The corporate real estate market
1. What have been the main trends in the real estate market in your jurisdiction over the last 12 months? What have been the most significant deals?
The main trends in the real estate market in the last 12 months have included:
The leading role in lawmaking last year was taken by the courts. The most important court rulings established more strict regulation of unauthorised structures (built without the requisite permits or in breach of zoning and land use regimes), and provided clearer guidance on ways to protect title to property and land. For example:
Real estate investment
2. How is real estate investment carried out in your jurisdiction and what structures do investors use?
The most commonly used structures for real estate investment are property companies (SPVs), equity acquisitions and direct investment in development projects.
The concept of a shared construction, which was introduced seven years ago, has not become common, at least not in the corporate property sector. This concept provides investors with a high level of statutory security. This concept is a modification of a co-investment agreement commonly used in the recent past. However, it differs from the co-investment agreement because it:
Real estate investment trusts (REITs) are available on the market, but are not commonly used. They became even less popular after they became subject to property tax in 2010.
During the last 18 months, investment in real estate has transferred from global institutional investors to local banks, local investors and end users (see Question 1).
Institutional and private investors share the corporate real estate market with a ratio of about 4:6.
Private investors are generally more active than institutional investors in the following real estate markets:
Real estate legislation
3. What is the main real estate legislation that applies in your jurisdiction?
Real estate legislation is formed from a system of standardised laws which regulate different subject areas (civil, land, and town planning), including the following federal laws:
This chapter does not cover specific regional laws and focuses on federal regulation. In addition, land law and privatisation law belong to the joint jurisdiction of the Russian Federation and the regions. Therefore, regional land legislation must also be carefully taken in consideration when dealing with regional projects.
Title to real estate
Title and registers
4. What constitutes real estate in your jurisdiction? Is land and any buildings on it (owned by the same entity) registered together in the same title, or do they have separate titles set out in different registers?
The following constitutes real estate:
Title to buildings and land (even when owned together) is always registered separately in the Realty Registry (see box, Real estate organisations).
5. How is title to real estate evidenced?
The Federal Service for State Registration, Cadastre and Cartography manages the Realty Register, which to a certain extent, is publicly available (see Question 7). The registry issues certificates of title which evidence title to real estate. The Realty Register contains legal information on titles and other real estate rights. The State Supreme Court recently declared that relying solely on the Realty Registry records does not create the status of a bona fide purchaser. The title entries recorded in it require thorough professional legal due diligence of the property covering more than three years before the transaction, to minimise risk (see Question 8).
The Realty Register was only established in 1998 and does not contain exhaustive information on all Russian real estate. Titles to real estate that appeared before 1998 are formally valid and enforceable without registration in the Realty Register. However, title must be registered before entering into a transaction concerning the real estate.
Information in the public register
6. What are the main information and documents registered in the public register of title?
Information in the Realty Register includes:
The Real Property Cadastre is a separate registry that contains technical information on land and real estate. The Real Property Cadastre formation is expected to be finalised by 2012.
Protection from disclosure
7. Can confidential information or documents be protected from disclosure in the public register of title?
Only limited information concerning the following is publicly available:
Other information can only be disclosed to the:
State guarantee of title
8. Is there a state guarantee of title? Is title insurance available? If so, is it commonly used?
State registration of title is the only evidence of registered rights. Registered real estate rights can only be challenged through legal proceedings. However, an entry in the Realty Register is not always a sufficient guarantee of title.
The State Supreme Court recently declared that relying solely on the Realty Registry records does not create the status of a bona fide purchaser (Sec. 38 of the Joint Ruling of the Supreme Court and Supreme Arbitration Court dated 29 April 2010 # 10/22). Careful legal due diligence concerning real estate is highly recommended before acquisition. The Realty Register should therefore be treated merely as an information portal. The title entries recorded in it require thorough professional legal due diligence of the property covering more than at least three years before the transaction, to minimise risk.
Title insurance exists but is more common in the residential real estate market.
9. How can real estate be held (that is, what types of tenure exist)?
Real estate can either be:
Public ownership of land plots can also be non-delimited, which means that there is no specified owner of the public land. Municipalities can generally dispose of non-delimited public lands.
Rights that exist in addition to title ownership include:
Sale of real estate
Main stages and documents
10. What are the main stages and documents in the sale of real estate?
Corporate real estate is usually marketed by:
Commercial negotiations take place between the parties to a potential transaction, which usually involve lawyers and brokers.
A letter of intent or memorandum of understanding is generally executed to begin with. For a development under construction, a preliminary sale agreement, lease or other agreement is signed. On fulfilment of the conditions precedent stipulated in these documents, a sale contract is executed.
The parties or their representatives execute the sale contract in simple written form as one document. Notarisation of a sale contract is not compulsory and only takes place if both parties agree. The notary's fee is negotiable and varies between 0.5% and 1.5% of the transaction price. The parties agree who pays the notary fee. Notarisation of corporate real estate sale contracts is very rare in practice.
When legally binding
A sale contract generally becomes legally binding on execution by the parties (except for residential property sale contracts, that become legally binding on their recording with the Realty Registry). The following documents must be registered in the Realty Register to become legally binding:
Conveyance of ownership title through a sale contract must be registered in the Realty Registry to be enforceable.
When title transfers
Title transfers when the relevant entry is made in the Realty Register. This generally takes up to 30 days from submission of the application for registration.
Seller's liability to the buyer
11. Does a seller have any statutory or other liability to the buyer in a disposal of real estate?
The seller should disclose to a buyer everything he knows about the property's:
The buyer accepts the property "as is", unless the seller fails to disclose issues that he had actual knowledge of. In this case, the buyer can claim:
If the property seriously violates real estate quality requirements, the buyer can refuse to fulfil the sale contract and demand the return of the purchase price. Serious violations include the discovery of:
The buyer can require the seller to be joined to court proceedings, if a third party sues the buyer and demands the transfer of the property to that third party, on grounds that arose before the sale contract was concluded. Failure by the buyer to involve the seller in litigation releases the seller from liability to the buyer, if the seller can prove that if it had taken part in the case, it could have prevented the property being transferred from the buyer to the third party.
If the seller give full disclosure and the buyer fails or refuses to accept the property, the seller can:
12. What real estate due diligence is typically carried out before an acquisition?
Due diligence usually takes place after signing a letter of intent or a non-disclosure agreement. Real estate due diligence usually involves examination of:
In addition to a review of the Realty Register, it is also advisable to check the status of real estate with the:
13. What real estate warranties are typically given by a seller to a buyer in the sale of corporate real estate and what areas do they cover?
The seller typically guarantees to the buyer that:
14. Can an owner or occupier inherit liability for matters relating to the real estate even if they occurred before it bought or occupied it?
An owner or occupier is not generally liable for pre-ownership or pre-occupation matters (for example, environmental matters), provided he can prove that they occurred before his ownership or occupation.
An occupier is not generally liable under a lease if liability occurred before he occupied the property. The party breaching the lease generally remains liable for the breach, even if an owner or occupier changes later on, unless the lease states otherwise.
Retention of liability after disposal
15. Does a seller or occupier retain any liabilities relating to the real estate after it has disposed of it?
The seller has liabilities in relation to the information it discloses to the buyer before sale (see Question 11).
Those rules also apply to environmental liability, provided the new owner can prove that contamination took place before the property was transferred to the new owner.
Seller and buyer costs
16. What costs are usually paid by the buyer? What costs are usually paid by the seller?
The Realty Register charges a state registration fee of about RUB15,000 (as at 1 September 2011, US$1 was about RUB29) to register a title conveyance of every item of real estate. The buyer generally pays this fee (though the parties can decide otherwise).
The buyer's costs include the fees of his:
The seller's costs include the fees of his:
Real estate taxes and mitigation
17. Is value added tax (VAT) (or equivalent) payable on the sale or purchase of real estate?
Transactions involving the sale of corporate real estate are generally subject to VAT at the rate of 18%. VAT and the purchase price are payable by the buyer to the seller, who transfers the VAT to the state.
The sale of land plots is exempt from VAT.
18. Is stamp duty/transfer tax (or equivalent) payable on the sale or purchase and who pays?
No stamp duty or transfer tax is payable on the sale and purchase of real estate.
The Realty Registry registration fee does not depend on deal value and is about RUB15,000 for each item of real estate.
Notarisation of sale contracts is not compulsory (see Question 10, Sale contract).
19. Are any methods commonly used to mitigate real estate tax liability on acquisitions of large real estate portfolios?
A corporate acquisition is commonly used to mitigate tax liability. The sale of the shares of an SPV that owns real estate is VAT exempt.
However, the Russian courts may apply the doctrine of business purpose, which in certain cases minimises the mitigation of real estate tax liability using corporate acquisitions.
Holding business premises
Climate change targets
20. Are there targets to reduce greenhouse gas emissions from buildings in your jurisdiction? Is there legislation requiring buildings to meet certain minimum energy efficiency criteria?
The Energy Saving Law was recently adopted in 2010. However, there are not many provisions specific to corporate real estate. The key matters relating to corporate real estate are:
Third party outsourcing
21. Is it common for companies to manage their real estate portfolios and their accommodation needs by using third parties through outsourcing transactions?
Owners of office premises, warehouse facilities and hotels generally employ professional companies or use outsourcing arrangements for property management. However, industrial properties are generally managed by owners themselves.
For real estate disposals, outsourcing consultants are usually involved, such as:
Restrictions on foreign ownership or occupation
22. Are there restrictions on foreign ownership or occupation of real estate, or on foreign guarantees or security for ownership or occupation?
Generally, foreigners have the same scope of rights, guarantees and security as local companies and individuals. The following federal law restrictions apply to foreigners:
Issues on change of control
23. Does change of control of a company affect its holdings of real estate?
Changes in the ownership of a company generally do not affect the holdings of real estate, unless foreign ownership is involved (see Question 22). Change of control of a company is often used to acquire effective control over real estate. However, the buyer is buying not only the company's assets but also its liabilities.
24. In what circumstances can local or state authorities purchase business premises compulsorily? Is the purchase price market value?
Legislation provides an exhaustive list of cases where ownership rights can be terminated without the owner's consent. For example, a land plot with real estate on it can be seized for:
Property can be seized from the owner based on a court resolution for state or municipal needs, under specific procedural requirements.
In these cases, the purchase price is the market price estimated by an independent appraiser.
25. Are municipal taxes paid on the occupation of business premises? Are there any exemptions?
Legislation does not impose any specific municipal tax on the occupation of business premises.
A regional property tax (that does not apply to land plots) is fixed by regions. It cannot exceed 2.2% of the property's book value.
Land plots are subject to land tax established by the municipal authorities. The tax rate cannot exceed 1.5% of the land plot's cadastral value, which in turn is established by the regional authorities.
Real estate finance
26. How are acquisitions of large real estate portfolios or companies holding real estate generally financed?
Acquisition of large real estate portfolios or companies holding real estate is generally financed by:
27. How is real estate commonly used to raise finance?
Secured lending is commonly used to finance business by bankers and institutional investors.
Sale and leasebacks
Sale and leasebacks are mainly used in the market for warehouses and retail property. The tax authorities have created negative case law concerning the tax consequences of using these structures, which has made them unpopular. This particularly applies where there appears to be no evident business purpose for the deal.
28. What are the most common forms of security granted over real estate to raise finance? How are they created and perfected (that is, made valid and enforceable)?
The most common form of security granted over real estate to raise finance is a property mortgage. A property mortgage must be signed by the parties and registered in the Realty Registry to be valid and enforceable.
29. Is real estate securitisation common in your jurisdiction?
Mortgage-backed securitisations are recognised by law. However, they are not commonly used due to the undeveloped local securities market.
Real estate leases
Negotiation and execution of leases
30. Are contractual lease provisions regulated or freely negotiable?
The lease provisions of privately owned corporate real estate are generally freely negotiable.
However, specific rules and limitations apply to publicly owned (state and municipal) property (see Question 33).
31. What are the formal legal requirements to execute a lease?
A lease must be in writing and signed by both parties. Depending on the particular situation, execution of a lease may also require:
Rent levels and reviews
32. How are rent levels usually reviewed and are there restrictions on this? Is VAT (or equivalent) payable on rent?
Rent payments are generally divided into the following three components:
There are no restrictions on corporate real estate property rent levels. Rent review frequency is fixed in the lease but cannot be more often than once a year.
Base rent rates and OPEX are usually established in US dollars per square metre per annum and are payable quarterly, in Russian roubles.
Rent payments under leases are subject to VAT at 18%. Under specific conditions, rentals for office premises leased by representative offices of foreign companies may be VAT exempt.
Length of term and security of occupation
33. Is there a typical length of lease term and are there restrictions on it? Do tenants of business premises have security of occupation or rights to renew the lease at the end of the contractual lease term?
The length of the lease term for private commercial real estate is not limited, and generally varies from five to 15 years. There is a statutory maximum lease term of 49 years for farm land. In practice, this (49-year) term is the maximum for all publicly owned land
If contractually agreed, on expiry of the lease term (and having properly fulfilled its obligations), the tenant has the pre-emptive right over others to conclude a lease for a new term. The tenant must provide the landlord with written notice of its intention to sign a new lease within the period indicated in the lease, or if no period is indicated, within a reasonable time before the lease's expiry.
However, if at the end of the lease term, the property owner decides to no longer lease out the property, the pre-emptive right of the tenant does not apply. If the landlord refuses to sign a lease for a new term with the tenant on these grounds, but within one year of expiry of the lease, signs a lease with another tenant, the original tenant can claim in court either:
Restrictions on disposal
34. What restrictions typically apply to the disposal of the lease by the tenant?
With the landlord's prior consent, the tenant can generally:
The property owner is free to sell or mortgage the leased property without the tenant's consent. The sale or mortgage of the leased property does not negatively affect the tenant, that is, the lease remains unchanged.
Use of premises within a corporate group
35. Can tenants usually share their business premises with companies in the same corporate group?
Sharing premises is common and is generally arranged through a sublease, that is, a tenant subleases part of the leased premises to other companies in the same corporate group. A sublease requires the landlord's prior consent unless consent to sublet to companies in the same corporate group has been granted in the lease. Because these inter-company subleases are generally a pure formality, premises are sublet on the same terms and conditions as the head lease. Although the terms are negotiable, to avoid potential negative tax implications, the rent payable under the sublease is generally no less than the head lease rent.
Repair and insurance responsibilities
36. Who is usually responsible for keeping the leased premises in good repair?
Unless agreed otherwise the owner or landlord carries out extensive or major repairs to the leased property at its own expense. The landlord must:
The tenant is responsible for minor refurbishments and the fitting-out of the premises, unless agreed otherwise.
37. Who is usually responsible for insuring the leased premises?
Insurance is not mandatory for leased premises. However, at its own expense and in its own interests, the landlord or owner insures the property against damage or destruction. At its own expense, the tenant can insure his personal property at the leased real estate. In addition, the landlord often insists that the tenant takes out third-party civil liability insurance in connection with the use of the leased property.
Grounds for termination
38. On what grounds can the landlord usually terminate the lease? Can the tenant terminate the lease in certain circumstances?
Unless agreed otherwise a court can prematurely terminate the lease on the landlord's demand when the tenant:
Unless agreed otherwise a court can prematurely terminate a lease on the tenant's demand when:
The parties can contractually agree other conditions under which the lease can be terminated prematurely. This includes a tenant's right to early unilateral termination of a lease without grounds, by giving written notice to the landlord. Depending on the parties agreement early termination of a lease can take place either in court or out of court (by written notification).
39. What is the effect of the tenant's insolvency under general contract terms and insolvency legislation?
There are no special rules in the legislation about the consequences of the tenant's insolvency (except liquidation). Liquidation of a tenant is a statutory ground for early termination of the lease. Depending on the parties agreement a tenant's insolvency can be a ground for early termination of the lease. The landlord's financial interests are partially protected by:
40. What authorities regulate planning control and which legislation applies?
Various government authorities are responsible for the enforcement of town planning regulations, including the:
The municipalities have considerable town-planning powers.
The Federal Town Planning Code specifies the following elements of a planning or zoning activity:
41. What planning consents are required and for which types of development?
To begin development, a developer must obtain a town-planning plan for the land plot to develop the design (see Question 42).
Before starting construction works, a building permit must generally be obtained from the municipal authorities.
The operation of a building requires an operating permit, which is generally issued by a municipality. An operation permit is required, among other things, to record title to the constructed building in the Realty Register.
42. What are the main authorisation and consultation procedures in relation to planning consents?
To begin development, a developer must obtain a town-planning plan for the land plot to develop the design (this is different from a building permit or operating licence (see Question 41). The town-planning plan is subject to approval from local architecture and urban development authorities.
Third party rights
Third parties that are negatively affected can:
Public hearings take place in the early stages of town planning, during urban development zoning and the laying out of territories (see Question 40). Public hearings are not required for the design process under the town-planning legislation. However during development of the design documentation, an assessment is made of the environmental impact and, as a rule, public hearings are needed within the scope of this.
It generally takes about two to six months to:
The design is produced based on these surveys, technical conditions and the town-planning plan. A building permit is issued shortly after the design successfully passes state examination (that is, appraisal and assessment).
An act (or failure to act) by a state or municipal authority that violates a developer's rights can be appealed through court proceedings.
43. Are there any proposals to reform real estate law in your jurisdiction?
The current general development permit system is outdated and requires reform to make the system more reasonable and effective and more aligned to European practice. A new Civil Code is being developed for this purpose, and is expected to be adopted in 2012. Major amendments are also anticipated to the Land Code, especially the procedures for acquiring public land plots.
There are debates in the governmental and legal community about:
Real estate organisations
Main activities. The Federal Service for State Registration, Cadastre and Cartography manages the Realty Register, and is responsible for recording real estate titles.
Real Property Cadastre
Main activities. The Real Property Cadastre agency is responsible for the official collection, maintenance and provision of immovable property information in Russia. Its activities include: