DOING REAL ESTATE DEALS UNDER THE NEW REGISTER OF OVERSEAS ENTITIES REGIME
09 / 06 / 2022
We waited patiently for the Register of Overseas Entities (ROE), a new public transparency register of overseas corporate ownership of UK real estate, which was launched by David Cameron in 2016. After initial focus and a draft bill in 2018 the measure was put onto the back burner in 2018. However, having been unexpectedly pushed through parliament in only 15 days in early March 2022, we must now implement the regime.
The Economic Crime (Transparency and Enforcement) Act 2022 (ECA) was passed into law in the early hours of March 15, 2022.
We do not yet have a date for implementation of the ECA (Relevant Date), but there is a policy objective for this to be as soon as is practicable. Regulators, registries, clients and their advisors are all seeking to develop procedures to operate within the new regime in real time whilst the systems for the register are also being created.
How the ROE will affect real estate transactions
There is a sea change affecting all transactions where:
- the buyer/tenant/borrower or the seller/landlord/lender is an overseas entity; and
- there is a transfer, grant of a lease of 7 years or more and/or the grant of a legal charge of real estate in any part of the UK.
Overseas entities holding UK real estate purchased on or after 1 January 1999 will need to:
- submit an application to Companies House and obtain an overseas entity ID (once the ROE is live);
- identify and disclose beneficial owners (as such term is used in the ECA);
- keep the data on the ROE up to date; and
- demonstrate compliance to the relevant land registry (in England and Wales, the Land Registry).
Overseas entities which currently hold property will have 6 months from the Relevant Date to register.
New property purchases
Overseas entities seeking to acquire new UK property (whether by transfer, lease of 7 years or more or legal charge) will need to obtain the same overseas entity ID prior to completing a transaction because the ECA will have immediate effect from the Relevant Date.
We would suggest that any overseas investor intending to acquire property in the UK makes an application to the ROE sooner rather than later to avoid complications.
Recent property disposals
Those overseas entities which disposed of relevant real estate interests on or after 28 February 2022 must still register with the ROE whether or not such entities continue to hold relevant real estate interests. This is an anti-avoidance provision.
Borrowers should expect secured lenders to impose additional layers above the ROE requirements. We suspect a lender will not release funds until such time as it is can be sure that the legal charge will be registrable at the Land Registry. Any intended borrower is advised to make its application to the ROE as soon as possible to avoid complications.
The three UK land registries are being used as the gatekeepers to ensure compliance with the ROE. There will be a practical restraint on dealings with any registered property interest in the name of an overseas entity. In England and Wales this will be through a restriction on title which will broadly prevent dealings with properties being registered at the Land Registry if it is not possible to demonstrate compliance with the ROE provisions of the ECA.
What is an overseas entity?
An overseas entity is any body corporate, partnership or other legal person or entity governed by the law of a country or territory outside the United Kingdom. Certain narrow exemptions apply, for example certain quasi-governmental entities.
Practical advice to property investors
Our advice is to follow three steps:
1. Check if there is an overseas entity involved in your deal (Registrable Person) within the scope of the ROE
There are exceptions, but it is best to have a working assumption that the overseas entity will be within scope.
2. Check at Companies House that the Registrable Person has an overseas entity ID
This will only be possible once the Relevant Date has passed. It will be a simple, free access check against the entity name.
3. Operate as if the ROE is already with us before the Relevant Date
Any property owner which is an overseas entity should be operating as if the new regime is already in place and should hold and obtain the same package of information as is required under the ROE.
How complex is the ROE application?
There is good news. The ROE is intended to support transparency, not to delay transactions. Once a complete application is submitted to Companies House, it should not be a lengthy wait to receive the overseas entity ID. However, there is likely to be an initial deluge for Companies House to manage. There is less good news. There will be a fee which is expected to be higher that that historically charged by Companies House.
Register of Overseas Entities built upon the foundations of the PSC Regime and Companies House practice
It is helpful that much of the detail of the ROE is built upon the people with significant control regime for companies (PSC Regime) as contained in Part 21A Companies Act 2006, which came into force in 2016.
Disclosed persons can take comfort from the fact that, in the same way as for directors and people with significant control, full dates of birth and residential addresses must be provided to the registrar but will be suppressed from public view.
Set out below is a simple example of how the ROE will impact directly on a transaction.
UK Property (P) is owned by company incorporated in the BVI (S).
S owns no other UK property.
S holds P on trust for a single beneficial owner.
S is to sell P to another company, incorporated in Jersey (B), which is to secure P in favour of a commercial lender (L) providing acquisition finance.
|Analysis after the Relevant Date|
S won’t be able to sell P without having registered under the ROE.
B won’t be able to buy P without having registered under the ROE.
L won’t be prepared to lend under the transaction without visibility of the ROE registrations of S and B and additional representations that the registered information remains correct.
The restriction on title at the Land Registry will prevent B becoming the registered owner of P. If this continues S would remain the registered owner of P, which poses problems for each of S, B and L. Indeed, such a position would be unacceptable to L.
Upon completion registration at the Land Registry, S can deregister from the ROE.
Note that even though S has sold P, it cannot deregister from the ROE until B becomes the registered owner of P at the Land Registry.
- The ECA provides for a new register of overseas entities to disclose beneficial owners who own or acquire land.
- The ECA will create a practical restraint in the event of non-compliance as dealings with land will not capable of being registered.
- The ECA applies to all parts of the UK, but subject to the three different legal regimes and registries.
- The ECA establishes offences for non-compliance, potentially punishable by fines which could easily aggregate to many hundreds of thousands of pounds and imprisonment.
- Any overseas property owner should operate as if the new regime is already in place (so far as it can). This will help avoid any surprises once the Relevant Date is upon us.
Interplay with other transparency requirements
Our corporate, real estate and private wealth teams are well-versed in the obligations imposed under the ROE, the PSC Regime and the extended HMRC Trust Registration Service (TRS).
Edward Craft is also chair of The Law Society’s Company Law Committee.