Real Facts APRIL Commercial Real Estate in Hungary A Practical Guide to Legal and Regulatory Issues

Átírás

1 APRIL 2007 Real Facts Commercial Real Estate in Hungary A Practical Guide to Legal and Regulatory Issues Kereskedelmi ingatlanok Magyarországon Gyakorlati útmutató a jogi és szabályozói kérdésekhez B A N K A U S T R I A C R E D I T A N S T A L T R E A L E S T A T E I N F O R M A T I O N S

2 Awards: 2005 and 2006 Bank Austria Creditanstalt has received the Award for Excellence in International Real Estate in Austria by Euromoney, The British financial magazine. Imprint: Publisher and copyright holder: Bank Austria Creditanstalt AG, 1030 Vienna, Vordere Zollamtsstraße 13, 1010 Vienna, Am Hof 2, Edited by: Bank Austria Creditanstalt Real Estate department; Bank Austria Creditanstalt Public Relations department Responsible for the content: CMS Reich-Rohrwig Hainz and CMS Cameron McKenna Printed by: Holzhausen Graphics: Horvath Grafik Design Publications service: tel.: +43 (0) , ext (answering machine), fax: +43 (0) , ext , April 2007 Disclaimer: Despite careful research and the use of reliable sources, Bank Austria Creditanstalt and CMS cannot assume liability for the completeness or accuracy of the information given herein. This publication does not constitute an offer or solicitation of an offer. 2 Commercial Real Estate in Hungary, April 2007

3 Commercial Real Estate in Hungary A Practical Guide to Legal and Regulatory Issues Commercial Real Estate in Hungary, April

4 Contents Full Range of Real Estate Services Ownership and Other Interests in Real Estate Parties Who can own real estate? Ownership What types of ownership are there? Landlord and tenancy law What are the key features? Restitution claims What claims can be brought against a real estate owner? Procedure of a Real Estate Transaction Procedure What are the steps in a sale and purchase transaction? Other common contract terms What other provisions does a real estate sale contract commonly contain? Brokers What is the broker s role? Property under construction How can the purchaser be protected? Registration and notarisation of real estate What are the basic requirements? Permits, Planning and Environment Permit What permits are required for the use and occupation of real estate? Zoning and planning law What are the basic principles? Environmental What are the common environmental issues? Finance, Taxes and Insurance Financing How is a real estate transaction financed? Security over real estate How is security over real estate created and protected? Taxes What are they and who pays them? Fees What are they and who pays them? Subsidy and promotion What kind of promotion measures for the purchase or development of real estate are there? Insurance What insurance will the parties effect and when does the insurance risk pass to the purchaser?...17 Contacts...18 All information is available in Hungarian Your Gate to Central and Eastern Europe Commercial Real Estate in Hungary, April 2007

5 Full Range of Real Estate Services Dear entrepreneurs, Bank Austria Creditanstalt is UniCredit Group s gateway to the East. As such, we can offer our customers the largest and densest bank network in Central and Eastern Europe, consisting of more than 3,000 branches and offices. Some 65,000 employees already serve 25 million customers in 17 countries in the region. If you have any questions, our real estate specialists in the International Real Estate Finance department, Bank Austria Credit - anstalt s competence centre for international cross-border customers, and their colleagues at the local network banks will be happy to assist you in reaching the most profitable decisions. As the leading provider of real estate financing in Austria and in Central and Eastern Europe, Bank Austria Creditanstalt offers you a comprehensive range of real-estate-related services, from proj - ect financing through property valuation all the way to portfolio management. In addition to the nationwide BA-CA sales network in Austria, one of your key benefits as a customer is access to the growth markets of Central, Eastern and South East Europe through our area specialists. We hope that you find this guide helpful and informative! Sincerely, In order to provide you with an ideal basis for assessing and completing cross-border real estate transactions and to give you a clear overview of the pertinent legal and general conditions in the countries of this region, Bank Austria Creditanstalt has teamed up with one of the most respected law offices in Europe, CMS Reich-Rohrwig Hainz, to prepare and regularly update this brochure for you. This guide covers the most important legal regulations governing real estate transactions, and also provides information on acquiring property ownership and on other relevant topics. Regina Prehofer Head of Corporates Division Bank Austria Creditanstalt Reinhard Madlencnik Head of Real Estate Bank Austria Creditanstalt Commercial Real Estate in Hungary, April

6 Ownership and Other Interests in Real Estate 1. Ownership and Other Interests in Real Estate 1.1. Parties Who can own real estate? Any legal person may own real estate. This includes individuals, companies, entities established by statute and certain charitable bodies. Owners of commercial real estate include private developers, insurance companies, banks and other financial institutions, private or public property companies, charities, the government and local authorities. There are certain restrictions preventing foreign nationals and foreign companies from owning real estate. Foreign entities and natural persons are prohibited from acquiring ownership of nature preservation areas, although they may acquire ownership title to real property which does not qualify as arable land with the permission of the head of the Budapest or county administrative office (except in the case of inheritance when such permission is not required). It is not possible to appeal against permission which has been granted or denied. If, however, a citizen of a Member State lives in Hungary continuously and legally for four years, he/she may acquire real property serving as a secondary residence without permission. If a citizen of a Member State already owns a primary residence, he may not acquire another property under this title during the transition period Ownership What types of ownership are there? Legal ownership of property in Hungary is classed as freehold. Hungarian law does not acknowledge any other form of in rem ownership. All other rights will only incorporate parts of a freehold title and/or be personal rights. Some rights are registerable at the land registry, whilst others, such as leases, are not. Hungarian law recognises the concept of possessor title; this occurs where there is no paper evidence of title but the land registry, court, public administration and notary all recognise that a person, by virtue of occupation for the relevant period prescribed by statute, has the best claim to ownership, of which they are aware. No license is required if a foreign individual or company establishes a Hungarian company, which it then uses to acquire real property, however Hungarian legal persons and foreign legal and natural persons may not acquire ownership title to arable land. This rule does not apply to citizens of a member state of the European Union ( Member States ) who wish to settle in Hungary as independent agricultural entrepreneurs and have lived in Hungary continuously and legally for at least three years and perform an agricultural activity. Foreign entities registered in the European Union or citizens of the Member States may acquire ownership title to real property not qualifying as arable land on the same conditions as Hungarian citizens (i.e. without permission), save for the case of residential property to be purchased to serve for a purpose other than being the primary residence of the entity, which still requires permission for a period of five years from the date of accession (i.e. during a transition period). Leaseholds are typically for a definite period of time, usually for a short term. Indefinite leaseholds are usually concluded for municipality owned property. When the property is municipality or state owned, the lease agreement must always be in writing. A person, who has continuously had possession of real estate for fifteen years, acquires ownership (and freehold title) through adverse possession. If an adverse possessor fails to register his title in the land registry, he will not be entitled to claim acquisition of ownership against any person who acquired a freehold title for consideration, relying upon the land registry. Under Act IV of 1959 on the Civil Code (the Civil Code ), the types of interests in real estate, which are registerable at the land registry, are: ownership right (similar to the common law concept of freehold) an absolute right which includes the right to possess the property; the right to use the property and collect the proceeds from the property; the right to transfer possession or 6 Commercial Real Estate in Hungary, April 2007

7 use of the property; the right to encumber or transfer title to the property and the right for the ownership to be protected; beneficial usage right (or usufructuary right) the limited right to occupy and use a property owned by another and to collect the proceeds from such property. The beneficiary cannot transfer this right however, another person may be permitted by the beneficiary to exercise this right. This right must be for a definite term ending, at the latest, at the time of death of the beneficiary; and use right a limited right to use a property owned by another, which may be for a definite or an indefinite period of time. In contrast with the beneficial usage right: the beneficiary of the beneficial usage right can be a natural or a legal person, whilst the holder of a use right can only be a natural person; the holder of a use right can use the property, not exceeding his/her own needs and those of his/her relatives living in the same household; the holder of a use right cannot permit another person to use the property; land use right a right conferred upon the owner of a building to use and build on the plot on which the building is situated and to collect the proceeds from such a plot; easement a limited right to use another person s real property by the possessor of another real property to a specific extent. These purposes can include a right of passage or building a cellar, etc. As regards the granting of an easement, the regulations of the establishment of beneficial usage right apply. If based on a contract, the easement should therefore be registered at the land registry. Leases are mere contractual interests, which are not registerable with the land registry Landlord and tenancy law What are the key features? Under Hungarian law, leases are regulated by the Civil Code and Act LXXVIII of 1993 on the Lease and Alienation of Apartments and Other Premises (the Leases Act ). The Civil Code differentiates between lease of things and residential lease, whilst the Leases Act focuses on the lease of apartments, also indicating exceptions that should be applied to the lease of other premises. The main difference between the regulations of the Civil Code and the Leases Act is that the provisions of the Civil Code can be modified by mutual consent of the parties, while the Leases Act contains certain mandatory rules, therefore the parties are not allowed to differ from such dispositions, not even by common consent. The most important imperative dispositions are those concerning the termination of the lease. According to the Leases Act, a lease agreement is terminated in the following cases: by common consent of the parties; if the leased premises are destroyed; the party, who is entitled to termination, terminates the lease agreement; if the tenant dies and there is no person to take over his position and continue the lease agreement; if the tenant exchanges the leased premises with the prior consent of the landlord; the tenant is expelled from the Republic of Hungary; the court orders the termination of the lease agreement; or the lease agreement ceases to exist due to the resolution of an authority. The above is a full list, which means that no further termination cases can be established. The landlord is entitled to terminate the lease of an apartment by virtue of law if: the tenant fails to pay the rent; the tenant uses the premises for purposes other than those permitted; the tenant behaves in a scandalous manner; the tenant causes a serious disturbance to other tenants in the building in which the premises are located; the tenant fails to fulfil the obligations that he has undertaken in the lease agreement or which are regulated by law; or the landlord offers the tenant an appropriate alternative apartment to lease. The above shall also apply to lease agreements concluded in relation to premises other than apartments along with two other reasons of termination: if the tenant being a company or a legal entity is terminated without a legal successor, or if the tenant is a private entrepreneurs, and its private entrepreneurs license is revoked or the tenant returns such license to the authorities. Commercial Real Estate in Hungary, April

8 Ownership and Other Interests in Real Estate If the lease is terminated, the parties must follow the procedural rules set out in the Leases Act precisely, otherwise the termination may be deemed invalid by the court. The Leases Act does not provide grounds for extraordinary termination for the tenant. According to the Civil Code, however, the tenant is entitled to terminate a lease agreement with a definite term if the landlord is in breach of its major obligations under the lease agreement (e.g. if the landlord does not ensure that the premises are in a condition for proper use). These provisions may duly be applied for leases of flats and premises as well. According to the Leases Act, the maintenance and repair obligations of the landlord are as follows: maintenance of the building; maintenance of the working order of the building s equipment; and repair of the defects that have arisen in the state and equipment of the common areas of the building. Normally, the tenant is responsible for smaller repair work, such as maintenance, repair, change and replacement of the doors, windows and overlays of the apartment. There is a particular disposition in the Civil Code, providing security for the landlord if the lease agreement terminates and the tenant is in delay with its payment obligation. In this case, the landlord has a statutory pledge over the tenant s assets found within the leased premises in the value of the unpaid rent and any additional costs. Such statutory pledge can be exercised by the landlord until all payment obligations of the tenant under the lease agreement are fulfilled. While the statutory pledge is in effect, the landlord is entitled to block the removal of any of the tenant s assets. If the tenant removes any of the assets without the landlord s consent and does not provide other appropriate security, the landlord is entitled to demand the return of the assets at the tenant s expense, and the statutory pledge shall be re-established upon the return of the assets Restitution claims What claims can be brought against a real estate owner? People who had real estate expropriated by previous governments have been compensated by way of compensation coupons. Therefore, no claims for restitution of real estate interests can or have been made. However, people may use their compensation coupons to purchase arable land, which was designated out of state owned lands and the lands used by agricultural co-operatives by the Land Organisation and Distribution Committee ( Committee ). In the past, there were some disputes about the Committee s decision on designating lands for sale in consideration of compensation coupons. Under Act II of 1993, any decision of the Committee as to re-appropriation or compensation shall be regarded as a declaration of a public administration authority. Under section 98 of Act CXL of 2004 on the General Rules on the Procedure of Public Administration, any interested party may appeal against a decision within fifteen days from the receipt of the decision. However, the second instance authority may change or withdraw the decision of the first instance within one year of the date that the first instance decision becomes final and binding, if the second instance authority finds that the first instance s decision was in breach of a relevant law. As most of the Committee decisions were made in the beginning of the 1990s, it is quite unlikely that any such decision can still be challenged. There are certain ongoing proceedings concerning those people who had been deprived of their real estate before Since the privatisation of real estate has been executed illegally, (not following the regulations of the period of the Second World War), the legal title of these kind of lawsuits is that according to Hungarian law, the ownership claims shall not lapse. However these procedures are almost unsuccessful in all cases. 8 Commercial Real Estate in Hungary, April 2007

9 2. Procedure of a Real Estate Transaction 2.1. Procedure What are the steps in a sale and purchase transaction? Transactions formally start when proposed heads of terms are drafted, negotiated and agreed by the brokers on behalf of the seller and the buyer or by the parties themselves (Please also see point 2.3.). The heads of terms (or memorandum of understanding) set out the principal terms agreed between the parties and are generally expressed to be subject to contract and are not legally binding. They form the basis of the documents to be drafted by the lawyers. Once the heads of terms have been finalised, they are sent to the parties lawyers. The seller s lawyers will usually collate all information relating to the real estate and send it to the buyer s lawyers together with a draft sale and purchase agreement (contract). The form of the sale and purchase agreement will vary according to whether the real estate being sold is under construction or already built and the extent to which leases to tenants have already been granted. The accompanying finance documents are also drafted at this time. The buyer s lawyers consider and suggest amendments to the draft sale agreement and at the same time will undertake general due diligence investigations. Once the sale agreement is in an agreed form, the parties will sign the agreement and the buyer s lawyer will countersign it and it will then be regarded as legally completed. If any of the parties is a foreign registered company, the other party will usually require a company extract from the foreign party confirming that the company is properly incorporated, has the power to sell and has carried out appropriate authorisation procedures. Completion may take place at the same time as signing, depending on the acquisition timetable. Where the purchase is made with borrowed finance, a charge over the real estate will be completed at the same time. The lender of the finance may instruct its own lawyers to carry out legal due diligence procedures on its behalf and negotiate security documentation. Following completion, the buyer needs to deal with the payment of stamp duty, which is assessed on the price paid for the real estate (bearing in mind the Hungarian stamp duty regulations) Other common contract terms What other provisions does a real estate sale contract commonly contain? An agreement for the sale and purchase of land must be in writing, must contain or clearly refer to all main terms and conditions and must be in a form in which both parties have signed and a lawyer, usually the buyer s lawyer has countersigned. It is common for the sale and purchase agreement to provide for a non-refundable deposit of around ten per cent of the purchase price on exchange of agreements, where there is to be a gap between exchange and completion. The seller s or buyer s lawyers usually hold the deposit, as an escrow agent. In this case, the parties enter into a separate escrow agreement in accordance with the terms and conditions set out in the sale and purchase agreement. Immediately after signing the sale and purchase agreement, the agreement is to be submitted to the land registry with the request to either register the fact of the sale with retention of title or to suspend the procedure until the transaction is completed and the full purchase price is paid. Upon completion of the sale and purchase agreement, the seller is required to issue its consent to the registration of the buyer s title on the basis of which the land registry completes the registration of the buyer s title. Because the buyer has the opportunity to conduct a full title investigation or due diligence before signing the agreement, the buyer is usually prohibited from making any objection to any matter of title after the date of exchange. Where timing is crucial to the agreement, there may be a provision expressly stating the date after which the parties will be in breach and the agreement will be terminated. This means that any breach of the time limits in the agreement will be deemed to be a repudiatory breach, subject to a claim for damages. Normally, time is not of the essence and may only be made so by one party to the agreement serving notice on the others to make time of the essence. Where there are matters of title affecting the real estate, such as pending deletion of prohibition of transfer and encumbrance, the buyer may require reciprocal obligations from the seller and an Commercial Real Estate in Hungary, April

10 Procedure of a Real Estate Transaction indemnity in respect of any liability the seller may still have following completion of the transaction. Provisions relating to value added tax and transfer duty will usually be included to regulate the parties obligations. Contracts for sale of real estate subject to occupational interests, such as leases, will include clauses to cover ongoing management matters, and provide for the apportionment of occupational income and outgoings on completion of the transfer of ownership of the real estate. If the real estate being sold is under construction, the contract for sale will incorporate provisions dealing with the obligations of the seller to construct in accordance with an agreed specification and to provide the buyer with separate deeds of warranty from the building contractor, and persons such as the architect, in order to protect the buyer from defective design or workmanship. Where there are conditions to be met for the completion of the contract, such as building permits, communal services, transformation of a plot, deletion of a restriction against sale and purchase, the parties set out liabilities and timelines for the fulfilment of such conditions Brokers What is the broker s role? Brokers in Hungary, also referred to as surveyors or agents, generally fall into six categories: Investment Valuation Consulting and analysis Buildings Management Rent review. They are employed by any party to any transaction involving real estate. Their role may include any of the following tasks: Managing real estate sales projects Provision of marketing and realty functions, representing the owner, constructor or investor of the real estate. Full-scale proj - ect implementation from market research through marketing design to the preparation of contracts to be established with buyers or lessors. Finding real estate Finding appropriate real estate and determining optimum conditions for leasing or sales, including managing the move-in process, negotiating rent reviews of existing properties. Appraisal services Accurate and objective appraisal of real estate portfolios, individual estates and other assets (machinery, equipment, vehicles, stocks, etc) for marketing, accounting, credit coverage or any other purposes. Performing appraisals appertaining to corporate transactions or investment as well as other related tasks (e.g. asset balance production). Consulting and analysis Project evaluation, market analyses, feasibility studies, investment and portfolio management consulting in all areas of real estate trading (e.g. office market, residential real estate market, industrial estates and warehouses, and commercial estates). Transaction documentation Acting for any party to a transaction drafting and negotiating heads of terms, preparing heads of terms for documenting and liaising with lawyers. Management Day-to-day management of property owned by clients, including managing maintenance programmes and landlord and tenant work, project management for development of new buildings and refurbishments Property under construction How can the purchaser be protected? The most important protection for the purchaser is the practice that the sale and purchase agreement is filed with the land registry right after the signing thereof, and from the date of such submission, the land registry extract of the affected property will contain a so-called marginal note showing that the document was lodged. When the file number for the relevant filing/application appears on the property sheet as a marginal note, all applications submitted thereafter will only receive a subsequent ranking which can only be registered by the land registry after the registration of the sale and purchase, having priority ranking, has been completed. In the case of real estate projects, it is common that the instalments of the purchase price only become payable when certain conditions are met (e.g. milestones of the construction). Also, the parties can agree to stipulate a penalty for the non-compliance with the construction agreement. 10 Commercial Real Estate in Hungary, April 2007

11 2.5. Registration and notarisation of real estate What are the basic requirements? A new central online register of all Hungarian land registries has been introduced and from 1 March 2003 all public and official data in respect of each property in Hungary is available through a single URL address to all law firms, which have entered into a contract with the Hungarian Ministry of Agriculture. Local land registries operate in every city, county land registries operate in each of the nineteen counties of Hungary, and two district land registries and one metropolitan land registry operate in Budapest. The local and district land registries deal with property issues at first instance and the county and metropolitan land registries deal with property matters at second instance. Pursuant to Act CXLI of 1997 on Land Registries (the Land Registry Act ), a land registry should complete the registration of an entry (e.g. a transfer of title) in thirty days. It is in the interest of a property purchaser to lodge the transfer documents with the competent land registry as soon as possible after signature (but in any event within the thirty day mandatory deadline for filing). The filing with the relevant land registry results in a so-called marginal note being put on the register of the property within twenty-four hours of filing (Please also see point 2.4.). This marginal note the indication of a pending application by its reference file number establishes a priority date for the application. Therefore, subsequent submissions, as a rule, cannot by-pass a previous submission (clearly indicated by a lower figure for its reference file number). The property-related rights, and the holders of such, which may be recorded in real estate registers are: Ownership rights, and, in respect of state-owned real estate, the organisation exercising the state s ownership rights and asset management rights Permanent rights of use for members of housing co-operatives Land use on the basis of agreement or court decision Usufruct and the right of use Easement rights Permanent geodetic markings, land survey pilot areas, rights of use for the placement of power supply equipment, cable rights, water and mining easement rights, and easement rights and utilisation rights in the public interest as prescribed by law Rights of first refusal and rights of re-purchase and purchase Rights of support and life annuity Mortgages (independent liens) and Rights of execution. From 1 January 2006 some significant changes have been introduced affecting the registration procedure. The principal changes are the following: Use of standard application forms. All applications must be submitted on a standard form. Payment of an administration fee. Applications must now be accompanied by a cheque or bank transfer in payment of an administration fee. Original and copy documents. The land registry now requires two originals (instead of one original required previously) and one copy of all documents filed to establish, amend or concede any fact or right relating to a property. Greater use of marginal notes. In an attempt to increase transparency, marginal notes on the standard application form will be used by the land registry to record more details about issues and processes affecting to the property. Notification of applications to register a new owner. The land registry will now notify every owner of a property whenever an application is made to register a new owner of that property. Changes to the registration procedure. Now the parties have two choices to register their title in the case of transactions where completion takes place only some time after the sale and purchase agreement is signed: they can apply for registration when the sale and purchase agreement is signed but require the land registry to suspend the procedure for up six months until the transaction is completed and the seller consents to the buyer s title being registered; if this does not happen within the six-month window, the application for registration is automatically rejected; the second option allows buyer and seller to register the sale with retention of title as before the changes of the procedure but subject to a further requirement, namely that they must specify a deadline by which the seller s consent to the transfer must be filed. Where consent is not filed by the deadline, the marginal note recording the sale with retention of title is automatically deleted from the register. There is no requirement for notarisation of title in Hungary. Contracts for the disposal and acquisition of interests in real estate are signed by or on behalf of the parties and countersigned by a lawyer. However, if any of the contracting parties is a citizen of a foreign country and wishes to sign the contract outside Hungary, Commercial Real Estate in Hungary, April

12 Permits, Planning and Environment the authentication (legalisation) of the document is required. This means the formality by which the diplomatic or consular agents of the country in which the document has to be produced, certifies the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which is affixed to the document. In accordance with the Hague Convention (of 5 October 1961), each signatory state is exempt from the authentication (legalisation) of documents to which such convention applies and which have been produced in its territory. The contracting states designate, by reference to their official function, the authorities who are authorised to issue the certificate, called an Apostille. This Apostille certificate can be issued at the request of the person who has signed the document or that of the bearer. 3. Permits, Planning and Environment 3.1. Permit What permits are required for the use and occupation of real estate? Applications to obtain planning permission to develop land must be made to the relevant local government authority with responsibility for controlling the use and development of land in the area. Local government authorities are subject to statutory time periods within which a decision must be made as to whether or not planning permission will be granted. Various statutory rights exist for neighbours and other affected parties in relation to appeals, which can be made if an application is refused, as do rights to challenge the validity of any permission granted. In respect of developments that are likely to cause significant environmental impact, an environmental statement must be submitted along with the application for planning permission, explaining the likely environmental impact of the development. exceeds the value of HUF 30 million or falls under the scope of the Public Procurement Law (Act No CXXIX.), the principal has a data supply obligation (among others the name and address of the principal and the constructor) towards the relevant Building Authority at the latest 15 working days prior to the intended commencement of the construction. At the same time, the principal has to report to the competent Hungarian Tax Authority the value, the address and the topographical number of the construction. A different type of permit is required when the proposed work relates to historically or architecturally important (listed) buildings. Whilst work on such buildings may not constitute development, e.g. the removal of a stone pillar, or a sundial, the removal of such items could be seen as affecting the building s importance, and consent would then be required. Generally, planning permission will be required in respect of the construction of a new-built property, the refurbishment of an existing building and where an existing use (for example, office space) is to be changed to another distinct use (for example, retail or licensed premises). Planning permission will contain conditions regulating the impact of the development. Larger districts or areas of buildings that have architectural or historical importance may also be subject to a separate regime of control, which requires that consent must be obtained before work that could damage the character and appearance of the area (that the local government authority wishes to conserve and enhance) is commenced. A new regulation applies from 19 January 2007 for the procedures starting thereafter. For the commencement and continuation of a construction activity which During the consultation period that the local government authority must undertake when considering a proposal for development, third party groups are able to put forward objections that must 12 Commercial Real Estate in Hungary, April 2007

13 be considered by the authority before deciding whether or not to grant permission. In addition, even after permission has been obtained, there will be a period within which third parties are entitled to challenge the validity of a granted permit. This should be kept in mind by lawyers and agents acting for a developer, before any work on the permitted development begins. In addition to planning permission, buildings must also have approvals confirming that the construction took place in accordance with applicable building regulations and health and safety legislation. Certain types of building may also require other kinds of certificates, issued by independent bodies, in relation to building or construction matters generally Zoning and planning law What are the basic principles? Zoning and planning issues are regulated by a hierarchical system of various laws and regulations, the highest level of which is Act LXXVIII of 1997 on the Formation and Protection of the Built Environment ( Building Act ). All laws and regulations being at a lower level of the hierarchical system have to comply with all other laws and regulations of a higher level. The Building Act authorises the Hungarian government and its ministers to issue decrees. The most important among these decrees is Government Decree 253/1997 (XII.20) on Zoning and Construction Requirements, which contains the standard rules of zoning and planning which are valid for the whole country. Special zoning regulations have been enacted by the Hungarian Parliament for the agglomeration around Budapest and the Balaton Region. The detailed rules and the actual zoning are contained in local regulation plans and in local construction codes issued in the form of municipal decrees regarding each town of the country. The zoning and planning issues concerning Budapest, are regulated in a two-level regulation due to the fact that besides the framework local regulation plan and framework construction code enacted by the Metropolitan Municipality of Budapest, all twenty-three districts of the capital have their own local regulation plans and local construction codes. If someone wishes to carry out construction works they need to obtain an individual permit form the local building authority. The authorities may only approve building permit applications that comply with all local and governmental zoning and building regulations Environmental What are the common environmental issues? Real estate may be contaminated as a result of current and/or former uses. Primary legal responsibility follows the polluter pays principle: the person who spilled, released or discharged a substance will normally be liable for any ill-effects it causes. Nevertheless, Hungarian law always presumes that the current owner and the user of the property are jointly liable for pollution and the owner will name the responsible polluter. If someone takes over such responsibility for pollution, that person will be responsible. The same is true if the sale and purchase agreement provides that the property is purchased as seen and there is no other warranty or valid exclusion of liability for environmental pollution. During pre-purchase due diligence, the buyer s lawyers will check the land registry as to whether permanent environmental damage is registered and will also check with the competent environmental authority for any ongoing environmental cases. Environment laws may also operate to make future owners and occupiers liable for contamination already present at the property when they acquire it. This can only occur if: The substance is causing, or there is still potential for it to cause, actual harm to humans, to real estate, to personal property, to protected ecosystems or pollution of groundwater or surface waters and Either the new owner or occupier knows about the presence of the substance but fails to take adequate steps to limit the harm it causes, or no person more directly responsible for causing or knowingly permitting the substance to be present at the real estate can be found (for example, because a more directly responsible company has since been wound up). If development is proposed, then planning permission may be made conditional upon the proper investigation and remediation, if necessary, of potential historic contamination. If the planned development is of a type considered potentially detrimental to the environment, the application for planning permission may need to be supported by an assessment of the development s likely future environmental impact. The presence of protected species may impede development by increasing costs, particularly through delay. Those who have control of places of work have a duty to assess the risk of asbestos being present in the fabric of the building and to manage the human health risks posed by any asbestos found. Commercial Real Estate in Hungary, April

14 Finance, Taxes and Insurance Acquisition due diligence may involve the appointment of environmental consultants to consider documentary information and to carry out a site visit (Phase I). If considered necessary, further, intrusive investigations (Phase II) may then be undertaken. It is important to identify potential problems early so that there can be negotiation on price, the need for and scope of any remediation and/or the need to put in place protection in respect of any existing contamination-related losses that may arise in the future. Such protection may take a number of forms, including obligations to remediate any contamination discovered post-acquisition, indemnities in respect of first party loss or third party claims, or specialist environmental insurance for historic liabilities to cover any of these risks. 4. Finance, Taxes and Insurance 4.1. Financing How is a real estate transaction financed? The main feature of real estate financing in Hungary, is that the financing is secured by the acquisition of a special purpose vehicle ( SPV ) holding the real estate, as opposed to the acquisition of the real estate itself. The reason for this is that if real estate is transferred, a 10 % stamp duty is payable, whereas in the case of the transfer of a company (in which there is real estate), only a court registration fee (of a nominal amount) is payable, but no stamp duty. The properties are held in an SPV, which is usually set up in the form of a limited liability company (in Hungary: Kft.). The capital of a Kft. is not divided into shares. The rights of the members and their contribution to the capital is represented by the business quota. The SPV s should not be set up in the form of a company limited by shares (in Hungary: Rt.), because this type of company falls within the scope of the financial assistance regulations and therefore the giving of security to the lender would be restricted. In Hungary, the registration of the transfer of a business quota is done by the competent court of registration that will examine all the underlying transfer documents and therefore registration of the new owner may take some time. The statutory period for the registration of the transfer of a business quota is forty-five business days. However, the courts of registration are usually faster than this the registration takes approximately two or three weeks, but this is variable. Therefore, the usual problem with property financing in Hungary is that the financing bank is required to disburse the purchase price of the business quotas (property) before the registration of the buyer as new owner of the SPV, which means that until registration the buyer being financed is not the registered, legal owner of the property. As a consequence, the financing banks may set up an escrow mechanism, whereby the purchase price is released from the escrow as and when the registration of the buyer as the new owner of the SPV occurs. Another solution is that the purchase price of the property is to be paid only when registration of the transfer of the SPV s business quotas to the buyer has occurred. A typical security package will involve granting a mortgage for the real estate together with a supporting floating charge over all the other assets of the SPV. The income stream generated by the property will be assigned and, in addition to that, also pledged for the benefit of the lender. It is usual to pledge the business quotas of the SPV and to create an option over such business quotas. It should be noted that options may only be registered for five years in Hungary. However, there is a mechanism whereby the expiring option may be renewed Security over real estate How is security over real estate created and protected? Under Hungarian law, real property may be pledged as security only in the form of a mortgage. Mortgages may only be created over the entire property that is registered in the land registry or over the full title of ownership of the mortgagor s property. A mortgage is considered valid only if contracted in writing and recorded in the land registry. The mortgage agreement creating 14 Commercial Real Estate in Hungary, April 2007

15 the mortgage, although not compulsory, is usually executed in the form of a notarial deed. The reason for this is to ease a possible enforcement. Upon the filing of a registration claim, the land registry should complete the registration of the mortgage within thirty days. Therefore, in practice, it is prudent for the mortgagee to submit the mortgage agreement to the relevant land registry immediately upon execution of the mortgage agreement, and from the date of such submission, the property sheet will contain a socalled marginal note showing that such document was lodged (please see point 2.5.). The land registries provide authentic extracts or copies of registers upon request. These indicate the valid registered entries as well as any marginal notes (i.e. pending applications) by their file number and a short description of the application. In respect of mortgages, the pledged property remains in the possession of the mortgagor, who is entitled to use and utilise the property. However, the mortgagor must maintain such pledged property in good condition. In the event that the mortgagor, or a third person endangers the condition of the pledged property, the mortgagee is entitled to demand that the endangering act be prohibited and that an order be issued to take the necessary measures to eliminate the danger. If any deterioration in the condition of the pledged property jeopardises the satisfaction of a claim, the mortgagee may demand replacement of the pledged property or a security that corresponds to the degree of endangerment. Should the mortgagor fail to comply with request of the mortgagee within due time, the mortgagee may enforce his right of satisfaction Taxes What are they and who pays them? In Hungary, there are various taxes associated with real estate, including personal income tax (PIT), corporate income tax (CIT), value added tax (VAT), transfer duty and certain local taxes. Whether a tax liability arises depends on a number of factors including the legal standing of the purchaser, the location of the real estate, the nature of the real estate. The most important aspects of these taxes are briefly summarised below. CIT is normally paid by companies and various other entities on any gains derived from the sale of real estate, at a current rate of 16 %. As there is no specific capital gains tax in Hungary, gains from the sale of real estate are included in the general tax base of a company and are taxed as any other income. CIT is not only levied on domestic entities but also on permanent establishments of foreign entities. It should be noted in this respect that according to the Act on Corporate Income Tax and Dividend Tax, the utilisation of real estate located in Hungary does in itself constitute a permanent establishment. Furthermore, the possibility to tax foreign companies on any such income is usually also provided for in Hungary s many treaties on the avoidance of double taxation. Consequently, any income derived from the utilisation of real estate located in Hungary is taxed at the normal rate of CIT (i.e. 16 %), regardless of the seller s residence. If an individual transfers the ownership of his real estate then he has to pay PIT at a rate of 25 % on the gains from the transfer of the property. When calculating the amount of such gains, certain costs and expenses may be deducted from the actual purchase price, most importantly all costs and expenses incurred in relation to the initial acquisition of the real estate. Please note that if the transfer of ownership takes place after the sixth year from the seller s acquisition, the amount of tax payable is gradually reduced in a manner such that no PIT is payable after the fifteenth year from the seller s acquisition. Certain other benefits may also be available, e.g. if the gains from the transfer of ownership are used for various private housing purposes. In any case, it should be noted that income derived by individuals from the utilisation or the sale of real estate located in Hungary is generally taxable in Hungary, regardless of the residence and/or the nationality of the seller. The sale of residential property, and generally the sale of land, are VAT exempt. However, VAT at a rate of 20 % is payable on the sale of so-called building plots and on any commercial real estate. Furthermore, in respect of residential property, VAT is also payable on the sale of property prior to the completion of its construction, or on the first sale after completion of construction. VAT is payable by the seller and the tax base is the actual purchase price. There is stamp duty (i.e. transfer tax) payable by the buyer on the purchase of real estate. Generally stamp duty is levied at 10 % of the market value (in most cases, the gross purchase price (i.e. VAT added) specified in the agreement is accepted by the stamp duty office as the market value) of the real estate, but many ex- Commercial Real Estate in Hungary, April

16 Finance, Taxes and Insurance ceptions and lower beneficial rates are available (for example, on the purchase of residential property where only 2 % or 6 % stamp duty is payable, depending on the value of the property). Local authorities are authorised to impose taxes on the owners of buildings and land located in their territories. Some municipalities have utilised this opportunity whilst others have not. The Act on Local Taxes (the Local Taxes Act ) only provides a framework of rules for these real estate-related taxes, with the details to be governed by separate decrees of the local municipalities. Pursuant to the Local Taxes Act, building tax and land tax are based either on the area of the property or on the value of the property, depending on the decision of the local municipality. Currently, building tax is subject to a maximum of HUF 900/m 2 (on 16 January 2006, USD 1 = approximately HUF ) or 3 % of the calculated value of the real estate (such calculated value being equal to 50 % of the market value of the real estate). Unbuilt land tax is subject to a maximum of HUF 200/m 2 or 3 % of the calculated value of the property. The maximum amounts of the above taxes (if determined in amounts and not as percentage) are subject to a yearly increase equivalent to the officially published rate of inflation (as determined in respect of the second preceding year of the year in question). The above-mentioned local taxes are imposed and collected by the local municipalities and are normally borne by the owner of the real estate in respect of which the taxes are levied Fees What are they and who pays them? Fees shall be paid several times during real estate transactions. In most cases, additional costs (often in proportion to the purchase price of a real estate) shall be paid by the parties to their lawyers, the land registry and the notary public. Due to mandatory legal representation in the procedure in the land registry and mandatory countersigning of real estate sale and purchase agreements, the parties shall pay their lawyers the formerly agreed fee. The usual amount of legal costs (i.e. the amount paid to the lawyer) in the case of sale and purchase of real estate is between 0.5 % 1.5 % of the purchase price. The fees payable to the land registry per real estate are the following: procedure of the land registry in general: HUF 5,000 registration, and amendment of 5 % of the amount of the registration of mortgage: secured liability, but maximum HUF 12,000 acquiring a certified property sheet HUF 4,000 Most of the documents of a real estate transaction are usually incorporated in a notarial deed. These documents are mortgage agreements, pledge/charge agreements, suretyship agreements or the sale and purchase agreement. The fees of the notary public depend on the value of the relevant transaction. The minimal fee is HUF The maximum fee cannot be higher than it would be on the basis of a transaction value of HUF 200,000,000. The fee can be reduced up to 50 % if the parties submit to the notary public a draft of the relevant document that does not need to be changed to create a notarial deeded. If the value of the transaction cannot be determined, the fee is calculated on a HUF 1500 per hour base. The party who initiated the procedure (usually the borrower) pays the fees of the notary public in financing transactions Subsidy and promotion What kind of promotion measures for the purchase or development of real estate are there? There are several types of real estate subsidies in Hungary. Direct subsidies are for private persons only and they are all connected to mortgage loans. Citizens of the Republic of Hungary or Member States are entitled to receive these subsidies if they purchase or build their first property and do not own any other real estate. Only one type of subsidy can be applied for by a family, therefore once a subsidy has been received, the entitled person and his/her family cannot receive another type of subsidy. It is important to note that the value of the acquired property may not exceed a certain value and it is a further qualification criteria for certain subsidies that the beneficiaries must be younger couples (i.e. below the age of 35 years). Another type of subsidy is an interest rate subsidy, which reduces the interest payable under a mortgage loan. 16 Commercial Real Estate in Hungary, April 2007

17 The third type of subsidy is the tax refund, which reduces the personal income tax. If a person has a mortgage, then, to a certain extent, the taxable income of such a person can be reduced with the actual mortgage repayment. Only the borrower of the loan agreement may reduce his/her income tax. Also the stamp duty can be reduced up to 50 % if a person, not older than thirty-five years, purchases his/her first property. The fourth type of subsidy is indirectly granted through the suretyship of the Hungarian state, which guarantees upon certain conditions up to 40 % of the loan amount Insurance What insurance will the parties effect and when does the insurance risk pass to the purchaser? Only persons who are interested in protecting real estate or those who conclude contracts on behalf of an interested person are entitled to conclude real estate insurance contracts. Whatever the length of the lease, the tenant will generally insure the contents of the real estate (which belong to the tenant) and, in some cases, certain parts of the real estate for which the tenant is contractually responsible. Legal entities may not receive direct subsidies for acquiring real estate, unless the acquisition of real estate is part of the entity s development programme. There are several types of such development subsidies. The agricultural development loan programme supports the entities producing their own agricultural products. This loan program grants a very low interest rate, its tenure is fifteen years, and the contribution of the beneficiary must be 20 % of the value of the development costs. This subsidy can be used to build, purchase, and renew a property connected to the agricultural activity of the beneficiary. A further subsidy aims to support the development of the infrastructure and technology. This programme is a finance resource to facilitate a project/investment, which modernises or develops the infrastructure and technology. In the framework of this programme a long-term loan (e.g. fifteen years) with low interest rate is available. The beneficiary s own contribution is only 12,5 % 20 % of the costs of the development. This can be also used for the purchase, renewal or building of a property. The insuring party should have a fully comprehensive buildings insurance policy to protect the structure and fixtures and fittings of the real estate in the event of damage or destruction (by any of a comprehensive list of insured risks, such as storm, lightning, fire and water damage). The policy may also cover additional special heads of cover such as subsidence, heave, earthquake and, where available, terrorism. Generally it is the buildings, and not the land, which are insured for the value of the reinstatement cost. Insurance policies may either comprise a single policy for one particular property or a block policy designed to cover a portfolio of properties. Occupying owners generally have separate policies to cover the contents of the property, especially if the property includes costly plant and machinery. Insurance policies are personal and not transferable on sale. Where a sale is taking place, timing of the transfer of risk is normally prescribed by the sale agreement. Commercial Real Estate in Hungary, April

18 Contacts Contacts UniCredit Bank Hungary Real Estate Finance Péter Lengyel 1065 Budapest, Nagymező u. 44. tel.: fax: Bank Austria Creditanstalt, Austria Real Estate Finance, for cross border activities: Teresa Dreo Vordere Zollamtsstraße 13, A-1030 Vienna tel.: +43(0) fax: +43(0) or Gabor Somogyi Vordere Zollamtsstraße 13, A-1030 Vienna tel.: +43(0) fax: +43(0) A top ten London-based international commercial law firm advising businesses, financial institutions, governments and public sector bodies. CMS Cameron McKenna was established in Central Europe in 1990 with a presence in seven CEE countries and over 220 lawyers. The CMS Cameron McKenna LLP Budapest office with staff of approximately 100 is ranked as one of the largest law firms in Hungary. Please contact: Erika Papp Ybl Palace, Károlyi Mihály utca 12., 1053 Budapest, Hungary tel.: fax: Erika.Papp@cms-cmck.com Gábor Czike Ybl Palace, Károlyi Mihály utca 12., 1053 Budapest, Hungary tel.: fax: Gabor.Czike@cms-cmck.com The following other countries have been featured in this series Austria Croatia Poland Russia Slovakia Turkey Bulgaria Czech Republic Romania Serbia Slovenia Ukraine All country brochures are available in two versions (English and the respective language of the country or in German only) and can be downloaded from the BA-CA web site ( under Corporate Customers Financing Real Estate. 18 Commercial Real Estate in Hungary, April 2007

19 Kereskedelmi ingatlanok Magyarországon Gyakorlati útmutató a jogi és szabályozói kérdésekhez Kereskedelmi ingatlanok Magyarországon, Április

20 Tartalomjegyzék Minden információ angol nyelven Teljes körű ingatlannal kapcsolatos szolgáltatások Tulajdonjog és más ingatlannal kapcsolatos jogok A felek ki tulajdonolhat ingatlant? Tulajdon milyen fajta tulajdonjogok léteznek? A bérbeadó és bérlő jogviszonya melyek a fontos elemek? Kárpótlási követelések milyen követelések támaszthatóak egy ingatlantulajdonossal szemben? Egy ingatlan-tranzakció folyamata Az ingatlan adásvételi szerződés megkötésének és teljesítésének lépései Egyéb szokásos szerződési feltételek Milyen egyéb rendelkezéseket tartalmaz általában egy ingatlan adásvételi szerződés? Ingatlanügynökségek szerepe Új építésű ingatlanok milyen eszközök biztosítják a vevő jogi védelmét? Ingatlanbejegyzés és ingatlannal kapcsolatos közjegyzői eljárás Melyek az alapvető követelmények? Engedélyek, tervezési és környezetvédelmi kérdések Engedélyek milyen engedélyek lehetnek szükségesek egy ingatlanfejlesztési projekt kapcsán? Építési övezetekre, tervezési követelményekre vonatkozó szabályozás alapvető követelmények Környezetvédelmi kérdések Finanszírozás, adó és biztosítás Finanszírozás Hogyan finanszírozható az ingatlan tranzakció? Ingatlant terhelő biztosíték Hogyan alapítható és védhető meg az ingatlant terhelő biztosíték? Adók típusok és fizetésre kötelezettek Díjak Milyen díjak léteznek és ki fizeti azokat? Állami támogatás Milyen állami támogatás létezik ingatlan adásvételre és fejlesztésre? Biztosítás milyen biztosítást köthetnek a felek és mikor száll át a biztosítási kockázat a vevőre?...33 Kapcsolattartók...34 Your Gate to Central and Eastern Europe Kereskedelmi ingatlanok Magyarországon, Április 2007