REALWorld Law

Real estate finance

Restrictions on foreign lenders

Are there restrictions on granting security over real estate to foreign lenders, and, if so what are they?

Angola

Angola

There are no restrictions on granting security to foreign lenders. However, as mentioned above, there are restrictions to foreign ownership of real estate, being the granting of surface rights the most common way for foreign to own title over property. According to the relevant Angolan law it is possible to execute a mortgage deed having as security a surface right.

Australia

Australia

There are no restrictions on granting security to foreign lenders. The Foreign Acquisition & Takeovers Act 1975 (Cth) (FATA) treats a mortgagee's interest in Australian land as being an interest the acquisition of which may require approval from the Foreign Investment Review Board.  However, approval is not required where the mortgage is granted in the ordinary course of a money-lending business and is provided as security for a money-lending agreement entered into in the course of such business.

Belgium

Belgium

There are no legal restrictions on granting security to foreign lenders.

As far as the financing of real estate investments is concerned, both private individuals and legal entities not resident in Belgium, may invest in Belgian real estate, whether outright or via the means of a company, and may obtain loans for this purpose from both Belgian or foreign banks without (in principle) any restriction or limitation. However, by virtue of Belgian domestic tax law and certain Belgian tax treaties, the source of the interest payment may be considered to lie where the real asset is located, ie in Belgium. In such cases, the borrower can be liable to pay a withholding tax on the interest payments to the bank. The payment of such withholding tax could turn out to be significant for the lender or, if a gross-up is provided for in the loan agreement, for the borrower.

Bosnia-Herzegovina

Bosnia-Herzegovina

There are no such restrictions. Security can be granted to foreign lenders.

Canada

Canada

Depending on the province in which any mortgaged property is located a foreign lender may need to obtain a license or be registered in order to do business in such province and to lend in such jurisdiction.

China

China

According to the Foreign Exchange Administration Rules on Cross-border Security promulgated by the PRC State Administration of Foreign Exchange (SAFE) on 12 May 2014, the provision of security or a guarantee by a PRC entity for an overseas lender no longer requires SAFE's prior approval, but must be registered with SAFE or its local counterparts within 15 working days after the execution of the relevant security or guarantee documents. However, it remains to be seen how this relaxation will extend to property mortgage as more SAFE implementation rules are yet to be released. .

Due to the tightening control over the real estate market, SAFE will no longer process any foreign offshore currency loans for real estate foreign-invested entities (FIEs). This means that all funding of real estate FIEs must be by way of equity or onshore financing.

Croatia

Croatia

The same restrictions apply to the fiduciary transfer of ownership to foreigners as to any transfer of ownership of real estate to foreigners. The purchase of real estate in Croatia by foreign investors other than EU citizens or companies with their registered seat in the EU is permitted only if Croatian citizens may acquire real estate in the investor's home country, and is subject to written consent from the Ministry of Justice. The process of obtaining such consent is slow and complex, usually taking approximately a year (or more in some cases), but can be avoided if the foreign investor incorporates a Croatian company.

Czech Republic

Czech Republic

There are no restrictions on granting security to foreign lenders.

Should the foreign lender be a bank, specific requirements relating in particular to banking licences must be satisfied.

And, of course, all lenders are subject to the Anti-Money-Laundering regulation.

Denmark

Denmark

There are no restrictions on granting security to foreign lenders.

France

France

In principle, French banking monopoly rules prohibit institutions other than licensed credit institutions or licensed financial institutions from carrying out banking operations in France on a customary basis and for valuable consideration. However, there are certain exceptions to this general rule, particularly for European long-term investment funds and certain alternative investment funds. Therefore, unless qualifying for such exception, a foreign lender participating in a financing transaction considered to be located in France must be licensed in France or hold an EU passport so as not to violate the French banking monopoly rules.

There are no restrictions on granting security to foreign lenders (subject to lenders being duly licensed/qualified if they are to benefit from Dailly assignment of receivables, as Dailly assignment of receivables may only be granted to a lender that is a credit institution or financial institution duly licensed in France or holding an EU passport or an European long-term investment funds and certain alternative investment funds (as listed by the French Monetary and Financial Code), it being specified that, in the event of assignment or transfer of loan secured by a Dailly assignment, the existing Dailly assignment granted to a qualifying assignor/transferor will continue to secure the assigned or transferred portion of the loan independent of the quality of the assignee/transferee).

Some security interests are not available when the law of the underlying secured obligation does not recognize it.

Germany

Germany

There are no restrictions on granting security over real estate to foreign lenders.

Hong Kong, SAR

Hong Kong, SAR

There are no restrictions on granting security to foreign lenders.

Hungary

Hungary

There are no additional restrictions on security providers regarding the granting of security over real estate due to the mortgagee being a foreign lender. Please note, however, that the lender shall comply with all mandatory provisions of Hungarian law applicable to providers of financial services as cross border services. On the basis of the laws introduced due to the COVID-19 pandemic, in certain cases the creation of mortgage or other security interest over real estate in favour of a lender with an ownership structure involving directly or indirectly certain foreign elements requires a notification to and acknowledgement by the competent Hungarian ministry.

Ireland

Ireland

There are no restrictions on granting security to foreign lenders.

Italy

Italy

Only banks and other financial institutions authorised under the Italian Banking Law to act as such are entitled to carry out lending activities on a professional basis in Italy.

EU banks

Foreign banks with their registered office within the EU and which are authorized to carry out banking activities in accordance with the laws of their country of incorporation (EU-Banks), may carry out lending activities in Italy either:

  • by establishing a branch office in Italy; in this case, the competent foreign regulator in the EU country of origin must notify the Bank of Italy of the EU-Bank’s intention to conduct lending activities in Italy. After 60 days following receipt of such notice, the EU-Bank is entitled to start carrying out its lending activities in Italy unless, within that 60 days period, the Bank of Italy has asked the competent foreign regulator to provide clarifications and/or additional information, or
  • on a cross-border basis, without the need to establish any legal structure in Italy; in this case, the competent foreign regulator in the EU country of origin must notify the Bank of Italy of the EU-Bank’s intention to conduct lending activities in Italy. After 60 days following receipt of such a notice, the EU Bank is entitled to start carrying out its lending activities in Italy unless, within the same 60 day period, the Bank of Italy has asked the competent foreign regulator to provide clarifications and/or additional information.

Non EU banks

A bank which is not an Italian bank or an EU-Bank may operate in Italy upon the Bank of Italy's prior authorisation:

  • on a cross border basis, in which case the application for authorisation to be filed with the Bank of Italy must include the following information:
    • the envisaged activities to be carried out in Italy, and
    • the procedures to be adopted, or
  • by establishing a branch, in which case, amongst the requirements for the granting of such authorisation:
  • the endowment fund of the branch (fondo di dotazione) cannot be lower than €6.3 million
  • the filing of a business plan referring to the activity of the branch, and
  • the professional and moral requirements of the management of the branch must be substantially in line with those provided for Italian banks under Italian law.
Japan

Japan

There are no restrictions on granting security over real estate to foreign lenders or on payments made to foreign lenders under a security document or loan agreement, unless sanctioned persons or jurisdictions are involved.  An ex-post-facto Bank of Japan filing is required for a non-Japanese resident taking security from a Japanese resident over real estate in Japan. 

Netherlands

Netherlands

There are no general restrictions on granting security over real estate to foreign lenders. However, along with national lenders, foreign lenders also need to comply with the Money Laundering and Terrorist Financing Prevention Act (Wet ter voorkoming van witwassen en financieren van terrorisme). According to this act, a financial institution needs to perform a thorough Client Due Diligence (CDD) and report any transaction that could involve money laundering or financing terrorism to the FIU-Nederland (Financial Intelligence Unit-Nederland).

There are no restrictions on payments made to foreign lenders under a security document or loan agreement.

Nigeria

Nigeria

Generally, a Nigerian company may source for funding through various means including borrowing, subject to the provision of it memorandum and articles of association. A lender may take as security; rights over the property of the company including real property but any security interest on the property must be registered at the relevant lands registry and the Corporate Affairs Commission. The grant of such security in real property to a foreign lender is however subject to the provisions of the Constitution of the Federal Republic of Nigeria and Land Use Act. In practice, a foreign lender may take security in real estate through an incorporated Nigerian Special Purpose Vehicle (SPV). Where the borrower’s real estate is owned through an SPV, the foreign lender may create security over the shares of the Company (whether issued capital via the existing shareholders or unallotted capita of the company).

In practice, a Foreigner may incorporate a company in Nigeria and hold interests in land using the company. A registered entity may be used as a security trustee to hold the asset being used as security.

Norway

Norway

Except where there is a violation of sanctions regulations, there are no general restrictions on granting security to foreign lenders.

Poland

Poland

There are no restrictions on granting security over real estate for foreign lenders.

Portugal

Portugal

Foreign lenders are not subject to any kind of restrictions or legal barriers concerning the creation of security over real estate property located in Portugal in favour of the same.

Romania

Romania

As a general rule, there are no restrictions on granting security to foreign lenders.

Parties may not choose any law other than Romanian law to govern mortgage agreements referring to assets located in Romania. 

Slovak Republic

Slovak Republic

There are no restrictions on granting security to foreign lenders.

Spain

Spain

  • There are no restrictions on granting security to foreign lenders
  • Before formalizing a deed constituting a mortgage over property located in Spain, foreign lenders must have obtained the corresponding tax identification number (NIF), from the Spanish Ministry of the Interior (Ministerio del Interior)
  • Notwithstanding the above, please note that beneficiaries of a floating mortgage must always be “credit entities” (ie those set out in article 2 of Law 2/1981 of 25 March, regulating the mortgage market), regardless of whether they are Spanish of foreign credit entities. Furthermore, such requirement would also apply to any assignee of the loan secured by a floating mortgage.
Sweden

Sweden

No.

Thailand

Thailand

There is no restriction on granting a mortgage over real estate to foreign lenders but the registration approval is at the sole discretion of the registrar. The registrar can refuse the registration of a mortgage over real estate on the grounds that he believes that the borrower is a nominee of the foreign lenders. Evidence such as loan agreements and a money transfer certificate must be presented to the registrar in order to clarify the nominee issue.

United Arab Emirates - Abu Dhabi

United Arab Emirates - Abu Dhabi

This area is governed by regulations laid down by the UAE Central Bank. Under these regulations, a financier that wishes to take security over real property must be a bank, company or financial institution that is registered with the UAE Central Bank to provide property finance. As mentioned above, it is therefore market practice for foreign (unlicensed) financiers to appoint a locally licensed security agent to act on its behalf and to be the mortgagee of record for the purposes of any mortgage registration.

United Arab Emirates - Dubai

United Arab Emirates - Dubai

This area is governed by regulations laid down by the UAE Central Bank. Under these regulations, a financier that wishes to take security over real property must be a bank, company or financial institution that is registered with the UAE Central Bank to provide property finance. As mentioned above, it is therefore generally accepted market practice for foreign (unlicensed) financiers to appoint a locally licensed security agent to act on its behalf and to be the mortgagee of record for the purposes of any mortgage registration.

UK - England and Wales UK - England and Wales

UK - England and Wales

There are no restrictions on granting security to foreign lenders (in the absence of any issues around sanctions or anti-money laundering concerns).

UK - Scotland

UK - Scotland

There are no restrictions on granting security to foreign lenders.

Ukraine

Ukraine

Generally, Ukrainian law does not prohibit mortgaging and transferring into trust ownership of real estate and land (except for agricultural land) to foreign lenders. Such security instruments are recognized as enforceable. Mortgage and trust ownership over agricultural land is not practically possible due to moratorium on transfer of such type of land.

According to the recent legislative changes known in Ukraine as "Opening up of the land market in Ukraine", the acquisition of agricultural land by foreign lenders and, consequently, the establishment of a mortgage over such land in favour of foreign lenders can be allowed only by a Ukrainian referendum.

Ukrainian law further provides for that Ukrainian agricultural land cannot be owned (which effectively means that the establishment of a mortgage over agricultural land in favour of the below listed persons is not possible) by, among others:Ukrainian law further provides for that Ukrainian agricultural land cannot be owned (which effectively means that the establishment of a mortgage over agricultural land in favour of the below listed persons is not possible) by, among others:

  1. a legal entity which ultimate beneficial owner is a citizen of a state recognised in Ukraine as an aggressor state;
  2. a legal entity or individual involved in terrorism;
  3. a legal entity which is owned or ultimately controlled by another state;
  4. a legal entity which has a non-transparent ownership structure, and it is not possible to identify an ultimate beneficial owner of such entity;
  5. a legal entity which ultimate beneficial owner is registered/ domiciled within a territory recognised by Ukraine as an offshore jurisdiction; or
  6. a sanctioned legal entity or individual or a legal entity which is owned or ultimately controlled by a sanctioned legal entity or individual.
United States

United States

Depending on the state in which any mortgaged property is located and whether any portion of the mortgaged property is designated for residential use, a foreign lender may need to obtain a license in order to lend in such state. While lending activity is generally not implicated, in certain circumstances a federal statutory requirement to file a national security clearance process overseen by the US federal government body known as the Committee on Foreign Investment in the United States (CFIUS) may be required.

Zimbabwe

Zimbabwe

There are no restrictions on granting security to foreign lenders. However, such security must be registered with the Exchange Control authorities in accordance with Statutory instrument 109 of 1996.