The main sources are the Swiss Civil Code and the Swiss Code of Obligations.
As real estate in Switzerland is probably coming close to the end of its current cycle, the price level is rather high and therefore primarily institutional investors with a need to invest the funds allocated are active as buyers, whereas foreign investors and ultra high net worth individuals are quite reluctant to invest at this stage. Moreover, some of the real estate actors try to increase their profit with development projects. The transaction level was rather high over the last twelve months, but no particular transaction could be mentioned as the most significant deal.
There are currently no reforms planned that might have a significant impact on real estate in Switzerland.
Freehold, leasehold, co-ownership and storey-ownership rights.
Transfer of title is primarily regulated by the Swiss Civil Code and by the Federal Ordinance of Land Registry. The transfer of residential real estate to any foreign persons is generally restricted according to the Federal Law on the Acquisition of Real Estate by Persons Abroad (the so-called Lex Koller). Moreover, tax issues have to be considered, which differ from canton to canton.
The transfer of real estate is registered at the competent land registry. Any buyer of real estate acting in good faith is protected by the information contained in the land registry and hence no title insurance is required in Switzerland.
As registration is conclusive, legal due diligence involves analysing the land register extract and its supporting documents, which shows all relevant property information. In addition, any existing leases must be examined, since these are transferred to the buyer as the new landlord upon purchase of the property. Another aspect of due diligence relates to environmental law. Further, prudent buyers perform, in addition to legal due diligence, tax, technical and financial due diligence. If a foreign person buys property that includes real estate that is not commercial property or provides for relevant land reserves, it must be verified that there is no infringement of the Lex Koller. This type of purchase can be deemed void, since the Lex Koller restricts foreign persons from buying residential and other non-commercial real estate in Switzerland. Financing transactions should be examined on a case-by-case basis.
The warranties typically given by a seller within a share deal include corporate warranties relating to the correct organisation and valid existence of the company, accurate correct presentation of the financial statements and title to shares. Other important warranties relate to the accuracy of rent rolls and the due diligence information being accurate, complete and up to date. Moreover, specific tax representations are usually contained in the purchase agreement. In both asset and share deals, the seller does not usually provide any warranty as to the substance of the building. With respect to the seller's other representations, they are often qualified by the seller's knowledge.
In share deals, most of the seller's warranties are often capped at a certain amount; for example, at 10% of the asset's price. However, such cap normally does not apply to the seller's title in the shares. In the event of any misrepresentation, the seller is liable to compensate the buyer for any damage incurred. In share deals, part of the purchase price is often held in escrow for a limited period to protect the buyer.
Contract law, property law, building law, lease law and environmental law.
The legal owner of the property is partly liable for contamination of the real estate, even if contamination took place pre-ownership. Moreover, a landlord can also be held responsible for a pollution caused by its tenant.
Usually, based on applicable building law, the buyer has some certainty regarding the permitted use of a property. Moreover, in the case of any uncertainty, the issue can be discussed with the competent authority, which can also impose specific rules for a property or area.
Governmental taking of land, condemnation, expropriation or compulsory purchase is possible. Depending whether the expropriation is based on federal or cantonal law, the proceedings vary. However, the landlord has constitutional rights under all relevant proceedings and usually gets fully compensated.
In most cantons, cantonal and/or municipal real estate transfer taxes apply to the transfer of real estate. Generally, the buyer pays the tax, but the seller is jointly and severally liable for payment. The rates range between 1% and 3.3%. It is not uncommon for the parties to agree contractually to share the transfer tax. In share deals in some cantons, there is no real estate transfer tax. Also, corporate restructurings (including of real estate companies) generally no longer trigger transfer taxes and similar charges. Further exceptions are regulated in Article 12(3) of the Federal Act on the Harmonisation of Direct Taxation at Cantonal and Communal Levels. Most cantons that impose real estate transfer tax can secure their corresponding tax receivables by a first-ranking legal lien on the real estate. In addition, the transfer of real estate is subject to cantonal and/or municipal land registry and notary fees.
Foreign ownership of residential real estate and to some extent land reserves is restricted by the Lex Koller. In the case of an infringement, the transaction can be deemed void, which can even lead to criminal sanctions. Transactions having a similar effect to ownership should be examined on a case-by-case basis, as it is not only the mere ownership of residential real estate that is governed by the Lex Koller (such as financing, long leases, etc). Exceptions exist for holiday apartments, serviced apartments, real estate inherited, etc. In the case of any doubt, rulings from the competent Lex Koller authorities are sought for confirmation and legal certainty.
While Swiss and foreign institutional investors (eg, pension funds, sovereign wealth funds and insurance companies) invest and hold significant real estate portfolios that are financed without external financing, other investors typically finance through a mix of equity and external funding sources (secured term loans, sometimes revolving loans, development financings). Traditionally, Swiss banks have had a lion's share of the domestic real estate financing market. However, new means of refinancing methods may make it more attractive for foreign banking and non-banking lenders to re-enter the market; eg, following international investors. In particular, larger development financings and/or mezzanine-type financings continue to be difficult to be placed in the Swiss domestic market only.
A typical security package would consist of a security interest in mortgage notes (Schuldbriefe), which can take the form of mortgage notes in paper form (Papierschuldbriefe) or of register mortgage notes (Registerschuldbriefe).
In addition, rent, insurance claims and other receivables are typically pledged or assigned for security purposes. Pledges over the shares of the borrower and security interest in bank accounts are customary.
No restrictions exist with respect to Swiss commercial real estate financing transactions. There are no regulatory restrictions on cross-border lending in general, either. Financing of residential real estate by foreign lenders will have to be analysed carefully under the applicable Lex Koller legislation restricting the acquisition of residential real estate in Switzerland by foreigners. However, financing structures typical in the Swiss residential mortgage market (standard security package, standard terms of the loan agreement, loan-to-value ratio below 80%, etc) should not usually raise concerns. In the case of uncertainty, Lex Koller ruling confirmations are available from competent cantonal authorities for individual cases whereas the Swiss Federal Office of Justice, for formal reasons, no longer seems to be willing to issue general letter confirmations on, eg, covered bond programmes or the like, but without changing its general view on the permissibility of such structures. It would be desirable – de lege ferenda – for the legislator to exempt such financing transactions from the applicability of the Lex Koller legislation in the first place to enhance legal certainty for debt capital market transactions and novel origination structures that will involve alternative lenders rather than Swiss banks.
Small registration fees apply to the registration of holders of mortgage notes in the creditor register (Gläubigerregister) of the competent land registry. However, such registration is not a perfection requirement for the mortgage security but rather serves administrative purposes.
There are special withholding taxes on interest payments at federal and cantonal level to the extent that foreign lenders are involved. A refund of the Swiss source tax (or reduction at source) will be subject to applicable double taxation treaty protection. General federal withholding tax on interest payments may also have to be looked at depending on the exact funding structure (banks, non-banks, double taxation treaties), etc. Depending on the location of the property, transfer taxes might apply to the direct and indirect transfer of a Swiss property. Real estate capital gains are either taxed by a special RCGT or by ordinary income taxes (which vary from canton to canton). Ordinary notarial and land registry fees will apply. Finally, it is always recommended to keep an eye on Swiss value added tax (VAT) aspects as well (with respect to transfers of Swiss real estate but also deemed servicing fees, etc).
Under Swiss corporate and Swiss tax laws, financial assistance and corporate benefit rules will apply to any upstream or cross-stream security, guarantee or joint liability. The rules are rather detailed and complex but, in a nutshell, the value of any such 'impaired' security will be limited to freely distributable reserves (that could be paid out as a dividend) of the Swiss company in question, subject to general Swiss federal withholding tax of 35%, if applicable.
The Swiss enforcement process is a court-guided process, the timing of which will very much depend on the behaviour of the borrower in question. However, in larger transactions, private sale mechanisms are often agreed contractually to avoid a lengthy process and a public auction with associated higher costs.
This is generally possible and frequently done, even though there are some residual uncertainties around the enforceability of such arrangements in the event of insolvency of the borrower. However, the general view of legal scholars is that Swiss insolvency administrators will be bound by such contractual arrangements as well.
Generally, lenders who merely financed a property will not become liable under environmental laws but the borrower may have become liable, of course, which may have an indirect effect on the financing and potential enforcement scenarios.
If a borrower becomes insolvent, security granted by a Swiss borrower will not become void automatically. It should be noted, though, that Swiss law knows the concept of avoidance actions, providing for hardening periods of one to five years. Upstream and cross-stream securities may also be limited in value. Enforcement actions may become the subject of official proceedings run by the court or insolvency administrator.
In Switzerland, regulatory responsibilities are shared among various authorities at federal, cantonal and municipal level. Pursuant to Article 75 of the Swiss Constitution, the Confederation shall lay down principles on spatial planning, which are binding on the cantons. Except for some specific regulations at federal level, zoning and building regulations are enacted by the cantons and implemented by the municipal building authorities. Accordingly, there are 26 cantonal zoning and building regimes. Any construction project and any change to an existing building or construction is subject to a building permit from the competent (typically local) authority.
Design, appearance and construction method requirements vary by zones. Typically, specific dimension and distance regulations apply. Buildings and land under cultural heritage protection or nature conservation areas are subject to particularly strict regulations.
Building permits must usually be obtained from the municipal authority where the project is located. The local authority co-ordinates with the cantonal authorities and further bodies involved in the granting of the building permit. Buildings located in non-construction zones require a cantonal building permit.
The following legislations apply: the Federal Act on Spatial Planning (Raumplanungsgesetz, or RPG); cantonal planning and construction laws (Planungs- und Baugesetz), and the municipal zoning and construction laws (Bau- und Zonenordnungen). In addition, various other federal and cantonal laws apply, such as the Environmental Protection Act (Umweltschutzgesetz), the Noise Control Act (Lärmschutzverordnung), the Clean Air Act (Luftreinhalteverordnung), the Water Protection Law (Gewässerschutzgesetz) and the Energy Law (Energiegesetz).
The building permit application must be filed with the competent authority (typically the municipal authority), which will publish it if all formal requirements are met. The building permit must be granted if the project is in accordance with all applicable regulations.
Third parties that are affected by the project (eg, neighbours) and organisations entitled to appeal may object.
Applicants and third parties that have objected the building permit have the right to appeal to the superior administrative authority against the relevant authority’s decision. The decision of the superior administrative authority may be appealed to the Administrative Court.
Formal agreements with the authorities are only permitted within a given legal framework (eg, infrastructural requirements). However, informal, not-binding negotiations with the authorities often take place before the building permit application is filed.
The competent authority must monitor the realisation of the project. Moreover, the completed project is subject to formal acceptance proceedings. Violations of the permit are subject to sanctions and the removal of illegal structures may be ordered.
Depending on the corporate structure of the buyer, including the ultimate beneficial owner or sponsor, newly established Swiss or foreign SPVs are used. Foreign SPVs are primarily domiciled in countries that have entered into double taxation treaties with Switzerland, to avoid withholding tax and ease an exit by share deals. Foreign SPVs domiciled in offshore jurisdictions are also used. Real estate investment funds also commonly invest in Swiss real estate.
A company with limited liability may be established by natural persons or legal entities. It requires a declaration in front of a public notary that the founder(s) is/are forming such company, lay down the articles of association therein and appoint the governing bodies. The company is entered in the commercial register of the place at which it has its seat and acquires legal personality once it has been registered in the Commercial Registry.
The most commonly used investment vehicle, a company limited by shares, must have a minimum share capital of CHF100,000, of which at least CHF50,000 must be paid up. Its little sister, the so-called partnership limited by shares, must have a minimum share capital of CHF20,000. For investment fund vehicles, the capital requirements are generally higher.
The governance requirements differ between investment vehicles requiring an approval of Switzerland’s Financial Market Supervisory Authority (FINMA) and investment vehicles not requiring any public approval. For the latter, general corporate governance rules apply. Authorisation for investment vehicles requiring FINMA approval is granted if, among others:
The cost varies strongly depending on whether it is a regulated or non-regulated investment vehicle and depending on the real estate assets and structure of the vehicle.
Basically, Swiss (private) law provides two types of purely contractual arrangements (as opposed to the rights in rem such as ownership and ground lease): the lease and the usufructuary lease. Public bodies may also grant public works constructions for certain infrastructure projects.
There are not different types of commercial leases.
Swiss tenancy law provides various mandatory provisions (typically in favour of the tenants).
Excessive rents are prohibited and tenants have the right to challenge them in court as being abusive.
Typically, the lease term is not below five years (due to the requirement of a minimum term of five years if the rent shall be subject to indexation). Frequently, the parties agree on options of the tenant to extend the lease. Lease terms may also be concluded for an indefinite period.
With the exception of minor repair works, all maintenance and repair costs must be borne by the landlord. Double-net and triple-net structures are valid subject to certain conditions (eg, the tenant must confirm that the transfer of maintenance and repair obligations to the tenant has been sufficiently reflected in the calculation of the rent).
Typically, rent is paid in advance, either monthly or quarterly.
The parties may agree on certain adaptations subject to changes of the interest rate level or, for leases with a minimum term of five years, the Swiss Consumer Price Index (so-called indexed rent).
Further, the parties may also agree on staggered rents (however, not in combination with indexed rents for the same period) and special types such as turnover rents.
If the landlord makes value-adding investments in the leased premises, it has the right to increase the rent unilaterally subject to certain statutory regulations.
Typically, Swiss tenancy law provides the framework for calculation of such rent increases.
Pursuant to Article 21 paragraph 2 No 21 of the Swiss VAT Law, the rent of real estate is not subject to VAT (with certain exceptions). However, for commercial leases, the landlord may opt for VAT taxation of the rent.
Typically, the lease agreement includes the obligation of the tenant to provide security for the payment of the rent before handover of the leased premises (rent deposit, bank guarantee). If the tenant carries out the fit-out, it must obviously bear such costs.
Maintenance and repair costs for a building and its surroundings (landscaping) are included in the ancillary costs to be paid by the tenant. The costs related to the common areas are allocated to each tenant separately (typically based on the share of its leased premises).
Costs and charges arising solely from the business operations of the tenant are typically borne by the tenant even if invoiced to the landlord. The costs related to the common services and infrastructure are allocated to each tenant separately (typically based on the share of its leased premises).
The owner must insure a building and pay such costs. Insurance costs must not be included in the ancillary costs.
Basically, the parties are free to agree on limitation in relation to the use of leased premises (they can even agree on an obligation to use; eg, for tenants in shopping facilities).
In addition, a sublease by the tenant is subject to the landlord's approval, but such approval may only be withheld if the tenant refuses to disclose the terms of the sublease, if the terms of the sublease are abusive, or if the sublease has major disadvantages for the landlord.
If a tenant wants to alter or improve the rented property, the landlord’s written permission is required. The landlord’s consent may be subject to the obligation of the tenant to remove its alterations at the end of the lease and to waive any rights to be compensated for the added value of such works.
Basically, Swiss tenancy law differentiates between commercial and residential leases only. Certain mandatory provisions only apply to residential leases.
In the event of a tenant’s insolvency, all rent receivables due become assets in bankruptcy. However, the lease does not end automatically: the landlord can request security for future rents. If security is not provided within a grace period, the landlord is entitled to give extraordinary notice and immediately terminate the lease contract.
Rent deposit, bank guarantee/surety, additional liability of a third party/affiliate.
Once a lease is terminated, the tenant has no right to occupy the leased premises. However, tenants may – within 30 days after the termination by the landlord or two months before the end of the fixed lease term.
Due to the tenant’s mandatory right to claim the extension of the lease, landlord’s rights in relation to legal measures are rather limited, unless it becomes obvious that the tenant will not leave on the agreed (and ordered by the court, respectively) date. Under these circumstances, it might be possible to evict the tenant on the date of termination.
Unless otherwise agreed, the notice period with regard to indefinite business leases is six months. Tenants are entitled to submit a request for extension of the lease term to a judge if the termination would cause undue hardship that cannot be justified by the landlord's interests. The maximum extension for commercial leases is six years.
Default in the payment of rent entitles a landlord to terminate a lease. However, the landlord must first grant a deadline of a minimum of 30 days for payment, combined with the announcement of termination in the event of further default, and may then terminate the lease with a notice period of another 30 days. The landlord may also terminate the lease if the tenant becomes insolvent (see 6.15 Effect of Tenant's Insolvency).
A tenant may terminate a lease if the landlord does not hand over the leased premises at the time agreed upon, or if, at the handover, the premises have defects that significantly impair their suitability for the intended use. During the lease, the tenant may give notice with immediate effect if the landlord is notified about such a defect and fails to remedy the defect within an adequate period.
In addition, both a landlord and a tenant may terminate a lease for valid reasons that make it impossible to continue the lease.
Tenants can be forced to leave. The duration of the process depends on court instances and can take several months or years.
The government or other authorities may not terminate private leases.
As consideration for the services performed by the contractor, prices are usually agreed as unit prices (Einheitspreise), lump sums (Globalpreise), or at a flat rate (Pauschalpreise). These prices are normally considered as fixed prices.
Unit prices determine the consideration for individual services that are listed as separate items in the schedule of services. They are defined for the individual units of quantity, so that the consideration owed for a service is computed after its completion. The quantities of services performed at unit prices are determined, depending on the terms of the contractor agreement, in accordance with their actual measure (by measurement, weighing or counting) or with their theoretical measure based on the underlying designs.
A lump sum may be agreed for individual services, for part of the project or for the whole of the project carried out by the contractor. It shall consist of a fixed amount of money. Agreements on lump-sum payments should be made only on the basis of complete and clear documentation (ie, detailed project specifications, designs and the like).
Flat-rate prices differ from lump-sum payments solely in that they are not subject to price adjustment clauses.
General and total contractor models are often used.
In the general contractor model, the owner uses an architect and engineering team for the planning. The owner either enters into a single planning contract with a consortium of planners/designers (often in the form of a simple partnership) or concludes individual contracts with each architect or engineer involved. For the execution of the construction work, the owner enters into a contract with a contractor who in turn uses subcontractors.
In the total contractor model, the owner contracts with a single company that assumes full responsibility for the planning and realisation of a project.
The contractor is liable for ensuring that the project is carried out free of defects and bears such liability irrespective of the cause of the defect (eg, negligent workmanship, use of unfit materials, unauthorised deviation from designs and instructions of the construction manager), and independently of fault.
If defects occur, the owner is entitled to defect warranty rights, such as the right of remediation, deduction and/or rescission. Unless otherwise agreed, the owner is to notify defects immediately (ie, within seven days). However, the owner and contractors often agree on an extended notification period of two years.
The owner’s defect warranty rights are subject to a limitation period of five years following acceptance of the project or a certain part of a project, respectively.
Parties are allowed to agree that an owner is entitled to monetary compensation if certain milestone and completion dates are not achieved. Moreover, the parties often agree on a penalty to ensure that milestones and completion dates are complied with.
It is common that owners seek such additional forms of security (in particular, guarantees or sureties of a Swiss bank or insurance company).
Contractors that have supplied labour and/or materials are permitted to a statutory lien, while designers/planners for the intellectual work (ie, plans, designs and the like) are excluded from such lien. The lien is entered into the land register only if, inter alia, the claim has been acknowledged by the owner or confirmed in a court judgment and may not be requested if the owner provides the contractor with adequate security.
There is an official inspection of the project by the competent authority of the local community before the project can be inhabited or used for its intended purpose.
Generally, the sale of real estate properties is exempt from VAT without credit of input VAT. However, with respect to commercial real estate properties, the landlord can opt to submit the rent to VAT and the seller can opt to submit the property sold to VAT. Accordingly, VAT applies to the sale, provided the buyer is (or will become) a taxable person and registered for Swiss VAT purposes, and the real estate property sold is not exclusively used for private purposes. In this case, the standard rate of 7.7% applies. Please note that all tasks relating to the construction of a new building for a landlord are subject to VAT. Accordingly, input VAT charges incurred on the construction can only be recovered if the landlord is exercising its option to submit the rent and the sale of the property to VAT.
Beside VAT, local transfer taxes, and notary and/or land registry fees apply. Each of the 26 cantons has specific laws and rules on these transfer taxes and fees. Depending on the location of a property transferred, these additional charges may be substantial, particularly as in some cantons notary and land registry fees are calculated based on the value of the property transferred. While a few cantons (such as the cantons of Zürich and Schwyz) have abolished the real estate transfer tax, all cantons are levying land registry fees. In cantons where the real estate transfer tax is not known or has been abolished, notary and land registry fees may be substantial and if computed based on the value of the property transferred, include a tax component as well. While in the cantons that have a separate real estate transfer tax a change of control in a so-called real estate property company by the sale of a majority stake in the shares triggers the transfer tax, notary and land registry fees are only triggered in the event of a change of title of the underlying property (and not by a sale of a majority stake in a real estate property company). Hence, with due regard to these local taxes, it may be worthwhile to conduct a comparison between the tax consequences of an asset vs a share transaction. In a few instances the overall charge of transfer taxes, notary and land registry fees may be lower in a share than in an asset deal.
In most of the cantons that have a real estate transfer tax the buyer is liable for payment of the tax. However, in a few cantons it is the seller or a 50:50 split applies between the seller and the buyer. In the case of a corporate restructuring an exemption from the transfer tax may be available and in some cantons the notary and/or land registry fees are reduced and tax should not hinder corporate restructurings. This also applies to real estate companies or a group of real estate companies contemplating a group internal restructuring. Real estate transfer taxes, notary and land registry fees are charged without regard as to whether the seller is realising a gain or loss. In most of the cantons payment of the tax (or even payment of notary and/or land registry fees) is secured by a first-ranking legal lien on the property sold and often the seller and the buyer are jointly liable for payment of the tax (or even payment of notary and/or land registry fees). Therefore, well-advised parties to a property sale and banks providing mortgage-secured funding to the buyer will take care that all taxes triggered, and all notary and land registry fees incurred are paid in advance or put on escrow by the relevant party.
The transfer tax rates in major cantons are as follows (in general, a percentage of the purchase price of the property): Zürich, 0%; Bern, 1.8%; Lucerne, 1.5%; Basle-City, 3.0%; St Gallen, 1.0%; Vaud (Lausanne), 3.3%; and Geneva, 3%.
In certain cases reduced tariffs apply.
The land registry fees in major cantons are as follows (in general, a percentage of the market value of a property): Bern, from CHF200; Lucerne, 0.2%; Basle-City, 0.1%; St Gallen, 0.2%; and Vaud (Lausanne), 0.025-0.7%.
In certain cantons the fee is calculated based on an official market value estimation. Please also note that the transfer of real estate property usually is subject to a notary fee that is added on top of the land registry fee.
For real estate capital gains taxes, see 8.4 Income Tax Withholding for Foreign Investors.
The pros and cons of an asset vs a share deal for the acquisition of a property portfolio need to be considered carefully. Beside the implications on the corporate income and/or real estate capital gains tax, transfer taxes, notary and land registry fees need to be taken into account. The outcome of such analysis may vary depending on the location of the properties sold. Furthermore, the set-off of gains and losses, the extraction of future profits, security deposits for Swiss taxes (in particular VAT) to be made by foreign companies and approval requirements for a future exit by the competent Swiss tax authorities need to be taken into account carefully. As in a share deal, a debt pushdown into the target is hardly possible and as limitations on upstream securities apply, the structure chosen needs to be discussed with the bank and savings made with respect to notary and land registry fees may be lost due to less advantageous funding conditions by the banks or the loss of tax-efficient interest deductions and/or acquisition costs. It is a case-by-case analysis and the location of the underlying properties has a crucial impact on the outcome of the analysis.
While a share deal does not trigger VAT, an asset deal may. However, if a portfolio of assets is sold, in general the notification procedure should be open and therefore no cash leakage due to a time-consuming payment and refund procedure should occur.
Some cantons and/or municipalities (eg, Geneva, but not Zürich or Zug) levy special taxes on the value of the real estate located in their territory. These have to be paid by the property owner.
Moreover, rental income is subject to federal, cantonal and municipal income tax in the canton/municipality where the property is located. While the federal corporate income tax rate is uniform in the whole country, the cantonal and municipal income tax rates may vary widely.
Generally, rental income from investments in Swiss properties earned by corporate investors is subject to Swiss federal, cantonal and municipal corporate income tax in the canton and the municipality where the property is located. The aggregate corporate income tax rate varies depending on the location of the property and may be anything between approximately 12% in the Canton of Schwyz and 24% in the Canton of Geneva. The same applies for individual investors buying Swiss properties. The personal income tax may be anything between something around 23% in the Canton of Schwyz and 48% in the Canton of Geneva. If the property held by an individual investor qualifies as a business (and not as a private) asset, social security contributions may be triggered on top of this. The tax is assessed based on a tax return to be filed by the Swiss or foreign investor. No withholdings apply.
Interest accrued on debt funding is deductible, which is also true with respect to shareholder or other related party advances. However, thin capitalisation rules apply and the amount of the debt funding and the interest rate applied should remain within the periodically published safe harbour limits. Otherwise a constructive distribution may be assumed that would not allow for an income tax-effective deduction and trigger the (dividend) withholding tax of 35%. Buildings may be depreciated over their useful lifetime and the depreciation deductions may be deducted from taxable income. The straight line or the reducing balance depreciation method may be chosen freely. Land cannot be depreciated. However, a blended rate may be applied if land and building values are not split and do not have separate book entries. Safe harbour depreciation rates are available for the depreciation methods and the blended rate. In the event of a sale of the property, recaptured depreciation deductions are subject to corporate income tax. Accordingly, depreciation deductions taken that do not reflect real losses of value lead to a mere income tax deferral. In general and with due regard to the current negative interest rate environment, in a share deal scenario deferred income taxes are fully deducted from the purchase price as a deferred liability.
Interest paid on mortgage-secured funding advanced by a bank (or other lender) outside Switzerland to a Swiss borrower is subject to a local interest withholding. The applicable rate depends on the location of the property securing the loan. Again, depending on the location of the property, the withholding tax may be anything between 13% and 33%. The interest withholding is not levied if the investor is a resident of a benign treaty jurisdiction where the interest clause in the treaty excludes taxation in the source country.
The holding of a property in Switzerland is also subject to Swiss wealth tax (for individual investors) or capital tax (for corporate investors), respectively. The maximum tax rates for the wealth/capital tax vary significantly between the different cantons and municipalities; from around 0.11% in the Canton of Nidwalden to 1.03% in the Canton of Geneva.
Appreciation gains realised on the disposal of properties are subject to taxation. Depending on the cantonal regime, two systems apply: (i) the so-called monistic system where any appreciation gain, be it on a private or a business asset, is subject to a separate cantonal and municipal real estate capital gains tax; among others, this system applies in the cantons of Zürich and Berne; and (ii) the so-called dualistic system where any appreciation gain realised on the disposal of a business asset remains subject to corporate income tax (and no real estate capital gains tax is levied); among others, this system applies in the cantons of St Gallen and Zug. While corporate income tax is a flat tax that applies without regard as to whether the property disposed of was held for a short or long period, progressive tax rates apply under real estate capital gains tax. If the holding period was less than one year, some cantons and municipalities levy a real estate capital gains tax of 60% (on top of the federal income tax). If a long holding period applies, the real estate capital gains tax may be 20% or in some cantons even less than that. Accordingly, whether the gain realised by a corporate investor will be subject to corporate income tax or real estate capital gains tax may have quite some impact on the after-tax performance of an investment. Again, in the case of a corporate or group internal reorganisation the tax may be deferred as the tax should not hinder such restructurings.
Dividends (and other distributions) paid by Swiss companies are subject to withholding tax of 35%. The withholding has to be deducted from the dividend in advance and has to be paid by the debtor of the dividend; ie, the company paying the dividend (a reporting procedure is only available in the case of a Swiss parent company or a parent company in a benign double tax treaty state). For withholding tax purposes, it is therefore advantageous if the investor (a shareholder of the SPV) is domiciled in a country that has entered into a double taxation treaty with Switzerland. Unless this is the case, it is advantageous to use a foreign SPV to avoid withholding tax.
As shown above, a corporate investor may apply income tax-effective interest and depreciation deductions. Furthermore, the costs for maintaining the property in good shape and fit for its purpose as well as income and capital taxes accrued and provisioned may be deducted from the income tax base. The same is true with respect to all expenses relating to the property management and letting.
The imminent Swiss federal tax reform legislation (subject to a referendum and entering into force in 2020 at the earliest) does not have any impact on commercial real estate investment in Switzerland.
Switzerland was regarded as a stable investment environment with a steady regulatory landscape for a long time. However, in recent years, regulatory insecurities have increased due to a range of political initiatives, which touch upon several areas relevant to the real estate sector. As an example, political efforts to limit the free movement of people have led to a significant decrease in immigration into Switzerland. Additionally, a tax reform intending to abolish the federal tax on the imputed rental value of properties is currently under discussion. Other popular initiatives deal with the phenomenon of urban sprawl and, in this context, intend to restrict construction activities.
Real estate investments
Nevertheless, in 2018, the Swiss economy continued to grow, not least due to prevailing low and even negative interest rates. In this environment, real estate investments in Switzerland continue to be attractive, in particular because prevailing negative interest rates put pressure on institutional investors. According to a report published by JLL Switzerland, in the first three quarters of 2018 Swiss real estate investment funds collected approximately CHF2.2 billion of fresh capital, 45% more than in the previous year (JLL, Report: Büromarkt Schweiz – 2018). At the same time, however, according to data published by UBS, for the first time since 2013, the value of interest in Swiss real estate investment funds has declined and the average distribution yield has decreased to 2.6%, compared to 3.5% in 2008 (UBS, Real Estate Focus 2019). The net return for residential property and retail spaces is, again, lower than in the previous year.
For office spaces the net return has been, for several years now, at a record low, but increased significantly in 2018 compared to the previous year. According to UBS' analysis, this trend is expected to continue due to an increase of employees in office sectors, which leads to a higher demand for office spaces. Moreover, although construction activity stayed lively in 2018, requests for construction permits have declined significantly (around 10%). As a consequence, rents and, thus, return rates, are likely to increase, though only after 2020 when construction activities are expected to decline.
The net return of commercial properties in Switzerland was, on average, close to 5% over the last five years, thus significantly lower than for residential properties. However, the demand for commercial spaces increased in 2018 and, according to an analysis published by PwC, this trend is expected to continue (PwC, Immospektive Q4/2018). As a consequence, the oversupply starts declining, which allows property owners to increase rents for commercial spaces. In Zurich, for instance, vacancies in the Central Business District, according to JLL Switzerland, have been cut in half since 2014 (JLL, Report: Büromarkt Schweiz – 2018). Already in 2018, rent for commercial properties in Switzerland increased 4.4% compared to the previous year. This does not, however, change the fact that rents for commercial properties are still at a record low in Switzerland.
Prices paid for residential properties are on the rise in Switzerland. Thus, the prices for condominiums show an increase of 2.6%; for single-family homes, the increase is even higher at 7.2%. According to an analysis published by PwC, this trend is expected to continue due to a strong economy, a falling unemployment rate and continuously low costs for financing (PwC, Immospektive Q4/2018). Moreover, indications for a real estate bubble in Switzerland decreased in 2018 and, for the first time since 2012, the UBS Swiss Real Estate Bubble Index is not in the risk zone (0.87 index points). In the rental residential sector, vacancies continue at a record high (1.7%), mostly due to an excess in construction of rental apartments, and rents are declining. There are, however, significant regional differences. In major Swiss cities, the number of vacant rental residential properties has even decreased.
Legal and Tax Implications
General trends and developments in transaction structures
A clear trend in larger Swiss real estate transactions is increased legal and structural complexity. There are several elements that contribute towards that increase.
One reason is the fact that in the current sellers' market, share deals are playing an important role as this transaction form is typically more tax-efficient for sellers. Share deals require both parties to look at a transaction, not just from a pure real estate perspective, but also to bring tax and accounting expertise to the table. If structured correctly, for example, as a tax fee quasi-merger, share deals have high cost-saving and tax-saving potential. A recent example of a share deal that was eventually structured as a quasi-merger is the acquisition of Immobiliengesellschaft Fadmatt AG by Mobimo Holding AG in June 2018 for CHF183 million.
Another reason for the increased complexity is that sophisticated M&A market practice is increasingly penetrating real estate transactions, both for share deals and for regular asset deals. For example, detailed warranty limitation concepts with de minimis amounts, thresholds and liability caps are becoming more widely used. At the same time, buyers try to push for extended warranty catalogs. See also Warranty Insurance for Real Estate Transactions, below.
Complexity is further added when entire portfolios are being sold. When the seller is a legal entity registered in the commercial registry in Switzerland, portfolio transactions are typically done by way of a so-called 'asset transfer' under the Swiss Merger Act (Vermögensübertragung). Different than a regular asset deal, an asset transfer allows for the transfer of an entire real estate portfolio, even if located in different cantons, in a single public deed. The transfer of title is then perfected by registration of the public deed in the commercial registry at the domicile of the seller. The registration in the land registry is made subsequently, with declaratory effect only. Depending on where the properties are located and where the seller is registered, substantial cost savings can be obtained compared to a regular asset deal. Examples of recent large asset transfers are the sale of a portfolio consisting of 38 Swiss real estate properties by Swiss Life AG for approximately CHF500 million in December 2018 and the sale of a portfolio of 35 Swiss real estate properties by Bâloise for approximately CHF275 million.
Warranty insurance for real estate transactions
Taking out warranty insurance has been a trend for several years in the M&A market and has now passed over to the real estate market. With the real estate market having become a competitive sellers' market, buyers are able to offer sellers a better deal by shifting warranty risks from the seller to the warranty insurance. For example, we have seen sellers' liability caps being reduced to as little as CHF1. In a competitive bidding, a buy-side warranty insurance can often be the decisive difference between winning or losing a bid. Furthermore, we see warranty insurance particularly useful where the solvency of the seller is questionable, for example, because it is a special purpose vehicle, a foreign company or a large number of individuals with no joint liability. In terms of transaction structure, warranty insurance can be used in share deals and asset deals. The typical minimal insured sum is CHF10 million. Insurance premiums vary from tender to tender but typically range between 0.9% and 1.5% of the minimal insured sum.
In terms of insurance coverage, one can get coverage for standard representations and warranties in a real estate sale and purchase agreement with the exception of certain environmental matters, which have to be looked at on a case-by-case basis. However, no coverage is provided under a warranty insurance for matters that have been identified as material risks following due diligence. This means that a warranty insurance is not a substitute for an indemnity.
The insurance policy usually provides for a waiver of subrogation of the insurer against the seller, except for willful deceit and intent.
Share deals for pension funds and investment funds
Traditionally, pension funds and investment funds are reluctant to engage in share deals. There are various reasons for this, including: (i) share deals are often more complex than asset deals; (ii) share deals are somewhat 'unknown territory' for funds; and (iii) most importantly, pension funds are exempt from income taxes and investment funds are subject to lower corporate income tax rates than real estate companies in many cantons. As a result, from a tax point of view, at least at first glance, it does not make sense for a fund to acquire real estate via a share deal and hold it indirectly through a corporation, as the tax burden of such indirect holding is higher than that of a direct holding. The downside of this attitude is that funds often miss attractive opportunities: as outlined before, there is a trend towards share deals, at least when it comes to larger transactions and portfolio transactions. These transactions are often the most attractive as they allow significant volumes of real estate to be purchased and internal and external efforts and transaction costs to be minimised at the same time; these efforts and costs are often the same in a small and in a large transaction, as a result of which larger transactions provide opportunities for synergies and cost savings.
What pension funds often miss is the following: in recent years, the Swiss Federal Court has clearly stated that pension funds can also rely on certain legal provisions regarding the reorganisation of corporations (cf BGer 2C_199/2012). As a result, it is often possible for a pension fund to acquire real estate in a share deal (and, therefore, catch an opportunity) and later reorganise the indirect holding of the real estate into a direct holding without any negative tax consequences. As a result, the pension fund can then take advantage of tax exemption in the future. While the situation for investment funds is not exactly the same, there are acquisition and structuring opportunities which yield the same or a similar result as for pension funds.
To sum up: funds should become less conservative when it comes to share deals. Unless they change their approach, funds will miss opportunities, in particular, in a market which has become more and more competitive in recent years. They can seize these opportunities without having to incur any (tax) disadvantages if they have a more open mind regarding alternative transaction structures.
Sale and lease back
Despite the entry into force of the IFRS16 standard on 1 January 2019, which requires lessees to recognise assets and liabilities for most leases, there are still a number of sale and lease back transactions done every year. The main reason for that volume of transactions probably lies in the fact that yields are still very low and the market is, therefore, very attractive for divestments. At the same time, the economy is going strong, allowing sellers to pay high rents, which disproportionally increases the sales price.
There are two main types of sellers in sale and lease back transactions. First, there are the large corporates, typically banks and insurance companies, who want to divest real estate for capital and liquidity reasons. Transactions from these sellers are also often linked to an envisaged reduction in used space, be that through shared offices or job cutting in Switzerland. Therefore, the lease back period on large corporate sale and lease back transactions is often shorter in nature, which typically can be compensated by a high re-usability of the respective buildings. The second type of seller in sale and lease back transactions is the small-to-medium-sized manufacturing company. Such sale and lease back transactions are often initiated by their private equity owners, who use this as a technique to free up some liquidity in their investment.
In sale and lease back transactions, the lease agreement is typically in the form of a triple net lease. These lease agreements shift basically the entire repair and maintenance obligation to the tenant, de facto creating a bond-like investment for the landlord. This shift in responsibility is eventually in the interest of both parties because the tenant has owned and operated the property for a number of years and is, therefore, in a much better position to make CAPEX estimates than the buyer as the future landlord, resulting in a higher sales price. Furthermore, many tenants also see their real estate as a core strategic asset, which they need to be able to adjust to changing market demands and trends. A good example of this are certain schools for hotel management operated in the French-speaking part of Switzerland, where it is business-critical that the tenant remains in control of the look and feel of the leased objects.
With the abovementioned exceptions, sale and lease back lease agreements often have a very long term of 15 to 20 years with several extension options. On the one hand, these long terms provide the tenant with sufficient predictability in terms of its location and time to write off investments. On the other hand, long terms generate very high sales prices because they take uncertainty out of the discounted cash flow model underlying the real estate valuations of the buyers.
Optimisation of real estate capital gains tax
The Swiss tax system consists of three different levels: taxes are levied at federal, cantonal and communal level. At federal level, gains resulting from the sale of properties belonging to a person's business assets are subject to income tax or corporate income tax. At cantonal/communal level, gains from all kinds of properties are subject to taxes. In cantons which apply the so-called 'monistic system,' the value increase of a property is taxed at the time of a sale with real estate capital gains tax. This is the case in both asset deals and share deals. The value increase of a property is the difference between the market value of such property (typically the sales price) and the investment costs, whereby the investment costs include the original purchase price plus any value-enhancing investments made by the owner since the acquisition. Cantons which apply the monistic system include Zurich, Berne and Basel – ie, important cantons, which are often the focus of investors when they look for investments in Switzerland.
There is a twist in the system outlined above: if a seller has owned a property for more than 20 years, in most monistic cantons, an owner may choose in a sales transaction whether, for purposes of real estate capital gains tax, the value increase of a property is calculated as the difference between (i) the market value of the property and the original purchase price plus any value-enhancing investments made by the owner since the acquisition, or (ii) the market value of the property and the property's market value 20 years ago plus any value-enhancing investments made by the owner in the last 20 years. Thus, if the property's market value 20 years ago plus any value-enhancing investments made by the owner in the last 20 years is higher than the original purchase price plus any value-enhancing investments made by the owner since the acquisition, there would be a gap between the higher market value of the property 20 years ago (plus investments) and the lower original purchase price (plus investments). This gap is tax free – ie, it is not subject to real estate capital gains tax or any other tax.
This mechanism can be very attractive in future sales transaction: after the Swiss real estate market reached a peak in 1990, there was a steep and constant decline in real estate prices until about 1998/1999. As a result, in the past ten years, it was seldom attractive for a seller to base real estate capital gains tax on the market value of the property 20 years before a sales transaction as such market value was often lower than the original acquisition costs. As a result, sellers most often paid real estate capital gains tax on the 'real' value increase of a property – ie, the difference between the market value of the property and the original purchase price plus any value-enhancing investments. This is now about to change: since about 1999, real estate prices in Switzerland have been on a constant rise until today (with the exception of a temporary drop around 2002/2003); regarding the development of Swiss real estate prices see, for instance, Immobilienmarkt Schweiz: Experten von IAZI rechnen 2021 mit einer Trendwende. As a result, in a future transaction, the market value of a property 20 years before a transaction (plus investments) will often be higher than the original purchase price (plus investments). This is particularly true if a property was acquired in the declining market between 1991 and 1998. Thus, there is an opportunity to create a gap for the purposes of calculating real estate capital gains tax. As this gap is tax free, there is an opportunity for sellers to avail of significant tax savings in future transactions.
Set-off of gains and losses in real estate transactions
The Swiss tax system not only consists of three different levels – federal, cantonal and communal – but the 26 cantons also have different tax systems. As a result, it is rather complex to successfully navigate through this jungle. A topic which is often overlooked in real estate sales transactions is the possibility to (i) set off gains from the sale of one property against losses from the sale of another property, and to (ii) set off gains from the sale of real estate against losses accrued in the non-real estate business of a seller. These options may become more relevant in the future as there is a common understanding that the Swiss market is at a peak concerning real estate prices rather than at a low, as a result of which losses in real estate transactions in Switzerland may become a reality again after 20 years of increasing prices.
As an example, for the purposes of real estate capital gains tax, the Canton of Zurich allows relevant gains and losses from the sale of different properties to be set off if these properties are sold to the same buyer (§ 223 Zurich Tax Act). A set-off is, however, not possible if the properties are sold to different buyers. Thus, in a situation where several properties are sold and where a seller will avail of a gain on some properties but suffer a loss on others, the seller should always check whether the properties can be sold to one buyer. As real estate capital gains taxes sometimes account for up to a third of the value of a real estate transaction, the sale of profit and loss-making properties to one buyer can be more attractive than a sale of these properties to several buyers even if the one buyer offers a lower total purchase price than the price that could be achieved if the properties were sold to several buyers. Many cantons have similar rules, as in the Canton of Zurich. There is one caveat: the set-off of gains that are subject to real estate capital gains tax against losses is only possible if the properties are located in the same canton. A set-off across cantons is not possible.
The rules are different when it comes to the potential set-off of property gains that are subject to real estate capital gains tax against losses of the non-real estate business of a seller. The Swiss Federal Court decided that such property gains can be set off against losses from the non-real estate business of a seller if such real estate gains and non-real estate losses are based in in different cantons. However, until recently, the Canton of Zurich did not allow such a set-off of real estate gains against non-real estate losses if both gains and losses are based in the Canton of Zurich. In June 2018, the Canton of Zurich adopted a new provision in its Tax Act (§224a) which now explicitly allows the set-off of real estate gains against non-real estate losses even if both gains and losses are based in the Canton of Zurich. Other cantons may have different rules.
While the rules regarding the set-off of real estate and non-real estate gains and losses within and across cantons are rather complicated, a seller of real estate who either has accumulated a loss in the selling entity or who will suffer a loss upon sale of the property itself should always check these rules; they may provide opportunities for significant tax savings.
The Federal Act on the Acquisition of Real Estate by Foreigners, commonly referred to as 'Lex Koller,' restricts the acquisition of non-commercial properties in Switzerland by foreigners. Prior to acquiring a property, a foreigner must ensure that the acquisition of such property is not prohibited. Restrictions apply to individuals who are neither Swiss nor EU or EFTA citizens domiciled in Switzerland nor foreigners with a permanent residence permit. Furthermore, restrictions apply to foreign legal entities and partnerships or foreign-controlled legal entities and partnerships domiciled in Switzerland.
Foreigners are entitled to acquire commercial properties, main residences if they are acquired in an asset deal and not in a share deal, shares in listed real estate companies and units in regularly traded real estate funds. Lex Koller's remaining key restriction is the prohibition of acquisition of residential properties by foreigners for investment purposes.
In the last couple of years, there have been numerous political discussions, initially about liberalising the Act, and, more recently, about tightening it. For the time being, the Act remains unchanged. However, due to the political trend of applying the Act rigorously, it can be observed in real estate transactions that the cantonal authorities have become quite anxious about making no mistake, and even clear-cut cases are put under scrutiny. More often than in the past (and sometimes more than is reasonably required), a formal Lex Koller ruling must be obtained, and this has a significant impact on the timing of the closing of a transaction because the procedure can easily take up to three to five months, depending on the complexity of the acquisition structure and the canton. The consequences of a violation are severe: the transaction is null and void, it must be undone, and there may even be penal consequences. Thus, it is highly recommended to get a formal approval whenever a case is doubtful. This is usually the case when foreign investors are involved and the underlying real estate asset does not clearly qualify as commercial property. As an example, this is the case with mixed-use properties, properties with vast land reserves or properties used similar to a hotel but not as a hotel (such as boarding houses, student residences, retirement homes, etc).
Other regulatory trends and developments
Switzerland has long been politically very stable with respect to real estate related laws. In recent times, however, a number of legislative proposals and initiatives have been lodged with effect on real estate investments.
For example, there has been a recent initiative by a young socialist party intended to freeze the size of the building zone to that of today's, prohibiting any future transfers of agricultural land into building zones. In February 2019, however, Swiss voters clearly voted against that initiative. At the same time, there is a government process under way which requires cantons to downsize their building zones to their envisaged usage for the next 15 years. For many cantons this means having to 'down-zone' land from the building zone into an agricultural zone or other non-building zones. Individuals affected by such downgrading may have a claim for indemnification.
For upgrades, in zoning law there is currently a process under way to introduce an extra tax on the value increase resulting from 'up-zonings.' Swiss federal law only requires the introduction of a tax on the value increase created by up-zoning a real estate property from the agricultural zone into a building zone. Many cantons, however, are contemplating applying this tax also for up-zoning within the building zone (eg, from a zone allowing one-storey buildings to a zone allowing three-storey buildings). This development is of particular importance to real estate development companies since they traditionally buy underdeveloped land with a view of up-zoning and development.
Another important regulatory development is the limitation of second homes (eg, holiday homes). In essence, this new body of law prohibits building permits for the creation of second homes in communities with a second home ratio of more than 20%, which basically covers the entire mountain area of Switzerland. An exception to this prohibition is available if the new second home is operated for tourism purposes. To fall under this category, the second home would have to be permanently offered on the market at current conditions for short-term usage. Second homes may also be constructed in connection with hotel projects provided that, among others, the usable floor space of the second home does not exceed 20% of the overall usable floor space of the hotel project. Loss-making hotels that have been running for at least 25 years may also be converted into second homes as a last resort. Similar exceptions are available for second homes in protected buildings. Homes which were rightfully constructed or bindingly approved before 12 March 2012 are exempt from these limitations regarding second homes and may, therefore, be discretionarily converted from first homes into second homes and vice versa.
Despite certain regulatory uncertainties, real estate investments in Switzerland continue to be attractive. In particular, in larger transactions, the buyers' market is currently dominated by Swiss pension funds, life insurers and foreign institutional investors; Swiss pension funds and life insurers are forced to invest in Swiss real estate to secure stable returns to satisfy the claims of their beneficiaries. Although real estate prices in Switzerland are high and consequently returns are rather low for a Swiss pension fund and a life insurer, a Swiss real estate investment is still more attractive than depositing cash with the Swiss National Bank at negative interest rates. For many foreign investors, Switzerland's stable political and economic environment as well as the strong Swiss franc provide a hedge against many uncertainties in their home countries.
The increased presence of foreign investors in the Swiss real estate arena has fostered more sophisticated and more complex transaction and real estate holding structures: while foreign investors appreciate the stability of Switzerland, they are typically looking for higher returns than the rather conservative Swiss investors. As it is now hardly possible to buy Swiss real estate at modest prices, higher returns can primarily be achieved by more sophisticated legal and tax structuring of transactions. As foreign investors are often used to more complex transactions from their home countries, they apply the same strategy in Switzerland as well. This is one important reason that explains the increased complexity and sophistication of real estate transactions in Switzerland in recent years. There is little doubt that this development will continue.