UAE PROPERTY LAW

 In Insights

Ownership of Land in Dubai:

Article 121 of the UAE Constitution vests the power in the UAE Federal Government to enact legislation in the area of real estate ownership. However to date, no comprehensive body of legislation has been issued by the Federal Government which deals with land ownership in the UAE and each of the individual Emirates has been left to determine their own policies in this regard. In practice, only UAE and in some cases other GCC Nationals (namely citizens of Kuwait, Bahrain, Saudi Arabia, Qatar and Oman) have so far been able to obtain freehold titles to Dubaiproperties from the Dubai Lands Department.

REFERENCE TO PROERTY LAW REGARDING FOREIGN OWNERSHIP

Notably foreigners have been able to register 99 year leases with the Dubai Lands Department in relation to select Dubai properties, upon full payment of the purchase price.

Eligibility for a UAE Residency Visa:

Property Developers have announced that they will sponsor residency visa’s for the owners of properties, provided that such owners are not otherwise entitled to a residency visa, for example, because he or she is sponsored by a UAE based employer.

However ultimately UAE residency visas can only be issued with the approval of the UAE’s federal immigration authorities. Consequently a buyer and his/her immediate dependants must also satisfy the requirements of the federal immigration authorities in order to be eligible for residency visas. The decision to issue a residency visa is ultimately at the discretion of the UAE authorities. However in general applicants for residency visas must pass a medical test which includes screening for certain communicable diseases (such as HIV and tuberculosis) and must undergo a state security check.

Residency visas will only be sponsored by Developers following payment of the full purchase price of the property and a fee currently set at AED 5,000 (approximately US$1,362) per individual visa. Under the current UAE immigration laws, residency visas must be renewed every three years. These are generally automatically renewable, subject to the criteria set out above.

Joint Ownership and Eligibility for Residency Visas:

In the case of joint owners it is expected that only the first name owner will be eligible for sponsorship. However the first named owner would normally be able to sponsor his/her dependants. Unmarried daughters would normally be considered dependants of their father regardless of their age. However sons are usually required to be below the age 18 years in order to be classified as dependants. A husband may also sponsor his wife, however the UAE authorities do not recognize de-facto or common law marriages.

Corporate Ownership of Property:

There are presently no restrictions on the jurisdiction of incorporation of companies that can be used to purchase most Dubai properties. However commonly used jurisdictions for such companies include the British Virgin Islands and Dubai’s Jebel Ali Free Zone. Notably Jebel Ali Free Zone offshore companies are not permitted to conduct any business in Dubai but are specifically permitted to own properties in the UAE.

Inheritance Issues:

It is not yet clear whether the UAE courts will recognize Wills executed by foreigners as being effective to devolve real property in Dubai. Article 17(5) of the UAE Civil Code states that the Law of the United Arab Emirates shall apply to Wills made by aliens disposing of real property in the state. Consequently upon the death of the owner of a Dubai property, such property may be distributed according to the principles of UAE/Shariah Law. The issue is further complicated as real property purchased in joint names will not normally vest in the surviving owner, under UAE law.

Consequently in some circumstances investors may wish to consider purchasing their Dubaiproperty in the name of an offshore company. Shares in such companies can then be transferred in accordance with the provisions of the Memorandum and Articles of Association of the relevant company.

Restrictions on Sale of Property:

There are some restrictions on the sale of real property in the UAE.  

EXPLAIN GRANTED LAND TO UAE NATIONALS

LAND FOR SALE ONLY TO GCC NATIONALS

AREAS ZONED FOR EXPATS

Property situated in community developments require a no objection certificate from the Master Developer.  The NOC will be issued provided the seller is current on all payments with respect to the property; i.e. service charges, district cooling charges, etc.

Taxation on Profits from Sale of Property; Transfer Fees:

The UAE government at present does not levy any capital gains or personal income tax in the UAE and there are no restrictions/exchange controls on repatriating funds form the UAE.

At present, a transfer fee equivalent to 4% of the purchase price is payable to Dubai Lands Department at the time of the transfer.

If you are as resident of another jurisdiction sale which levies income/capital gains tax on your worldwide assets, then you should obtain specific tax advice from said jurisdiction.

Important Considerations:

The Dubai community holds out great expectations for its forthcoming Property Law Decree (“new lands law”) due to be released in the last quarter of 2005 or first quarter of 2006. This long awaited piece of legislation should enable foreign nationals to register and be issued a title deed for their ownership of Dubai property, via the local Lands Department.

The potential investor should be aware that the law is still a bit unsettled with regard to foreign ownership of real property in the UAE. While the Federal law doesn’t prohibit the ownership of UAE property by a foreign national, to date, registration procedures have not yet been formulated. Developers are currently working with the Dubai Lands Department on this matter.

Under current Federal law, nothing prohibits Dubai from passing legislation permitting the foreign ownership of Dubai property, and general consensus seems to be that the “lands law” will be formally promulgated. Thus, while it appears that the Dubai lands law would not conflict with the Federal law of the UAE (and most people agree that it is unlikely that future Federal law would overturn the Dubai “new lands law”), potential investors should be cognizant that in the worst case scenario, the UAE government would have the right to issue a Federal Law to bar foreign ownership of Dubai property. Such an outcome would seem unlikely given the UAE’s progressive stance and its potential for attracting foreign investment.

Additionally, comfort can be found in an existing provision of the UAE federal law concerning the inheritance of property, which itself implies that foreign nationals can own real property in the UAE.

The purchaser may be at risk with regard to the initial monies deposited. The properties in question are often not yet built, yet purchasers are paying the developers a large percentage of the purchase price.

As of yet, there is no requirement under Dubai law for protection of the purchaser in the event difficulties arise with a developer who is not backed by the UAE government. The matter is most likely left to the contractual agreement between the purchaser and the developer. Purchasers should consider that the contract is undoubtedly drafted in favor of the developer. There is also some uncertainty regarding the Sharia law implications of real property inheritance. Finding a solution for the possible Sharia law problem can be accomplished, but the solution may result in a disadvantageous tax position vis a vis the investor’s home country.

Home Country Tax Concerns:
Dubai’s tax-free environment makes the emirate an attractive place to live and work. Living in such a tax haven makes it easy to forget that the matter of taxes cannot be completely ignored for many foreign nationals. Quite often the tax laws of the investor’s home country must be considered before taking the investment plunge into the Dubai property market.

United States:
This is especially so for US citizens and green card holders who are subject to current US income tax on their worldwide income (that is income – e.g., dividends, rents, interest, capital gains, etc. — earned from anywhere on the globe) even though the person is not living in the United States. The first stage of consideration must be given as to how the property will be held. Will it be held by an offshore company, a trust structure or in the US individual’s name?

Many persons consider using an offshore (i.e., non-US) corporation (for example, one created in the British Virgin Islands, BVI) to prevent issues of inheritance under Sharia law. While this strategy may possibly avoid the Sharia law issues, it can raise some serious US tax matters. Without the prior proper US tax advice, the BVI company would undoubtedly be treated for US tax purposes as a “controlled foreign corporation”, passive foreign investment company” and/or a “foreign personal holding company.”

Characterization as any of these may cause serious adverse income tax consequences to the USshareholder. Examples include, immediate taxation to the US shareholder of income (such as rent) earned by the BVI company even if the BVI company makes no distribution to the US shareholder; transmutation of any proceeds upon sale of the property from favorably taxed “capital gain” to unfavorably taxed “ordinary income”; imposition of imputed interest charges.

Further, if the property was used as the personal residence, lack of proper planning can result in loss of the USD500, 000 tax exemption against the gain on the property. Aside from these concerns, comprehensive annual information reporting to the US tax authorities (IRS) is required of US shareholders of foreign corporations. Stiff monetary penalties apply for noncompliance. Ownership through a foreign trust structure can have disastrous US tax consequences and must be very carefully examined beforehand.

The second stage of planning involves how the property will be used and how it will be financed. Tax concerns here include whether interest paid with respect to the property can be deducted for US tax purposes; offsetting of rental income by other expenses deducted as “trade or business expenses” and capitalization of certain other costs.

The third stage of planning involves how the property will be disposed.

The purchaser of several properties ‘on spec’ will have very different tax issues to that of the long-term investor. Furthermore, both of these owners will have different tax results to that of the USperson who has been using the property as his personal residence. If ownership of the property has been through a poorly planned foreign corporation, it can result in adverse tax results as well as the loss of significant tax benefits upon sale of the property. Owners must consider, as well, that the US Estate and Gift Tax issues can be triggered as a result of the ownership of the property.

Other Countries
While most other countries do not impose as complicated and harsh a tax regime as the United States, nationals of other countries should be aware of how their home country tax rules will apply when purchasing a property in Dubai.

For example, citizens of the United Kingdom would be advised to carefully think about whether the tax authorities of their country will consider them to have been UK “resident” or “nonresident” in any year in which rental income is earned from the Dubai property or in which capital gain is earned on its sale. Thus, the year of departure from the UK and the year of return to the UK are critical years in which care must be taken with respect to the property. If considered “resident” then the income and gains can be subject to UK taxation; but depending on the circumstances, taxation on a pro-rata basis may be assessed.

A similar concern arises with respect to ownership of the property through a foreign (i.e., non UK) corporation that is in turn, owned or otherwise controlled or managed by a UK national. In the absence of proper planning, such a non-UK corporation can under certain circumstances be taxed under the UK corporate tax regime, thereby subjecting to UK tax, the rental income and/or capital gains earned on the Dubai property.

Canadian nationals living overseas must be very careful to ensure they have obtained “nonresident status” for Canada tax purposes and that such status is continuing when they earn income from the property. In certain circumstances, the issue of “nonresident status” can be a very gray and ambiguous area of the law. Only if a Canadian national is “nonresident” when earning rental income or capital gain on sale of the property, will these amounts escape taxation by Revenue Canada.

It should also be borne in mind that upon return to Canada, the national will be deemed to have sold the Dubai property (despite lack of actual disposition) and will be taxed accordingly at such time. Such a “deemed” sale at the time of re-entry means a valuation of the property would be required. Obtaining a valuation in the Dubai market might prove extremely difficult.

Also, the Canadian national wishing to avoid Sharia law inheritance issues must take careful advice before establishing a foreign corporation to own the property. In some cases, ownership through a foreign corporation can result in imposition of a higher tax.

Australian nationals living abroad must also be concerned with, among other tax considerations, whether they have obtained “nonresident status” for purposes of Australia’s tax laws. If an individual is nonresident, then only Australian sourced income is taxable in Australia (at higher ‘non-resident’ rates). If the individual is considered an Australian resident, tax is payable on such individual’s worldwide income (thus, capital gains earned on sale of the Dubai property and on any rental income earned from it would be taxable). Under Australia’s rules, there are four main tests for residency, the primary one being the so-called “residence test”. If an individual resides in Australia according to the ordinary meaning of the word, the other tests do not need to be considered.

The other three tests are known as statutory tests. If the individual is unable to satisfy the “residence” test, then he must consider the statutory tests to determine residency. Residency should be determined each income year separately and independently.

The fact that one qualifies as a ‘nonresident’ in one income year does not mean treatment as a ‘nonresident’ will follow in subsequent or previous years. If it is held as an investment and not for personal purposes, “residency” status will also affect deductibility of the various expenses incurred with regard to the Dubai property (e.g., interest payments, maintenance costs and the like). The nonresident cannot deduct such expenses to offset Dubai rental income earned on the property; whereas the resident may do so.

In summary, many variables are involved with a particular national’s home country tax system. They should be carefully considered and proper planning undertaken in order to maximize the profits we all hope are on the horizon with making a Dubai property investment.

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