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ARE YOU A NON RESIDENT THINKING OF BUYING PROPERTY IN IRELAND? – HERE IS WHAT YOU NEED TO KNOW

  1. There are no restrictions on foreign nationals buying property in Ireland. This means that both EU/ EEA and non-EU/ non-EEA nationals can purchase property here without limitation.
  2. Owning residential property in Ireland does not entitle the owner to a right of residence here. Residence and/ or the right to remain in Ireland are treated separately to property ownership and depend on each individual’s personal circumstances. For further information please see Irish National and Immigration Service.
  3. Similarly, owning commercial property here does not generally  entitle a non-EEA national to operate a business out of that property – permission from the Minister for Justice Equality and Law Reform is required. Conversely EU/ EEA nationals may operate a business and reside in Ireland without restriction by virtue of the general principles of EU law.   A company, once it has one director that is resident in Ireland, may operate a business out of that property.  The right of residence of each director and employee will be treated according to each individual’s circumstance however.
  4. It is important to note that a tenant of a non-resident Landlord in Ireland is obliged under current tax legislation (section 1041 Taxes Consolidation Act 1997) to withhold 20% of the annual rent and pay same to the Revenue unless that non-resident landlord has appointed a ‘Collection Agent’ to be assessed for the tax on the rent from that particular rental property. A collection agent is usually an estate agent, accountant or solicitor but could be any person who is resident in Ireland.  Once a collection agent has been appointed a tenant will be entitled to pay the full amount of the rent to the Irish resident agent.  Appointing a collection agent is relatively straight forward and can be effected by completing an Income Tax Registration Form for Collection Agents and submitting it to Revenue.  First the Landlord will need to register his/her tax or PPS number for income tax.  The Collection Agent will then need to apply to the Department of Social Protection for a separate Personal Public Service or tax Number which will be linked to the landlord’s tax number in Ireland.  Once a Collection Agent has been acknowledged by Revenue as such, the tenant can pay the rent to the Collection Agent without deduction of tax.
  5. Stamp duty at 6% of the market value of commercial property transactions must be paid by a purchaser. Stamp duty on a residential property transaction is payable at 1% of the market value up to €1m and at 2% on the value in excess of this amount. In both cases stamp duty must be paid by a purchaser within 30 days of completion of the transaction. In order to file a stamp duty return a PPS or tax Number will be required which will take some time (currently up to 8 weeks) to issue from the Department of Social Protection if a purchaser does not have one already which could potentially delay completion of the transaction.  Individuals or companies who have never been resident or carried on business in Ireland are unlikely to have a PPS or a Tax Number and may therefore be subject to this delay.
  6. The conveyancing process in Ireland can generally be divided into three stages: negotiation stage (where solicitors are generally not involved); pre-contract stage (solicitors are involved) ; and completion (Solicitors are involved). The negotiation stage usually involves private individuals and/or their estate agents or representatives negotiating the sales price and “heads of terms”. In Ireland, the vast majority of the legal work is carried out by solicitors at “pre-contract stage” so that once a contract has been signed by both parties, it is usually possible to complete soon after that.  The length of time it takes to complete a purchase will however depend on each transaction and in particular whether the purchaser is buying with cash only or with both cash and the benefit of a mortgage.  All going well, it should be possible to complete the conveyancing transaction within 4 weeks of exchange of contracts.
  7. There is an annual charge of up to 15% of the market value of a residential property in Ireland (also called “local property tax”) which must be paid to the Revenue on or before 31st January of every year which is something that a prospective investor will need to bear in mind prior to purchasing on a ‘buy to let’ basis. The percentage rate may fluctuate.  Further details of the local property tax charge are available
  8. Rates are payable on commercial property to the local authority for the area in which the property is situated. The amount payable will depend on the size of the property and other factors.
  9. Service charges may be payable to a management company where the property, residential or commercial, is located within a serviced estate.
  10. Ireland has signed comprehensive double taxation agreements with 73 countries which generally speaking result in a non-resident landlord paying no more tax than they would in their own country of residence.

A non-resident individual or business looking to purchase property in Ireland can benefit from experienced property solicitors in a myriad of ways: from identifying the need to apply for a PPS or Tax Number at an early stage to drafting a Lease after the transaction has completed and advising him/her of the potential tax liabilities and obligations in respect of any rental income.  Experienced solicitors assist with ensuring a transaction proceeds quickly and seamlessly.

Amorys solicitors is a boutique private client and commercial law firm experienced in all aspects of a property transaction.  For further information please contact Deirdre Farrell of Amorys Solicitors at Tel 00353 1 2135940 or your usual contact at Amorys.

This article is provided for information purposes only and is not intended to be legal advice.  Specific advice should be sought in each situation.

Sharon Scally, Chairman of Sandyford Business Improvement District comments on Proposed new Tech Giant Tenant in Sandyford

Google is set to expand its Irish operations further with a planned move to offices in Sandyford Business District (SBD) in south Co Dublin. Google will be neighbours with other multi-national tech companies such as Microsoft, Vodafone, Salesforce and indigenous rising star Cubic Telecom.

SBD has 1,000 companies and a highly-skilled and talented workforce of 25,000 and is a leading location for Pharma and FinTech HQ’s including Bank of America Merrill Lynch, DCC, RBS and ICON. AIB recently announced its acquisition of new SMART offices in Central Park which will be a Centre of Excellence for Digital Innovation for 1,600 of its personnel.

Sharon Scally, Chairperson of SBD, commented ‘The Sandyford Business District is recognised as Ireland’s premier business district and Google’s decision to open it’s newest offices is testimony to the availability of highly qualified talent, award winning infrastructure and extensive lifestyle offerings in the district. We look forward to welcoming Google and integrating them with the established networking services of the SBD’.

Also featured  here and http://www.sandyford.ie/news-events/news/google-secures-new-offices-in-sandyford-business-district

Commercial Leases – Essential Questions For A Prospective Tenant

A commercial lease can be an extremely onerous contract and expert legal advice is essential from the negotiation stage through to the point of signing the original lease and related documents.

We have highlighted below in the form of strategic questions some of the major issues upon which we advise our commercial clients.  These issues are of course of equal and reciprocal importance to a landlord or tenant property developer. Check the infographic below to learn more about the questions you need to ask a prospective tenant.

Download this infographic.

Embed Our Infographic On Your Site!

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Tax Considerations when Buying a Business

 

The tax structure of a business acquisition can be the deciding factor when assessing the merits of buying a business.

Broadly speaking business purchase transactions take the form of either a share or an asset purchase and both differ widely in terms of what tax considerations come in to play.

A Buyer could also buy shares from a ‘hived-down’ new company to which the Seller has transferred only the assets a Buyer would like to buy.  This structure is a combination of both a share sale and an asset sale but from the Buyer’s perspective it would be a share purchase.

Each buy-out structure has different tax implications for a Buyer and Seller.

A Seller may want a business sale to take place by way of a share sale so that he receives funds directly and is only chargeable to capital gains tax on the difference between the sales price of the shares and their base cost.  A Buyer may wish to purchase assets of a business only so that she does not inherit latent gains on assets (see below) or potential outstanding tax liabilities of a the target company.  Below is a ‘bird’s eye view’ of the tax considerations arising for a buyer in a share and separately, an asset, purchase transaction.  Our next article will deal with the tax aspects from the point of view of a seller.

What tax considerations do I need to be aware of if I am buying shares in a target company?

  1. Stamp duty: Stamp duty costs in such a transaction are generally lower as shares are subject to 1% stamp duty on their market value whilst assets are subject to a rate of up to 2% in some cases.  However, in cases of a share sale there is less flexibility to reduce the stamp duty, e.g. by arranging for certain assets to transfer by delivery.
  2. Exposure for hidden tax liabilities of a target company:
    This is generally a principal concern for a Buyer when buying a company.  Logically, a Buyer does not want to be liable for tax liabilities of a company that arose during a period for which s/he was not in control.   The longer the target company has been in existence, the greater the risk that there are hidden or undocumented tax liabilities for which the Company may be found liable at a later stage.
    The main objective for a Buyer is to ensure that a target company is ‘clear’ from any hidden taxation liabilities arising from for example, failure to file returns and pay penalties arising therefrom, failure to correctly account for value added tax (VAT), incorrectly claiming reliefs, etc.  Researching into these areas is called ‘due diligence’ and is a central component to any business acquisition.  Tax due diligence will help establish the purchase price and the type of tax warranties and indemnities to be included in the share sale agreement amongst other things.
    The advantage from a tax perspective of using the ‘hived down’ structure referred to above is that the new ‘hived down’ company would have a short tax history which would mean less risk for a Buyer for hidden tax liabilities.
  3. Exposure for Latent gains on the sale of company assets in the future: In a share purchase transaction, the assets of the target company retain their original cost price.  This means that if/when the Buyer (through the target company) sells its assets it will have to pay corporation or capital gains tax on the difference between the sale price of that asset and the original cost of purchase (if any).  If the original cost of purchase of that asset is less than its market value on the date of acquisition of the target company, the Buyer will be liable to pay tax on that ‘latent’ gain if it subsequently sells those assets for greater than or equal to the market value on the date it acquired the company.  Latent gains could therefore reduce the value of a Buyer’s interest in the target company if they are not considered at the outset of a transaction.

 

What tax considerations do I need to be aware of if I am buying assets from a target company?

  1. No exposure for latent gains on the sale of target company assets  : In an asset purchase transaction, a Buyer acquires the assets at their market value at the date of sale and avoids potential exposure to latent gains referred to above.  A Seller would more than likely prefer a share sale to avoid having to pay capital gains tax, having regard to the fact that its members would be subject to further tax (income or dividend withholding tax) when extracting the sale proceeds from the selling company.
  2. No exposure for hidden tax liabilities : In an asset buyout, hidden tax liabilities can be left behind in the target company without requiring the Buyer to rely on detailed warranties which may prove unrecoverable from the Seller at a later time (because of its liquidation or exit from Ireland).
  3. Value Added Tax liability on assets purchased:  A Buyer may need to pay value added tax at 13.5% on the value of the assets – for example commercial property which has been developed in the past two years or remains in the ‘VAT Net’.  If the Buyer is not registered for VAT or cannot reclaim VAT paid, it remains an additional cost of the transaction.  In many situations it is possible for a Buyer to pay VAT on the purchase of an asset and reclaim it on the same day resulting in a cash neutral position but each Buyer every situation is unique and detailed advices are required in this regard.
  4. Tax advantages of purchasing premises directly in the name of the Buyer: There may be tax advantages to a Buyer purchasing real property of a business directly and for him/her/them to grant a commercial lease to the target company. A buyer should enquire with their advisers as to the tax benefits of doing so before executing any Share Sale and Purchase Agreement.

As you will see from our next article there are many competing objectives from a tax perspective for both a buyer and a seller in a business acquisition.

There are many ways in which Amorys Solicitors can be of assistance to a prospective Buyer in a business purchase transaction.  We advise on all aspects of merger and acquisition transactions for Small to Medium Enterprises (SMEs) including advice in relation to the form and structure of an acquisition or buy-out, carrying out due diligence and drafting corporate contracts including Share Sale and Purchase, and separately, Asset Sale and Purchase Agreements. If you would like further information in relation to any of the above please contact Deirdre Farrell by email on deirdre@amoyssolicitors.com, or telephone:  01 213 59 40 or your usual contact at Amorys.

The content of this article is for information purposes only and is not intended to be legal advice.  Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18.

© August 2017, Amorys Solicitors

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Auctioneer’s Liability for Sales Brochure Clarified

On 1st June 2017 the Supreme Court delivered a long-awaited judgment in David Walsh v Jones Lang LaSalle, 2017 overturning a previous decision of the High Court to hold an auctioneering firm liable in damages to a purchaser for inaccurate and misleading measurements contained in a sales brochure.  The decision will no doubt be welcome for auctioneering and estate agent firms alike as it places the onus firmly on purchasers to verify details in a sales brochure when there is a disclaimer contained therein.

The Facts

 Mr Walsh, who had 20 years’ experience in the property market at the time claimed his offer to purchase a two-storey north Dublin city centre commercial property was based on a “back of an envelope” calculation of the rent he would receive calculated on a value per square foot basis by reference to the measurements contained in the selling agent’s sales brochure. Mr Walsh’s offer was accepted and he completed the purchase of the property.  However it subsequently transpired that the actual floor area of the property was overstated by approximately 20% in the sales brochure.  Mr Walsh claimed damages for misrepresentation in tort against the auctioneering firm on the basis that it breached a duty of care to him to ensure that the sales brochure was accurate.

The Sales Brochure /The Disclaimer 

The following paragraph, disclaiming liability, was included in small print at the bottom of the front page of the Sales Brochure:

“Whilst every care has been taken in preparation of these particulars, and they are believed to be correct, they are not warranted and intending purchasers/ lessees should satisfy themselves as to the correctness of the information given.”

The agent sought to rely on the waiver in the brochure and in addition argued that irrespective of the sales brochure it did not owe a duty of care to the purchaser as there was insufficient ‘proximity’ or closeness of relationship between the two parties.

The High Court Decision

In 2007 the High Court found the auctioneering firm owed Mr Walsh a duty of care to ensure that measurements in the sales brochure were correct and found that the terms of the disclaimer were inadequate to exonerate the firm from liability.

The selling agent appealed the decision to the Supreme Court.

The Supreme Court Decision  

In finding that the auctioneering firm was not liable to Mr Walsh for economic loss caused by negligent misstatement three judges of the Supreme Court held that the selling agent did not owe a duty of care to Mr Walsh as Jones Lang LaSalle Limited did not assume responsibility for ensuring that the dimensions described in the sales brochure were correct.

The Supreme Court held that the High Court erred in law in holding that the disclaimer inferred that Jones Lang LaSalle assumed responsibility for details in the brochure and that the disclaimer was inadequate to exclude that liability.

Regarding the Sales Brochure and the disclaimer therein Ms Justice Laffoy of the Supreme Court stated:

“Where the person giving the information in so doing has expressly included a disclaimer in the brochure or advertisement, in my view, the core issue in determining whether a duty of care exists is whether the existence of the disclaimer by reference to its terms has the effect that there is no assumption of responsibility for the task for furnishing correct information on the part of the estate agent giving information to the recipient.”

 

“…. there was no assumption of responsibility on the part of JLL in relation to the task of furnishing the accurate internal measurements to Mr Walsh and that the consequence was that the law imposed no duty of care on JLL.”

Comments

The decision is a welcome clarification of the law in this area which up until now was uncertain. Prior to the Supreme Court judgment, it was not clear how far a selling agent’s duty of care to a purchaser reached in the sales campaign process or indeed how or to what extent a selling agent could disclaim that liability. Now it is clear that a selling agent will not be held liable for loss caused by incorrect particulars contained in a sales brochure where a waiver included.  Even where no disclaimer is made available the decision is authority for enabling a selling agent to avoid liability for inaccuracies contained in a sales brochure (even contained on a website) on the basis that it would not be ‘fair and reasonable’ to hold that a duty of care is owed given that a sales brochure is generally made publicly available.

Dated this 5th July 2017

Deirdre Farrell Amorys Solicitors, suite 10, The Mall, Beacon Court, Sandyford, Dublin 18

Tel: 01 213 59 40, Email : deirdre@amoryssolicitors.com

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SHOPPING FOR BETTER VALUE …

RENT REVIEW

Dunnes Stores is the latest commercial tenant to gain savings on a court interpretation of a rent review clause which its landlord claimed to have been “upwards only”.  On Tuesday, 14th May last, the Circuit Court granted the retail giant a 32% reduction in rent to be paid for the occupation of retail floor space on Georges Street, Dublin 2 and a 50% reduction of rent to be paid for the occupation of basement storage and office and ancillary space at the same location.

Readers may be familiar with a judgment of the High Court handed down in March of this year which had the effect of reducing the rent Bewleys Café was paying for occupying its retail outlet on Grafton Street for the five year period beginning January 2012.  In that case, the landlord, Ickendel Limited, also claimed that a rent review clause in the lease with Bewleys Café (which was dated 22nd September 1987) was “upwards only”.

The judgment in the Bewleys case is valuable to both commercial tenants and landlords as it offers an insight into a court’s approach to the interpretation of a rent review clause in a commercial lease where there is a dispute between the parties.

It is noteworthy that the judgment in the Bewleys case recognised established jurisprudence which declines to rewrite the terms of a lease simply because they are unfair to a party e.g. a tenant who is unable to pay the rent because of the economic downturn or because the tenant might go out of business as a result of rent being or becoming payable at an amount higher than market value.

The Bewleys decision also reflects the fact that the parties to a commercial lease have negotiated and agreed same at arms length, often with the benefit of legal advice and that therefore they should be bound by the terms of the lease which records that agreement. In addition, the Court emphasised that certainty is essential to the successful operation of commercial agreements and that parties to an agreement should be confident not only that the terms of a commercial agreement will withstand judicial scrutiny but also that such terms will not be rewritten by a court.

In the Bewleys case, the previous rent review which took place in 2007 fixed an annual rent of €1,463,964.   A dispute arose when the rent was being reviewed in 2012.

The rent review clause in the lease provided that the new rent on a review should be the higher of either the rent payable during the “preceding period” or the current market rent.  The question for the Court was – what period was the “preceding period”? Was it the:-

immediately preceding period i.e. the period from 2007 to 2012 in which circumstances the new rent for the period 2012 to 2017 would have remained at €1,463,964 per annum due to deflation in property prices;

or

the period beginning on the date of the lease in 1987, in which circumstances the rent for the period 2012 to 2017 would be the greater of the 1987 rent or current market rent?

The rent in 1987 was €218,000 per annum and it was submitted by counsel for Bewleys during the hearing that current market rent would be less than half the rent fixed in 2007.

Thankfully for Bewleys’ coffee consumers the Court’s answer was based on paragraph 2 above.  The Judge did not however fix the amount of the new rent and left this to be dealt with by the parties.

It must be emphasised that whilst this case has set an important precedent, it was decided on its own facts and cannot be considered as a general rule.   The outcome of every case will depend on the wording of the particular rent review clause. It is anticipated however that many leases contain rent review clauses with similar wording to that in the Bewleys case hence the importance of that decision.  The case is currently under appeal to the Supreme Court and a final decision is awaited with great interest.

Quite apart from the dramatic effect of the decision on the commercial property market, it highlights the necessity for attention to detail when drafting commercial leases so to avoid uncertainty with consequent legal and other professional costs.

 

Update

Last Wednesday, 15th May 2013, the High Court found that a rent review clause in a lease made between Tanat Limited as landlord and the Medical Council as tenant was in fact an “upwards only” rent review clause.   In that case the High Court held that the clause in question should be interpreted to mean that the rent payable under the lease did not fall below the rent payable for the preceding period which rent was €820,000 per annum.  It was noted that the market rent payable under the lease was €374,100 per. annum.  This case demonstrates the importance of the actual wording of the clause and acts as a reminder that all cases will be decided on their own facts.  In cases where the wording is clear the Courts will enforce an “upwards only” rent review clause notwithstanding the hardship this may cause to a tenant.

 

NB:  Since the commencement of section 132 of the Land and Conveyancing Reform Act 2009 (“the 2009 Act”) on 28 February 2010, “upwards only” rent review clauses in leases created afterthat date are to be construed as meaning that rent payable following such review may be fixed at an amount which is less than, equal to or greater than the amount of rent payable immediately prior to the date on which the rent falls to be renewed.

That section means that in the post 2009 Act era, even if a rent review clause is drafted in terms similar to those contained in the Tanat/ Medical Council case, the rent may nevertheless be reduced, remain unchanged or increased.  It is not possible for the parties to contract out of the application of this section.

Food for thought, and fodder for lawyers!

Deirdre Farrell, Solicitor and AITI Chartered Tax Consultant, Amorys Solicitors, Suite 10, The Mall, Beacon Court, Sandyford, Dublin 18. Tel: 01-213 59 40

 

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AIB Mortgage Information Evening

A Sign of “Green Shoots”?

AIB Sandyford recently held a very informative mortgage information evening to which we were invited to “set out our stall”.  Happily, recent trends appear to suggest that property sales and prices in Dublin are at last on the up with green shoots finally appearing within the property sector.

We are pleased to say that as a result of our advertising campaign at the mortgage evening we are now representing a number of AIB clients in the purchase of their new home and we would like to take this opportunity of thanking AIB Sandyford for their support. You can read more here http://issuu.com/robheigh/docs/dundrum_d5aa57751b0923/7

If you are thinking of buying a property, whether residential or commercial, contact us for a very competitive quote.  We will be very happy to assist.