GLOBAL PRACTICE GUIDES Definitive global law guides offering comparative analysis from top-ranked lawyers Real Estate Ireland Diarmuid Mawe, Craig Kenny and Katelin Toomey Maples Group practiceguides.chambers.com 2021 IRELAND Law and Practice Contributed by: Diarmuid Mawe, Craig Kenny and Katelin Toomey Maples Group see p.21 CONTENTS 1. General p.4 4. Planning and Zoning p.11 1.1 Main Sources of Law p.4 4.1 Legislative and Governmental Controls 1.2 Main Market Trends and Deals p.4 Applicable to Strategic Planning and Zoning p.11 1.3 Impact of Disruptive Technologies p.4 4.2 Legislative and Governmental Controls Applicable to Design, Appearance and Method 1.4 Proposals for Reform p.4 of Construction p.11 2. Sale and Purchase p.4 4.3 Regulatory Authorities p.11 2.1 Categories of Property Rights p.4 4.4 Obtaining Entitlements to Develop a New Project p.11 2.2 Laws Applicable to Transfer of Title p.4 4.5 Right of Appeal Against an Authority’s Decision p.12 2.3 Effecting Lawful and Proper Transfer of Title p.4 4.6 Agreements with Local or Governmental Authorities p.12 2.4 Real Estate Due Diligence p.5 4.7 Enforcement of Restrictions on Development 2.5 Typical Representations and Warranties p.5 and Designated Use p.12 2.6 Important Areas of Law for Investors p.6 2.7 Soil Pollution or Environmental Contamination p.6 5. Investment Vehicles p.12 2.8 Permitted Uses of Real Estate under Zoning or 5.1 Types of Entities Available to Investors to Hold Planning Law p.6 Real Estate Assets p.12 2.9 Condemnation, Expropriation or Compulsory 5.2 Main Features of the Constitution of Each Type Purchase p.6 of Entity p.13 2.10 Taxes Applicable to a Transaction p.7 5.3 Minimum Capital Requirement p.13 2.11 Legal Restrictions on Foreign Investors p.7 5.4 Applicable Governance Requirements p.14 5.5 Annual Entity Maintenance and Accounting 3. Real Estate Finance p.7 Compliance p.14 3.1 Financing Acquisitions of Commercial Real Estate p.7 3.2 Typical Security Created by Commercial Investors p.8 6. Commercial Leases p.15 6.1 Types of Arrangements Allowing the Use of 3.3 Restrictions on Granting Security over Real Real Estate for a Limited Period of Time p.15 Estate to Foreign Lenders p.8 6.2 Types of Commercial Leases p.15 3.4 Taxes or Fees Relating to the Granting and Enforcement of Security p.8 6.3 Regulation of Rents or Lease Terms p.15 3.5 Legal Requirements Before an Entity Can Give 6.4 Typical Terms of a Lease p.15 Valid Security p.9 6.5 Rent Variation p.16 3.6 Formalities When a Borrower Is in Default p.9 6.6 Determination of New Rent p.16 3.7 Subordinating Existing Debt to Newly Created 6.7 Payment of VAT p.16 Debt p.10 6.8 Costs Payable by a Tenant at the Start of a Lease p.16 3.8 Lenders’ Liability under Environmental Laws p.10 6.9 Payment of Maintenance and Repair p.16 3.9 Effects of a Borrower Becoming Insolvent p.10 6.10 Payment of Utilities and Telecommunications p.16 3.10 Consequences of LIBOR Index Expiry p.10 6.11 Insuring the Real Estate That Is Subject to the Lease p.16 2 IRELAND CONTENTS 6.12 Restrictions on the Use of Real Estate p.16 8. Tax p.19 6.13 Tenant’s Ability to Alter and Improve Real Estate p.16 8.1 VAT p.19 6.14 Specific Regulations p.17 8.2 Mitigation of Tax Liability p.19 6.15 Effect of the Tenant’s Insolvency p.17 8.3 Municipal Taxes p.20 6.16 Forms of Security to Protect against a Failure of 8.4 Income Tax Withholding for Foreign Investors p.20 the Tenant to Meet Its Obligations p.17 8.5 Tax Benefits p.20 6.17 Right to Occupy after Termination or Expiry of a Lease p.17 6.18 Right to Assign a Leasehold Interest p.17 6.19 Right to Terminate a Lease p.17 6.20 Registration Requirements p.17 6.21 Forced Eviction p.18 6.22 Termination by a Third Party p.18 7. Construction p.18 7.1 Common Structures Used to Price Construction Projects p.18 7.2 Assigning Responsibility for the Design and Construction of a Project p.18 7.3 Management of Construction Risk p.18 7.4 Management of Schedule-Related Risk p.18 7.5 Additional Forms of Security to Guarantee a Contractor’s Performance p.18 7.6 Liens or Encumbrances in the Event of Non- payment p.19 7.7 Requirements Before Use or Inhabitation p.19 3 Law AND Practice IRELAND Contributed by: Diarmuid Mawe, Craig Kenny and Katelin Toomey, Maples Group 1. GENERAL 1.3 Impact of Disruptive Technologies The most significant obstruction to the use of 1.1 Main Sources of Law blockchain technology, decentralised finance, The main source of real estate law is statute. proptech and other technologies in the legal The key legislative provisions are set out in the sector in Ireland is the absence of regulation and Land and Conveyancing Law Reform Act 2009 the fact that these technologies have no fixed (the 2009 Act), the Registration of Title Act, 1964 jurisdiction. (the 1964 Act), the Registration of Deeds and Title Act, 2006, the Landlord and Tenant Acts, While blockchain and proptech should result in 1967-2019 (LTA) and the Residential Tenancies increased efficiencies in many areas of the Irish Acts, 2004 to 2019 (the RTA). commercial real estate market and in the regis- tration of title, it is unlikely to have a significant The other main source of real estate law is case impact in the Irish real estate market in the next law, which is derived from the judgments of the 12 months, given the absence of regulation. Irish courts. 1.4 Proposals for Reform 1.2 Main Market Trends and Deals There are no current proposals for reform which In Ireland, the real estate sector has demon- would significantly impact real estate invest- strated a remarkable recovery since the global ment, ownership or development in Ireland. financial crisis, with investment turnover reach- ing record highs in recent years. Indeed, despite the challenges presented during 2020 as a result 2. SALE AND PURCHASE of COVID-19, the appeal of Irish commercial real estate as an asset class endured with more than 2.1 Categories of Property Rights EUR3 billion invested in the sector. Despite the The categories of property rights which can challenge of COVID-19 and its impact on the be acquired in Ireland are freehold title, which real estate sector, the fundamentals that make confers absolute ownership, or leasehold title, Ireland an excellent place to invest and do busi- which confers ownership for the period of years ness remain. Ireland offers a high degree of granted by the relevant lease. economic and political stability with the benefit of a common-law legal system and favourable 2.2 Laws Applicable to Transfer of Title tax structure which is relatively easy to under- Historically, Irish law was based on legislation stand. Ireland is strongly aligned with the Euro- pre-dating the establishment of the Irish State. pean Union and benefits from the common trade The 2009 Act replaced much of the old law and area and access to talent from across Europe. modernised this area of law and conveyancing The Irish economy has recorded several years practice. The RTA governs the residential land- of strong, sustainable growth with 2020 likely to lord and tenant sector. be the seventh consecutive year in which Ireland has emerged as the fastest-growing economy in 2.3 Effecting Lawful and Proper the Eurozone. For a more detailed analysis on Transfer of Title market trends and deals please see the separate The Land Registry was established in 1892. Trends & Developments chapter. When ownership of a property is registered in the Land Registry, the deeds are filed with the Land Registry and all relevant particulars concerning 4 IRELAND LAW AND PRActICE Contributed by: Diarmuid Mawe, Craig Kenny and Katelin Toomey, Maples Group the property and its ownership are entered on seller’s knowledge of the property is limited, for folios which form the registers maintained by example, in an enforcement sale, it is usual to the Land Registry. In conjunction with folios, the limit many of the warranties. Land Registry also maintains maps (referred to as filed plans). Both folios and filed plans are The buyer’s lawyer also carries out a number of maintained in electronic form. searches against both the seller and the prop- erty. The Registry of Deeds was established in 1707 to provide a system of voluntary registration for 2.5 Typical Representations and deeds which affect property. The purpose was Warranties to give priority to registered deeds over unregis- The principle of caveat emptor is diluted some- tered but “registrable” deeds. There is no statu- what by the General Conditions, which place a tory obligation to register a deed in the Registry number of warranties and disclosure require- of Deeds but failure to do so may result in a loss ments on the seller. For instance, the General of priority. Conditions include numerous warranties relating to matters such as notices, planning compliance, Title insurance is used in property transactions boundaries, easements and identity. These war- in Ireland, but is not widespread.