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Trends and prospects
What are the current trends in and future prospects for the real estate market (both commercial and residential) in your jurisdiction?
The office investment market was exceptionally busy in 2016 with almost 250,000 square metres of space acquired in Dublin alone. There have been reports of considerable interest in Dublin office lettings following Brexit.
The retail sector is strong, supported by a fall in unemployment rates from 8.5% at the start of the first quarter of 2016 to 6.7% at the start of the first quarter of 2017.
In the residential sector, house prices rose an average of 4.3% in the first quarter of 2017, mainly due to a lack of supply. In recognition of this, the Irish government has set a target of 175,000 new housing units to be built by 2021. Demand for good residential development sites is high.
Real estate asset classes such as student accommodation, multi-family developments and nursing homes continued to be strong in 2016. Demand for quality hotels in good locations is likely to continue in 2017.
Rights and registration
What types of holding right over real estate are acknowledged by law in your jurisdiction?
The two primary legal interests for the purpose of ‘good marketable title’ in Ireland are freehold and leasehold (with an unexpired term of at least 70 years).
Are rights to land and buildings on the land legally separable?
Yes. For example, a developer of a multi-unit development will typically retain ownership of the freehold interest in the land on which the building is erected and grant long leasehold interests to buyers of the individual units within the building.
Which parties may hold and exercise rights over real estate? Are there restrictions on foreign ownership of property?
Private individuals, incorporated entities and statutory bodies may hold and exercise rights over real estate.
Subject to satisfactory anti-money laundering documentation being provided and UN and EU sanctions lists, there is no restriction on foreign ownership.
How are rights, encumbrances and other interests over real estate prioritised?
Priority is established on the basis of the date of registration of the relevant right, encumbrance or other interest in the Irish Property Registration Authority.
Must real estate rights, interests and transactions be registered in your jurisdiction? What are the legal effects of registration?
Where rights are capable of registration they must be registered with the Irish Property Registration Authority (PRA). The PRA comprises two systems of registration: the Registry of Deeds and the Land Registry. The Registry of Deeds simply registers the existence of the relevant document; while the Land Registry system is more modern and its accuracy is guaranteed by the state. Any real estate sold for value must now be lodged for registration in the Land Registry.
The effect of registration is to give the holder of the interest priority to any subsequently registered interests.
What are the procedural and documentary requirements for entry into the national real estate register(s)? Can registration be completed electronically?
Documentation must be lodged with the PRA and meet the following criteria:
- submitted (generally) in a prescribed form;
- validly executed; and
- contain a ‘stamp certificate’ evidencing that stamp duty has been paid to the Irish Revenue Commissioners.
Hard copies of documentation must be lodged with the PRA together with a fee and the relevant Property Registration Authority form (which is publicly available). Electronic registration is currently limited to discharges of some encumbrances.
What information is recorded in the national real estate register(s) and to what extent is such information publicly available?
The Registry of Deeds records:
- the name of the parties to the relevant document; and
- the legal description of the property.
A ‘memorial’ providing a summary of the terms of a registered deed is publicly available for a fee of €20.
The Land Registry records:
- the description of the property;
- the owner of the interest in the property;
- the nature of the interest held (eg, freehold or leasehold);
- any encumbrances (or ‘burdens’); and
- a map identifying the property.
A folio providing these details is available online for a fee of €5.
Is there a state guarantee of title?
Not for the Registry of Deeds. A state guarantee of title is available for the Land Registry, but the accuracy of the boundaries on the registry map is not guaranteed.
Sale and purchase
How are real estate brokers regulated in your jurisdiction (eg, through caps on commission or disclosure obligations)?
A broker must obtain a licence from the Property Services Regulatory Authority, a statutory authority responsible for, among other things, regulation of real estate brokers.
What due diligence should be conducted before conclusion of a real estate sale contract?
Depending on the nature of the property:
- the validity of the seller’s ownership of its interest in the property;
- a structural survey;
- a boundary survey (including access and necessary services);
- an environmental survey;
- taxation analysis;
- a planning survey; and
- performance of any tenants.
Are any preliminary agreements typically entered into before conclusion of a sale contract?
Real estate brokers usually prepare non-binding heads of agreement. The sale contract incorporates the heads of agreement.
Must sale contracts be concluded in writing? If so, must they be notarised?
Real estate transactions are generally documented using the Law Society of Ireland’s Conditions of Sale (2017 edition). The conditions of sale must, among other things, be signed by both seller and buyer and their signatures witnessed and a deposit (ie, consideration) paid. There is no requirement for the signatures to be notarised.
Can sale contracts be concluded electronically?
A buyer and seller may agree to exchange sale contracts on the basis of signed soft copies. However, the more established practice is to exchange signed hard copies.
What provisions are usually included in a sale contract?
A sale contract usually includes the following provisions:
- the parties (ie, the seller and buyer);
- the purchase price;
- the closing date (ie, the date the legal and beneficial interest in the property transfers to the buyer);
- the deposit payable (typically 10% of the purchase price);
- the description of the property being sold usually by reference to a map;
- the tenure of the interest held by the seller (eg, freehold or leasehold);
- evidence of the seller’s interest (ie, the seller’s title);
- planning documentation; and
- value-added tax (VAT) treatment of the sale.
Obligations and liabilities
What are the seller’s disclosure obligations and other liabilities, and what are the consequences of breach?
A seller is required to make full disclosure of any issue which may adversely affect the property. The conditions of sale (referred to above) require a seller to disclose “liabilities… (not already known to the Buyer or apparent from inspection) which are known by the [seller] to affect the [property] and are likely to affect it”.
Where a seller does not disclose a liability which subsequently results in a loss to a buyer, the buyer may sue a seller for breach of contract.
What contractual warranties are usually given by the seller?
To the extent they are not varied or deleted by a seller, the conditions of sale (referred to above) require a seller to, among other things, warrant:
- the VAT treatment of the transaction;
- its title or interest in the property;
- that it will discharge all existing charges and mortgages affecting the property;
- that the property is not subject to any third party rights (eg, easements) or claims;
- that vacant possession will be provided to a buyer; and
- the planning status of the property since the date the seller acquired it.
Are there any other obligations on the buyer, aside from paying the purchase price?
A buyer will sometimes be required to provide a warranty in relation to its VAT status.
There is a statutory obligation on a buyer to:
- pay any stamp duty arising on the purchase price to the Irish Revenue Commissioners; and
- lodge its title in the Land Registry for registration.
What taxes are payable on the sale and purchase of real estate? Are any exemptions available?
The taxes which are payable on the sale and purchase of real estate are as follows:
- Stamp duty – payable by the buyer and calculated in the following cases:
- Residential property at the rate of 1% of the purchase price on the first €1 million and 2% on the excess over €1 million.
- Non-residential property at the rate of 2% of the purchase price.
- VAT – may be payable by the seller or buyer depending on how the transaction is structured.
- Capital gains tax – payable by seller on any gains arising from the disposal which is currently at the rate of 33% of the gain made.
- Capital acquisitions tax – payable by a party that acquires a property by gift or inheritance at the rate of 33% above the relevant threshold.
- Local property tax – an annual tax payable on residential properties and calculated accordingly:
- Properties valued up to €1 million at 0.18%.
- Properties whose value exceeds €1 million at 0.25%.
- Commercial rates – payable in the case of non-residential property and dependent on the ‘rateable valuation’ of the property which is determined by the local authority.
- Water charges – payable in the case of both residential and non-residential properties and dependent on water usage.
Transfer of title
When does title in the property transfer?
When the seller executes a deed in favour of the buyer and delivers it to the buyer. Typically, this is two to four weeks after the seller and buyer sign a sales contract.
What is the typical duration of a sale transaction?
Negotiating and settling the terms of the sales contract to the point where it may be signed by seller and buyer typically takes eight to 10 weeks.
There is usually a further two to four weeks until the title is transferred from the seller to the buyer.
Must a lease agreement be concluded in writing?
No. In addition to written leases, implied and oral tenancies are also recognised.
Are there any regulations setting out mandatory or prohibited provisions in lease agreements?
Yes. The primary legislation dealing with commercial leases is the Landlord and Tenant (Amendment) Act 1980. The act provides that provisions in a lease which absolutely prohibit alienation, the user and carrying out improvements are all subject to the proviso that a landlord shall not unreasonably withhold its consent to applications by a tenant in connection with these three items.
What provisions are typically included in lease agreements?
The following provisions are typically included in lease agreements:
- name and address of the landlord and tenant;
- description of the premises demised to the tenant by reference to a map;
- the term (ie, duration) of the lease;
- annual rent (and any other payments such as service charge) payable by the tenant during the term and a rent review mechanism;
- permitted use;
- repairing obligations;
- alienation; and
What are the standard forms of lease agreement used in your jurisdiction?
A written lease which demises a proprietary interest to a tenant.
Length of term
Are there any regulations on minimum and maximum terms of leases?
Are long-term tenants accorded any special rights as to extension or renewal of leases?
- A tenant who is in continuous occupation of a premises for an uninterrupted period of five years for the purpose of carrying on a business acquires a statutory entitlement to a new tenancy.
- A tenant who is in continuous occupation of a premises for an uninterrupted period of twenty years acquires a statutory right to a new tenancy.
What regulations (if any) govern rent increases?
There is a statutory prohibition on upward only rent review clauses in Ireland by virtue of Section 132 of the Land and Conveyancing Law Reform Act 2009.
What regulations (if any) govern rent security deposits?
Can the tenant withhold rent payments on any legal grounds?
If the landlord acts in breach of the terms of a lease, a tenant may, depending on the terms of the lease and other circumstances, withhold rent payments.
Under what circumstances is sub-letting typically allowed?
A landlord will typically consent to sub-letting subject to:
- a tenant providing confirmation that the strength of the sub-tenant’s covenant is no less than the tenant’s; and
- a sub-tenant entering into a direct covenant with the landlord to perform the obligations on the part of the tenant in the lease.
Obligations and liabilities
What are the general obligations and liabilities of the landlord in respect of the property and what are the consequences of breach?
The landlord is generally responsible for:
- ensuring that the tenant is given ‘quiet enjoyment’ of the premises (ie, not to interfere with the tenant’s use and enjoyment of the premises);
- insuring the premises; and
- repairing and maintaining the external and structural parts of the premises.
In the event of the landlord being in breach of its obligations, a tenant may:
- apply to court for a specific performance order; or
- seek damages for loss suffered.
What are the general obligations and liabilities of the tenant in respect of the property and what are the consequences of breach?
The tenant is generally responsible, among other things, for paying the rent and maintaining and repairing the internal non-structural parts of the property.
In the event of the tenant being in breach of its obligations, a landlord may:
- forfeit the lease;
- apply to court for a specific performance order;
- seek damages for loss suffered; and
- seek an order for possession of the property.
Are any taxes payable on rental income? If so, are any exemptions available?
Value-added tax may be payable on rental income.
Are the landlord and tenant bound by any insurance requirements?
There are no statutory insurance requirements. However, a lease will generally provide that the landlord insures the property and recovers the cost from the tenant.
Termination and eviction
What rules and procedures govern termination of the lease by the landlord and the tenant’s eviction from the property?
The terms of a lease will generally describe the basis on which the landlord may evict the tenant. Ultimately, a landlord may have to apply to court to obtain an order for possession.
Finance providers What are the typical providers of real estate financing in your jurisdiction? Are there any restrictions on who may provide financing?
The providers of real estate financing in Ireland can be broken down into two types:
- domestic (traditional) banks who have branches and relationships at a local level; and
- non-traditional lenders who have become more prevalent in recent years.
The difference between the two lies largely in the risk appetite and commercial terms on offer. The non-traditional lenders do not have state ownership or the regulatory restraints of domestic banks and lend at higher rates with various forms of prepayment, arrangement and exit fee mechanisms. They can also move more quickly than domestic banks, who have reporting obligations and credit committee approvals and protocols to adhere to. The non-traditional lenders are not regulated and therefore do not lend to consumers or individuals.
Financing structures What are the most common structures used to secure real estate financing and how are these security interests perfected?
The most common form of real estate finance structure is an all assets debenture from a corporate entity borrower, with share security over its shares (which are normally owned by another corporate entity). It is becoming increasingly rare to see the use of personal guarantees. A lender would look to put in place security at all levels of the group structure. It is also common to see subordination agreements where other loans are subordinated to the senior debt. If there is security for these other loans, an intercreditor agreement is required.
What covenants are typically made in financing agreements?
Covenants are negotiated on a transaction-by-transaction basis. In a real estate finance transaction the following categories of covenant and undertaking are common:
- financial covenants;
- information undertakings;
- general undertakings; and
- property undertakings.
Some of the most common financial covenants are:
- loan to value;
- debt service cover; and
- interest cover.
It is common for a facility agreement to include a limited number of ‘covenant cures’ whereby breaches of the financial covenants ‒ which are normally tested quarterly ‒ can be cured by way of a cash injection.
Enforcement of security
How are security interests enforced in the event of default?
Under normal circumstances, a demand letter will be sent; if this is not satisfied, the secured lender can then proceed to appoint a receiver. The steps that need to be taken will be dictated by the security document entered into by the parties and in some instances the statutory powers available.
What is the typical timeframe for the enforcement of security?
This will be dictated by the terms of the security document, but ordinarily a receiver can be appointed within 14 days from the issuing of a letter of demand. The length of time from the appointment of the receiver to the sale of the secured asset will vary greatly depending on the nature of the asset.
What is the general climate of real estate investment in your jurisdiction?
Ireland’s gross domestic product grew by 5.2% in 2016 (compared to an EU average of just under 2%). Ireland remains a highly sought after location for real estate investment.
The Irish government has set a target of 175,000 new housing units to be built by 2021. The government proposes to do so by, among other things:
- opening up land supply and low-cost state land;
- establishing a Local Infrastructure Housing Activation Fund;
- providing financing through the National Treasury Management Agency for large-scale ‘on-site’ infrastructure;
- reforming planning laws and processes; and
- providing a €5.35 billion investment to build social housing.
This will create opportunities for developers, builders, funders and investors.
Who are the most common investors in real estate?
Recent years have seen an increased professionalisation and internationalisation of the Irish real estate market. Private equity funds continue to reduce their presence in 2017 and are being replaced by more long-term holders of real estate assets such as real estate investment trusts and pension funds, both national and international.
Are there any restrictions on foreign investment in real estate?
Subject to satisfactory anti-money laundering documentation being provided and UN and EU sanctions lists, there is no restriction on foreign investment in real estate.
What structures are typically used to invest in real estate and what are the advantages and disadvantages of each (including tax implications)?
A number of structures can be used to invest in Irish real estate and the type of structure used depends on the investor base, objective of the investment and exit strategy of the investor (eg, whether the asset is held to generate rental income or to appreciate in value).
Irish companies can be used to develop real estate and a 12.5% tax rate should apply to the sale of fully developed land by an investment company.
Non-Irish resident companies are often used to invest and hold Irish real estate and are liable to income tax at a rate of 20% on rental profits, compared with a 25% for Irish resident companies.
Qualifying Irish real estate funds used for international investment in Irish property portfolios are tax exempt at the level of the fund but highly regulated and expensive to set up and run. Therefore, these are suitable only for large scale investment. The Irish Collective Asset Management Vehicle (ICAV), which is a form of fund, is frequently used for large portfolio investment. The ICAV is able to ‘check the box’ to elect to be a disregarded entity for US tax purposes, which is an advantage over other fund vehicles which cannot. Following changes introduced in the Finance Act 2016, these funds are now subject to withholding tax of 20% on distributions and redemptions.
The activity to be conducted, the size of the investment and the location of the shareholder will dictate the most appropriate structures.
Planning and environmental issues
Which government authorities regulate planning and zoning for real estate development and use in your jurisdiction and what is the extent of their powers?
Responsibility for regulating development and designated use of real estate typically lies with local planning authorities. Appeals are referred to An Bord Pleanála (The Planning Board) (ABP), which was set up by the government to operate an open and impartial planning appeal system.
The ABP is statutory authority and deals with all planning appeals in Ireland. Anyone applying for planning permission in Ireland and anyone who made written submissions or observations to the planning authority on a planning application can appeal a planning decision made by a local authority to the ABP.
Local planning authorities and the ABP may grant (subject to conditions) or refuse planning permissions.
What are the eligibility, procedural and documentary requirements to obtain planning permission?
The process involves the submission of a planning application form and drawings describing the proposals to the relevant local planning authority.
Notice of the planning application must be made in an approved newspaper and on a site notice within the two-week period before the submission of the planning application.
A report will be prepared by a planning officer (ie, the individual within the local planning authority with responsibility for dealing with the planning application) who will recommend whether planning permission should be granted or refused. Depending on the nature of the proposal, the final decision on the application will be made either by planning officers under powers delegated to them by the local planning authority or referred to a committee or executive board for determination.
Can planning decisions be appealed? If so, what is the appeal procedure?
If planning permission is refused or is granted subject to conditions which are unacceptable, an appeal may be made by the applicant to the ABP. Third parties which made submissions on the planning application have the same rights to appeal as the applicant.
What are the consequences of failure to comply with planning decisions or regulations?
Where an unauthorised development has been carried out, a warning letter may be sent by the appropriate planning authority demanding an explanation or response from the party concerned within four weeks and outlining the penalties and cost implications involved.
The planning authority shall then make a decision on whether to issue an enforcement notice, which is effectively a stop order on any ongoing unauthorised development or may require the demolition of any unauthorised structure. The exercise of this power is a discretionary decision on behalf of the planning authority.
The penalties for unauthorised development are:
- for conviction on indictment: a fine not exceeding €12,697,381 or imprisonment for a term not exceeding two years, or both; or
- for summary conviction: a fine not exceeding €5,000 or imprisonment for a term not exceeding six months, or both.
What regime governs the protection and development of historic and cultural buildings?
Local planning authorities are required to keep a record for the purpose of protecting structures which form part of the architectural heritage and which are of special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest.
What regime applies to government expropriation of real estate?
A number of statutory bodies have authority to issue compulsory purchase orders (CPOs) which enable them to acquire land without the consent of the owner. Generally, CPOs are used by statutory bodies in the context of, for example, road improvement schemes. The party from whom land is acquired is entitled to receive compensation based on the market value of the property.
What is the required notice period for expropriation and how is compensation calculated?
There are a number of time limits which apply after objections have been lodged or notice of the CPO served and these are described at Section 217 of the Planning and Development Act 2000.
Compensation is required to leave the party in the same financial position they were in before the CPO process commenced.
What environmental certifications are required for the development of real estate and how are they obtained?
Depending on the nature of any development, environmental licences and permits may be required. For example, certain developments require a licence from the Environmental Protection Agency for the designated use in addition to the planning permission.
What environmental disclosure obligations apply to real estate sales?
A seller is required to make full disclosure of any issue (including environmental issues) which may adversely affect the asset. In addition, a seller is required to reply to standard buyer requisitions (which include specific environmental requisitions) relating to whether the property is a ‘European site’ (ie, a site affected by the European Communities (Natural Habitats) Regulations 1997) and whether any notice, certificate, order, permit, licence or consent under any environmental laws affect the property.
What rules and procedures govern environmental clean-up of property? Which parties are responsible for clean-up and what is the extent of their liability?
The European Communities (Environmental Liability) Regulations 2008 (SI 547/2008) governs environmental liability based on the ‘polluter pays’ principle. An operator whose activity causes the imminent threat of or causes environmental damage is therefore liable for any preventative or remediation measures.
The Irish Environmental Protection Agency is the authority responsible for all aspects of the regulations.
Are there any regulations or incentive schemes in place to promote energy efficiency and emissions reductions in buildings?
Subject to some limited exceptions, there is a statutory requirement on a seller to provide a building energy rating, which provides an indicator of the energy performance of a building. Currently, there are no incentive schemes to improve the energy performance of a building.