Ireland: Real Estate

A recent report found that Dublin was the fifth busiest real estate market in Europe between the end of 2020 and the third quarter of 2021 with more than €3 billion invested. The report highlighted an upturn in confidence, with business confidence in the real estate sector at the highest level since 2014. The third quarter of 2021 was the busiest in the commercial property market in Ireland in six years, with turnover up 12% on the five-year average and investment in the market doubled from €1.8bn in the first three quarters of 2020 to €3.5bn for the same period in 2021.

The private rented sector (“PRS”) accounted for 52% of all sales in the third quarter of 2021 and 54% of activity in the first three quarters of 2021, with a total of €415 million worth of residential assets purchased.

There has been a significant increase in demand for office accommodation quarter-on-quarter in 2021. 26% of the total €3.48 billion invested in Irish commercial property during the first three quarters of 2021 comprised office properties, with €211 million invested in the office sector in Q3 of 2021. It appears that concerns about the future of the office were unfounded as many of Dublin’s biggest employers continue to grow their office footprints and despite the increase in people working from home demand has increased significantly for office accommodation in the city centre.

The Dublin industrial and logistics sector is also thriving with investment hitting record levels during 2021 with €442 million invested in the first three quarters of 2021, accounting for 13% of total investment in that period. Activity is being led by demand from occupiers who are seeking to respond to the impact of Brexit and Covid-19 by localising their supply chains.

Another sector which has seen strong recovery since covid-19 restrictions were lifted at the end of the second quarter of 2021 is the retail sector. It accounted for €110m in investments in the third quarter of 2021, equivalent to 14% of total investments, the first time it has accounted for more than 10% of sales since the first quarter of 2019 and this volume is expected to continue. There is also a significant increase in letting activity, including in relation to anchor units.

Investment spend in the Irish real estate sector for 2021 will comfortably exceed €4.5 billion which is an extraordinary result considering the challenge of Brexit and Covid-19 throughout 2021.

While some are still adjusting to the radical changes brought about by Covid-19 the real estate sector in Ireland is learning to live with Covid-19 and investor demand is strong. Both the Irish economy and the Irish real estate sector are now in the midst of a robust recovery with the outlook for 2022 looking very strong.

Irish law was historically based on old legislation which predates the establishment of the Irish State in 1922, such as the Conveyancing Acts, 1881–1911 and the Settled Land Acts, 1882–1890.  The Land and Conveyancing Law Reform Act 2009 (the “2009 Act“) replaced much of the old law, including the pre-1922 statute law and modernised the law and conveyancing practice.  There is modern legislation governing registration of title (the Registration of Deeds and Title Acts 1964 and 2006) to facilitate the increasing computerisation of the property registration system in this jurisdiction and succession law (the Succession Act, 1965).

There is extensive statutory protection afforded to family property in particular, which affects conveyancing practice (e.g. the Family Home Protection Act, 1976).  This is partly due to the fact that Ireland has a written Constitution enshrining certain fundamental rights which override any other law, including legislation.

The Property Registration Authority (the “PRA“) is the State body responsible for the registration of property transactions in Ireland and the system of registration of title (ownership) to land in Ireland.

The main functions of the PRA are to manage and control the two registries for land ownership in Ireland namely the Land Registry and the Registry of Deeds and to promote and extend the registration of ownership of land.

The Registry of Deeds was established in 1707 to provide a system of voluntary registration for deeds affecting land (as opposed to title to land) and to give priority to registered deeds over unregistered but registrable deeds.  There is no statutory requirement to register a document in the Registry of Deeds, but failure to do so may result in a loss of priority.  The effect of registration is generally to govern priorities between documents dealing with the same piece of land.  The primary function of the Registry of Deeds is to provide a system of recording the existence of deeds affecting unregistered property (i.e. property which is not registered in the Land Registry).  When a deed is lodged in the Registry of Deeds it must be accompanied by the relevant application form (in a prescribed form) which is a summary of the essential information of the relevant deed. The registration of a deed in the Registry of Deeds is not proof of ownership. The underlying title must be fully investigated in order to determine ownership and whether a property has a “good and marketable title”.

The Land Registry was established in 1892.  When ownership is registered in the Land Registry, the deeds are filed with the Land Registry and all relevant particulars concerning the property and its ownership are entered on folios which form the registers maintained in the Land Registry. Once a folio is opened in the Land Registry in respect of a particular piece of property that property is then referred to as “registered property”. In conjunction with folios, the Land Registry also maintains maps (referred to as filed plans).  Both folios and maps are maintained in electronic form. Owners of registered real estate generally prove their title via the Land Registry folio, which is prima facie evidence of title.  The legal owner of the registered property is recorded in part 2 (the ownership section) of the folio. A title registered in the Land Registry is guaranteed by the state.  The Land Registry indemnifies any person who suffers loss through a mistake made by the Land Registry.  A buyer, therefore, can accept the folio as evidence of title.  However, the State does not guarantee the conclusiveness of boundaries or the area of the relevant property as identified on the Land Registry maps.

Any unregistered property (Registry of Deeds) purchased in the State after 1 June 2011 is subject to compulsory first registration in the Land Registry. Registration is also compulsory where land is bought under the Land Purchase Acts or where land is acquired by a statutory authority after 1 January 1967.

There are no legal restrictions on the ownership of real estate in Ireland.  However, anti-money laundering legislation requires that a number of checks be carried out on a potential buyer, and the identity of the buyer, the source of funds and the ability to fund the acquisition of real estate will need to be verified.

Irish property can be held under freehold title which confers absolute ownership, or under leasehold title which confers ownership for the period of years granted by the relevant lease and held from the owner of the freehold or the owner of the superior leasehold title in the relevant property.  A leasehold interest is based on a contractual relationship between the lessor/landlord and the lessee/tenant. During the term of a lease the freehold owner/lessor holds a reversionary interest only, known as the “freehold reversion” and the lessee holds the leasehold interest, being the valuable interest in the property. On the expiry of the term of the lease the title reverts to the freehold owner unless the leasehold owner has a right to acquire the freehold interest in the property and exercises this right. This right is only exercisable when certain criteria are met as set forth in the Landlord and Tenant (Ground Rents No.2) Act 1978 as amended by the Landlord and Tenant (Ground Rents) (Amendment) Act 2019.

Real estate in Ireland comprises all immovable property.  This includes land and any buildings or fixtures on the land.  No distinction is made between title to land and title to buildings where they are in the same ownership.  Typically, the owner of land is also the owner of any buildings erected on the land.  However it can be the case that one party owns the freehold interest in a property and another party holds a long leasehold interest in the same property.  While the reversionary freehold interest in such circumstances would only have a residual monetary value, it would usually benefit from certain restrictive or behavioural covenants on the part of the lessee under the long lease of the property in question.

Ownership structures for commercial real estate in Ireland range from private individuals, corporate entities, co-ownership structures and limited partnerships.

The most popular structure for international investors in Irish real estate in recent years is an Irish Collective Asset-management Vehicle (“ICAV”) – a vehicle designed for investment funds and which is attractive to professional investors. An ICAV is a type of qualifying investor alternative investment fund (“QIAIF”‘), an Irish regulated fund. As set out at 16 below, historically, regulated funds such as the ICAV offered some tax advantages but these have reduced recently. From an investor and management perspective, the main advantage of QIAIFs is that some of the usual restrictions which apply to funds relating to asset diversification, borrowing and leverage are disapplied, for example there are no borrowing or leverage limits for a QIAIF. The reason these restrictions are disapplied is because the CBI restricts the availability of QIAIFs to professional and institutional investors only.

International investors frequently use non-Irish resident structures, such as Luxembourg companies to acquire Irish real estate.

Irish resident investors typically utilise Irish resident companies, or limited partnerships. There are many different types of Irish companies, the ones most commonly used to acquire Irish real estate are the Private Limited Company by Shares (“LTD”), the Designated Activity Company (“DAC”) and the Public Limited Company (“PLC”). A LTD has full capacity to undertake all activities without restriction. A LTD may have a single director. In contrast to a LTD there are restrictions on the activities that a DAC may undertake. The constitutional documents of a DAC set out the activities it is authorised to carry out. DACs must have at least two directors. Some institutional investors also use PLCs to acquire Irish real estate. A PLC is a company which intends to be publicly listed on the Stock Exchange. PLCs must have at least two directors. A LTD, a DAC and a PLC are all separate legal entities and have the capacity of a natural person and may sue or be sued in their own names.  A limited partnership is comprised of at least one general partner and one limited partner. In contrast to a company a partnership does not have a separate legal personality. A general partner is liable for all debts of the partnership while a limited partner is liable for its contribution only. Frequently the general partner is itself a LTD. A LTD, DAC, PLC and a limited partnership must be registered with the Companies Registration Office (“CRO”).

Real Estate Investment Trusts (“REITs”) are a type of PLC and were introduced in 2013 as a new vehicle for investment. Subject to meeting certain criteria, a REIT will not be liable to either Corporation/ Income Tax on its property rental income or property profits, or Capital Gains Tax on disposals of assets of its property rental business. The Finance Act 2019 provides that a REIT may only avoid any latent Capital Gains Tax exposures when it ceases to be within the regime where it has been in operation for a minimum of 15 years. REITs must also be registered with the CRO.

To ensure consistency in drafting and to avoid protracted negotiations, the Law Society of Ireland produces a pro forma contract for sale for use in real estate transactions, which is designed to be fairly balanced between buyers and sellers.

The contract for sale:

• contains a memorandum of the agreed terms of the sale (the parties, price, description of property, and completion date),
• lists the documentation and searches to be provided by the seller, and
• incorporates the Law Society of Ireland General Conditions of Sale (the “General Conditions”), the current edition of which are the 2019 General Conditions. The General Conditions make a number of assumptions about the property and place certain disclosure obligations on a seller, which the seller can only exclude by inserting special conditions into the contract for sale. In this way, the buyer is on notice of any deviations from the standard contract.

By virtue of the General Conditions the seller gives various contractual warranties in respect of the property for sale. It is typical for a seller to limit the scope of warranties through the careful drafting of special conditions in the contract for sale, this is particularly the case in respect of commercial property or where the seller’s knowledge of the property is limited, for example, a sale by a receiver, liquidator or mortgagee.  Despite the existence of warranties, a prudent seller (or its legal advisers) will still carry out its own legal due diligence of the property as the principle of caveat emptor is at the heart of commercial property transactions. A buyer’s lawyer will investigate the seller’s title to the relevant property to ensure a buyer will acquire a good and marketable title. The 2019 General Conditions require the buyer to investigate and satisfy itself as to the title to the property pre-contract. The buyer’s lawyer also carries out a number of searches against both the seller and the property as well as a review of the planning position in relation to the asset and evidence of compliance with building control regulations. The seller must explain and/or discharge any adverse matters resulting from the searches which affect the seller and/or the relevant property before the completion of the sale can occur.

There are certain legal issues that may only be identified through a physical inspection of the property in sale such as environmental issues, issues with access and services, and unknown occupants as well as issues of technical compliance with the planning laws and building control regulations. Best practice is for the buyer to arrange for a professional survey and valuation of the property in sale to be carried out. Depending on the nature of the asset a buyer may also wish to engage a planning consultant to carry out planning and building regulations due diligence and/or an environmental expert to carry out environmental due diligence where compliance with environmental laws is a concern.

The relevant property is usually marketed on behalf of the seller by an agent who advertises the property and advises on the market value of the property.  In commercial real estate transactions, the parties often appoint agents to act on their behalf and the commercial terms are negotiated between the parties and their respective agents.  Once the commercial terms are agreed, they are recorded in a non-binding heads of terms document.

Between heads of terms being agreed and a binding contract being signed, the parties may put in place exclusivity agreements and confidentiality agreements (which is becoming more widespread in the sale of commercial real estate).  A seller’s lawyer is responsible for drafting contracts, dealing with pre-contract enquiries raised by the buyer’s lawyers, replying to requisitions on title, redeeming mortgages/charges affecting the property and distributing the balance of sale proceeds to the seller.  A buyer’s lawyer investigates the title, raises requisitions on the title, drafts the purchase deed, conducts closing searches, attends the closing appointment and stamps and registers the title.

Surveyors and/or architects may be engaged before the buyer signs the contract to carry out a structural survey of the relevant property.  As mentioned at 9 above depending on the nature of the asset, an environmental expert may also be engaged to provide an environmental report in respect of the property.

In the sale of commercial real estate asset portfolios, the commercial and legal due diligence is frequently facilitated by providing interested parties with access to information contained in an online data-room.  Before access is granted, the interested parties will typically be required to execute a non-disclosure agreement.

In an Irish context, it is not common but it is possible for real estate transfers to be effected by share transfers as well as asset transfers. Stamp duty on commercial property asset transfers is currently 7.5%, while stamp duty on share transfers is generally 1%.

However, transfers of the shares of corporate entities and partnerships can be subject to 7.5% stamp duty where the entity derives over 50% of its value from Irish land which is intended for development, held as trading stock, or held with the sole or main object of realising a gain on disposal. This provision is subject to a number of conditions, including that the transfer is one which transfers control of the land.

Transfers of entities holding certain residential property can be subject to a 10% rate of stamp duty. These measures were introduced in May 2021 as part of a package to discourage large scale residential acquisitions. The measures impose a 10% rate in cases where more than 10 residential units are acquired in a 12-month period.

In cases where there is a proposed acquisition or sale of real estate through a corporate transaction, there is a need for the parties to consider whether there is a latent tax charge in the entity being acquired. The presence of such a tax charge is frequently cited as a reason why corporate transfers are relatively uncommon.

Yes, the benefit of any occupational leases and the income deriving from those leases automatically transfers on the sale of a freehold interest.

Common rights, interests and burdens that can be created or attach over real estate include mortgages and charges, leases, easements, wayleaves and covenants (both positive and negative).

In the case of registered land, there are certain rights which must be registered in the Land Registry in order to gain protection; otherwise these rights will not be protected against a bona fide buyer for value without notice (e.g. rights of residence, restrictive covenants and leases for a term exceeding 21 years).  There are also a number of burdens which affect registered land without registration, such as public rights, the rights of individuals in occupation and tenancies for terms not exceeding 21 years. Such burdens are known as “section 72 burdens” as they are dealt with by section 72 of the Registration of Title Act 1964.

In the Registry of Deeds (unregistered land), priority is determined by the serial number allocated to the instrument. Registered instruments have legal priority over unregistered instruments or instruments registered later in time. An exception applies where the owner of a registered instrument had actual notice of a prior unregistered or unregistrable instrument.

There is a split between legal title and beneficial ownership of property in Ireland.  The 2009 Act provides that the entire beneficial interest in a property passes to the buyer on the exchange of an enforceable contract for the sale or other disposition of land (unless the provisions of the 2009 Act are disapplied). The beneficial interest in property can also be held through a traditional “off-title” trust.

In respect of registered land, the Land Registry does not recognise a split between legal title and beneficial ownership and only the legal owner of property will be recorded in part 2 (the ownership section) of the folio.  A beneficial owner may, however, protect his or her interest in the property by registering a caution or an inhibition against the folio in question.  The purpose of a caution is to obtain notice of dealings by the registered owner so that the cautioner has an opportunity to assert his or her unregistered right(s).  An inhibition, on the other hand, operates as a restriction on registration that prevents all registrations except those made in compliance with the terms thereof.

There is no requirement for the public disclosure of the ultimate beneficial owners of real estate. Since 2019, businesses in Ireland have been obliged to disclose details of the beneficial ownership of that business for inclusion on Ireland’s Central Register of Beneficial Ownership. The European Union (Anti-Money Laundering Beneficial Ownership of Trusts) Regulations 2021 (the “2021 Regulations”) replaced the 2019 regulations previously in place and require trustees of express trusts, including trusts of land to maintain a beneficial ownership register which records the details of each beneficial owner, and to register details of each beneficial owner with the Irish Revenue Commissioners which maintains this information on the Central Register of Beneficial Ownership of Trusts.

Capital Gains Tax

The sale of Irish real estate, or of unquoted shares in companies deriving the greater part of their value from Irish real estate, will be subject to Irish capital gains tax. The current rate is 33%. The gain is calculated on the proceeds of sale less acquisition and enhancement costs, and less the incidental costs of acquisition and the incidental costs of disposal.

Irish capital gains tax in connection with real estate is subject to a withholding procedure.  The buyer must generally withhold 15% of the consideration and pay this amount to Revenue unless the seller provides a tax clearance certificate from Revenue.  A clearance certificate is automatically available on application to Revenue if the seller is resident in Ireland for tax purposes.  A non-resident seller will need to agree and discharge its capital gains tax liability in order to obtain a clearance certificate.  This withholding procedure only applies to a buyer where the consideration payable to the seller exceeds the relevant threshold current at the date of the transfer agreement (currently €500,000 or €1,000,000 if the asset disposed of is residential property).

A capital gains tax exemption applies to disposals of land acquired between 7 December 2011 and 31 December 2014 (inclusive), provided the land was held for at least seven continuous years. The relief applies to residential and non-residential real estate located within any EEA state acquired by an Irish resident during the period set out above.

Stamp Duty

Ireland also imposes stamp duty on transfers of Irish real estate and certain other property.  The stamp duty is charged on the consideration payable for the property, or the market value in certain instances.  Stamp duty is generally payable by the buyer, although in certain transactions, such as voluntary transfers, both parties to a contract can technically be liable.  There are provisions which apply to contracts to acquire land, as opposed to actual transfer documents, in cases where there is a “resting on contract” position.

The rate of stamp duty on transfers of residential property is 1% on consideration up to €1,000,000 and 2% on consideration over this threshold. Since May 2021 where ten or more residential units are acquired in a twelve month period an increased rate of 10% stamp duty applies to all units acquired. The increased rate applies equally where multiple units are acquired in one complex or estate and where units are in different locations across Ireland. This provision applies to residential units comprising individual dwellings and is not designed to apply to apartments.

The stamp duty rate on transfers of non-residential (commercial) property is 7.5%.

Where non-residential property is transferred and is subsequently utilised for construction of residential accommodation, a stamp duty refund is available which effectively reduces the rate from 7.5% to 2%.  Budget 2021 extended the time allowed to commence construction work to avail of this refund to 31 December 2022. This scheme is subject to a number of conditions.

VAT

The sale of Irish real estate may be subject to Value Added Tax (“VAT“).  As there are many variations and exemptions under the current Irish VAT regime, the VAT treatment should be addressed by the appropriate professional advisors pre-contract with the final agreed position reflected in the contract.

Broadly, the sale of land which has been developed in the previous 20 years, or buildings which have been developed or redeveloped in the previous five years (referred to as “new” property) will be subject to VAT. The sale of “old” property which falls outside these rules is exempt from VAT.  In certain cases, where a sale would otherwise be exempt, the buyer and seller can agree that the sale will be subject to VAT in order to avoid a clawback of VAT previously recovered in respect of the relevant property by the seller.  The first sale of residential property by the person who developed the property is always subject to VAT.

The rate of VAT on transfers of real estate is 13.5%. A VAT rate of 23% applies to VATable lettings.

Tax on Income

Irish rental income is generally taxed at 25% where the lessor is a taxable Irish company. Historically, a non-resident company was subject to a lower tax rate (20%). As a result of tax changes announced in October 2021, these rates have now equalised and both are now subject to tax at 25%.

Local Property Tax

Irish residential property is subject to local property tax, which is applied at a specified rate by reference to the value of the property.

Investment Structures

Historically, many international investors employed Irish regulated funds, such as ICAVs and Unit Trusts, to hold their Irish assets. Such funds were fully exempt from Irish tax. As a result of legislative changes in 2016 and 2019, this position has now changed. Such funds are subject to a 20% withholding tax on profit distributions to investors and are exposed to a deemed income tax charge of 20% if they have debt costs above certain thresholds. Although they remain common, the tax advantages of such structures have now eroded.

The term of a lease of business premises has traditionally ranged from short-term up to 35 years, but recent legislative changes and market forces are resulting in shorter term leases, with the maximum term now being 15 –20 years (typically including break options exercisable during the term).  The structure of a typical medium to long-term (10–25 years) commercial lease usually follows the same traditional format which, in addition to securing rent payments to the landlord, also passes the cost of maintaining, insuring and occupying the relevant property from the landlord to the tenant.  This allows the landlord to enjoy the rent without deduction.

In certain cases, tenants will seek to negotiate an option to break or terminate the term of the lease after a certain period of time, i.e. after five or ten years of the term.  Any business lease granted for a term in excess of five years would typically have a provision for the periodic review of rent on a five yearly basis to the then current open market rent.

Most business leases in Ireland are of a full repairing and insuring nature, whereby the tenant is subject to extensive repairing obligations.  These may be imposed directly by a repairing covenant entered into by the tenant or, in the case of a multi-let development like an office block, shopping centre or business park, indirectly through a service charge regime which would include reimbursing the landlord for repair works carried out to the structure and common areas of the relevant development.

Usually the provisions of a business lease place restrictions on a tenant’s contractual right to assign or sub-let without the landlord’s prior written consent.  Under Section 66 of the Landlord and Tenant (Amendment) Act, 1980, a landlord cannot unreasonably withhold consent to an assignment or sub-letting of the entirety of a premises and this provision overrides the contractual terms of any business lease.

Sharing a business premises with companies in the same corporate group is generally a matter for negotiation between the landlord and tenant but it is commonplace for leases to have a provision permitting such sharing of occupation, subject usually to a requirement to notify the landlord and provided that the sharing is by way of licence only and no Landlord and Tenant rights accrue for the sharing entity.

It is less common to see provisions in a lease relating to reorganisation or change of control of the tenant.  Again, these are matters for negotiation.  While landlords may agree on request to provisions allowing sub-letting to or sharing space with a group company without consent, it is rare that a landlord will permit assignment to a group company without consent.  Normally, there are no restrictions on the change of control of a tenant company included in a lease.

Commercial business leases are freely negotiated subject only to statutory provisions.

The introduction of the Commercial Leases Register requires the particulars and terms of all leases and related documentation to be disclosed on a public register.

In 2011, the draft Landlord and Tenant Law Reform Bill was published.  The Bill is not yet enacted and it remains to be seen when or if it will be enacted. However, it is worthy of note as the objective is to consolidate and modernise much of the general law of landlord and tenant under one act going forward, including landlord and tenant obligations and their enforcement, statutory rights and termination of leases.

While there are no Covid-19 related regulatory controls in place which affect a landlord’s ability to enforce tenant obligations in commercial leases, a landlord should always be advised to act reasonably when considering its enforcement options, particularly forfeiting a lease or applying to court to wind up a tenant entity. The Irish government published a voluntary Code of Conduct between Landlords and Tenants for Commercial Rents in October 2020. The aim of the Code is to facilitate discussions between landlords and tenants impacted by Covid-19. It provides that parties should act in good faith and in an honest and transparent manner. The code is voluntary and has no statutory basis nor does it change any underlying legal relationship or commercial lease contracts. The code currently applies until 31 December 2021 but may be extended. Recent case law also suggests that the Irish courts are reluctant to make an order winding up a company for the non-payment of a debt, in circumstances where the debt is entirely attributable to Covid-19 restrictions. While an Irish court is likely to have sympathy for a tenant who is in difficulty due to Covid-19 this does not mean that a tenant may simply decline to pay rent, as the Code provides that any tenant who is in a position to pay full rent, should do so.

The Local Government (Planning and Development) Acts 1963 to 1999 and the Planning and Development Acts 2000-2021 (the “Planning Acts“) govern use, planning and zoning matters. The Planning Acts regulate the zoning of areas through a variety of development, sustainability, landscape conservation and special amenity plans. These plans include broad aims in relation to housing, infrastructure and green space amongst other things. Most of the functions reserved by the Planning Acts are exercised by the local authority in the area where the relevant property is situated.  There are currently 31 local authorities in Ireland, each a planning authority for the purposes of the Planning Acts, responsible for monitoring and enforcing compliance with planning laws in relation to property in its area and responsible for making decisions regarding applications for planning permission.  Where suitable grounds for appeal exist, the decision of the planning authority, including conditions imposed, may be appealed by the applicant to An Bord Pleanála (the Planning Appeals Board).

Generally, planning permission is required for any development of land or property, unless the development is specifically exempted from this requirement. Exempted developments are usually small developments below a certain square footage. The term “development” includes the carrying out of works (building, demolition, alteration) on land or buildings and the making of a material change of use of land or buildings.

Liability for environmental contamination on real estate is not limited to the polluter although the polluter is likely to be pursued in the first instance by the relevant authority. Secondary liability can extend to the owner or occupier of the property affected due to the principle of strict liability which applies under Irish environmental law. This may be the case where the owner did not cause the contamination or even where the owner did not own the property when the contamination occurred. An owner or occupier may also be liable for part or all of the cost associated with the clean-up where the entity responsible is not in a financial position to pay. Certain statutory bodies are required to publish periodic reports which identify specific properties which do not comply with environmental requirements.  However, Ireland has no dedicated register of contaminated land. As a result a potential buyer would always be advised to carry out its own due diligence where non-compliance with environmental law is a concern.

Yes, when a building is sold, rented or constructed a Building Energy Rating (BER) certificate and advisory report is required, the BER certificate rates the energy efficiency of the building from A (being the most energy efficient) to G (being the lease energy efficient). A landlord / seller must provide a BER certificate to a tenant/ buyer on a lease or sale of a building. There are certain categories of buildings which are exempt from this requirement including agricultural buildings, national monuments and protected structures.

Since December 2020 under EU law all new buildings must be “nearly zero-energy” buildings. A “nearly zero-energy” building is defined as one with a very high energy performance that has a significant part of its energy requirements met by renewable sources, which are ideally produced onsite or nearby.

Yes, local authorities can compulsorily acquire land in limited circumstances such as (1) where a site is derelict and poses a danger in the community, (2) for the purpose of developing infrastructure and (3) for conservation/preservation purposes. Where property is compulsorily acquired by a local authority, compensation is payable to all persons with an interest in the land. The assessment of compensation generally falls under a number of headings of claim to include the value of the land acquired, compensation for disturbance and any diminution in value of any retained lands.

Section 158 of the National Asset Management Agency Act, 2009 (the “NAMA Act“) outlines the powers of the National Asset Management Agency (“NAMA“) to acquire land compulsorily in certain circumstances where the compulsory acquisition is necessary to allow NAMA to deal with the property charged to NAMA. While NAMA’s powers are quite broad, the NAMA Act provides that it must first make an attempt to acquire the land by agreement and only failing that may it acquire the land compulsorily.

The Industrial Development Acts, 1986-2019 (the “IDA Act”) enables the Industrial Development Agency (the “IDA”) to acquire lands either compulsorily or by agreement for the purpose of industrial development.  A large part of the IDA’s role, under legislation, is acquiring land for development and, as a result, the IDA’s power to compulsorily acquire land is considered broad. The IDA can compulsorily acquire property even where the property is not immediately required but will, or is likely to be, required for the purpose of industrial development in the future.

It is possible to create mortgages over real estate. A mortgage under Irish law is the conveyance of the legal title subject to a proviso that the title is conveyed back to the mortgagor when the loan is redeemed. A mortgage of registered land is referred to as a charge – but its effect is the same.

A lender’s interest arising from a mortgage/charge is principally protected by the registration of the mortgage with the PRA. Where the security is created over registered land, the charge is registered with the PRA in the Land Registry and is conclusive evidence of the chargee’s entitlement to the charge over the relevant property (in limited and exceptional circumstances – e.g. fraud or mistake – the court may order the PRA to amend the register.) In certain circumstances where a charge is registered in the Land Registry but another security interest which post-dates the date of that charge is registered in advance an application may be made to the Land Registry to reverse the priority of these security interests. A mortgage of unregistered land must be lodged with the Registry of Deeds. However, as set out above, unlike the system for registered land, registration with the Registry of Deeds is not conclusive. Registration of a mortgage with the Registry of Deeds affects the priority of the security interest.

Where the mortgage/charge is created by a company, particulars of the charge must be registered with the CRO within strict time periods according to the procedures set out in the Companies Act 2014 (“CA 2014”). If the mortgage/charge is not registered with the CRO accordingly, it will be void as against any liquidator appointed to the company, and any creditor of the company.

Banks in Ireland typically enforce mortgages by appointing a receiver over the property. The receiver is deemed to be an agent of the mortgagor and has a duty to obtain the best price reasonably possible in selling the asset. A receiver will also typically have the power, in the mortgage deed and under CA 2014 (if applicable), to manage the property pending a sale. A mortgage may also be enforced by a sale by the mortgagee. Where the property is the principal dwelling house of the mortgagor, if the mortgagor does not voluntarily yield up possession, the mortgagee must apply to the Circuit Court for an order for possession. In these cases the mortgagee, or credit servicer, must follow the procedures stipulated by the CBI for dealing with consumer mortgage default. These requirements are set out in the CBI’s Code of Conduct on Mortgage Arrears and Consumer Protection Code. If the court makes an order for possession the mortgagor must vacate the property at the stipulated time at which point the mortgagee may sell.

No, only registration and filing fees. The registration fee in the Land Registry is usually €175, however from 1 January 2021, an application to register a charge lodged using the eRegistration system will be exempt from Land Registry fees. This fee exemption has been introduced to promote the use of the PRA’s eRegistration service and applies to charges of an entire folio only. The fee in the Registry of Deeds is €50 and the fee in the CRO for registering a charge under CA 2014 is €40.

Yes. Trusts, and in particular trusts of real estate, are recognised under Irish law and may be utilised in various commercial contexts to achieve legitimate structural objectives.