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Read the Full Issue of the Real Estate Gazette As A ISSUE 34 Real Estate Gazette FOCUS ON: FOREIGN INVESTMENTS www.dlapiperrealworld.com Australia Australia’s foreign investment approval regime Poland Foreign real estate Brazil investment in Poland Foreign investment in Brazil (and in Brazilian farmlands) Portugal Portugal and foreign investors Germany Foreign real estate investments in Singapore Germany — unlimited opportunities? Private education in Southeast Asia — investment plays and regulatory hurdles Morocco Real estate foreign investments in Morocco United Kingdom Taxing non-UK resident Netherlands investors in UK property The 2019 Dutch tax plan — key takeaways for inbound real estate investments WWW.DLAPIPERREALWORLD.COM A note from the Editor A very warm welcome to all our readers to DLA Piper’s first Real Estate Gazette of the year. In this issue, we focus on foreign investment. Olaf Schmidt There are many rewards to be that its legal system contains some Co-Chair of the Global Cross- had from investing in real estate unique features, such as perpetual Practice Real Estate Sector overseas, including the opportunity usufruct, which any foreign investor to diversify and the potential for would need to consider (page 22), stable and safe returns, among while our UK article focuses on the others. However, in addition to tax implications for non-UK resident such advantages, prudent investors investors in UK property (page should also be aware of the pitfalls, 32). However, it is not all doom including unfamiliar tax regimes and and gloom. Many of the articles a completely alien legal framework stress the opportunities available governing the purchasing process. for foreign investors, citing, for example, the growth in city dwellers, In our Australian article (page increasing rent levels, and the 6), the authors describe the potential for significant, long-term country’s foreign investment returns. Indeed, as the authors of approval scheme, which regulates our German article (page 14) put foreign persons wanting to acquire it: “What are you waiting for?” an interest in certain Australian land and businesses. They note Other topics discussed in this issue that failure to comply with the include the “Plaza Ban” regulation in regime can result in harsh financial Hungary (page 40); a discussion penalties and even criminal of the status of hotel operators prosecution. Brazil, on the other in Asia and whether it matters if hand, imposes few legal restrictions they are agents or independent on foreign investors generally but contractors (page 52); and the the authors of our Brazilian article growing trend of block leasing in (page 10) highlight particular Sweden (page 56). restrictions on the acquisition and lease of farmland by foreigners. We do hope that you enjoy Our Polish article makes the point reading this issue. “Foreign investors should be aware of pitfalls, including unfamiliar tax regimes.” 3 REAL ESTATE GAZETTE | ISSUE 34 | 2019 Contents Foreign investments AUSTRALIA Australia’s foreign investment approval regime ..........................................................................................6 BRAZIL Foreign investment in Brazil (and in Brazilian farmlands) .......................................................................10 GERMANY Foreign real estate investments in Germany — unlimited opportunities? .........................................14 MOROCCO Real estate foreign investments in Morocco .............................................................................................16 NETHERLANDS The 2019 Dutch tax plan — key takeaways for inbound real estate investments ............................20 POLAND Foreign real estate investment in Poland ...................................................................................................22 PORTUGAL Portugal and foreign investors .....................................................................................................................26 SINGAPORE Private education in Southeast Asia — investment plays and regulatory hurdles ...........................28 UK Taxing non-UK resident investors in UK property ....................................................................................32 4 WWW.DLAPIPERREALWORLD.COM General DENMARK Leveraging in Denmark — a unique mortgage system ..........................................................................36 HUNGARY The “Plaza Ban” regulation in Hungary .......................................................................................................40 NETHERLANDS Energy performance regulations and investing in Dutch real estate ..................................................44 Roadmap for real estate businesses’ second-best investment on earth ............................................48 SINGAPORE Is your hotel operator an agent or independent contractor, and should owners in Asia care? .....52 SWEDEN Block leasing in Sweden — a growing trend .............................................................................................56 UK Go big or go homes ........................................................................................................................................60 5 REAL ESTATE GAZETTE | ISSUE 34 | 2019 Australia’s foreign investment approval regime Tim Mathers and Sandra Pepper, Brisbane Australia has a foreign investment approval regime which regulates foreign persons wanting to acquire an interest in certain Australian land and businesses. This article focuses on foreign acquisitions of Australian land. The regime is set out in the Foreign Failure to comply with the Act can Who is a foreign Acquisitions and Takeover Act result in harsh financial penalties person? 1975 (Cth) (the Act). Under the Act, and possible criminal prosecution. An entity is a foreign person if they the Treasurer of Australia has the meet one of the following criteria: power to examine proposed foreign When is the • an individual that is not ordinarily acquisitions and decide whether to: requirement to resident in Australia. This includes seek FIRB approval • issue a “no objection notice,” Australian citizens living abroad; triggered? a process commonly known as A foreign investor should assess • a foreign government or foreign granting Foreign Investment the requirement to apply for FIRB government investor. Commercial Review Board (FIRB) approval approval if the acquisition is a investors may also be caught for the acquisition; significant and/or notifiable action under this definition even though • prohibit acquisitions determined to under the Act that meets prescribed they operate independently be contrary to the national interest; monetary thresholds and no of any foreign government, exemptions apply. for example if they have some • order the disposal of an interest form of foreign government already acquired; or The Act defines significant and ownership in their shareholding • impose conditions on the notifiable actions, and generally or structure. Pension funds acquisition, necessary to remove an acquisition of an interest in and sovereign wealth funds national interest concerns. Australian land by a foreign person can also be considered foreign meets the criteria to be considered government investors. Typically, matters that the Treasurer a significant and notifiable action. • a corporation, trustee of a trust, will take into consideration when How the criteria are defined and or general partner of a limited making a decision include the applied is discussed in more partnership in which a foreign impact of the acquisition on the detail below. person holds a substantial Australian economy and community, interest of at least 20 percent; or national security, and the character of the investor. 6 WWW.DLAPIPERREALWORLD.COM • a corporation, trustee of a trust, • Agricultural land: includes land If the land being acquired is mixed or general partner of a limited that is used or could reasonably use (eg, part commercial and part partnership in which two or be used for a primary production agricultural) FIRB will assess the more foreign persons hold an business. This may be for the classification based on factors aggregate substantial interest purposes of cultivating crops, including the current and intended of at least 40 percent. animal rearing, fishing, forestry use of the land, proportions of each or horticulture operations. use and the nature of the land. An acquisition of an • Commercial land: covers land used interest in Australian What are the for a wide variety of commercial land is broadly defined thresholds? purposes and can include land with An acquisition of an interest can The Act prescribes monetary office buildings, shopping malls, take many forms, such as entering thresholds relevant to the warehouses, industrial estates and a contract for the purchase of acquisition which, if exceeded factories. It also includes land with land and buildings, a call option (and unless an exemption applies), residential premises such as hotels to purchase or a lease or permit require the foreign person acquiring and caravan parks, but it does not with an expected term of at least the interest in Australian land include retirement villages, aged five years. Acquiring an interest in to obtain FIRB approval before care facilities or certain student an Australian land corporation or completing the acquisition. accommodation. It can be either Australian land trust, whose land The thresholds vary depending on vacant or developed. Commercial assets comprise more than 50 the type of foreign person and the land is considered
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