Real Estate 2019 Comparisons

Last Updated May 23, 2019

Contributed By BNG Legal

Law and Practice

Authors



BNG Legal is based in Phnom Penh, Cambodia and has another office in Yangon, Myanmar. The firm's seven-strong real estate team provide the following services: residential, commercial and industrial property transactions; lease negotiation and agreement drafting; title search and due diligence; land registration and titling; agricultural land concessions; financing, mortgages and other securities; construction contracting, permitting, and financing; environmental compliance consulting; advice on Special Economic Zones and tax-optimisation.

The main sources of real estate law are:

  • the Constitution recognises private individual ownership and private collective ownership and the exclusion of foreign persons from owning land (Article 44);
  • the Law on Expropriations, dated 4 March 2010, allows the government to expropriate the property of the individual (with compensation) for the public interest;
  • the Law on Providing Foreigners with Ownership Rights in Private Units of Co-owned Buildings 2010 provides for the right of ownership to foreigners in units of the building from the first floor upwards (Article 6);
  • the Civil Code 2007 provides for the forms of real rights (right in rem) and the substances of each right;
  • the Land Law 2001 specifies the types of land ownerships – private individual ownership, private collective ownership, state public land ownership, state private land ownership, indigenous land ownership – and also sets out the methods or acquisitions of lands;
  • the Law on Construction, Urbanisation and Land Management, dated 10 August 1994;
  • Sub Decree No 42 on Capital, City and Downtown Urbanisation, dated 3 April, 2015;
  • Sub Decree No 39 on the Borey Management, dated 11 March 2011;
  • Prakas No 87 on Land Development, dated 11 May 2018;
  • Prakas No 965 on the Regulation of the Housing Development Businesses, dated 24 August 2016 – this Prakas is intended to regulate the housing development businesses by promoting the business while protecting the interests of the consumers and preventing money laundering.

According to the 2018 report of the Ministry of Land Management, Urbanisation, and Construction (the MLMUC), 3,290 normal construction projects were undertaken with an investment of USD5,755,070,120. The investment has been decreased by 15.35% from 2017, which amounted to USD6,798,663,125 for 3,418 projects. In addition to these normal construction projects, there were 2,756 high-rise building and city projects with an investment of USD2,084,360,340.

We have observed that, since 2018, the residential property market is still popular for the middle and upper classes, especially in Phnom Penh (the country's capital city) and some major provinces.

However, compared with 2018, there has been a decrease in the acquisition of real estate by foreign investors for large projects, not only in Phnom Penh but also in some major development areas in the provinces.

Due to economic and population growth, the Cambodian government is now working to develop and build the highways, railways, and airports. This will impact the immovable property price and the construction growth. The growth of construction projects such as condominium buildings is very noticeable while the construction regulations are still being developed.

A recent reform initiated by the Ministry of Economy and Finance (the MEF) under the sponsorship of Asean Development Bank is related to the Public Private Partnership Framework (the PPP framework), whereby the RGC is preparing a legal framework, which could be a new law on PPP, to boost private investment in infrastructure projects.

Cambodian law recognises the full gamut of property rights including possessory rights, ownership rights, rights of use, leasehold rights, easements and usufructs.

The laws that apply to a transfer of title are set out in the Civil Code, the Land Law and the Code of Civil Procedure. There are some other Prakas (regulations) applicable to the processes but these apply generally to the transfer of any type of real estate. Special rules apply only in the context of land concessions granted by the government or rights of use granted in the context of 'build-operate-transfer' (BOT) projects.

A lawful and proper transfer of title gives the buyer an exclusive and uncontested ownership over the real estate. However, the transfer must be registered with the cadastral authorities. The process of transfer would include a device called 'definitive sale,' which is a form of authentic act. This authentic act has the same value as a court judgment, which can be immediately enforced when a party breaches the sale. Under this definitive sale, the sale is irrevocable. On the basis of this irrevocable sale, the cadastral authorities proceed with registering the transfer of ownership from the seller to the buyer.

Usually a buyer would hire legal advisers to:

  • confirm ownership of the real estate in the registry of the cadastral authority located in the same province as the land;
  • confirm with neighbours and village officials that there are no disputes or issues to be aware of; and
  • examine the land to make sure there are no additional structures built thereon.

Generally, the seller provides representations and warranties that it is the legal owner of the real estate and that the title is clear from any incumbrances.

Under Article 529 of the Civil Code, the seller has an obligation to provide an explanation of the contents of its right to the sold property, the legal circumstances surrounding the property comprising the object of sale, and the state of the title, encumbrances, boundaries, and other relevant matters.

If the seller provides intentional misrepresentation or conceal the truth on the matters that influence the decision of the buyer to enter into a sale-purchase contract, the buyer can rescind the contract on the ground of fraud or mistake and is entitled to damages.

When purchasing, leasing or otherwise acquiring an interest in real estate, the investor should consult the Land Law, Civil Code, Environmental Law, Investment Law, and the Law on Expropriations.

There is no law that imputes liability for soil pollution or environmental contamination onto the buyer of real estate. It is possible that a buyer could be found liable for any damage caused by such pollution or contamination as a matter of tort law (eg, nuisance).

There are no specific zoning or planning laws in Cambodia. The Government does have a master plan regarding the planned development of infrastructure (including real estate) in Cambodia but it is not made publicly available. Despite the lack of law on zoning and planning, there are certain restrictions imposed on an ad hoc basis. For example, buildings erected near the Royal Palace may not be higher than it. As such, investors need to speak to the 'chief' of the relevant Sangkat (municipality) to ensure that there will be no issues. A construction licence will also need to be granted by the Ministry of Land and that will involve a consideration of the buildings size and use, etc.

Under the Constitution and the Law on Expropriations, land can be taken by the government where it is in the public interest to do so. Expropriations are applicable for public physical infrastructure projects (Article 5 of the Law on Expropriations). These include the construction or expansion of railways, airports, ports, roads, bridges, power plants and power transmission grids, buildings for telecommunication equipment and technology, urban streets and squares and parking lots, markets, irrigation system, clean water system, sewage, etc.

The procedure of expropriations is determined by articles 16-18 of the Law on Expropriations. Before expropriations take place, the government must approve the project. When the project is conceived the expropriation committee must conduct an investigation on the lands that may be affected by the project. The investigation must consult the local authorities and communities that are subjected to expropriations to seek their feedbacks about the project and to identify the affected properties. This process of investigation takes 30 days. The report of the investigation is subsequently submitted to the RGC.

After receiving the report of investigation, the RGC will issue an announcement to the communities affected about the proposed project, in which the RGC states inter alia the location of the project, fair and just compensation, a time limit for challenging if the proposed project serves the public interest or if the project can be diverted to other location. The challenge must be made within 30 days of the date of receiving the announcement from the government.

The challenge is not allowed if the project involves the development of big highways, bridges, railways, water and electricity networks, oil pipelines, sewage systems, and irrigation systems (Article 18).

There is a transfer tax applicable to a sale-purchase of a real estate. It is 4% of the value of the real estate. Such value is determined by the government from time to time. The transfer of shares is also subject to taxation. It is 0.1% of the market value of the shares transferred. These kinds of taxes are currently determined by the Prakas on the Collection of Transfer Tax (Prakas No 273, 17 March 2016 of the Ministry of Economy and Finance). The recipient of the assets or shares is required to pay taxes (Article 3 of the Prakas).

Exceptions are applicable for the ownership received from the government (eg, in the case of purchase of state lands) and from immediate relatives (from parents to children, from husband to wife, from grandparents to grandchildren).

On 5 February 2019, the General Department of Taxation (the GDT) issued Notification No 2256 on the extension of the stamp tax exemption on continuous transferring of the same registered immovable property.

Only Cambodian physical or legal persons can acquire ownership over real estate. A company of more than 51% and less than 49% shareholdings, respectively held by Cambodians and foreigners, can be considered as a Cambodian legal person and, as such, can acquire legal ownership over the real estate.

In Cambodia it is common for buyers of residential real estate to hand over suitcases full of cash to sellers. It is less common to see this in the context of commercial real estate transactions but there are, nevertheless, many occasions where the purchase price is paid for in cash or by wire transfer without any form of financing whatsoever. Where financing is required, it may take the form of debt or equity or a hybrid. Debt financing is the prevalent form of financing in the market and is, with few exceptions, a fixed rate. In our experience, floating rates of interest have not been used in real estate financing (or any other type of financing) in Cambodia.

In terms of the source of financing, the current boom in real estate in Cambodia is being fuelled by investment from China, Korea, Singapore and Taiwan and the financing for those investments is being provided by banks/investors in in those countries. Consequently, any failure of the relevant borrower to fulfil its payment obligations under the relevant loan agreement should have little or no impact on Cambodia’s banking sector or the financial stability of Cambodia.

In Cambodia, it is possible to take security over almost any type of asset. Typically, the security package required by a financier will include the following.

  • Hypothec – this is essentially the same as a mortgage and may be created over ownership interests (where the title to the land is hard title) or the interest of a lessee under a long-term (15 years or longer) lease.
  • Share pledges – the financier will typically require a pledge of shares held by the shareholders in the project vehicle (the PV) and in the landholding company (the LHC). Care must be taken with both types of share pledge. In the case of a pledge over shares in the PV, a licence, authorisation, concession, permit or consent may restrict the ability of the shareholders to transfer shares in the PV. Even where it does not do so, Cambodian law does not contain any step-in rights that would allow the lender to automatically benefit from the authorisation upon transfer of the shares. Direct agreements (discussed below) are used to overcome this issue. In the case of the LHC, there are restrictions on foreigners owning land which impacts on the enforcement process.
  • Direct agreements – this is a form of quasi-security used to overcome the problem identified above regarding authorisations held by the PV. A direct agreement is an agreement between the security provider/borrower, the secured party/lender and the Royal Government of Cambodia (the RGC) acting through the relevant ministry. The direct agreement will contain an acknowledgment from the RGC that upon enforcement of the relevant share pledge, the authorisation granted by it to the PV will inure to the benefit of the secured party/lender.
  • Security over bank accounts – lenders will typically require security to be provided over bank accounts held by the borrower. The process of establishing such security involves the bank holding the account signing an acknowledgement that it will act in accordance with instructions from the lender if the security becomes enforceable. There are a few banks that have been willing to sign such acknowledgements but the process can be time-consuming.   
  • Security over intangibles – security may be taken over intangible assets such as rights of the borrower under agreements that it has entered into (eg, hotel management agreements).
  • Guarantees – personal guarantees from the owners of land or shares are frequently taken.

Security over real estate may be granted to foreigners. As a practical matter, the enforcement of the security should include as one of its methods of enforcement, a transfer of shares in the LHC holding the real estate (or the real estate itself) to a third party selected by the secured party/lender. This is to account for the restriction on foreigners owning land.

There are no restrictions on repayments being made to a foreign lender under a loan or the proceeds of security enforcement being paid to them.

There has been no noticeable impact of FIRRMA in Cambodia. The USA has a limited footprint in Cambodia in the case of real estate. We understand that FIRRMA has been expanded to include investments where a foreign company would not necessarily gain control of a US firm (such as) joint ventures between US and foreign companies, minority stake investments and transactions near military bases or US government facilities. We consider it unlikely that even this expansion of the scope of FRRMA will have an impact in Cambodia.

Fees are payable to the relevant land office to register hypothecs over land or the rights of the holder of a long-term lease certificate. There are no taxes or stamp duties payable in respect of the creation of security interests over other asset classes in Cambodia, although perfection of a security interest against third parties typically requires registration with the Secured Transactions Filing Office established by the Secured Transactions Law.

Enforcement of a hypothec involves court proceedings. Fees will be payable to the court in such cases.

There are no specific formalities required for a company to provide security over its assets. Standard corporate actions (eg, director/shareholder resolutions) set out in the company’s Articles of Incorporation and Cambodian company law must be complied with.

Where a borrower is in default, the lender will need to comply with the provisions of the security agreement regarding enforcement. There are no additional formalities regarding enforcement and proceedings may be initiated for enforcement by the courts without any further notification or action being required.

It is possible for an existing security interest registered over real estate or a long-term lease certificate to be subordinated to a new security interest. Such an arrangement would need to be agreed to in a formal agreement signed by each lender and the borrower and would need to be registered with the land office.

It should be noted that in addition to contractual subordination, a legal subordination of an existing security interest may be made in respect of certain claims that arise in favour of the RGC (eg, claims of the GDT to unpaid taxes in respect of the property).

Environmental laws in Cambodia, while extensive, do not impose liability on a lender for the actions of the borrower. Notwithstanding this, it is important to note that the media in Cambodia will hold lenders accountable for just about any misdeed committed by a borrower. For example, a prominent foreign bank recently found itself at the centre of a controversy regarding its loan to a borrower that employed child labour. It is arguable that there was little the bank could have done, but that did not stop the media attack which significantly damaged the bank’s reputation.

The insolvency of a borrower will not automatically void any security provided by it over real estate by it. However, the secured party will not be able to take any action with regard to enforcing its security over such real estate without approval of the administrator (see Articles 19(1) and (2) of the Insolvency Law). Such approval may only be given where to do so is “in the best interests of the estate”. No guidance is provided by the Insolvency Law as to when it would be in the best interests of the estate for the secured party to enforce its security.

It should be noted that under 23(l) of the Insolvency Law, the Administrator has the power to “terminate, cancel or avoid” any “transaction, contract, agreement or transfer” between the debtor and any other person. This provision appears to be based upon the provision typically contained in the insolvency laws of other countries which permit insolvency officials to disaffirm unfavourable contracts. However, Article 23(l) seems to go further in that there are no limits on the ability to disaffirm. There have been only a few insolvencies in Cambodia and the proceedings have been held in private so we are not aware of any instance where an administrator has exercised this power and to what extent.

Cambodian banks lend at fixed rates but not at floating rates. The expiry of LIBOR should therefore have no impact on any type of financing in Cambodia.

The legislative controls that apply to strategic planning and zoning in Cambodia are: ,

  • the Law on Construction, Urbanisation and Land Management, dated 10 August 1994;
  • the Land Law, dated 30 August 2001;
  • the Law on Expropriation, dated 26 February 2010;
  • Sub Decree No 42 on Capital, City and Downtown Urbanisation, dated 03 April 2015;
  • Prakas No 087 on Land Development, dated 11 May 2018.

The main governmental organs that control strategic planning and zoning in Cambodia are: the National Urbanisation and Land Management Committee, established on 26 May 2012; and the Urbanisation and Land Management Committee at the Capital, Provincial, Town, District Levels, established on 7 June 2012. Some areas such as the Angkor zone and coastal areas have other relevant authorised committees such as: the Apsara National Authority, established on 19 February 1995; and the National Coastal Management and Development Committee, established on 16 February 2012 to mitigate the harm arising from the use of the area.

The compliance of design, appearance and method of construction of new buildings or refurbishment of an existing building is governed by the construction permit/approval type applicable to the building. The government and the municipal/provincial officials are the relevant authorities in accordance with the construction size.

The permit is required based on Sub Decree No 86 on Construction Permits, dated 19 December 1997, and the Ministerial Regulation on the Management of the Construction Site and on the Building Renovation. The permit is required prior to the construction (construction permit), at time of construction commencing (construction site opening permit), and at the completion of the construction (closing permit).

The Ministry of Land Management, Urban Planning and Construction (the MLMUPC) is the main organ for regulating the development and designated use of individual parcels of real estate. The approval for the construction permit for some development and designated use of individual parcels of real estate which are of a size of 3,000 sq m or less is under the authority of provincial or municipal officials. 

Some zones and areas in Cambodia are also under the authority of certain committees – for example, the Angkor zone 1 and zone 2, located in Siem Reap province, which also requires the approval from the Apsara National Authority. Additionally, the development of the coastal area is also under the inspection and the evaluation of the National Coastal Management and Development Committee. Furthermore, the construction of properties of more than two stories was requested to be abandoned by the Deputy Prime Minister of the Royal Palace, dated 27 October 1993.

The development and designated use of individual parcels of real estate must comply with the construction plan that the relevant authority has approved.

The legislative provisions are:

  • the Law on Construction, Urbanisation and Land Management, dated 10 August 1994;
  • the Land Law, dated 30 August 2001;
  • the Law on Expropriation, dated 26 February 2010;
  • Sub Decree No 42 on Capital, City and Downtown Urbanisation, dated 03 April, 2015;
  • Sub Decree No 86 on Construction Permit, dated 19 December 1997;
  • Prakas No 87 on Land Development, dated 11 May 2018.

The process for obtaining entitlements to develop a new project requires the permits (construction permit prior to the construction, construction opening permit and the construction closing permit). Beside the construction compliance, the project owner must consider other legal compliance in accordance with his project operation. 

The process for obtaining entitlements to complete a major refurbishment requires the Construction Renovation Permit from the relevant authority based on the construction size. If the construction size is 3,000 sq m or less, it is the authority of the provincial or municipal official. If the construction size is more than 3,000 sq m, it is the authority of the MLMUPC to approve the permit.

By law, any interested party can object to the construction. In practice, the applicant’s intention to apply for a construction permit will be posted at the front of the construction site so that any interested party can object to the construction plan. At the time of the construction and at the closure of the construction, the relevant authority can conduct an inspection at their discretion to ensure the compliance of the construction.

Article 25 of Sub Decree No 86 on Construction Permits allows an interested party to appeal against the decision of the relevant authority. Only the court has enforceable power and this organ is the last resource for dispute settlement. 

Cambodian real estate law does not contain any provisions relating to agreements with authorities or utility suppliers in order to facilitate a development project. The three types of permit (construction permit prior to the construction, construction opening permit and the construction closing permit) are required for the construction.

At the time of construction, the relevant authority can conduct an inspection to ensure compliance of the construction project with the approved construction plan. Upon completion, the construction owner must obtain the certificate of correction proving that it fully complies with the legal requirements and the approved construction plan. The owner of any construction built for public use (eg, hotels or offices) must obtain the certificate of correction. Upon closure of the construction site, the owner will request a construction site closing permit. At each stage, the relevant authority will be able to enforce restrictions by simply making proof of compliance a condition to the granting of the relevant permit. 

Only a Cambodian person may hold real estate. A Cambodian person is a natural person or legal entity that has Cambodian nationality.

In the case of residential or small commercial real estate, foreign investors typically hold the real estate through a Cambodian person (nominee). In such a case, the arrangements are not referred to in the sale agreement or on the title. In such a case, the foreign investor has only an in personam contractual right against the nominee but no legal interest in the real estate. Where this sort of arrangement is being used, it is prudent for the investor to take a hypothec over the land in case the nominee defaults under the relevant agreement he/she has entered into with the investor.

In the case of larger scale investments in real estate, the investor may use a landholding company. This is simply a company in which 51% of the shares are held by a Cambodian person and 49% of the shares are held by a foreign investor. If the Cambodian 'person' is a company, the 51% will be diluted to the extent that shares in the corporate shareholder are held by a foreigner. For example, if only 49% of the shares in the corporate shareholder are owned by a foreigner, it will be deemed to be a Cambodian person by law, but only 51% of the shares it holds in the landholding company (approximately 25%) will be deemed to be held by a Cambodian person.

There are more costs involved in using a landholding company as it will need to comply with ongoing corporate obligations and file monthly and annual taxes. Traditionally, foreign investors have used landholding companies on the basis of a perception that this would be less risky than using an individual nominee.

Interestingly, there has been an increase in the number of applications made by foreigners (particularly from China and Singapore) for citizenship so that they can hold land even in the case of large-scale real estate developments. However, this is a rather costly and time-consuming process.

The shareholding requirements regarding landholding companies has already been discussed above. With regard to the structure of the company itself, it is no different from a limited liability company conducting any other type of business.

The Law on Commercial Enterprises requires a company to have a minimum registered capital of USD1,000.

A landholding company (as with any other company) will be required to comply with certain requirements regarding director and shareholder meetings. These are by no means onerous and will typically be attended to by the Cambodian person with the 51% shareholding.

A landholding company (like any other company) will need to:

  • file an Annual Declaration of Commercial Enterprise with the Ministry of Commerce (approximately USD20 for the official fee);
  • apply for a Patent Tax Certificate each year from the GDT (the official fee varies amongst the small, medium and large taxpayer); and
  • file monthly and annual tax returns with the GDT. The costs associated with such filings and applications are not substantial.

Under the Civil Code, it is possible to secure the use of real estate without purchasing through a short-term or long-term (perpetual) lease. A long-term lease must have a duration of at least 15 years but not more than 50 years, be made in writing, and be registered with the cadastral authorities in order to perfect the leasehold interest against third parties (articles 245-247). A short-term lease is a lease with a duration of less than 15 years. A short-term lease may not be perfected against third parties. The lessee is entitled to use and make profit from the leased property in a manner that is consistent with the contract or the nature of the property (Article 600 of the Civil Code).

The Civil Code also provides for the creation of a usufruct known as 'contractual usufruct not exceeding the life of usufructuary'. A usufructuary has the right to use the immovable that is the subject of the usufruct for its intended purposes, and to enjoy the natural fruits and the legal fruits arising from the immovable (Article 256 of Civil Code).

Alternatively, business owners can opt to propose for an economic land concession. There are two permissible ways to initiate economic land concession projects (Article 6 of Sub Decree No 146 regarding the Economic Land Concession, dated 27 December 2015):

  • solicited proposal, where a contracting authority proposes a project for solicitation of proposals from investors; or
  • unsolicited proposal, where an investor proposes a project proposal to a contracting authority for approval.

The Economic Land Concession proposal must be prepared with the concession project documents to be sent to the Technical Secretariat for Economic Land Concessions for a preliminary review. Upon receipt of the complete set of economic land concession project documents from a contracting authority, the technical secretariat shall prepare documents with solicitation for proposals, which shall include a notice, terms of reference, and application form. Economic land concessions may be granted to develop intensive agricultural and industrial-agricultural activities that require a high rate and appropriate level of initial capital investment (Sub Decree No 146 ANK/BK on Economic Land Concession, dated 27 December 2005).

There are no laws or regulations that distinguish between ordinary and commercial leases.

In Cambodia, rents or lease terms are subject to negotiation.

For large-scale real estate projects, the lease will be for a duration of between 15 to 50 years (a long-term lease). This is so that the lease can be registered and thereby perfected against third parties. A long-term lease will typically have a renewal clause in it whereby the lease can be renewed for another 50 years.

A lessor has a duty to repair the real estate where necessary for the lessee to use and profit from the immovable property. If a lessee pays for repairs that the lessor is responsible for, the lessee has a right to be reimbursed for such payment (Article 602 and Article 604 of Civil Code).

In practice, the parties will usually specify a date for payment of rent, typically at the beginning of each month. However, if the parties fail to specify the dates on which rent is to be paid, it shall be payable at the end of each month in the case of movables and buildings, and at the end of each year in the case of land, provided that if there is a harvest season the rent must be paid without delay upon the close of such season (Article 610 of Civil Code).

Parties to the lease agreement are free to agree whether the rent shall remain the same for the entire length of lease agreement or whether it can be increased at a certain point or at its renewal.

With regard to a long-term lease, the law allows a party to request to the court to revise the rent payment agreed by the parties where there has been a change in circumstances that makes the rent payment inappropriate.

The new rent will be determined as per the terms of the contract or as per the court, as the case may be.

There is a tax payable on rent, being 10% of the gross rental amount specified in the agreement between lessor and lessee.

Besides the rent payment, the lessor can request from the lessee to pay for the following costs (amongst others):

  • lease agreement preparation service fee;
  • bond for the security of the lease (one to three months, depending on the agreement);
  • utilities costs (electricity, water, rubbish collection fee, telephone and internet fee);
  • cleaning and laundry service fee, if any;
  • parking and maintenance fee for shared area such as stairs and gardens;
  • risk or fire insurance; and
  • other administration fees.

Each tenant will share responsibility for the payment of the maintenance and repair fees in respect of common areas such as car parks and gardens. Parties can either include this fee in the rental fee or pay it separately.

This will depend on the terms of the lease agreement. The lessor can stipulate that all tenants must jointly pay for such utilities and telecommunications costs or that these costs can be lumped together with the rent payable.

The cost of insuring the real estate which is the subject of a lease is a matter for agreement between the parties. It is usual for the lessor to obtain the insurance rather than the lessee. The main risks insured against will be damage from fire or water.

The landlord may (and usually will) insert some restrictive clauses in the lease agreement with regard to the use of the real estate by tenants. These restriction clauses will typically relate to use of the real estate for an illegal activity or an activity that will cause a nuisance or damage to neighbours. There are no laws dealing with tenant obligations per se.

Whether the tenant is permitted to alter or improve the real estate depends on the terms of the lease agreement between the landlord and lessee.

Cambodia has not yet adopted any law or regulation applicable to any specific type of lease.

Parties to the lease agreement can agree the effect of the tenant’s insolvency and whether the lessor has the right to terminate the lease immediately when the tenant fails to pay the rental fee on the due date.

However, if the lease agreement is silent with regard to the insolvency of the tenant, the legal stipulations of insolvency law should be applicable. If the court opens an insolvency procedure, an administrator of such an insolvency procedure has the power to terminate the lease in case of tenant’s insolvency. 

Landlords will typically require that the tenant pays a few months of rent in advance to secure the rental payments and cover any damage that may be done to the real estate. Sometimes, the landlord will require the tenant to obtain a guarantee from a third party, though this is not common.

In principle, a lease will end at the expiry of its term (Article 612 of Civil Code). However, the parties to the lease agreement should clarify in the lease agreement whether a tenant has the right to continue to occupy the relevant real estate.

To ensure that the tenant leaves on the date originally agreed, a party to the lease who wishes to terminate the lease is required to provide notice regarding the intention of the termination as follows:

  • one day in the case of movables;
  • three months in the case of building;
  • one year in the case of land.

Failure to provide notice pursuant to the above may lead to the lease being renewed automatically and becoming a lease for an unspecific duration.

The parties to the lease agreement are free to specify the termination events; there is no applicable legislation. In most cases, the lease will be terminated in case of breach of the agreement (including late payment) or insolvency of the lessee.

A tenant can be forced to leave the leased property before the date originally agreed upon the issuance of a binding court decision in favour of the landlord to evict the tenant.

If the tenant does not leave the premises despite the binding judgment, the landlord or his representative can request for the intervention from the court through an order for compulsory execution that might involve the bailiff, the police, and the local authorities. The timeframe for this process depends on the complexity of the case.

Where it is in the public interest to do so, the government can expropriate the real estate which is subject to the lease provided that just compensation is paid to the tenant. As the expropriation affects private ownership rights, the length of time taken to complete this process will depend on whether there any objections are raised.

In Cambodia, there is no code governing the price of construction projects. It is a free market and the pricing is up to the construction owner and the constructor. In practice, the construction price can be in the form of a certain agreed fee (lump sum price) or based on the size of the construction site.

The design work is the responsibility of the architect while the construction work is the responsibility of the constructor. Some construction companies have both services, and the contract of these two services can be included in one form. However, to simplify the contract, both agreements are usually separated.

To manage the risk, the parties create the construction contract; the construction contract provides the general terms on payment stages based on the percentage of completion of the construction, the period to guarantee the quality of the construction, the construction insurance, any delay in construction, etc.

The management of schedule-related risk typically occurs through the application of penalties under the construction agreement. Cambodian law permits the parties to agree an amount of liquidated damages. However, a court may adjust the relevant amount if it is grossly excessive or inadequate (see Article 403 of the Civil Code).

it is not usual for a contractor to be required to provide any form of security or quasi-security, nor is it usual for payments to be made via escrow. 

A statutory lien over immovable property arises in favour of any 'artisan/engineer' person who has a claim against the owner in respect of construction work performed on that immovable property (see articles 799(b) and 801(1) of the Civil Code). It is important to note that the lien only arises where the work results in an increase in the value of the immovable property – see Article 801(2) of the Civil Code.

All construction projects will need to have a site closing certificate issued upon completion and a certificate of compliance issued before the building is used for any commercial purpose.

If the corporate real estate consists of a building and the seller is a corporate entity, value added tax (VAT) is applicable at the rate of 10% of the total sale/purchase price. If the corporate real estate is the land itself and the seller is a corporate entity, the VAT is not applicable because the land is not considered as the goods/service under the perspective of VAT law. If the corporate real estate is the building and the seller is an individual, VAT is not applicable. In business transactions, the seller and the buyer always separate the price of the land and the price of the building to reduce the paid amount of VAT.

While the buyer is legally liable for payment of VAT, the seller will typically collect the VAT from the buyer and pay it to the Tax Office.

Not applicable in this jurisdiction.

The occupation of certain business premises with a value of more than USD25,000 can be subject to the property tax (immovable property) because Prakas No 493 on Property Tax Collection, dated 19 July 2010, states that the tax payers are the property owner, occupant and the final beneficiary.

The rate of property tax is 0.1% of the total market value of the property after deducting USD25,000. The market value of the property is set by Prakas of the Ministry of Economy and Finance. 

The property tax exemptions are as follows (Article 4 of Prakas No 493):

  • agricultural immovable property;
  • immovable property of the state (excluding public enterprise or state-private enterprise);
  • immovable property belonging to the community, for religious or humanitarian purposes (eg, property to be used for a Buddhist pagoda, mosque or Christian Church are exempt from property tax);
  • immovable property belonging to diplomats, councillors;
  • immovable property which cannot be used for its intended purpose due to the occurrence of a natural disaster;
  • immovable property in relation which the construction is less than 80% complete when compared to the construction master plan; and
  • immovable property in the Special Economic Zone.

Foreign investors can be resident or non-resident and withholding tax rate varies based on this status. For a resident tax payer, the withholding tax rate can be 15%, 10%, 6% and 4%, based on the type of services; the withholding tax rate for the non-resident tax payer is 14%.

Article 3 of the Law on Taxation defines the term 'resident taxpayer' as:

  • any physical person who is domiciled in, or has a principal place of abode in, the Kingdom of Cambodia, or who is present in the Kingdom of Cambodia on more than 182 days during the calendar year;
  • any legal person or pass-through organised or managed in the Kingdom of Cambodia, or having its principal place of business in the Kingdom of Cambodia. A permanent establishment shall be considered a resident legal person with respect to its Cambodian source income only.

The term 'non-resident' means not a resident of Cambodia. 

The rental income is subject to 10% withholding tax. The lessee is liable for this 10% withholding tax and the expense is the liability of the lessor. There is an exemption under Instruction No 18410 dated 3 November 2016 on Withholding Tax Related to Real Estate Companies when the company, that has real estate services as its main business objective, leases immovable property from the same owner and then subleases the same immovable property to another tax registered person, then that company is not required to withhold rental income tax again for this sublease.

The gains from the disposition of real property taxed is subject to 20% of the income tax for the corporate entity. Up to now, Cambodia does not have an available mechanism to collect the income tax from individuals – there is only a tax on salary. Under Cambodian law, tax on income is to be filed by the end of March of each year.

The investor can enjoy certain tax benefits if the investment is a Qualified Investment Project (QIP). Those benefits include an income tax incentive for a minimum of three years or special depreciation and exemption on the import and export tax.

On 5 February 2019, the GDT issued the Notification No 2256 on the extension of the stamp tax exemption on continuously transferring the same registered immovable property. 

BNG Legal

No.65B, Street 111
Sangkat Boeung Prolit
Khan 7 Makara,
Phnom Penh
Cambodia

+855 23 217 510

+855 23 212 840

cambodia@bnglegal.com www.bnglegal.com
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BNG Legal is based in Phnom Penh, Cambodia and has another office in Yangon, Myanmar. The firm's seven-strong real estate team provide the following services: residential, commercial and industrial property transactions; lease negotiation and agreement drafting; title search and due diligence; land registration and titling; agricultural land concessions; financing, mortgages and other securities; construction contracting, permitting, and financing; environmental compliance consulting; advice on Special Economic Zones and tax-optimisation.

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