The main sources of real estate law in Mozambique are laws, decrees and regulations.
There was a drastic reduction in the volume and speed of transactions in the real estate and construction markets in 2021 due to the closure of trade. This was reflected in the rental market, with entrepreneurs negotiating with property owners for reductions in rent. There was a feeling of uncertainty in the real estate market due to the negative impact on the sector of construction. Most of the real estate sector has also been affected by the temporary departure of foreigners, embassies and international organisations.
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No information is available in this jurisdiction.
The most important areas of law for an investor to consider are:
The laws applicable to the transfer of property ownership are:
Special laws are applicable to specific types of property.
The transfer of immovable property begins with the updating of the property matrix followed by the payment of the real estate transfer tax (SISA) fee, which is 2% of the value of the property (Decree No 46/2004 dated 27th October), followed by the signing of the publicity deed of the contract of purchase and sale in notary, item a) of Article 85 of the Notarial Registry Code, (Decree 4/2006 dated 23rd August) and subsequent registration at the Land Registry Office, Article 2 of the Land Registry Code (Decree-Law No 2/2018 dated 23rd August) and finally the registration of the property title in the urban planning department.
Land registration is mandatory under the terms of paragraph b) of Article 2, in conjunction with Articles 6, 46 and 50 of the Land Registration Code.
Title insurance is not common in Mozambique.
No new processes or procedures were implemented because of the COVID-19 pandemic. Processes continued as usual, with only some restrictions on access to public buildings and tenders were normally made on a scheduled basis.
Real estate due diligence is carried out by visiting the property to be acquired followed by a request for updated information from the relevant authorities (eg, Land Registry Offices and Municipal Council/Department of Urbanisation and Physical Planning) for municipalities that have registration services. However, for a real estate project it is advisable to abide by the points mentioned in the Land Law (Law No 19/97 dated 1st October) and in the Land Law Regulation. Verification of the authorisation for the use and benefit of land is required from the Services of Geography and Cadastre (for non-municipalised areas or areas that do not have cadastral services) or the District Governments (which have cadastral services) with the District Planning and Infrastructure Services. During the COVID-19 pandemic, the processes continued as usual, despite some limitations with public institutions due to limited access, advance booking and rotation, which significantly slowed down the process.
The guarantee and execution of a public deed of the purchase and sale contract in a notary's office is registered with the Land Registry Office of the area where the property is located so that it can be enforced against third parties. (Articles 6 to 10 of Law No 2/2018 dated 23rd August of the Land Registration Code.)
Before starting the transaction, the buyer must consider the following factors:
If there is a false declaration by the seller, it is common to resort to the terms and conditions contained in the contract entered into. If there has been a misunderstanding, the parties are free to resort to the courts or mediation and arbitration centres to resolve the dispute. Warranty insurance is not used.
The most important areas of law for an investor to consider are:
Environmental responsibility applies to those who commit acts harmful to the environment under the terms of Article 26 of Law No 20/97 dated 1st October, in accordance with the Environment Law.
As one of the general principles of the territorial planning process, responsibility for repairing any damage that may have affected the quality of the environment lies with the relevant public or private entities under the terms of paragraph e) of Article 4 of Law No 19/2007 dated 18th July.
The buyer must go to the urban planning department of the area where the property is located to obtain information related to the purpose for which they intend to use this property. Information can be obtained about the urban structure plan as well as the detailed plan in Article 21 of Law No 19/2007 dated 18th July and Article 10 of Decree 23/2008 dated 1st June (Articles 4 and 5 and 43 of Law No 60/2006 dated 26th December).
It is possible to conclude specific development agreements with the competent public authorities to facilitate the project, as long as:
The expropriation process and its principles are provided for in the Constitution of the Republic of Mozambique and other Ordinary Laws. The Constitution of Mozambique establishes the principle that expropriation only occurs in the public interest and recognises and guarantees the right to fair compensation.
According to Articles 68 to 71 of Law No 23/2008 dated 1st July, the expropriation process begins with notification to the holder of the rights over the property to be expropriated, made by the entity that proposed the expropriation of the property in question. The notification document must contain the following:
The property must be registered for purposes of paying municipal taxes. In the transfer of the property, the tax on the transfer (SISA) is paid corresponding to 2% of the value of the business (Decree No 46/2004 dated 27th October). Stamp duty is due for the granting of contracts for the transfer of the property right, the applicable rate being 0.2% of the transaction value, according to the Stamp Tax Table attached to the Stamp Tax Code (CIS), by the purchasers of property rights, as provided for in subparagraph b) of the 3 of Article 2 of the CIS approved by Decree No 2/2016 dated 6th January).
When there is a change of control in a corporation or partnership, stamp duty fees, capital gains taxes, registration costs for new partners and costs for publication in the Official Gazettes are charged.
All property nationalised by the State of Mozambique after independence cannot be transferred to foreign individuals or companies whose capital is majority owned by foreign entities or, regardless of the percentage held by national entities, if the number of foreign shareholders is greater than the number of national shareholders.
Foreigners can only acquire property in Mozambique that has never been owned or nationalised by the State (Decree No 2/91 and Ministerial Diploma No 97/92 dated 8th July.
To finance commercial real estate, it is first necessary that the purpose of the intended commercial real estate is known. If a national or a foreigner wants to obtain financing, whether the company is incorporated in Mozambique or not, the following must be performed or assessed:
The loan limit is determined according to the customer's indebtedness, capacity to repay and assessment of the project or property.
In the case of real estate financing, it must be ensured that the property will generate sufficient profits to cover the monthly loan repayments.
There are different financing options that can be acquired through a mortgage, credit or leasing.
The most common modality used as collateral has been the mortgage of the financed property, which can include the mortgage of another property that can be mortgaged. But mortgages can also be created on tangible movable property (eg, aircraft, ships, vehicles), subject to registration as these are equated with immovable property. Mozambican law provides for guarantees on assets that give the creditor the right to be paid from the proceeds from the sale of the asset or its income, with preference over any other creditor's rights. The pledge on movable and intangible assets is defined as payments or receipts in foreign currency that are not intended for capital transfer, such as payments or receipts related to foreign trade, unilateral transfers without payment or others that are not subject to authorisation by the Central Bank of Mozambique (BCM) (Article 3 (yy) of Notice No 20/GBM/2017 dated 27th December; Article 19 of Law No 14/2013 dated 12th August; Article 686 of the Civil Code; and Law No 11/2009 dated 11th March).
It should be noted that the pledge regime established in Articles 666 to 685 of the Civil Code was replaced by the law on mobiliary guarantees: Law No 19/2018 dated 28th February and Decree 7/2020 dated 10th March.
There are restrictions that apply to property previously nationalised by the State of Mozambique that cannot be encumbered in favour of national or foreign entities, pursuant to Article 16 of Decree No 2/91 dated 16th February.
Payments made to a foreign creditor as a guaranteed document or loan agreement, have no restrictions, and the payment may be made as an income consignment, provided that the provisions of Law No 11/2009 dated 11th March, combined with Notice 20/GBM/2017 dated 27th December are applied.
The constitution of guarantees, namely mortgages on real estate, presupposes the payment of taxes, such as stamp duty, in accordance with the respective Code, approved by Decree No 6/2004 dated 1st April, combined with Decree No 38/2005 dated 29th August. In addition, fees are due for the execution of the public deed of the constitution of the mortgage and for the respective registration, in accordance with the Emoluments Tables of Notary and Land Registry Acts, approved by Ministerial Order No 2/2016 dated 6th January.
Such requirements depend on the will of the owner of the property (Article 405 No 1 of the Civil Code). In accordance with the principle of the private autonomy of the parties, it is possible to give valid security in accordance with Article 405 Law No 1 of the Civil Code. The lender must present the terms and conditions necessary for the financing. For a legal entity, the borrower must attach the respective documentation. If the borrower has real estate, their ownership must proved. However, if the borrower has only one area where they intend to build they must attach the respective title of right of use and benefit of the land.
When the borrower defaults on payment of a debt, the creditor, in principle, summons the defaulter to pay within a certain period and warns them of possible termination of the contract and consequent execution of the guarantees provided. Financing contracts usually contain clauses protecting the creditor, such as pari passu and negative pledge. During the COVID-19 pandemic, the Bank of Mozambique implemented measures that allowed commercial banks to maintain liquidity and control interest rates with regard to default by borrowers.
The creditor is free to enforce the guarantees provided for the fulfilment of the obligation. During the COVID-19 state of emergency, only judicial processes considered urgent, such as precautionary measures or criminal processes with defendants in prison, could follow their normal terms. The others were suspended. However, with the lifting of the state of emergency and transition to normality, the courts resumed pre-pandemic operations.
Credit and financial institutions may, by agreement with the borrower, re-finance or increase the treasury, if the guarantees provided in the first contract are sufficient to cover the second financing. In general terms, the law gives the creditor the right to demand the reinforcement or substitution of the guarantees when they are not sufficient for the security of the obligation, under Article 701 No 1 of the Civil Code.
In general terms, the parties are free to subordinate existing credits to a new financing contract, within the scope of the principle of private autonomy, provided for in Article 405 No 1 of the Civil Code.
Environmental responsibility applies to those who engage in activities that are damaging to the environment, in accordance with Law No 20/97 dated 1st October, under the terms of the environmental laws. However, if the tenant exercises certain potentially dangerous activities in the leased property that may endanger the environment, the responsibility is objective, under the terms of Article 26 of the referred law.
The declaration of insolvency determines the early maturity of all debts, the suspension of all actions and executions against the debtor. All creditors must claim their claims in the records of the special insolvency action, in accordance with articles 6(1), 7(2) and 71 of the Juridical Regime of Insolvency and Judicial Recovery of Commercial Companies, approved by Decree-Law No 1/2013 of 4th July.
Since 2017, the Central Bank in Mozambique has adopted a policy of fortifying the national currency and favouring the Prime Rate over the LIBOR index. Commercial banks have been contracting loans only in national currency. However, nothing prevents an investor from requesting authorisation from the Bank of Mozambique to contract in foreign currency, under the terms of the Foreign Exchange Law, approved by Law No 11/2009 dated 11th March, combined with Notice No 20/GBM/2017 dated 27th December.
In Mozambique, there is a legal regime that regulates urban land, approved by Decree No 60/2006 dated 26th December. Under the terms of this regulation it is the responsibility of the Municipal Assemblies and District Governments to approve the zoning plans as well as the preventive measures and regulatory norms thereof.
All construction or repair works must be authorised by the municipal, provincial or district authorities. Where there are no municipalities, construction is authorised according to the area and municipal by-laws and by-laws on urban projects.
The applicable legislation is, inter alia, the Land Law, approved by Law No 19/97, of 1 October 1997, the Urban Land Regulation, approved by Decree No 60/2006, of 26th December 2006, and the Land Law Regulation, approved by Decree No 66/98, of 8th December 1998. It is important to note that the National Land Policy approved by Resolution No 10/95, of 28th February, is under revision, which will culminate in the amendment of the current Land Law.
The interested party shall submit the concession application for the use and benefit of the land to the municipal or governmental authorities, where there are no municipalities, in accordance with the territorial development plan, in accordance with the Territorial Planning Law, approved by Law No 19/2007, of 18th July, and its regulations, approved by Decree No 23/2008, of 1st July, are applicable. Territorial development projects at all levels, provincial, district or municipal, shall adhere to the principles of public participation of citizens from local communities or any other interested parties.
The decisions of both local authorities and district governments may be challenged, hierarchically or in a contentious manner, in administrative courts, as provided by Article 108 of the Local Authorities Law, approved by Law No 6/2018 dated 3rd August and Article 153 of Law No 14/2011 dated 10th August, which regulate the formation of the Will of Public Administration and establishes the norms of defence of the rights of private individuals; also Article 15 (c) and (f) of the Functioning Norms of the Public Administration Services, approved by Decree No 30/2001 dated 15th October.
Under the legal framework on Public-Private Partnerships, approved by Law No 15/2011 dated 10th August, it is possible for public entities to establish partnerships in the form of a commercial company for the development of a given project, with all the benefits or incentives applicable to investments in Mozambique, as provided for in Article 7, paragraph a) and Article 10 paragraph 1 of the law.
The general rule in force in the Mozambican legal system is that the investment may be domestic or foreign. However, there are areas where foreign participation is limited or prevented. This is the case, for example, for the acquisition by foreigners of real estate that was nationalised by the State of Mozambique after independence, under the terms of Article 16 of Decree No 2/91 dated 16th January.
Usually, real estate entities take the form of commercial limited companies or public limited companies. In other cases, they are sole proprietorship companies under the general terms provided for in the Commercial Code.
Real estate companies are usually incorporated as private limited companies or public limited companies under the general terms set out in the Commercial Code.
The current Commercial Code does not foresee a minimum capital requirement for the incorporation of commercial companies. The partners or shareholders are free to fix the appropriate capital for the pursuit of the activity that constitutes the company's objective. The obligation consists in proving that the share capital has been paid.
The incorporation of real estate management entities depends on the type of legal entity that is sought. The requirements are directly linked to the nature of the company. The investment also depends on the respective size and location of the properties and may require, for example, environmental impact assessments, special licences, etc. However, according to Article 11 of the Land Law, approved by Law No 19/1997 dated 1st October, it is compulsory to submit the investment project to the authorities, in this case, the Investment and Export Promotion Agency (APIEX).
This is assessed on a case-by-case basis, depending on the level of investment made and the respective investor's obligations to the tenants in respect of the property built.
The parties are free to enter lease contracts with or without the option to purchase the property. This is within the scope of private autonomy. However, the law confers the right of reference to the tenant when the landlord intends to sell the leased property.
The contracts can be for commercial, industrial, liberal activities or rural purposes. Therefore, these are contracts for non-housing purposes.
There is specific legislation for the lease of urban buildings, namely the Tenancy Law, approved by Decree No 43525 dated 25th March 1961, without prejudice of the general and relative provisions of the Civil Code. During the COVID-19 pandemic, there were many instances of breach of lease contracts, which required a modification of the lease contracts, according to judgments of fairness. In other cases, the contracts were terminated because of the financial incapacity of the tenants. It should be noted that at this time, commercial activity decreased and labour relations were suspended, to the detriment of the economy.
Lease contracts usually contain clauses regarding:
Rents can vary except, if by agreement between the landlord and the tenant, the rent is changed. The contract can only be modified by mutual consent, in accordance with Article 406 (1) of the Civil Code.
The determination of the new rent may be previously stipulated in the contract, as well as the moment of its chargeability, according to Article 405 (1) of the Civil Code. Outside of this, if the owner of the property intends to increase the rent, they must communicate this to the tenant so that they can accept or decline the proposal. Any alteration to the contract must be by agreement, pursuant to Article 406 (1) of the Civil Code.
According to the VAT Code, only the rental of real estate for commercial purposes located in rural areas are exempt from VAT at the rate of 17%, in accordance with Article 17 of the VAT code, approved by Law No 13/2016 dated 30th December.
Usually, these costs are related to energy and water consumption. A security deposit is charged to pay for any damage caused to the property at the end of the contract. This deposit is refundable if there is no damage caused to the property by the tenant.
Normally, contracts may provide for certain fees to cover expenses in the communal areas or it may be included in the monthly rent. However, it is the tenant who pays, either through rent or a contribution in addition to rent.
If there are several tenants in a property, the Condominium Legal Regime, approved by Decree No 17/2013 dated 26 April, establishes that the costs of use of common amenities, including water and electricity, are supported through a condominium quota, representative of their contribution to such expenses.
It is the owner of the property who pays the insurance for the building. The tenant may, in turn, enter into a personal insurance contract. If damage to the rented property occurs during the tenant’s occupancy and is covered by the insurance policy, then the tenant bears the cost of repair.
A tenant may not use the property for purposes other than for which it was leased, nor must the tenant make reckless use of the property. The landlord can prevent the property from being sublet.
Any improvements to the leased property must be authorised by the landlord, under penalty of not being reimbursed for the expenses incurred in improving the property.
In general terms, there is the Tenancy Law, approved by Decree No 43525, dated 25 March 1961, applicable to commercial, industrial and residential leases. There is also a general legal regime for a rural lease and tenancy provided by the Civil Code.
There is no specific legal provision for insolvency of the tenant. However, in a legal contractual relationship, the non-payment of rent by the tenant is regarded as a default, which is a cause for termination of the contract and the landlord can initiate eviction proceedings. Upon declaration of insolvency, the landlord will compete with other creditors and eventual creditors by category, in accordance with the classification of credits established in the Legal Framework of Insolvency and Corporate Restructuring, namely labour credits, credits with secured guarantee, as well as State, ordinary and subordinated credits.
The parties may, within the scope of the freedom of contract provided for in Article 405 of the Civil Code, freely stipulate special guarantees for the performance of contractual obligations. However, for the debts of the debtor, all the assets of the debtor liable to seizure shall be liable if the parties do not provide guarantees for the payment of the debt.
There is no right to occupy after a lease has expired. If the contract is automatically renewable, the landlord should inform the tenant if they do not intend to renew the contract so that the tenant can leave the property at the end of the contract.
In principle, subleasing is not allowed, unless it is agreed in the contract or the law allows it, in accordance with the provisions of Article 62 of the Tenancy Law, approved by Decree-Law No 43525, of 25 March 1961.
Causes of the termination of the contract by the landlord are:
Under the terms of Articles 46 and 48 of the Tenancy Law, the tenant can terminate the contract if there is a defect that prevents the normal use of the property for the purpose stated in the contract.
According to the Land Registration Code, approved by Decree-Law No 2/2018 dated 23rd August, leases exceeding six years are subject to registration. The registration acts are subject to the payment of emoluments, included in the Land Registry Emoluments Table, approved by Ministerial Diploma No 2/2016 dated 6th January.
Non-payment of rent is cause for termination of the contract and for filing a repossession action. Although the eviction action follows a summary form, it is common for the judicial process to take up to six months. However, if it is through arbitration the eviction can take place quickly.
In principle, the contract can only be terminated at the will of the landlord or tenant. However, there may be situations where the contract may be terminated by a third party, such as a municipal or government authority acting in the public interest.
In public works contracts, prices may be fixed as a lump sum paid in full or in instalments, according to the levels of execution established in the contract. This is regardless of the quantity of work that has been done. But the law also allows for payment by a series of payments, based on the amount of work performed. The same may occur under private law, provided that the parties so stipulate.
In the case of public works, the contractor is liable for design errors, technical deficiencies and project omissions that give rise to compensation for damages caused to the other party or third parties (see Article 149 of the Regulation, approved by Decree No 5/2016 Regulation on Contracting Public Works and Supply of Goods and Provision of Services to the State approved by Decree No 5/2016 dated 8th March). According to Article 51 of the Licensing Regime for Private Works, approved by Decree No 2/2004 dated 31st March, the contractor is civilly liable for damage caused to third parties, by errors, actions or omissions arising from their intervention.
It is common for the parties to stipulate the application of fines and the provision of guarantees for the proper execution of the work, including compensation for damage. Under the Civil Code, the developer is entitled to compensation.
The project sets deadlines for the completion of the work and if these are not met the contractor will be sanctioned. However, if the said work is delivered much earlier than the deadline, the contractor will be entitled to receive compensation.
Under private law and the principle of contractual freedom, the parties are free to stipulate the provision of guarantees by the contractor. In public works contracts, the provision of guarantees by the contractor is mandatory, according to Articles 101 and 105.(1) of the Regulation for Contracting Public Works, Supply of Goods and Provision of Services to the State approved by Decree No 5/2016 dated 8th March.
In principle, authorisation is only possible if it results from the agreement of the contracting parties, considering the principle of private autonomy set out in Article 405 No 1 of the Civil Code. Otherwise, the injured party may do so by means of an enforcement action for payment of a sum that is certain. When the defendant/debtor does not pay or appoint assets for attachment within the legal deadline, this right is returned to the enforcer, under the combined terms of Articles 811 and 836 (1) of the Code of Civil Procedure.
Under the terms of Decree No 2/2004 dated 31st March, before a property can be inhabited, approval is required through a request to the licensing authority from the owner of the land or by the owner of the buildings. This is preceded by an environmental impact study under the terms of the Environmental Law, 20/97 dated 1st October, Decree No 54/2015, dated 31st December.
Purchases and sales are exempt from the payment of VAT as provided in Article 9.12(d) of the Value Added Tax Code.
Tax liability is not mitigated in Mozambique. The procedure used for real estate transfer is the same in all types of acquisition, whether small or large real estate portfolios.
Taxes are due whenever economic activities occur.
Besides the payment of the economic activity tax applied to all economic agents, the Municipal Property Tax that is levied on the property must be paid, in accordance with Decree No 61/2010 dated 27th December.
Article 2, paragraph 3 of the Corporate Income Tax Code applies to legal persons or other entities whose head office or effective management is in Mozambique. The leasing of real estate is considered a provision of services for the purposes of the Corporate Income Tax Code, as per Article 4 b) of the Corporate Income Tax Code (CIRPC). It is subject to VAT at a rate of 17%. If the owner of the real estate is a legal person they must pay the tax at a rate of 20%, under the terms of Article 62 Law No 1 of the CIRPC. There is an exemption when the owner of the property is a company that manages its own property, under paragraph f) of Article 68 of the same Code. The tax is paid by the landlord but the retention is made by the tenant.
Tax benefits are granted within the scope of investment projects submitted to the APIEX for approval, according to the Investment Law Regulation, Law No 43/2009 dated 21st August.