What is the main legislation relating to commercial real estate ownership?
Real Estate (3rd edition)
The legal environment for real estate transactions is very stable and no current significant proposals for reform are being discussed that may have a substantial impact on real estate investments.
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) rules urban leases, as abovementioned.
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.
- 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), as amended by the Development and Planning (Amendment) Regulations, 2018.
- Building Code Regulations (Revised)
- Stamp Duty Law (2019 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, as amended by the Public Lands (Amendment) Law, 2019
- The Limitation Law (1996 Revision)
- The Land Acquisition Law (1995 Revision)
- Roads Law (2005 Revision)
- Local Companies (Control) Law (2019 Revision)
- The Trade and Business Licensing Law (2019 Revision)
- The National Conservation Law
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.
Ownership of commercial real estate is mainly governed by the Danish Land Registration Act (in Danish: tinglysningsloven) as this act sets out the regulation regarding title registration and other issues related to ownership of real property.
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 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 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.
- 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 2009 Act 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.
The Civil Code is the fundamental legislation governing the ownership of real estate (as mentioned in 1. and 11. above, the Amended Civil Code will come into effect on April 1, 2020). 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. Further, if the trustee engages in conducting trust business, the Trust Business Act (or the Act on Engagement in Trust Business by Financial Institution) will apply.
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 practically plays an important role in real estate transactions.
The main legislation relating to ownership of commercial real estate in Kenya is:
- The Constitution of Kenya, 2010;
- The Land Act;
- The Land Registration Act;
- The Stamp Duty Act, Chapter 480, Laws of Kenya.
- The Community Land Act;
- The Physical and Land Use Planning Act, No. 13 of 2019;
- The Land Control Act, Chapter 302 Laws of Kenya;
- The Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenya; and
- The Environmental Management and Co-ordination Act, No. 8 of 1999.
- 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
- Federal Law on the Prevention and Identification of Transactions with Illicit Resources
- 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 legislation of real estate ownership is mainly governed by the civil code, without distinguishing commercial real estate, and the regulations applicable to the mortgage registry.
The Romanian Civil Code (Law no. 287/2009) provides the general rules applicable to real estate ownership and transfer. Land law no. 18/1991 supplements such legal provisions especially in what regards the different treatment applicable to agricultural and buildable (intra-muros) land.
Law no. 17/2014 regarding certain obligations related to the sale of extra-muros land provides the conditions under which agricultural real estate may be transferred. Law no. 50/1991 regarding constructions authorisation sets forth the general regime related to building permits and obtaining ownership over constructed buildings, while Law no. 350/2001 on urban planning contains important building restriction provisions.
Rules regarding the registration of real estate ownership are provided in Law no. 7/1996 regarding cadastre and real estate registration.
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.
Real estate matters are regulated by the Law of Property Code, the Code of Obligations and the Land Register Act. These regulations lay down rules regarding the acquisition and transfer of property as well as formal requirements for the transaction itself, whereas some other restrictions, for example pre-emption rights of municipalities or administrative approvals of transfers, can be found throughout the legislation if the property that is the subject of transaction is located in certain areas.
No, this is not possible. Mortgages should be created and registered in favour of the lender(s) as only the lender registered as mortgagee may enforce the mortgage.
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 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 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).
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.
The main law governing land titles in Indonesia is Law No. 5 of 1960 on Basic Regulations for Agrarian Affairs (“Land Law”). The Land Law establishes the various types of registered land title set out under question 4. Aside from the Land Law, other important laws which sets out the types of land rights include, among others, Law No. 20 of 2011 on Apartment Units (for Strata or HMSRS titles) and Regulation of the Ministry of Agrarian and Spatial Affairs No. 29 of 2016 (for Strata Right to Use or HPSRS titles).
Other rules governing land mortgages, buildings and other real estate aspects exist at both national and regional level.
The main legislation governing real estate ownership are the Dahir dated 12 August 1913 forming the Obligations and Contracts Code regulating the general rules of contract law (as amended from time to time), the Law No 14-07 amending and supplementing the Dahir of 12 August 1913 on land titling, the Law No 39-08 forming the Real Property Code (Code des Droits Réels) and the Law No 18-00 regulating the co-ownership rules applicable to erected buildings.