In 2022 there was a sea change for overseas-incorporated entities that owned UK real estate. We look at where things are almost 12 months on and where things are going. As a spoiler, the net is being cast wider than overseas entities.
Register of overseas entities (“ROE”)
If you hold real estate investments in the UK through overseas-incorporated entities, you will probably have been involved in frenetic activity in the months up to the 31 January 2023 registration deadline for registrable overseas entities onto the new ROE maintained at Companies House under part 1 of the Economic Crime (Transparency and Enforcement) Act 2022 (“ECTEA”). You will have also seen changes to the Land Registry’s requirements requiring certain overseas entities to have an overseas entity identification number in order to deal with its real estate assets.
The trickle of applications to Companies House in the early months of the ROE regime gave way to a torrent in the final days of January 2023, but has now reverted back to a trickle of late applications and fresh applications. There are now 30,171 entities which have registered on the ROE, which represents more than 90% of the universe of registrable persons.
However, there remain a few thousand entities which can now not deal with their real estate assets because they are not registered under ROE. To date, there has been no cases of active enforcement, but this is unlikely to remain the case. If you are within the tail of registrable persons and you are not currently taking active steps to register, you must do so now.
ROE updating duty
From 14 August 2023 the first ROE registrants will need to make their first annual update statements to Companies House. The update forms and process has not yet been publicised, but draft regulations and a web-based Companies House system are expected soon.
The annual update will include a statement from the registered overseas entity (not its verifier) that the statement previously made remains correct or is comprehensively updated accordingly and a further statement that the entity has complied with the duty to take steps to identify registrable beneficial owners. Verification will be required where there are changes to report. One the process is confirmed, Wedlake Bell can offer further guidance and support.
If you know that there will be changes to report to Companies House, you should gather the evidence together as a priority, because some or all of that will need to be verified and you will only have a 14 day window to file an annual update statement without the Land Registry’s restriction on dealing coming into effect.
But that is not all
There is another bill working its way through Parliament in the form of the Economic Crime and Corporate Transparency Bill (“ECCTB”). ECCTB address a number of areas but, importantly:
- there will be significant changes to the manner in which companies report a raft of compliance matters to Companies House; and
- the opportunity may be taken to make changes to the manner in which ROE is operated (even before we are familiar with it, the process might change).
One of the areas of the ROE being considered by Parliament is whether the update requirement should become a more regular and event-driven obligation, triggered whenever there is a change in the ownership or if there is a relevant transaction proposed with the real estate. There are practical difficulties which may arise from such proposals, particularly in the context of conditional real estate transactions with overseas landlords or sellers which may have a significant period of time between exchange and completion.
- From 14 August 2023, the first overseas entities that own UK real estate will need to make their first ROE annual update statement.
- If there have been changes in the previous 12 months, our advice is gather the evidence as a priority.
- Further changes are coming, this could mean the updating duty applies more often.