. There is modern legislation governing registration of title (Registration of Title Act, 1964 which was modified by the Registration of Deeds and Title Act, 2006) to facilitate the increasing computerisation of the property registration system in this jurisdiction and succession law (Succession Act, 1965).
There is extensive statutory protection afforded to family property in particular, which affects conveyancing practice (e.g. the Family Home Protection Act, 1976). This is partly due to the fact that Ireland has a written Constitution enshrining certain fundamental rights which override any other law, including legislation. Thus it is not uncommon to find legislation declared by the domestic courts to be unconstitutional and, therefore, null and void.
In Russia, the main laws relating to real estate ownership are: the Civil Code, the Law on the State Registration of Real Estate Property, the Land Code, the Town-Planning Code.
The Swiss Civil Code is the main legislation relating to real estate ownership. It provides for all possible rights in rem such as ownership, easement, encumbrance or lien.
It governs all private law issues relating to a plot of land and the neighbouring rights, in particular which type of property rights may be registered in the land registers or which neighbouring rights an owner may have to accept. The Swiss Civil Code also regulates the general terms of the organisation of the land registry, as well as the legal scope of the rights and information which can be registered. The details of such organisation are contained in the Ordinance on the land registry.
The Swiss Code of Obligations governs the contractual aspects of the sale and lease of real estate.
Interests in land: Law of Property Act 1925: This act governs the nature of land interests that can be created, deals with third party interests in land and how third party rights, in some cases, can be overridden.
Land Registration: Land Registration Act 2002 and Land Registration Rules 2003: This act sets out the main legislation for registration of land interests in England and Wales at the Land Registry.
Land Trusts: Trusts of Land and Appointment of Trustees Act 1996: This act governs the creation of trusts of land and sets out the statutory powers of trustees. These powers can be supplemented by a trust deed. The act also gives the Court power to order the sale of a trust property in certain circumstances.
- Landlord and Tenant Act 1927 and Leasehold Property (Repairs) Act 1938: These statutes deal with the right of tenants to carry out improvements to leasehold property and controls landlords' right to enforce tenants' repairing covenants.
- Landlord and Tenant Act 1954: This act gives commercial tenants the right to a new lease at the end of the term of their current lease subject to certain conditions.
Landlord and Tenant Act 1927, Landlord and Tenant Act 1988 and Landlord and Tenant (Covenant) Act 1995: These acts regulate on what terms tenants (and their guarantors) are released on assignment of their lease. Similarly, they regulate on what terms landlords are released when they sell their interests. The 1927 act also imposes a duty on landlords to act reasonably, in certain circumstances, when considering a tenant's application for consent to assign, underlet or charge its lease.
There is no main legislation relating to commercial real estate ownership across the U.S. As explained in Q1 above, the U.S. Constitution sets forth a system of federalism which divides governmental power between the national (or federal) government and the governments of individual states. Each State also has its own constitution which, in turn, divides governmental power between such State and the municipalities located within such State. The laws relating to commercial real estate ownership are generally governed by state law though federal law will also apply as to some aspects.
Peruvian real estate provisions are quite fragmented across different laws. The main rules are contained in the Constitution of 1993 and the Civil Code of 1984.
The use of land is regulated primarily by the Regulations on Territorial Conditioning and Sustainable Urban Development, approved by Supreme Decree No. 022-2016-VIVIENDA. The construction process is mainly regulated by the “Law on the Regularization of Buildings, the Procedure to Apply for Certificates of Construction and the Regime of Real Estate Units under Exclusive and Common Property”, enacted by Law No. 27157, the “Ownership Rights and Land Regularization Act”, enacted by Law No. 29090, and Legislative Decree No. 1037, which promotes private investment in housing projects of social interest to improve the economic competitiveness of cities.
Other important regulations include the Income Tax Act, approved by Supreme Decree No. 179-2004-EF, and the Municipal Taxation Act, approved by Supreme Decree No. 156-2004-EF.
The main laws governing real estate in Turkey are: (i) the Turkish Civil Code (Law No.4721, dated 8 December 2001), (ii) the Law of Title Deed (Law No.2644, dated 22 December 1934); and (iii) the Condominium Law (Law No. 634, dated 2 July 1965).
The real estate ownership is regulated by the common provisions provided under the Italian Civil Code.
- Federal Constitution
- State Constitutions
- Federal and State Civil Codes
- Federal and State Civil Procedures Codes
- Commercial Code
- Agrarian Law
- Foreign Investment Law, and its Regulations
- National Assets Law, and it Regulations
- General Law for the Prevention and Integral Management of Waste, and its Regulations
- General Law of Equilibrium and Environmental Protection, and its Regulations
- General and Local Urban Development Laws
- Local Condominium Regime Laws
- Local Planning and Zoning Ordinances, Land Use and Construction Regulations
- Forfeiture Laws and Regulations
The constitution of the Republic of Cyprus has an important law in relation to real estate ownership. The right to ownership is protected by it. Furthermore, there are several acts of parliament which determine issues in relation to immovable property. Cap224 which includes provisions about ownership, registration, rights attached to immovable property, leaseholds, trusts, common owned buildings etc is one of the most basic Acts. Furthermore law8(I)/2011 which provides about the lodging of contracts of sale of immovable property and assignment at the land registry for specific performance purposes is very important. Moreover, law9/1965 which provides about the transfer and mortgaging of immovable property is considered basic. There are several other Acts that relate to immovable property issues. Furthermore, there are regulations and guidelines which govern specific processes in relation to immovable property. EU law is applicable in Cyprus.
The Civil Code is the fundamental legislation governing the ownership of real estate. The Act on Building Unit Ownership, etc. provides for unit ownership in buildings such as some types of apartments and condominiums which are structurally divided and have multiple owners.
If real estate is held in trust, the trust structure will be governed under the Trust Act, which provides for the creation of the ownership of the trust beneficiary interest.
In addition, the laws related to restrictions on ownership of real estate are the Act on Land and Building Leases, and the Facilitation of Reconstruction of Condominiums Law.
As for procedures and perfection, the Real Estate Registration Act provides procedures for registering the ownership of properties. However, it should be noted that registering the ownership of properties does not directly demonstrate or guarantee the real estate ownership, but is rather a requirement for perfection, although it plays an important role in real estate transactions.
- The CCC provides regulations on proprietary rights and other rights - whether or not, by juristic act, in property.
- Land ownership, the allocation of lands, means and manners of land registration are provided in the Land Code and ministerial notification and land department regulations.
- Ownership in condominium, it is referred in Condominium Act 1979.
The Civil Code is the principal law regulating real estate ownership. In addition, real estate legislation is additionally included in various statutes, indicatively:
- Back and Front Shore Delimitation: Laws 2971/2001 and 4281/2014;
- Border Zones: Laws 1892/1990, 3978/2011 and 4278/2014;
- Business Premises Leases: Presidential Decree 34/1995;
- Expropriation Provisions: A.N. 1731/1939, Legislative Decree 797/1971, Laws 2882/2001, 3986/2011, 4146/2013 and 4364/2016;
- Fast-track Investments: Laws 3894/2010 and 4072/2012;
- Real Estate Investment Companies: Law 2778/1999 as amended and in force;
- Forestry Provisions: Legislative Decree 86/1969 (Forest Code), Laws 998/1979, 1734/1987, 3208/2003, 3889/2010 and 4280/2014;
- Land Partition and Re-allotment Provisions: Legislative Decree 17.07.1923, Laws 3147/2003, 651/1977, 1337/1983, 2442/1994, 2508/1997, 3147/2003 and 3212/2003, Ministerial Decision 168/2010;
- Land Registry/Cadastral Provisions: Legislative Decree 19/23.07.1941, Laws 1647/1986, 2308/1995, 2664/1998, 4164/2013 and 4361/2016;
- Real Estate Leasing: Law 1665/1986;
- Real Estate Transfer Tax: law 1587/1950; New buildings VAT: Law 2859/2000
- Residence permits for real estate owners: Law 4251/2014;
- Public Real Estate Property Provisions: Legislative Decree 16/1926, A.N. 1539/1938, A.N. 263/1968, N. 973/1979, Law 3986/2011, Law 4061/2012 as amended by Law 4384/2016; and
- Settlement of Illegal Buildings Works: Laws 4014/2011, 4178/2013 and 4495/2017.
The main legislative acts governing the real estate aspects are the Bulgarian Constitution, Property Act, State Property Act, Municipal Property Act, Privatization and Post-privatization Control Act, Agricultural Land Ownership and Use Act, Forestry Act, Commercial Act, Encouragement of Investments Act, Territorial Development Act, Law on Contracts and Obligations, Condominium Ownership Management Act, Agricultural Lease Act, Civil Procedural Code, Cadastre and Land Register Law and the Regulation on Registration in the Land register etc.
Brazilian Civil Code Brazil (Federal Law # 10.406/2002) is the main law ruling commercial real estate and related right, under the Constitutional Principles, including the forms of acquisition of means (adverse possession, accession, succession rights), and related rights (easements, surface and slab rights, usufruct).
Lease Act (Federal law # 8.245/1991), as above mentioned
Public Registry Law (Federal Law # 6.015/1973) provides that each property must be recorded at the relevant Real Estate Registry Office, which is a public record with jurisdiction established by State Law.
The Real Estate Development Law (Federal Law # 4.591/1964) and the Brazilian Civil Code rules the development of real estate enterprises encompassed by autonomous units and common areas of a building.
The Land Statute (Federal Law # 4.504/1964) regulates the use, occupation, and rural land relationships intending to protect those who live on rural activities.
Each Municipality has its own regulations and specifications with regards to zoning law, usually based on the Master Plan of the Municipality where the property is located, establishing the rules for implementation of urban development policies.
Parceling of Real Estate Property Law (Federal Law # 6.766/1979 concerns the division and or unification of parcels and plots intended for implementing urbanist functions.
Environmental Law is encompassed by Federal, State and Local rulings.
Real estate ownership in Sweden is mainly governed by the Swedish Land Code (Sw. jordabalken), including extensive statutory regulations regarding the transfer and registration of ownership, leases and other usufruct rights and mortgaging etc.
Other important real estate related statutes include the Environmental Code (Sw. miljöbalken), the Real Property Formation Act (Sw. fastighetsbildningslagen) and the Planning and Building Act (Sw. plan- och bygglagen).
The main law governing land titles in Indonesia is Law No. 5 of 1960 on Basic Regulations on Agrarian Affairs (“Agrarian Law”). The Agrarian Law established the various types of registered land title discussed in question 4. Other relevant laws include Law No. 20 of 2011 regarding Apartment Units, which covers Strata or HMSRS titles, and Ministry of Agrarian and Spatial Affairs Regulation No. 29 of 2016, which covers Right to Use Strata or HPSRS titles.
Various rules governing land mortgages, buildings and other real estate matters are also set out in both national and regional legislation.