What is the main legislation relating to commercial real estate ownership?
The Civil Code of Japan provides for the ownership of the commercial real estate and the Act of Building Unit Ownership, etc. governs unit ownership of a building which is structurally divided for multiple owners (condominium or strata ownership). The trust law provides creation of ownership of trust beneficiary interest. From a procedural perspective, the Real Estate Registration Act provides procedures for registration of ownership of properties.
The main source of real estate law, commercial or not, is the Portuguese Civil Code based on Roman law and the French Civil Code encompassing not only freehold but also other rights of guarantee and acquisition. The definition of property includes full possession and exclusive use and disposition. The law applicable to possession, title to property and other real estate rights is defined by the country in which the property is located, therefore Portuguese law is applicable to the creation, recognition, acquisition or modification of any real estate rights in Portugal. Furthermore registration is compulsory regarding creation, recognition, acquisition or modification of real estate and the Real Estate Registration Code is applicable.
General Conveyancing Matters
Land and Conveyancing Law Reform Act 2009: Consolidated conveyancing legislation, also dealing with security over real estate and prohibition on upward only rent reviews.
Registration of Deeds and Title Acts 1964 and 2006: Governs the registration of deeds and title.
National Asset Management Agency Act 2009: Facilitates the acquisition and disposal by the National Asset Management Agency of certain assets.
Planning/ Building Control
Planning and Development Acts 2000 to 2017: Provides for proper planning and sustainable development by controlling development.
Building Control Acts 1990 to 2014: Deals with matters relating to requirements for the construction of buildings.
Landlord and Tenant
Landlord and Tenant Acts 1967 to 1984: Deals with matters relating to statutory renewal rights, statutory compensation for improvements/ disturbance, renouncing renewal rights, consents to alienation and statutory rights to buy out superior interests.
- Federal Constitution
- State Constitutions
- Federal and State Civil Codes
- Federal and State Civil Procedures Codes
- Commercial Code
- 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 main legislation governing real estate ownership under Dutch law is laid down in the Dutch Civil Code. Section 3 and 5 of the Dutch Civil Code in particular contain the legal framework for ownership of real estate, leasehold and rights in rem such as rights of superficies, mortgage rights and easements. In addition Sections 6 and 7 of the Dutch Civil Code are of importance, covering the law of obligations and specific (mandatory) provisions regarding sale and purchase and lease of real estate.
Unless the parties specifically have derogated from applicable law, the background law will supplement real estate acquisition contracts and lease agreements. Direct acquisition of real estate (asset deal) is regulated by the Norwegian Alienation Act of 1992, while acquisition of shares in real estate companies (share deal where the main asset is a property) is initially regulated by the Norwegian Sale of Goods Act of 1988. However, a number of judgements from Norwegian courts show that the Norwegian Alienation Act may apply to such share deals for elements related to the property. Lease agreements are regulated by the Norwegian Tenancy Act of 1999, which supplements the terms of commercial lease contracts. Between professional parties, derogation from several provisions of these acts in favour of the landlord/seller is considered to be a standard practice within the market. Several other acts may apply to real estate transactions and the conclusion of lease agreements, such as the Norwegian Housing Cooperative Act of 2003, the Norwegian Housing Construction Act of 2008, the Norwegian Estate Agency Act of 2007, the Norwegian Property Unit Ownership Act of 1997/2017 (from 2018), the Norwegian Mortgage Act of 1980, the Norwegian Easement Act of 1968, the Norwegian Land Registration Act of 1935 and the Norwegian Ground Lease Act of 1996. The different acts, as well as zoning plans, form a significant public law restriction in the right of disposal of Norwegian commercial property
The Romanian Civil Code (Law no. 287/2009) provides the general rules applicable to real estate ownership and transfer thereof. 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 conditions in which agricultural real estate may be transferred. Law no. 50/1991 regarding construction authorisation contains the general regime related to building permits and obtaining ownership over constructed buildings, while Law no. 350/2001 regarding urbanism contains important building restriction provisions.
Rules regarding the publicity of real estate ownership are provided in Law no. 7/1996 regarding cadastre and real estate publicity.
The Russian legal system is a continental one, so is based on statutes. Real Estate ownership is regulated at the Federal level, so works equally in all regions. The main legislation relating to commercial Real Estate is as follows:
- Federal Constitution of 1993 (basic provision on ownership title).
- Federal Civil Code 1994, as later amended (detailed regulation of real estate owner’s rights and obligations, transactions with real estate, etc.).
- Federal Land Code 2001, as later amended (detailed regulation of use of land, land limitations, specifics of public land acquisition, etc.).
- Federal Town Planning Code 2004, as later amended (detailed regulation of spatial planning, zoning and land development).
- Federal Law of 13 July 2015 On State Registration of Real Estate (detailed regulation of real estate ownership transfer and transactions registration procedures).
- Federal Law of 16 July 1998 On Mortgage, as later amended (detailed regulation of mortgage agreements and their enforcement, limitations and procedures).
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 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.
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 main laws applicable to the real estate industry are: The Federal Constitution of 1988, which establishes the fundamental principles, rights and guarantees; the Brazilian Civil Code (Law 10,406/2002), which brings the general provisions concerning in rem rights, obligation and contractual rights; the Lease Law of Urban Real Property (Law 8,245/1991), which establishes the rules on the lease of urban real properties and the procedures inherent thereto; Law 9,514/1997, which introduced the chattel mortgage; Law 6,015/1973, which provides the rules on public registries; Law 4,591/1964, which establishes the rules on the condominiums and real estate developments; and Law 6,766/1979, which provides the rules on urban land subdivision.
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.
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 major legislative acts governing the real estate and real estate transactions in Bulgaria 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 Planning Act, Law on Contracts and Obligations and Condominium Ownership Management Act Civil, Agricultural Lease Act, Civil Procedural Code etc. Certain aspects of real estate are also governed by other specific laws and regulations. The proceedings regarding registration in the Land register are governed by the Cadastre and Land Register Law and the Regulation on Registration in the Land register.
Commercial ownership is merely regulated by the common rules of real estate ownership enacted by the civil code and the Land Registry specific regulations.
Interests in land: German Civil Code (BGB), which governs all legal aspects of owning, purchasing, selling and transferring ownership of a property.
Land Registration: The Land Register Ordinance (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 (i) the Land Registration Ordinance (Cap. 128) which regulates the documents registration system in Hong Kong; (ii) the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) which regulates the relationship between lessors and lessees; and (iii) the Government Leases Ordinance (Cap. 40) which regulates the regime of leasing land from the Hong Kong government.
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.
The main legislation relating to ownership of real estate (whether commercial or residential) in Nigeria is the LUA, which we have discussed in response to questions 1 and 4 above. Other relevant legislation are the Nigerian Constitution, the Land Instruments Registration Laws of the various states in Nigeria and the English statutes of general application.