Winter 2009 Real Estate Newsletter Contents: Introduction 1 Real Property Investments in Bulgaria Market and Legal Overview German Pfandbriefe basics and new legal developments Lease agreements in the economic crisis impact of insolvency of the lessor or lessee New VAT rules for postal services need to check existing leases and impact on real property transactions 2 5 7 9 Welcome to the winter edition of our Real Estate newsletter, which contains information on issues currently affecting real estate and real estate financing. In the current climate, it is particularly important to focus on economic issues and the outlook for individual markets. We therefore take a look at the Bulgarian real estate market. Nadezhda Varbanova, a member of our team in Frankfurt and a qualified Bulgarian lawyer, gives an overview of the current Bulgarian market and sets out a few basics of Bulgarian property law. In the second article, Marc Benzler and Rainer Gallei provide details of current developments relating to German Pfandbriefe. The focus then shifts to crisis management in the article by Christian Trenkel and Christina Thees where they examine the impact of lessor or lessee insolvency on lease agreements. Finally, Heiko Kermer and Gerold Jaeger take a look at developments in the VAT framework for postal services in Germany and how this may impact existing lease agreements and real estate transactions in general. We hope you find our newsletter enjoyable and informative. Please do not hesitate to contact the authors, or anyone else in the Real Estate team, if you would like to discuss any legal real estate issues. Best wishes This survey is only for the purpose of general information and is no substitute for legal advice. Clifford Chance therefore accepts no liability if, in reliance on the information contained in this survey, you act or fail to act in any particular way. If you would like to know more about the subjects covered in this publication or our services, please contact your usual Clifford Chance contact or one of the authors: Dr. Marc Benzler +49 69 7199 3304 Christian Trenkel +49 69 7199 1314 Dr. Gerold M. Jaeger +49 69 7199 1539 Christina Thees +49 69 7199 1375 Dr. Heiko Kermer +49 69 7199 1653 Rainer Gallei +49 69 7199 3142 Nadezhda Varbanova +49 69 7199 3125 Christian Trenkel Gerold M. Jaeger To email one of the above, please use firstname.lastname@ Clifford Chance, Mainzer Landstraße 46, 60325 Frankfurt am Main, Germany www.
Real Estate Winter 2009 2 Real Property Investments in Bulgaria Market and Legal Overview 1 The global financial crisis has made real property investment worldwide even more complex than it was before. Bulgaria has been affected just as much as anywhere else by the global slowdown in real estate markets. The Bulgarian market does, however, still offer considerable investment potential. A newcomer to the European Union (the "EU"), the Bulgarian real property market has seen a significant increase of foreign investment activity over the past few years. This has resulted in substantial residential developments, holiday resorts on the Black Sea and in the mountains and an increase in the office space available for rent. The industrial and logistics property market in the major urban centres is still considered undersupplied. Bulgaria's Macroeconomic Framework In the process of EU accession negotiations, Bulgaria implemented a series of reforms towards liberalizing its market, opening up the economy for foreign investments, and improving business transparency. These measures contributed to Bulgaria's economy scoring a 6,8% growth in the third quarter of 2008, way above the average EU figure. In 2006 and 2007 Bulgaria attracted a high foreign direct investment ("FDI") inflow, mainly in the construction sector. The FDI and the favourable tax policy stimulated the development of a booming construction sector and expansion of the real estate market. The significance of the FDI for this market in the present financial crisis setting has its downside the credit crunch adversely affected the access to capitals and the development pace. Presently, prices are declining in 23 out of the 28 administrative regions of the country. The European Commission has made the following macroeconomic projections for Bulgaria: GDP growth for 2009 will slow down to 1.8 % and come back with a slight increase in 2010. Part of the government's measures against the implications of the global financial turmoil is an increase in public investment for developing the country's infrastructure. Such measure is expected to facilitate investment. Office Market Bulgaria 1 Office space inventory in Sofia totalled approx. 874,100 sqm. towards the end of 2008. Supply is catching up with demand, and the vacancy rate ranged between 1.6% in the city centre and 9.2% in the suburbs. Market analysts expect that the gradual increase of completed projects will result in the office market fragmentation. The average monthly rent of prime (A class) offices in the Sofia centre climbed up to EUR 23.75 at the end of 2008. It remained in the category of low European rents, but still higher than rents in Bratislava. Prime office yield was around 7.5%, a relatively high rate, equal to yield in Dubai, but lower than yield from comparable properties in eastern European locations such as Belgrade. Rental rates are projected to stabilize in the medium-term. The office market in Varna is still considered to have potential. By the end of 2008, office space totalled 144,000 sqm. and the vacancy rate reached an 17 %. Monthly rents went as high as EUR 20/sqm. Retail Market Bulgaria 2 The Bulgarian retail space market in 2008 was characterized by a fast - pace development. The focus was on the shopping mall developments. Nine outlets were launched in the first half of 2008, eight of which were within the food industry (among them, Billa and Kaufland). The end of 2008 saw the completion of the first retail park Retail Park Plovdiv with a 26,400 sqm. rentable space. The do-it-yourself segment in the larger cities is pointed as an area with potential. During 2008 monthly rents for prime high street premises in Sofia remained at approx. EUR 100/sqm. Yields rose to 6.25% compared to the third quarter of 2007. Prime shopping mall yields stabilized at about 7.5%. King Sturge forecasts that retail prime rents will decrease in many Western European markers, but will further grow in most emerging economies, including in Bulgaria. King Sturge projects "extraordinary" invest- 1 Data about Bulgaria's office market is based on: (i) Bulgarian Office Market Report Q3, 2008 of Forton Commercial Property Advisers http://forton.bg/en/wp-content/office_q3-2008.pdf; (ii) Market Overview/Second Half/2008/Office by Colliers International, http://www.colliers.com/content/repositories/base/markets/bulgaria/english/market _Report/PDFs/ColliersMarketoverviewSofiaOfficeH2-2008.pdf (about Sofia); http://www.colliers.com/content/repositories/base/markets/bulgaria/english/market _Report/PDFs/ColliersMarketoverviewVarnaOfficeH2-2008.pdf (about Varna), (iii) CB Richard Ellis as quoted in "Decrease of rents, but high rent yields" http://www.profit.bg/news.php?id=38089; (iv) "The vacancy rate of offices in Sofia may reach 10 % by the end of 2008", http://imoti.investor.bg/print.php?id=73025; and (v) Desislava Popova, "Over 900,000 sqm pipeline office space, vacancy and rents however down", http://imoti.investor.bg/print.php?id=75317. 2 Data about Bulgaria's retail market is based on: (i) Bulgarian Retail Market Report Q3, 2008 of Forton Commercial Property Advisers http://forton.bg/en/wp-content/retail_new_q3_.pdf; (ii) Colliers International Retail Market Overview Bulgaria/Retail/Second Half/2008, http://www.colliers.com/content/repositories/base/markets/bulgaria/english/market _Report/PDFs/ColliersMarketoverviewRetailH2-2008.pdf; (iii) "Rents to fall in Western European markets King Sturge" http://www.propertyeu.info/services/news-archive/default.asp?page=2&id=7236; (iv) "CEE region to have 6B euro new malls in 2009", http://www.propertywisebulgaria.com/article/cee-region-to-have-6b-euro-new-mallsin-2009/id_3108/catid_30 2008-dnevnik.bg; and (v) "What to expect on the retail market", http://www.profit.bg/news.php?id=41585
Real Estate Winter 2009 3 ment opportunities for cash-rich players following repricing of retails assets. Bulgaria scored the second fastest growth in the CEE region with its shopping mall market to increase to EUR 760 million in 2009. Industrial and Logistics Property Market Bulgaria 3 The total supply of industrial and logistics property in Sofia amounts to approx. 1,283,000 sqm. (vacancy rate about 2-3%), in Plovdiv 789,000 sqm. (data for the end of the first half of 2008), in Varna 353,000 sqm. Following completion of currently pending development projects, among others, Sofia Airport Centre, the available inventory is expected to increase. Burgas is believed to have potential for further development with respect to modern logistics space. During 2008 monthly prime rents for new warehouse/logistics space in Sofia were in the range of EUR 6.00-6.50 per sqm. Yield from premises in the prime segment increased to about 9-9.5%. Market analysts project a further increase as a result of the global financial turmoil and the countrywide demand for logistics space and high-technology production facilities exceeding supply. Resorts Market Bulgaria 4 In 2008 some of the resort projects were abandoned due to the market slowdown and the withdrawal of foreign customers (mainly second-home buyers from the UK). The market decline resulted in a number of resort properties being sent back to the market. In 2008 however Bulgaria retained the keen Russian clients. Residential Market Bulgaria 5 The residential units segment was very dynamic between 2006 and 2008. New residential construction was particularly active in Sofia's broad centre and in the suburban areas. Housing prices countrywide increased by 10% in the first half of 2008, compared to the fourth quarter of 2007, to an average of BGN 1,338 per sqm. Sofia prices significantly exceeded the country average. While property prices tend to fall as an effect of the credit crunch, the residential rental sector is gaining momentum, especially for city apartments. In 3 Data about Bulgaria's industrial and logistics real estate market is based on: (i) Colliers International Bulgaria Logistics and Industrial Market Report for the 2nd Half of 2008, http://www.colliers.com/content/repositories/base/markets/bulgaria/english/market _Report/PDFs/ColliersMarketoverviewIndustrialH2-2008.pdf; and (ii) Bulgarian Industrial Market Report Q3, 2008 of Forton Commercial Property Advisors, http://forton.bg/en/wp-content/industrial_new_q3.pdf; and "Industrial premises-developments and expectations", http://www.profit.bg/news.php?id=41634. 4 Data about Bulgaria's Resorts Market is based on SeeNews Reports, http://www.seenews.com/ 5 Data about Bulgaria's residential market is based on (i) See News Reports, www.seenews.com, and (ii) "Surge in demand for rental property in Bulgarian cities", http://www.propertywire.com/news/europe/demand-rental-property-bulgarian-cities- 200811262154.html. the first three quarters of 2008 the rental market in Sofia, Plovdiv, Varna and Burgas grew by 12%. Bulgaria's Property Investment Legal Framework In the first half of the 20th century, Bulgarian civil law was strongly influenced by the concepts of the French Code Civil and the German Bürgerliches Gesetzbuch ("BGB") and commercial law. During socialism (1946-1989), private ownership of real estate was restricted and title transfer was heavily burdened by administrative regulations. The new 1991 democratic constitution however promotes personal freedom and protection of private property (among others, by minimizing governmental interventions). Conveyance Mechanics and Form As opposed to the two step transfer structure under the BGB, a real property conveyance in Bulgaria occurs within one stage in rem rights in real property (such as title and limited rights of construction and/or use) are transferred upon execution of a transfer deed in the requisite form. This corresponds to the French concept of a dual obligation and in rem effect of contracts for transfer of rights. Mortgages over real estate represent an exception to this rule they are created and perfected by recordation in the real estate registry maintained with the Ministry of Justice. A very common instrument for direct real property investments is the sale and purchase agreement (the "SPA") which structures the transaction as an asset deal. The SPA is normally executed in the form of a notarial deed, which incorporates the clauses of the transfer. Notaries perform an identity check of the appearing parties, as well as a title check of the property. A title check is possible because of the existence of the Real Estate Registry. Recordation and Risk A recordation of a real estate transaction in the Real Estate Registry follows the effected transfer, thus securing priority and creating enforceability against third parties. The Real Estate Registry is publicly accessible and allows checks of title, of other in rem rights, as well as of encumbrances on real estates. At present, pending the completion of an undergoing reform, information about real estate transfers is predominantly filed by the names of the parties. After the launch of the new registration system, similar to the German Grundbuch, transactions will be recorded in the files, created for each particular real property and record details should be electronically accessible. The existence of the Real Estate Registry does not totally rule out the risk of claims, more particularly, restitution claims. In the early 1990s, Bulgaria reformed its real estate legislation and adopted several restitution laws with the aim to restore title and/or possession of property nationalized after WWII. Restitution claims were exercisable within an administrative pro-
Real Estate Winter 2009 4 cedure or originated by operation of law. In general, the restitution claims have already lapsed. Potential risks however may lurk in pending proceedings. An implication of a successful restitution claim would be eviction from the respective real estate. In such a worst case scenario, an investor could seek damages and/or indemnification under the general rules of obligations and contracts. Transaction Costs A real property conveyance is usually associated with the following transaction costs: (i) a notary fee; (ii) a fee for recordation in the Real Estate Registry: (iii) a real estate transfer tax, and in some cases (iv) a value added tax. The notary fee, the registration fee and the transfer tax are calculated on the basis of the value of the real estate transaction (the "Transaction Value"). The Transaction Value is based on the greater of the tax value of the property or its purchase price. A notary fee is an aggregate of a flat rate and a statutorily set percentage of the Transaction Value, in any case not more than approx. EUR 1,500. A recordation fee amounts to 0.1% of the Transaction Value. The transfer tax rates are determined by municipalities in the range between 1.3% and 2.6% of the Transaction Value, depending on the property location. Acquisition of In Rem Rights by Foreigners Foreign individuals and legal entities may acquire title to buildings as well as the right of use over buildings and over land without any restrictions. Bulgarian law however imposes certain limitations when it comes down to acquisition of title to land by foreign nationals (other than in the case of inheritance). Foreign individuals and legal entities who are not citizens or have not been incorporated under the laws of an EU or European Economic Area Member State, may acquire land only pursuant to an international treaty that has become effective for Bulgaria. With regard to citizens and legal entities from EU or European Economic Area Member States (collectively "European Nationals"), the acquisition of land for secondary residence is not permitted until 1 January 2012. However, European Nationals who are private individuals and have legally established a permanent residency in Bulgaria, are exempt from the restriction. Further, subject to a minor exception for self-employed farmers, until 1 January 2014, acquisition of agricultural land, forests and forestry land by European Nationals is prohibited. Leases Bulgarian lease law has been recently amended in order to facilitate the commercial leases. Thus leases with regard to real property, which qualify as commercial transactions, may be concluded for a period of time as freely chosen by the parties. The general legal restriction to the duration of a non-commercial lease i.e. a maximum term of 10 years would not apply. Theoretically, lease contracts may be validly concluded even orally. Nowadays however, the complexity of commercial transactions naturally results in a tendency to adopt the written form. It contributes to clarity and transparency of parties' relations. Further, a lease contract concluded in writing with a (notary) certified date and/or recorded in the Real Estate Registry provides additional protection of lessees in case of change of ownership in the leased real property. Such lease contracts remain binding against the new owner. How Clifford Chance can help you Clifford Chance is happy to assist you as an investor with any investment in Bulgaria. We have Bulgarian market specialists not only in our Bucharest office, but also in Frankfurt. Clifford Chance also has close working relationships with a number of leading Bulgarian law firms. Please do not hesitate to get in touch with us if you are interested in investing in Bulgaria or if you have any other questions. Nadezhda Varbanova who is also qualified as a Bulgarian lawyer at our Frankfurt office will be happy to discuss these issues with you. For further questions please contact Nadezhda Varbanova, LL.M. Transaction Lawyer Banking & Capital Markets nadezhda.varbanova@ Due to the outlined restrictions, real property investment by foreigners in the past several years was usually effected indirectly through establishing of or acquiring a shareholding in a company under Bulgarian law.
Real Estate Winter 2009 5 German Pfandbriefe basics and new legal developments The success of the German Pfandbrief, which is basically a covered bond, is down to the security it offers investors. There have been no Pfandbrief defaults in more than 100 years since the German Mortgage Banks Act (Hypothekenbankgesetz, HBG), which preceded the German Pfandbrief Act (Pfandbriefgesetz, PfG), took effect. The Pfandbrief has also retained much of its attractiveness for investors and issuers despite the global financial crisis. In the first half of 2008, Pfandbrief banks sold Pfandbriefe worth EUR 84 billion, although dealing and new issues have both decreased considerably since August 2008. The establishment of government bailout funds has also led to the appearance of the first government-backed issues, which are regarded as a product which will compete with Jumbo Pfandbriefe in particular 6. The Pfandbrief is a type of medium to long-term bond. In the event of the insolvency of the Pfandbrief bank, the claims of the Pfandbrief creditors are secured by the allocation of certain assets to a cover pool established solely to satisfy those claims in the event of insolvency of the issuing bank. The total nominal amount of any Pfandbriefe in circulation must be covered by cover pool assets of at least the same value at all times. The actual cash value of the Pfandbrief must also be covered at all times and the cash value of the pool assets must always exceed the total amount of the relevant Pfandbrief liabilities by 2% (excess cover). The Pfandbrief Act has provided the legal basis for issuing Pfandbriefe in Germany since it succeeded the Mortgage Banks Act, the Ship Mortgage Banks Act (Gesetz über Schiffspfandbriefbanken) and the Act on Bond and Debenture Issues of Public Law Credit Institutions (Gesetz über die Pfandbriefe und Schuldverschreibungen der öffentlich-rechtlichen Kreditanstalten) in 2005. The Pfandbrief Act provides for three types of Pfandbrief according to the type of cover assets used: Mortgage Pfandbriefe (Hypothekenpfandbriefe) (Pfandbriefe secured against mortgages); Public Pfandbriefe (öffentliche Pfandbriefe) (secured against public-sector loans); and Ship Pfandbriefe (Schiffspfandbriefe) (secured against ship mortgages). Pfandbriefe may only be issued by Pfandbrief banks in accordance with this Act. The term "Pfandbrief" is protected by law. Pfandbrief issues are subject to special permit requirements ("erlaubnispflichtiges Bankgeschäft") as defined in the German Banking Act (Kreditwesengesetz, KWG), i.e. they require approval by the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht, 6 Go to the website of the Verband deutscher Pfandbriefbanken for more information (www.pfandbrief.de). BaFin) and are therefore subject to permanent supervision by that Authority. The Pfandbrief is a particularly safe financing tool primarily as a result of the legal requirements for the cover assets, the fact that the cover assets remain separate from the insolvency estate in the case of the insolvency of the Pfandbrief bank, and the fact that an official trustee is appointed to manage the cover assets. The following provides a more detailed look at these issues. Secure cover assets The Pfandbrief Act sets out which assets may be used in which amount for securing each of the three types of Pfandbrief. Mortgage Pfandbriefe are covered by real property loans (i.e. loans secured against property mortgages (Hypotheken) and land charges (Grundschulden)). The properties against which these loans are secured must be located in a Member State of the European Union, a contracting state of the Agreement on the European Economic Area or in Switzerland, the USA, Canada or Japan. This also includes foreign security interests offering collateral comparable to the mortgage. The Pfandbrief Act also provides for the use of additional cover assets to facilitate liquidity management within certain thresholds. This mainly relates to monetary claims against suitable credit institutions, government bonds and derivatives in the form of interest rate and currency swaps. Public Pfandbriefe are secured against public-sector loans or against claims which are fully guaranteed by the state. The most important difference to Mortgage Pfandbriefe is that these claims are not secured against mortgages. The Pfandbrief Act sets out which publicsector authorities would make suitable debtors for cover assets. The monetary claims generally have to arise from the granting of loans, from bonds or from a comparable legal transaction, must be held against one of the public-sector authorities exhaustively specified in the Pfandbrief Act and must be acknowledged by the relevant authority in writing as being undisputed. Ship Pfandbriefe are secured against mortgages on ships entered in a public register. The Pfandbrief banks are required to keep a cover register (Deckungsregister) for all types of Pfandbrief issued by them, setting out all cover assets. Cover assets for Mortgage Pfandbriefe and Ship Pfandbriefe may only be used as cover up to the amount of the first 60% of the value of the encumbered property or ship (loan value). The loan value must be determined by a qualified expert (Gutachter) who may not have any vested interest in the loan decision and must be suitably qualified and experienced. Insolvency remoteness of Pfandbriefe There is no direct link between the cover assets and the Pfandbriefe in circulation beyond the insolvency of the
Real Estate Winter 2009 6 Pfandbrief bank. The claims held by the Pfandbrief creditors under the Pfandbriefe are direct claims against the Pfandbrief bank, although the cover assets are legally protected against distraint measures instituted by the Pfandbrief bank's third-party creditors. In the event that the Pfandbrief bank is declared insolvent, any cover assets entered in the cover register are be kept separate from the bank's other assets. This creates a legally dependent collection of assets which is set aside exclusively for satisfying the claims of the Pfandbrief creditors. In the event of insolvency, the court competent for the registered office of the Pfandbrief bank appoints two suitable natural persons who are responsible for ensuring that the cover assets are used to satisfy the Pfandbrief creditors' claims. Trustees The maximum term for ship mortgage loans will be increased from 15 to 20 years. This will mean that a loan may be entered in the cover register for the entire useful life of a ship of 20 years as assumed for the purposes of the Pfandbrief Act. The Pfandbrief Act will be adapted to the revised Banking Directive of 2006 by expanding the means of including claims against subordinate government entities such as municipalities, regions and federal states into the cover for public Pfandbriefe, although this option will only be available in the USA, Canada, Switzerland and Japan. For further questions please contact The appointment of an official trustee for each Pfandbrief bank represents an additional safeguard for Pfandbrief investors. The rights and obligations of the trustee are specified in the Pfandbrief Act. The trustee is appointed by BaFin following discussions with the Pfandbrief bank and must be suitably qualified to perform the necessary tasks. The relationship between the Pfandbrief bank and the trustee is characterised by legal supervision for the benefit of the Pfandbrief creditors. The trustee is mainly responsible for checking that the Pfandbriefe are adequately covered at all times and that the cover assets are duly entered in the cover register. The trustee's approval is also required to remove any cover assets from the cover register. The trustee is also entitled to inspect documents of the Pfandbrief bank and to make requests for information where these relate to Pfandbriefe or cover assets which have been entered in the cover register. The Pfandbrief bank is required to keep the trustee up to date on any capital repayments on the assets in the cover register and on any other significant changes. Further development A bill to amend the Pfandbrief Act was passed on 12 February 2009 by the German Parliament which is due to come into force by May 2009 at the latest. This bill includes the following changes: The new Aircraft Pfandbrief will be introduced. The cover assets for these are claims secured against registered liens (Registerpfandrechte) on aircrafts or against foreign aircraft mortgages. The legal framework for Aircraft Pfandbriefe will be mostly the same as that existing for Ship Pfandbriefe. In order to facilitate syndicated financing involving Pfandbrief banks, there will be increased coordination between the simultaneous entry of cover assets in the cover register and in the "refinancing register" (Refinanzierungsregister). Dr. Marc Benzler Partner Banking & Capital Markets marc.benzler@ Rainer Gallei Associate Banking & Capital Markets rainer.gallei@
Real Estate Winter 2009 7 Lease agreements in the economic crisis impact of insolvency of the lessor or lessee The economic crisis is also affecting lease agreements and investors are becoming increasingly concerned about the risks of lessees declaring insolvency. Lessees are worried about the impact any insolvency of their lessor would have on the lease agreement. The following provides an overview of how German insolvency law affects commercial lease agreements. Structure of the insolvency proceedings The diagram below illustrates the stages of insolvency proceedings under the German Insolvency Code (Insolvenzordnung, InsO): Application for institution of insolvency proceedings Institution of insolvency proceedings constitute (simple) claims against the insolvency estate and the percentage of the nominal amount of such claims that is actually paid out to the creditors is usually quite small. Lease agreements as reciprocal agreements Once proceedings have been instituted, the administrator generally has the option of whether to meet the contractual obligations under reciprocal agreements. 108 InsO provides for the exception that leases concerning immovable property initially remain in effect. This applies in the case of both insolvent lessors and insolvent lessees. Insolvency of lessees Lessors discovering that one of their lessees is having financial difficulties will ask the following questions: Can the lease be terminated immediately, particularly if a new solvent lessee is available? Are there special restrictions which apply in the case of insolvency proceedings? Can collateral be freely realised? Institution stage Proceedings opened Termination, 112 InsO and 109 InsO Insolvency proceedings are instituted upon application in the event of insolvency ( 17 InsO), impending insolvency ( 18 InsO) or overindebtedness of a legal person ( 19 InsO). Under 35 InsO, insolvency proceedings relate to the insolvency estate, i.e. all assets of the indebted party at the time the proceedings are instituted and any assets acquired by it during the proceedings. It can take months for a decision to be reached on whether to institute insolvency proceedings or whether not to proceed due to insufficiency of assets (i.e. when the assets available would not cover court and insolvency administration costs) (institution stage). During that period, the insolvency estate is usually managed by a "weak" provisional insolvency administrator who is in most cases entitled to manage or dispose of the debtor's assets and cannot therefore establish any debts of the insolvency estate (Masseverbindlichkeiten), i.e. any obligations which would be satisfied from the insolvency estate with priority before any other claims. In those cases where a "weak" provisional administrator is appointed, the insolvency court merely makes certain decisions of the insolvent debtor subject to approval by the insolvency administrator. In the case of an insolvent lessor, for example, this means that a lessee will continue to pay its rent to the lessor, and not to the insolvency administrator. The administrator only has the right to dispose of the debtor's assets once insolvency proceedings have been instituted. Once this happens, all payments have to be made directly to the administrator instead of to the lessor. Any liabilities established by the administrator from this point on are direct debts of the insolvency estate (Masseverbindlichkeiten), which must be satisfied before any other claims and for the payment of which the administrator is personally liable. All other liabilities In principle, the provisions of civil law regarding the termination of a contract, including termination for cause, also apply to lease agreements in the event of insolvency of either party, whereby "impending insolvency" or "insolvency" of a lessor or lessee does not constitute sufficient grounds for termination of a lease agreement and any provision in the lease to this effect is invalid. For example, 543 (2) no. 3 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) entitles lessors to give extraordinary notice of termination if a lessee (i) defaults on two consecutive rent payments or on a substantial part of these payments (50%+ of the rent + VAT + advance payment for ancillary costs) or (ii) is in default on an amount equal to at least two months' rent. 112 InsO restricts these grounds of termination in that lessors may not terminate a lease for default arising prior to an application for the institution of insolvency proceedings once that application has been submitted. Lessors are therefore required to further honour the lease despite there being grounds for termination. Any lease provision to the contrary is invalid (see 119 InsO). Lessors also face the problem that the majority of provisional insolvency administrators do not pay any rent in the first month after the application has been made as they need to determine whether it is worth continuing the lease. In order to do so, they have to acquire an overview of the situation. In addition, the lessor's claim for the payment of rent is an ordinary claim against the insolvency estate (Insolvenzforderung) which first has to be filed in the insolvency schedule and is then settled at the end of the proceedings (which may be several years later). Once the insolvency proceedings have actually been instituted the administrator is then entitled to decide whether individual leases will be maintained or termi-
Real Estate Winter 2009 8 nated ( 109 InsO). If the decision is made to terminate a lease, it may be terminated giving three months notice to the end of a month, regardless of the agreed term. The continuation of leases creates direct debts of the insolvency estate (Masseverbindlichkeiten), while in the case of a termination, claims may only be asserted as subordinate insolvency claims. It is left to the discretion of the insolvency administrator when he decides which of these two option he wishes to use, which means that lessors are restricted in terms of financial planning during that initial period of insolvency proceedings. Realisation of collateral In addition to filing claims in the insolvency schedule, lessors also have the option to realise collateral that is available to them under statutory or contractual provisions. Drawing on and realising contractual collateral such as cash deposits, savings books, guarantees, letters of comfort or collateral securities is generally possible in the event of insolvency. Lessors are required, as they are in all other cases, to check that the collateral was validly agreed, is available, recoverable and realisable. Lessors are entitled to a statutory right of lien (Vermieterpfandrecht) under 562 et seq. BGB. This lien starts when the items are transferred into the leased premises and ends when the items are removed in the course of normal business operations. This right of lien is conditional on the lessee being the legal owner of the relevant items, which means for example that there is no lessor's lien on items kept in stock by a lessee while they are subject to a retention of title, nor on leased items. The lessor's right of lien gives the lessor a preferential claim (Absonderungsrecht) under 50 (1) InsO. The claims of insolvency creditors holding such a preferential claim are settled before the claims of other insolvency creditors from the proceeds generated from realising collateral, albeit that "direct debts" of the insolvency estate incurred by the administrator or receiver (Masseverbindlichkeiten) take priority over both. Insolvency creditors with preferential claims are therefore placed in a superior position to the others. However, 50 (2) InsO restricts preferential claims to rent arrears having arisen in the 12 months prior to the institution of insolvency proceedings; any rent arrears having arisen prior to this must be asserted as ordinary (nonpreferential) claims against the insolvency estate. 91 InsO also states that the lessor's lien may not be asserted for claims arising after insolvency proceedings have been instituted. Lessors are also prevented from objecting to the removal of any items from the premises after the institution of insolvency proceedings; the insolvency administrator is entitled to realise any assets located in the premises when the insolvency proceedings are instituted. What should I do as a lessor? It is advisable for lessors with lessees facing financial difficulties to start keeping track of the amount of any rent arrears, even before an application is made for the institution of insolvency proceedings, and to check the collateral situation. This is particularly important because it may be appropriate to realise collateral or to agree on the provision of additional collateral before insolvency proceedings are instituted. If a new solvent lessee is not available, it may be advisable for the lessor to agree a lower rent with the existing lessee to prevent a void period and safeguard its own interests. If a new solvent lessee is available, the lease should generally be terminated as quickly as possible in order to avoid the aforementioned delays in effecting a termination during insolvency proceedings. After the filing of an application for insolvency proceedings or the institution of such proceedings claims of lessors for surrender of the leased premises qualify as claims for release from the insolvency estate (Aussonderungsrechte) under 47 InsO. It is important to note that a claim for surrender under tenancy law does not have any greater scope than an in rem claim for surrender, i.e. it is limited to the surrender of the leased premises, while any further claims regarding the condition of the leased premises (e.g. for the leased premises to be returned in their original condition) are ordinary (non-preferential) claims against the insolvency estate, i.e. claims that already exist when the insolvency proceedings are instituted (cf. 38 InsO). Insolvency of lessors Lessees of insolvent lessors will generally have the following questions: Is the lessor still able to make the premises available as agreed in the lease? Is the lessor still able to ensure that any necessary maintenance and repair work is carried out? Will it be possible to get the deposit back? Maintenance, repair and decorative repairs Any claims regarding defects in the leased premises or claims for any maintenance and repair work are preferential claims (Masseforderungen) and must therefore be settled before any other claims. According to German Supreme Court case law, this is the case regardless of whether the defect arose before of after insolvency proceedings were instituted. This argument is justified on the grounds that a lessee paying rent towards the insolvency estate must also be able to make counterclaims against the estate. Termination The parties do not have any special termination rights in the event of the insolvency of a lessor, i.e. the provisions of civil law regarding the termination of a contract apply. The "impending insolvency" or "insolvency" of a lessor does not constitute sufficient grounds (wichtiger Grund) for termination of a lease "for cause". Collateral In principle, lessee claims for return of any collateral provided are only ordinary (non-preferential) claims against the insolvency estate. The only exception is where the collateral is invested separately from the
Real Estate Winter 2009 9 lessor's assets, such as a cash deposit placed in a special deposit account. In such case, lessees may assert a claim for release (Aussonderung) from the insolvency estate. Sale of the property by the insolvency administrator In the event of a lessor insolvency, the lessees must be aware that the property may be sold by the insolvency administrator. 111 InsO states that the buyer becomes a party to the lease and assumes all associated rights and obligations. It also states that the buyer may terminate the lease, provided it observes the statutory notice period (on the third working day to the end of the next calendar quarter in the case of commercial property leases). If the property is sold through compulsory auction, the successful bidder has a special right of termination under 57a of the German Compulsory Auction and Sequestration Act (Zwangsversteigerungsund Zwangsverwaltungsgesetz, ZVG), i.e. may terminate a commercial lease giving statutory notice. However, if the lessee has never secured it in rem right of use by entering a lessee easement in the correct priority position in the land register (Grundbuch), the successful bidder's termination right will not apply since the lessee's right of use will remain in effect. Such easements are often a good way for lessees to safeguard their interests in the event of lessor insolvencies or with regard to the sale of the property via compulsory auction. For further questions please contact New VAT rules for postal services need to check existing leases and impact on real property transactions The German government passed a bill at the end of September 2008 for the Third Act Amending the VAT Act (Dritte Gesetz zur Änderung des Umsatzsteuergesetzes). The VAT exemption under 4 no. 11 b of the German VAT Act (Umsatzsteuergesetz, UStG), which has thus far only existed for certain services provided by Deutsche Post AG (DPAG), will be adjusted to take account of the deregulation of the postal services market and will be extended in principle to all providers of certain universal postal services. The bill states that these changes are due to take effect on 1 January 2010. This may also have an impact on the scope of the VAT option in leases with postal services providers or even with DPAG. The same applies to the purchase of real property used by postal services providers or DPAG. If an input tax deduction has been made with regard to real property acquisition or construction costs and the relevant adjustment period is still ongoing, an adjustment obligation may apply in individual cases. Background The only DPAG turnover which has so far been exempt from VAT is that relating directly to the provision of postal services. According to the fiscal authorities this exemption covers those services which were provided by DPAG under its monopoly licence (transportation of letters and certain other items of up to 50 grams in weight) as well as universal postal services as defined in the German Postal Universal Service Ordinance (Post-Universaldienstleistungsverordnung, PUDLV) safe for the transportation of parcels for business customers. Christian Trenkel Partner Real Estate christian.trenkel@ Christina Thees Associate Real Estate christina.thees@ The Third Act Amending the VAT Act is intended to change this VAT exemption so that the provision of certain universal postal services by any other company is also VAT-exempt, provided the entirety of universal postal services is rendered for the whole of Germany and meets certain quality standards. This needs to be confirmed by the German Central Tax Office (Bundeszentralamt für Steuern). The following universal services are due to become tax-exempt under the new provisions: Collection, sorting, transportation and delivery of postal items up to 2 kg (letters as well as other addressed items such as books, catalogues, newspapers and magazines); Collection, sorting, transportation and delivery of parcels up to 10 kg; Recorded delivery and valuable consignment services.
Real Estate Winter 2009 10 The VAT exemption does not apply to any services which are rendered on the basis of individual agreements or general terms and conditions providing for other quality requirements or lower prices or approved fees than the generally available tariffs. Impact For existing leases for which the option has been taken to pay VAT on the rent, it needs to be checked whether the conditions for exercising such option continue to exist under the new legislation. It will generally only be possible to waive tax exemption for property rental if the turnover is generated for another company or individual for its business purposes. Any such waiver may also depend on the intended use of a property, regardless of the date of the commencement and completion of a building to be constructed on the property. Tax exemption for property rental may only be granted for buildings on which construction work began after 10 November 1993 or was completed after 31 December 1997 if the lessee uses (or intends to use) the leased premises for no purpose other than that of generating turnover which does not exclude an input tax deduction. If the degree to which the lessee uses the premises, or individual parts thereof, for purposes other than that of generating such turnover is only small, it may nevertheless be possible to waive the VAT exemption that would otherwise apply to the rent payable to the lessor. Such insubstantial use of the premises (for purposes other than that of generating turnover) may be assumed if no more than 5% of the rent payable for the premises, or the relevant part of the premises, during the relevant assessment period (calendar year) would otherwise not qualify for the option of paying VAT on the rent being exercised.. Depending on the specific use of the premises, this de minimus threshold may be exceeded under the new legislation, namely if the relevant premises are occupied by a postal service provider generating turnover of which more than 5% does not meet the requirements for exercising the above-described VAT option. It should also be noted, however, that in future postal service providers may not waive VAT exemption for universal postal services that are VAT-free under the new version of 4 no. 11 b UStG. Conversely, circumstances may arise for leases with DPAG, again depending on the specific use of the premises, allowing the option of waiving the VAT exemption, since the new provisions on the range of postal services subject to VAT will extend these to include the collection, sorting, transportation and delivery of addressed items such as books, catalogues, newspapers and magazines weighing more than 2 kg, parcels weighing between 10 kg and 20 kg, as well as rush deliveries and cash on delivery items. Also with regard to the initial acquisition or construction of real property it is important to consider the specific use to be made thereof, or any part thereof, by a postal services provider or DPAG, given that the extent to which the property owner (lessor) may recover the VAT accrued on the acquisition and construction costs depends on this. Except in cases where a business enterprise is being sold in its entirety, or unless the relevant input tax adjustment period has already expired, the specific use to be made of any premises to be occupied by a postal services provider or DPAG is also of relevance for determining to which extent the acquisition or construction costs are subject to VAT or not. Impact in practice A distinction needs to be made between the two situations set out above when assessing the impact of the new legislation on existing leases: In cases where a lease exists with a postal services provider whose services have thus far been subject to VAT, but which will become VAT-exempt, or whose services which are VAT-exempt will exceed the 5 % threshold, the lessor will be unable to opt for VAT being payable on the rent and the lessee (postal services provider) will no longer be able to deduct pre-accrued VAT from its income tax. Therefore, if it is expressly stated in the lease agreement that the lessee has to pay VAT on the rent, the lessor may nevertheless continue to collect such VAT, or the lessor must ultimately face claims for repayment from the lessee if the lessee continues to pay VAT even after the conditions for the option are no longer met. It needs to be taken into account that VAT is only payable on turnover which is subject to VAT under the VAT Act and that the parties have no say in this regard. In cases where the conditions for a VAT-option will no longer be met, it is possible to modify the lease on grounds of an interference with the basis of the agreement (Störung der Geschäftsgrundlage) as stipulated in 313 BGB, or it may be concluded by way of a complementary interpretation of the existing lease that the lessor shall be entitled to require the lessee to continue paying VAT. In both case, such a claim of the lessor for what would in fact be an increase in the net rent is unlikely to be accepted by the lessee, unless the tax benefits to be expected by the lessor as a result of the VAT option are adequately considered when negotiating rent adjustment. The difficulties involved in this procedure are likely to be very considerable, given that the lessor will have to specify the amount of such tax benefits and even provide evidence in this regard. Even if the lessor does succeed in providing satisfactory evidence showing the amount of the tax savings realised by it as a result of the VAT option, that does not mean that the lessor is then entitled to a rent increase equal to the total amount of the VAT previously paid by the lessee, given that the lessor's tax benefits are in most cases unlikely to be equal to the full amount of the VAT paid by the lessee. There are a number of leases with companies, including DPAG, which currently use more than 5 % of the leased premises occupied by them for services which are currently not subject to VAT, but will be subject to VAT in the future. In these cases, the lessor could now opt for VAT being payable on the rent and ask the relevant lessees to pay such VAT on top of the rent paid by them up to now. However, the lessees do not have to comply with such a request unless they are contractu-
Real Estate Winter 2009 11 ally obliged to do so under their lease agreements. In the absence of such a clause the lessor may nevertheless opt for VAT being payable on the rent rather than on the acquisition or construction costs, but the lessor may not simply raise the rent by the amount of the VAT that then becomes payable on it. Rather, the lessor must then pay the VAT out of the rent received from the lessee, without such rent being increased, which means that the actual rental income of the lessor will be reduced accordingly. Consequently, a VAT option is only recommendable in such cases if the lease agreement contains a clause stipulating that VAT shall be payable by the lessee in addition to the rent, or if the lessee used the premises for purposes that do not stand in the way of VAT paid on the rent being deductible form the lessee's income tax, or again if the lessor succeeds in negotiating an addendum to the lease with the lessee stipulating that the latter shall pay VAT on the rent, irrespective of whether such VAT reduces the lessee's taxable income. For further questions please contact Dr. Heiko Kermer Associate Tax heiko.kermer@ Dr. Gerold M. Jaeger Associate Real Estate gerold.jaeger@ www. Abu Dhabi Amsterdam Bangkok Barcelona Beijing Brussels Bucharest Budapest Dubai Düsseldorf Frankfurt Hong Kong Kyiv London Luxembourg Madrid Milan Moscow Munich New York Paris Prague Riyadh* Rome São Paulo Shanghai Singapore Tokyo Warsaw Washington, D.C. * co-operative office