The main source of Irish real estate law is statute. The key legislative provisions are set out in:
The other main source of Irish real estate law is case law, derived from judgments of the Irish courts.
The Irish real estate market in 2022 was characterised by an impressive continuation of its unexpectedly strong performance in 2021, as Ireland eased away from the imprint left by the COVID-19 pandemic. Overall, real estate investment in Ireland increased by 2.2% compared to 2021, with more than EUR5.7 billion invested, despite a pronounced “tailing-off” period in Q4 brought about by the dual impact of increased interest rates and inflationary factors.
The dominant asset classes in the Irish real estate market continued to be in the office, living, industrial and retail property spaces. Within those classes, the largest deals in Ireland involved high-quality, sustainable office developments, large-scale residential multi-family, PRS and student accommodation schemes, logistics portfolios and regional retail parks and shopping centres.
In the face of changing attitudes towards the future of the workplace brought about by the COVID-19 pandemic, the office market had a challenging year in Ireland, although office take-up generally has surprised on the upside. Unlike 2022, the retail market is commencing 2023 on markedly surer footing due to a resurgence in occupancy post-pandemic, and is expected to see continued growth in 2023.
As the Irish real estate market emerges into the post-pandemic world, the office market in particular has been dominated by a “flight to quality”, where developers, building owners and occupiers alike are engaging collaboratively in order to meet their aligned environmental, social and governance (ESG) objectives. The demand for Grade A space is predicted to remain resilient and to continue to split the market, leading to an increase in the refurbishment and retrofitting of older assets.
There is no doubt that the impact of rising inflation, increases in interest rates and the resultant associated property costs have induced a period of price discovery in Irish real estate. Market activity is expected to depend on the speed at which vendors' and investors' expectations align in an altered monetary context. However, any downturn in the Irish economy is expected to be “short and shallow” due to the tight labour market, strong household and corporate balance sheets and the non-existence of vulnerabilities that were prevalent in previous recessions.
Ireland continues to be the European Union's fastest growing economy and is forecast to continue outperforming. Ireland remains an excellent place to invest and do business, and offers a high degree of economic and political stability with the benefit of a common law legal system and a favourable tax structure that is relatively easy to understand. Ireland is strongly aligned with the EU and benefits from the common trade area and access to talent from across Europe. For a more detailed analysis on market trends and deals, please see the separate Trends & Developments chapter.
The most significant obstruction to the use of blockchain technology, decentralised finance, proptech and other technologies in the legal sector in Ireland is the absence of regulation and the fact that these technologies have no fixed jurisdiction.
While blockchain and proptech should result in increased efficiencies in many areas of the Irish commercial real estate market and in the registration of title, they are unlikely to have a significant impact on the Irish real estate market in the next 12 months, given the absence of regulation.
There are no current proposals for reform that would significantly impact real estate investment, ownership or development in Ireland. There has been a move towards the use of electronic signatures for the acquisition of real estate, but procedures to deal with electronic signatures have not yet been implemented by the Land Registry so original wet ink signatures continue to be required for most documents dealing with real estate. See 2.3 Effecting Lawful and Proper Transfer of Title for further detail on the use of electronic signatures.
The categories of property rights that can be acquired in Ireland are as follows:
Historically, Irish law was based on legislation predating the establishment of the Irish State. The 2009 Act replaced much of the old law and modernised conveyancing practice. The 2009 Act is the main statute applicable to the transfer of title in Ireland and applies to all asset classes, including residential, commercial, industrial, offices, retail and hotels. The RTA govern the residential landlord and tenant sector, and the LTA govern the commercial landlord and tenant sector.
The Land Registry was established in 1892. When ownership of a property is registered in the Land Registry, the deeds are filed with the Land Registry, and all relevant particulars concerning the property and its ownership are entered on folios that form the registers maintained by the Land Registry. In conjunction with folios, the Land Registry also maintains maps (referred to as filed plans). Both folios and filed plans are maintained in electronic form.
The Registry of Deeds was established in 1707 to provide a system of voluntary registration for deeds that affect property. The purpose was to give priority to registered deeds over unregistered but “registrable” deeds. There is no statutory obligation to register a deed in the Registry of Deeds but failure to do so may result in a loss of priority.
The Property Registration Authority (PRA) is the State organisation responsible for the registration of property transactions in Ireland and encompasses both the Land Registry and the Registry of Deeds. At the end of 2022, the Tailte Éireann Act 2022 was signed into law, paving the way for the merger of the PRA, Ordnance Survey Ireland and the Valuation Office into one government body, named Tailte Éireann, which will be responsible for providing the authoritative property registration system, national mapping and surveying infrastructure and property valuation service for Ireland. Tailte Éireann was officially launched on 1 March 2023.
Title insurance is used in property transactions in Ireland but is not widespread.
While the use of electronic signatures has become more widespread in Ireland since 2020 due to the COVID-19 pandemic, the transfer of Irish real estate is still required to be effected by way of original wet ink signature. The Electronic Commerce Act 2000 (the E-Commerce Act) governs the use of electronic or digital signatures in Ireland. Previously, interests in land were specifically excluded from the ambit of the E-Commerce Act. However, the Electronic Commerce Act 2000 (Application of sections 12 to 23 to Registered Land) Regulations 2022 (the Regulations) amended the E-Commerce Act by providing that it shall apply to the law governing the manner in which an interest in registered land may be created, acquired, disposed of or registered. This amendment allows for the legal recognition of the electronic execution of documents dealing with interests in registered land. Notwithstanding the Regulations, practice has not yet changed in Ireland as the Land Registry – while welcoming the introduction of the Regulations – has clarified that it is not currently in a position to accept electronic or digital signatures on documents submitted to it for registration. Ultimately, Land Registry practice will dictate whether electronic signatures are acceptable on documents relating to real estate interests.
A buyer’s lawyer will investigate the seller’s title to the property to ensure the buyer will acquire a good marketable title. The underlying principle is one of caveat emptor (buyer beware). The buyer must satisfy itself as to the seller's title pre-contract.
The Law Society of Ireland produces a template contract for sale for property transactions. This contract requires the seller to list the documentation and searches to be provided in relation to the property, and incorporates the Law Society of Ireland General Conditions of Sale (the General Conditions). The General Conditions make a number of assumptions about the property and place certain disclosure obligations on a seller, which the seller can only exclude by inserting a bespoke special condition in the contract for sale. In this way, the buyer should be on notice of any deviations from the template. In commercial property transactions, it is normal for the seller to seek to limit the warranties being provided in the General Conditions. Where the seller’s knowledge of the property is limited (eg, in an enforcement sale), it is usual to limit many of the warranties.
The buyer’s lawyer also carries out a number of searches against both the seller and the property.
The principle of caveat emptor is diluted somewhat by the General Conditions, which place a number of warranties and disclosure requirements on the seller. For instance, the General Conditions include numerous warranties relating to matters such as notices, planning compliance, boundaries, easements and identity. These warranties can be excluded or amended by way of special condition by agreement between the parties.
In addition to any specific disclosures, sellers often limit the warranty provided in respect of planning and building control compliance by reference to documentation and opinions/certificates of compliance with planning and building regulations in the seller’s possession and provided to the buyer. Where the property is being sold in an enforcement scenario (ie, by a receiver, a liquidator or a mortgagee), it is common for many of the warranties contained in the General Conditions to be expressly excluded or varied/limited by reference to knowledge. While parties are free to negotiate the terms and warranties provided in a contract for sale, generally speaking the COVID-19 pandemic has not resulted in new warranties or representations being provided.
Parties to a contract for sale are also free to negotiate whether any of the representations and warranties included in the contract will be subject to certain limitations or caps on liability, or whether they will expire after a certain period of time. Where no such deadline is included, the time period in which proceedings must be brought in respect of a breach of the contract defaults to the provisions of the Statute of Limitation 1957 – ie, six years from the date the action accrued where the agreement was executed as a simple contract, or 12 years where the contract was executed as a deed.
There are also implied covenants as to ownership on the part of the seller, which are detailed in the 2009 Act.
A seller can be liable for misrepresentation. General Condition 29 of the General Conditions provides that a buyer shall be entitled to compensation for any loss they suffer as a result of an error, which includes any non-disclosure, mis-statement, omission or misrepresentation made in a contract for sale. However, as outlined above, a seller may seek to exclude or vary this condition by inserting an appropriate special condition in the contract for sale, stating that the buyer shall not rely on any representations made by the seller.
Representation and warranty insurance is available in the Irish market. However, it is not frequently used as part of real estate transactions, except where real estate is being acquired by way of a corporate rather than an asset acquisition.
An investor should ensure that the title to the property is good and marketable, that the property complies with the Planning and Development Acts 2000–2022 (the Planning Acts) and environmental laws, and that the property has all necessary easements for access and services. Investors will also need to ensure they understand the application of Irish tax law.
The buyer may have secondary liability for soil pollution or environmental contamination. If the person or entity that caused the pollution or contamination cannot be identified, the current owner or occupier of the property could become liable under the applicable environmental legislation for remediation. For this reason, it is important that environmental due diligence is carried out by a buyer where compliance with environmental laws is a concern.
The Planning Acts govern planning and zoning matters in Ireland, and regulate the zoning and permitted uses of areas through a variety of development, sustainability, landscape conservation and special amenity plans.
Each local authority has a development plan that sets out the planning policy of the local authority for a six-year period.
A buyer's solicitor should carry out a planning search as part of the planning due diligence, and this search should specify the zoning applicable to the property.
The State Authorities (Public Private Partnership Arrangements) Act, 2002 (the 2002 Act) enables local authorities to enter into joint-venture public private partnership (PPP) arrangements with the private sector. A PPP is an arrangement between the public and private sector for the provision of infrastructure or services. Under this model, contractors in the private sector become long-term providers of a service, rather than merely building an asset upfront. This allows local authorities to plan resources and monitor services, rather than provide them directly.
Local authorities, the National Asset Management Agency (NAMA – a body established by the Irish government in 2009 to function as a “bad bank‟ acquiring property loans from Irish Banks) and the Industrial Development Agency (IDA – Ireland's inward investment promotion agency) all have the ability to purchase lands compulsorily in connection with their statutory functions.
Local authorities can compulsorily acquire lands in the following circumstances:
NAMA has extensive statutory powers to acquire land compulsorily where it is necessary to allow NAMA to fulfil its statutory function and derive the best value from the property assets secured to it.
The IDA also has the ability to acquire property compulsorily for the purpose of industrial development. A key function of the IDA’s role is acquiring land for development purposes, so the IDA’s statutory power to acquire land compulsorily is quite broad.
Any transfer of Irish real estate and certain other property, including shares, is liable to stamp duty payable to the Revenue Commissioners. Stamp duty is charged on the consideration payable for the property, or the market value in certain instances. Usually, the buyer is liable for the payment of stamp duty, although both parties can be liable in certain transactions, such as voluntary transfers.
Where an instrument is liable to stamp duty, a stamp duty return must be filed online via the Revenue Commissioner’s e-stamping system within 44 days. Failure to file and pay within this period will result in late filing and interest charges.
The rate of stamp duty payable on the transfer of non-residential (commercial) property is currently 7.5%.
The rate of stamp duty on transfers of residential property is 1% on considerations up to EUR1 million and 2% on consideration over this threshold. Since May 2021, an increased rate of 10% stamp duty applies to all units acquired if ten or more residential units are acquired in a 12-month period. This measure was enacted to discourage large-scale residential acquisitions. The increased rate applies if the units are in one development/area and also if the units are located in different areas throughout the country. It does not apply to apartment units.
Where non-residential property is transferred and subsequently utilised for the construction of residential accommodation, a stamp duty refund is available, which effectively reduces the rate from 7.5% to 2%. Budget 2023 extended the time allowed to commence construction work to avail of this refund to 31 December 2025. This scheme is subject to a number of conditions.
Stamp duty on the transfer of Irish shares is generally charged at 1% of their value. Transfers of shares or interests of corporate entities (including Irish and non-Irish incorporated companies) and partnerships can be subject to 7.5% duty where the entity derives over 50% of its value from Irish land intended for development, held as trading stock, or held with the sole or main object of realising a gain on disposal. This provision is subject to a number of conditions, including that the transfer is one that transfers control of the land. Transfers of minority holdings may not be impacted. Transfers of entities holding certain residential property may also be subject to the 10% rate of stamp duty outlined above.
There are no restrictions on foreign investors acquiring real estate in Ireland. All investors, including foreign investors, need to comply with anti-money laundering legislation.
Acquisitions have traditionally been financed by banks, but recently there has been an increase in the number of non-bank lenders in the Irish market advancing both senior and mezzanine debt to fund the acquisition and development of commercial property.
The choice between bank financing or financing by alternative lenders is influenced by the commercial terms on offer. Alternative lenders are not subject to the regulatory restraints imposed on banks, so have a different appetite for risk. There is a trend towards alternative lenders providing development finance at much higher loan-to-value ratios than banks. Such financing is usually made available at a higher margin with prepayment, arrangement and exit fee mechanisms, as well as equity interests in the transactions.
A lender will provide finance secured over the relevant property that will be registered as first-ranking in the appropriate property register, thereby securing priority of the security for the benefit of the lender. Where a lender is providing finance for development purposes, it would be normal for the lender to receive collateral warranties from the members of the professional team, such as architects, designers and engineers, as well as step-in rights.
There are no restrictions on the granting of security over real estate to foreign lenders or repayments to foreign lenders; lending to an Irish company is not a regulated financial services activity and, pursuant to the Companies Act 2014 (the CA), the directors of an Irish company have the authority to exercise the company's power to borrow and to mortgage or charge its property, subject to Irish law and its constitutional documents.
A fee of EUR40 is payable in respect of the registration of security with the Companies Registration Office (the CRO). It is a statutory requirement for security created by an Irish company to be registered with the CRO within 21 days. This registration must be completed electronically. Failure to comply with this timeframe for registration may only be remedied by a costly court application.
The creation of security does not attract tax, although a written notification must be made to the Revenue Commissioners by both the charge-holder and any subsequent transferee of that charge where a company creates a fixed charge over its book debts.
Where repayments under a security document or loan agreement include interest payments and that interest has an Irish source, a 20% withholding tax must be applied to the payments in Ireland. A wide range of exemptions are available to companies that make payments of Irish-source interest to foreign lenders. Foreign lenders, which are “qualifying lenders‟, should be entitled to receive Irish-source interest payments free from the withholding tax; qualifying lenders include certain foreign banks, companies that are resident for tax purposes in the EU or in jurisdictions with a double tax treaty agreement with Ireland, and certain treaty lenders.
The sale of Irish real estate, or of unquoted shares in companies deriving the greater part of their value from Irish real estate, will be subject to Irish capital gains tax. The gain is calculated on the proceeds of sale minus acquisition and enhancement costs, and minus the incidental costs of acquisition and the incidental costs of disposal.
Irish capital gains tax is subject to a withholding procedure applicable to the seller's capital gains tax liability. The procedure requires the buyer to withhold 15% of the consideration and pay this amount to the Revenue Commissioners unless the seller provides a clearance certificate from the Revenue Commissioners. A capital gains clearance certificate is automatically available on application to the Revenue Commissioners if the seller is resident in Ireland for tax purposes. A non-resident seller will need to agree and discharge its capital gains tax liability in order to obtain a clearance certificate. This withholding procedure only applies to a buyer where the consideration payable to the seller exceeds the relevant threshold at the date of the transfer agreement (currently EUR500,000 or EUR1 million if the asset disposed of is a house or an apartment).
The current rate of capital gains tax is 33%.
A registration fee of EUR175 is payable to register security in the Land Registry and EUR50 to register security in the Registry of Deeds.
The CA prohibits the provision of financial assistance by an Irish company in the form of a guarantee, security or otherwise to a person that is purchasing or subscribing for shares in the company or its holding company. There is a validation procedure by which financial assistance may be approved in advance, and the approving documentation must be filed with the CRO by the company within the prescribed time.
The CA contains a prohibition on Irish companies providing guarantees or security in relation to the debts or obligations of its directors (or directors of its holding company) or persons connected to those directors (including family members and spouses). There is an exemption from this prohibition if the debts or obligations relate to another group company.
There is a general requirement that Irish companies derive benefit from transactions into which they enter.
A receiver is typically appointed by a secured creditor under contractual powers granted by the debtor under the terms of the security document. The receiver's function is to take possession of the secured assets (including any real estate) and discharge any unpaid indebtedness from the realisation proceeds.
The CA provides that a receiver of the property of a company can do all things necessary or convenient to be done for, or in connection with, or as incidental to, the attainment of the objectives for which the receiver was appointed, and the CA then specifies powers that receiver may exercise (in addition to the powers conferred on them by the order or instrument pursuant to which they were appointed, or any other law).
It is also possible to apply to the High Court to have a receiver appointed over assets – eg, if a trigger event set out in the security document for the appointment of a receiver has not yet occurred, but the secured assets are in jeopardy.
Before certain security interests created by a company can be valid and effective and have priority over subsequent security interests, they must be registered in the CRO within strict time periods, or the charge may be rendered void against the liquidator and any creditor of the company, and priority will be lost. Where a certificate of charge has been issued by the Registrar, it is conclusive evidence that the charge has been registered. The priority of charges runs from the date of filing and not from the date of creation of the charge.
The rules on the priority of charges take effect subject to the rules on priority contained in any other enactment governing the priority of such charges. Consequently, the priority of charges created by companies over real estate will be determined in accordance with the order in which they are registered in the Irish Land Registry or the Irish Registry of Deeds, as the case may be.
The timeframe for the successful enforcement and realisation of security on property in Ireland can vary greatly. If the borrower is co-operative, the enforcement process can proceed smoothly, especially where possession is voluntarily surrendered. If the borrower is not co-operative, however, the process can take time and may involve court applications, particularly if the validity of the security is challenged or if possession is not voluntarily surrendered. If a receiver is appointed over the assets of a company, certain statutory filings and advertising requirements must also be adhered to.
Where individuals and borrowings/security relating to their principal private residence are concerned, the situation can be more complex, and certain procedures set out in Irish consumer credit legislation and/or by the Financial Regulator will have to be complied with when enforcing. This should not prevent the lender enforcing its security but it will slow the process down compared to commercial real estate.
An Irish company (or indeed its directors, creditors and shareholders holding at least 10% of the company’s paid-up voting share capital) may petition the High Court to appoint an examiner in circumstances where that company is unable (or is likely to be unable) to pay its debts but where there is a reasonable prospect of the survival of the company and the whole or part of its undertaking as a going concern. During the period while an examiner is enquiring into the affairs of a company, a moratorium prevents secured creditors from enforcing their security without the consent of the court.
The government has not sought to restrict a lender's ability to foreclose as a result of the COVID-19 pandemic.
As set out in 3.6 Formalities When a Borrower Is in Default, a real estate lender must register the charge/mortgage with the CRO in order to perfect security. Once the security is perfected, newly created debt cannot obtain priority over existing debt, other than by agreement.
The priority of debt can also be structured through the following:
Lenders may be reluctant to enforce security in circumstances where the borrower has environmental liabilities due to the application of the principle of strict liability under Irish environmental legislation. There is a risk in these circumstances that a lender may be liable under environmental laws for environmental contamination despite not having caused the contamination.
Under Irish law, both the creation of security and the making of payments by a company within six months prior to it being placed into insolvent liquidation will be liable to be set aside as an unfair preference if the company intended to prefer the creditor benefiting from the transaction over its other creditors. In the case of a connected person, the period is extended to two years and the transaction is deemed, unless shown to the contrary, to have been done to give that person preference over other creditors, and to be an unfair preference and accordingly invalid.
Where a company is being wound up, a floating charge on the undertaking or property of the company created within 12 months before the date of commencement of the winding-up (or two years if the floating charge is created in favour of a connected person) shall be invalid, unless it is proved that the company was solvent immediately after the creation of the charge. This provision does not apply to:
The use of LIBOR ended on 31 December 2021 for most contracts (some US LIBOR deadlines have been extended to July 2023) and there has been a move to Risk Free Rates (RFRs).
Borrowers should ensure that a replacement rate for LIBOR is agreed with the lender and documented in the loan documents. SONIA is now frequently used in place of LIBOR. In addition, it would be prudent to include a mechanism in the documents for another rate to be used in case SONIA (or any other rate chosen) expires or becomes unavailable.
The key consequence for a borrower is uncertainty regarding the interest rate payable as RFRs are backward looking, which presents practical and operational difficulties and may impact the borrower's ability to manage cash flow, as pre-notification of the interest rate at the start of the interest period is not possible because the interest rate will change on a daily basis. In order to manage this, borrowers should pay close attention to the cash position at the end of an interest period, as they no longer have the certainty of look-forward LIBOR. Borrowers who require certainty around cash flows and repayment amounts may opt for a loan with a fixed repayment schedule or a fixed rate loan.
The Planning Acts apply to strategic planning and zoning, and regulate the zoning and permitted use of areas.
The relevant local authority is the entity responsible for controlling land use and occupation. An independent third-party appeals board, An Bord Pleanála (the Bord), is responsible for the determination of planning appeals.
The design and construction of buildings is regulated by the Building Control Acts 1990 and 2007, the Building Regulations 1997–2022 and the Building Control Regulations 1997–2021 (together: Building Regulations). The Building Regulations provide for proper building standards, fire safety, workmanship, conservation of energy and access for people with disabilities.
The relevant local authority is the entity responsible for controlling land, building use and occupation.
The Bord is responsible for the determination of planning appeals.
Planning permission is required for any development of land or property, unless the development is exempt from this requirement under legislation.
Planning permission may not be required for certain non-structural works to the interior of a building or for works that do not materially affect the external appearance of the structure. However, an application to the local authority for a Fire Safety Certificate or a Disability Access Certificate may be required in accordance with the Building Regulations.
The Building Regulations require a commencement notice to be lodged with the building control authority prior to commencing works, together with plans and specifications, a preliminary inspection plan and various certificates and notices. It is an offence not to submit a commencement notice, and failure to do so cannot be rectified at a later date. A Certificate of Compliance on Completion must be submitted to and registered by the building control authority before the building or works may be opened, occupied or used.
Certain licences may also be required, depending on the type of property and the type of development proposed.
If the planning authority consents to an application for planning permission, it will issue a decision to grant planning permission and notify the relevant parties of its decision. An appeal of the decision can be submitted to the Bord within four weeks (such an appeal may be submitted by the parties involved or by third parties). The Bord has a statutory timeframe of 18 weeks from the receipt of an appeal in which to reach a determination.
The previous legislation dealing with “strategic housing developments‟ expired at the end of 2021. A new planning process was introduced in 2022 for Large-Scale Residential Developments, which restores decision-making powers to local authorities and continues to expedite the supply of residential housing. Increased housing supply is a focus under “Housing for All – a New Housing Plan for Ireland”, which is the Irish government's housing plan to 2030, the stated aim of which is to “improve Ireland's housing system and deliver more homes of all types for people with different housing needs”.
Anyone applying for planning permission or who has made written submissions or observations to the planning authority on a planning application can appeal a subsequent planning decision to the Bord; see 4.4 Obtaining Entitlements to Develop a New Project for further detail.
As outlined in 2.8 Permitted Uses of Real Estate Under Zoning or Planning Law, the 2002 Act enables local authorities to enter into PPP arrangements with the private sector. Types of PPPs include:
The Planning Acts govern restrictions on development and permitted use. The procedure for planning offences is as follows:
The warning letter, which must be served within six weeks of receiving a complaint, gives a developer up to four weeks to rectify or make a submission in respect of the issue.
Regard must be had to any submission received from a developer or owner when deciding whether or not to serve an enforcement notice. An enforcement notice sets out the requirements of the local authority in order for the issue to be rectified by the developer/owner, and contains a timeframe within which the work must be completed. Non-compliance with an enforcement notice is an offence, and the local authority may institute legal proceedings in the District Court.
In urgent cases, the local authority may apply to the Circuit or High Court for an order directing that particular actions take place or cease, as the case may be. The statute of limitations applies to planning enforcement for unauthorised development. Typically, this means that the period during which enforcement action can be taken for breach of a condition of a planning permission is limited to seven years from the life of the planning permission (usually five years).
Irish companies and non-Irish companies, limited partnerships, and Real Estate Investment Trusts (REITs) and Irish-regulated funds (or Qualifying Investor Alternative Investment Funds (QIAIFs)) are used by investors to acquire real estate assets.
A REIT is a type of public limited company (PLC) that must meet certain criteria; it will not be liable to corporation/income tax on its property rental income or profits, nor to capital gains tax on disposals of assets of its property rental business. The Finance Act 2019 provides that a REIT may only avoid any latent capital gains tax exposures when it ceases to be within the regime where it has been in operation for a minimum of 15 years.
In recent years, non-resident and institutional investors have most commonly used QIAIFs to acquire Irish real estate. QIAIFs are regulated by the Central Bank of Ireland (the CB) and may be established as Irish Collective Asset-management Vehicles (ICAVs), unit trusts, investment companies, common contractual funds or investment limited partnerships. The ICAV has been the most popular corporate structure for QIAIFs investing in real estate.
Previously, ICAVs offered some tax advantages to investors but the position has changed. ICAVs are now subject to a 20% withholding tax on profit distributions to investors, and are exposed to a deemed income tax charge of 20% if they have debt costs above certain thresholds. Although ICAVs remain common in the Irish market, the tax advantages of such structures have eroded.
The ICAV is a corporate vehicle similar to an investment company and may be structured as an umbrella fund with segregation of liability between sub-funds.
The Instrument of Incorporation is the ICAV's constitutional document.
A Private Company Limited by Shares (LTD) is a simplified entity that has the capacity of a natural person. The constitution of an LTD comprises one document. The LTD does not have an objects clause and has full unlimited capacity to carry on any legal business, subject to any restrictions in other legislation.
An Irish company may also be formed as a Designated Activity Company (DAC), which is a private limited company. The constitution of a DAC comprises a memorandum of association and articles of association. The memorandum of association sets out the objects of the DAC, and the DAC can do any act or thing stated in the objects.
A PLC is another type of Irish company, under which the liability of members is limited to the amount, if any, unpaid on shares held by them. Similar to a DAC, the constitution of a PLC comprises a memorandum of association and articles of association. The memorandum of association sets out the objects of the PLC, and the PLC has the capacity to do any act or thing stated in the objects.
A REIT is a type of Irish PLC aimed at facilitating collective investment in real estate. The constitution of a REIT comprises a memorandum of association and articles of association, with provisions typical of an Irish PLC. The articles of association will impose certain restrictions and obligations on the shareholders of the company in order to enable the company to qualify as an Irish REIT.
There is no mandatory minimum capital requirement for Irish private companies.
The CB does not apply a minimum capital requirement for QIAIF ICAVs, which are externally managed by an alternative investment fund manager (AIFM). However, an internally managed QIAIF ICAV must have a minimum paid-up share capital equivalent to EUR300,000.
In addition, ICAVs structured as QIAIFs must apply a minimum initial subscription requirement of EUR100,000 per investor. Exemptions from this minimum subscription requirement can be sought by certain categories of knowledgeable investors, including the directors of the QIAIF, the investment manager and its senior employees.
REITs must comply with the corporate governance provisions set out in the CA applicable to PLCs. In addition, any market on which a REIT's shares are admitted to trade will have regulatory, listing and other relevant rules, as applicable.
The UK Corporate Governance Code 2018 issued by the UK Financial Reporting Council (the UK Code) sets out standards of good practice in relation to board leadership and effectiveness, remuneration, accountability and relations with shareholders. Irish REITs listed on the London Stock Exchange and/or the Irish Stock Exchange (ISE) are required to report on how they have applied the main principles of the UK Code. The Irish Corporate Governance Annex to the UK Code published by the ISE contains additional requirements applicable to Irish REITs listed on the ISE.
Regulation (EU) No 596/2014 on market abuse and the Transparency (Directive 2004/109/EC) Regulations 2007 apply in respect of Irish REITs listed on EU-regulated markets.
An ICAV is represented by its board of directors (the Board), at least two of whom must be Irish-resident. The appointment of directors is subject to the prior approval of the CB, under its fitness and probity regime. The Board has a general fiduciary duty to ensure that the requirements of the ICAV Act 2015 are complied with, and remains ultimately responsible for the management of the ICAV and the supervision of all delegates thereof.
The Board must observe Irish Funds' Industry Corporate Governance Code (the Code), which aims to ensure that the board performs effective oversight of the ICAV's activities. Among other subjects, the Code contains recommendations in relation to board composition, which include the requirement for at least one representative of the AIFM/investment manager and at least one director to be fully independent of all service providers to the ICAV.
ICAVs are required to be audited annually and must also submit their annual reports and monthly statistical returns to the CB.
Each ICAV is required to appoint numerous regulated service providers to carry out various governance roles. Most significantly, the AIFM Directive requires that each QIAIF must identify an AIFM, which is the entity primarily responsible for the investment and risk management of the QIAIF, subject to the overall supervision of the Board.
It is also possible for an ICAV to be authorised as an internally managed QIAIF, whereby the Board assumes the responsibility as the AIFM.
Every ICAV must appoint an independent Irish-regulated depositary to carry out multiple functions, including the safekeeping of assets, regulatory oversight and cash flow monitoring obligations. In addition, the depositary must enquire into the conduct and management of the ICAV in each financial year and report to the shareholders.
Annual maintenance and accounting compliance costs vary from structure to structure.
A person or entity may enter into either a lease or a licence with the owner of a property to occupy and use the property, without needing to acquire the property outright.
A licence is more suitable for shorter-term arrangements. A licensee under a licence does not obtain exclusive possession of the property, but rather has mere permission from the owner to enter the property.
In contrast, a lease confers a legal interest in the property to the tenant, and this interest may typically be assigned or transferred, subject to the requirement to obtain consent from the landlord.
There are two main categories of commercial leases:
Commercial leases are freely negotiable, subject only to statutory provisions. Recent Irish case law has emphasised that a court will not imply terms into a lease where it has been freely negotiated, even in the context of the COVID-19 pandemic. Generally, any rent arrears remain payable unless an alternative agreement is reached between the landlord and tenant.
The Residential Tenancies (Deferment of Termination Dates of Certain Tenancies) Act 2022 was enacted in late 2022 as an emergency governmental provision, and introduced a temporary prohibition and deferment of residential evictions by landlords to ease demands on housing services in Ireland. The final deferment date for the termination of residential tenancies in accordance with the Act is 18 June 2023; the Irish government announced in March 2023 that this period will not be extended.
Certain constituencies in Ireland have been designated as Rent Pressure Zones (RPZs). RPZs are located in parts of Ireland where rents are highest and rising, and where households have the greatest difficulty finding affordable accommodation. Under current legislation, any increase in the rent charged on residential property cannot exceed general inflation, as recorded by the Harmonised Index of the Consumer Price (HICP), or 2% per year pro rata, whichever is lower.
Recent legislation and market conditions have resulted in most leases having shorter terms, with the maximum term now usually ten to 15 years.
In general, commercial leases in Ireland are full repairing and insuring leases, and a tenant will have full repairing obligations. The obligations are imposed directly by a repair covenant in the lease or, in the case of a multi-let development such as an office block, shopping centre or business park, the obligations may be imposed indirectly through a service charge that imposes an obligation on the tenant to reimburse the landlord for repair works carried out to the structure and common areas of the development.
Rent is normally payable quarterly in advance.
The practice that developed during 2020 and 2021 of landlords agreeing to rent abatements or standstill arrangements for rent-free periods where premises were closed due to the COVID-19 pandemic has stopped entirely, and landlords are generally refusing to include such provisions in newly negotiated leases.
With the increased focus on ESG factors in real estate transactions, green leases are becoming increasingly important, and incorporate clauses that promote the sustainable operation and management of buildings. In January 2023, the Irish Property Working Group of The Chancery Lane Project published a suite of green lease clauses for use in commercial leases in Ireland. The clauses were produced through a collaborative effort by lawyers from around the world working pro bono to develop new contract provisions to help fight climate change. These clauses, or variations thereof, are expected to become increasingly permanent fixtures in the terms of a typical commercial lease.
Usually, a commercial lease will provide for a rent review periodically throughout the lease, generally at five-yearly intervals. The rent may be either increased or decreased (the 2009 Act prohibits “upward-only‟ rent-review clauses, but not with retrospective effect). Commercial landlords and tenants employ certain mechanics on occasion to control the variation in the rent – for example, a fixed or stepped rent over the term of a lease may be provided for, or the rent may be linked to the variation in the Consumer Price Index.
Usually, rent is reviewed upwards or downwards to market rent and agreed between the landlord and tenant. If agreement cannot be reached between the parties, the lease may provide for referral to an expert or an arbitrator for determination.
In the case of a commercial/business lease, a landlord may elect (but is not obliged) to charge VAT on the rents, in which case VAT applies at the relevant rate (currently 23%).
Stamp duty is payable on commercial leases at 1% of the average annual rent. It is the tenant's responsibility to discharge the stamp duty. A tenant may also be obliged to pay insurance rent, any initial service charge contribution and, if commercially agreed, a deposit.
A landlord or management company will normally maintain common areas in a multi-let building or estate and recoup the costs from the tenants through a service charge.
Normally, a tenant is responsible for all outgoings consumed on the premises, and these are usually metered and paid directly by the tenant to the provider. Utilities and telecommunications consumed on the common areas are normally paid by the landlord and recouped from the tenants via a service charge.
Normally, the landlord will insure the property, and the tenant will refund the amount of the premium to the landlord as insurance rent under the lease. Typical risks insured against for property damage are fire, flooding, storm, malicious damage, subsidence and lightning. Terrorism insurance is also available in the Irish market. Some tenants and businesses have recovered costs under business interruption insurance, depending on the terms of the relevant insurance policy.
In 2022, the Irish Commercial Court issued its third judgment in favour of the claimants in a case taken by a group of publicans against a large insurance group in Ireland in relation to the non-payout of proceeds in respect of business interruption insurance due to closures necessitated by the COVID-19 pandemic. The decision was presided over as a test case for the jurisdiction and should provide greater clarity for policy drafters seeking to bring certainty as to the level of risk assumed by insurers providing business interruption cover.
A lease will contain a user clause outlining the permitted use of the property by the tenant. If a tenant wishes to change the permitted use, they normally need the consent of the landlord (legislation provides that such consent may not be unreasonably withheld).
Depending on the provisions of the lease, a tenant may be permitted to alter or improve the property, usually subject to the landlord's consent and the tenant's obligations on yield-up of the premises, which normally include returning the property to its original condition. Structural alterations are generally prohibited, with internal non-structural alterations permitted subject to the prior written consent of the landlord.
The RTA govern leases of residential property in Ireland, provided the term does not exceed 35 years. Any residential property for lease must meet certain standards under the Housing (Standards for Rented Houses) Regulations 2019. The LTA govern leases of industrial, office, retail or hotel space.
Commercial leases usually include a provision entitling a landlord to terminate a lease by way of forfeiture if the tenant becomes insolvent. If the obligations of the tenant under the lease are guaranteed by a guarantor, the guarantor may be required to take a new lease on the same terms as the previous lease for the length of the term remaining.
Normally, where a tenant's covenant strength is less than that required by a landlord, the landlord will seek a guarantor for the obligations of the tenant (or a bank guarantee or cash deposit).
Where a commercial tenant has been in continuous occupation for a minimum period of five years, it will obtain a statutory right to a new tenancy unless it has renounced its statutory rights. A lease term will expire automatically and so, while a landlord is not required to serve notice on a tenant to ensure the tenant vacates a premises, in practice, where a deed of renunciation has not been executed by a tenant, a landlord will be in contact with the tenant to arrange an orderly yield-up of the premises and ensure compliance by the tenant with the covenants in the lease and, in particular, with the repair and yield-up obligations.
Usually, the provisions of a commercial lease contain restrictions on a tenant’s right to assign or sublet the lease without the landlord’s prior written consent. Under the LTA, a landlord cannot unreasonably withhold consent to the assignment or subletting of the entirety of a premises; this provision overrides the contractual terms of any business lease. The assignment or subletting of part of a premises is usually prohibited under the terms of a commercial lease.
Generally, a commercial lease is terminated by the expiry of the term or the exercise of a break option, or by agreement between the landlord and the tenant.
Usually, a commercial lease contains a re-entry clause, which entitles a landlord to forfeit the lease where the tenant breaches an obligation. Forfeiture is an equitable remedy and can be effected without a court order, if done peaceably; however, forcible re-entry is a criminal offence. The landlord should seek an ejectment order from the court if the tenant remains in occupation and resists re-entry by the landlord.
Leases are required to be executed as deeds.
Leases can be registered in the Registry of Deeds, although this practice is no longer widespread.
Leases with a term in excess of 21 years should be registered with the Land Registry and a new leasehold folio will be opened in respect of the lease, provided that the term of the residue of the lease at the time of registration exceeds 21 years.
Leases for a term not exceeding 21 years do not need to be registered and can affect registered land without registration.
As previously stated, a commercial lease may be terminated by forfeiture. While this can be effected without a court order, in some circumstances a court order will be required – eg, if the tenant refuses to vacate the property. A court application can take from six to 12 months.
A commercial lease may not typically be terminated by a third party; it can only be terminated by the parties thereto.
The most common basis for the pricing of construction contracts is a fixed-price lump sum, where the price includes the risks associated with the construction of the works, except to the extent excluded under the contract. Other forms of pricing are also used, such as re-measurable contracts (where the client takes the risk for the quantities needed for the works) or target-cost contracts (an open-book system where the client takes the risks for quantities up to a certain target price, subject to a set pain/gain share allocation with the contractor, depending on whether the out-turn contract price is below or above the target price).
The most common method for assigning responsibility for the design and construction of a project is for the client to award a design-and-build (D&B) contract to a main contractor whereby it takes full responsibility for both design and construction, including the work of its external professional team and subcontractors. Alternatively, a client may appoint its own design team and enter a build-only construction contract with a contractor if the client wishes to maintain more control over the design of the development. The D&B model is preferred by funders for projects as there is a sole point of responsibility for design and construction.
A contractor normally provides warranties and indemnities to the client as part of the construction contract. Recently, contractors have sought to limit their liability by setting a cap on their general liability under the contract and excluding certain damages, such as indirect and consequential damages and losses. Such exclusions have not become the market norm, but more and more contractors are pushing for such concessions in light of the strong market demand for experienced and capable contractors.
Most forms of construction contracts in Ireland make provisions for the application of liquidated damages if the contractor does not reach completion by the agreed date. The liquidated damages must be based on a pre-genuine estimate of the losses to be incurred by the client if the works do not complete on time, and are often capped at a percentage of the contract value. In the event of delay due to the default of the contractor, the client is entitled to set off the liquidated damages against payments due to the contractor.
It is normal for a client to seek the provision of a performance bond from the contractor as a form of security for the proper performance of the works, and this would typically be in addition to the retention by the client of a set percentage (normally 5%) of the payments to the contractor during the construction of the works. Depending on the financial robustness of the contractor, a parent company guarantee may also be required.
The creation of liens and encumbrances is not common. However, under the Construction Contracts Act 2013, contractors and subcontractors are entitled to suspend their works or refer a payment dispute to statutory adjudication in the event of non-payment of a due payment.
Under the Building Regulations, a building cannot be occupied or used until prescribed compliance documentation has been submitted to the relevant building control authority.
Sales of commercial property can be divided into two categories: sales of new property, and sales of old property.
In relation to new buildings, VAT must be charged at the rate of 13.5%.
A property is considered “new” where it has been developed in the previous 20 years, or where buildings on it have been developed or redeveloped in the previous five years. The first sale of residential property by the person who developed the property is always subject to VAT.
Sales of old property are exempt from VAT. In a VAT-exempt sale of property, to avoid a clawback of VAT that the seller may have previously recovered, the seller and buyer may agree to make an exempt sale VAT-able and jointly opt to tax the sale of the property.
Transfer of Business applies to the sale of a property that has been let in the past, on the basis that the buyer intends to carry on the same sort of business as the seller (ie, letting the property) and will only apply provided the sale is to a person who is accountable for VAT purposes (ie, a person who is obliged to register and account for VAT).
Where the transfer of business relief applies to the sale of an “old‟ property, no VAT adjustment (known as a Capital Goods Scheme Adjustment) should arise for the seller, and the buyer will take over the property’s obligations from the seller under the capital goods scheme.
Where the transfer of business relief applies to the sale of a “new‟ property, the seller may be able to claim further VAT input credit where it was not entitled to recover the VAT incurred on the acquisition or development of the property.
As mentioned in 2.10 Taxes Applicable to a Transaction, where non-residential property is transferred and subsequently utilised for the construction of residential accommodation, a stamp duty refund is available, which effectively reduces the rate from 7.5% to 2%.
Stamp duty on the transfer of Irish shares is generally charged at 1% of their value. Previously, stamp duty was mitigated on large-scale acquisitions through selling the corporate vehicle holding the property; however, transfers of corporate entities and partnerships can be subject to 7.5% duty where the entity derives over 50% of its value from Irish land intended for development, held as trading stock, or held with the sole or main object of realising a gain on disposal. This provision is subject to a number of conditions, including that the transfer involves the transfer of control of the land. Minority holdings may not be impacted. There are stamp duty exemptions for intra-group transfers of real estate.
Commercial rates are imposed by local authorities against businesses premises; the local authority determines the level of rates.
An exemption from the payment of commercial rates can be sought where the property is vacant, by making an application to the local authority.
Tenants of non-resident owners of Irish property are obliged to withhold tax from rental income prior to remitting overseas, at the standard income tax rate of 20%. This can be avoided if the landlord has employed an Irish agent to collect the rents.
Non-resident individuals investing in Irish property are charged Irish income tax on taxable rental profits, on a fiscal-year basis. A non-resident individual or partnership is subject to rental income tax at between 20% and 41%. A non-resident company is subject to 25% tax on rental income, minus deductible rental expenses.
Capital gains tax is applicable at a rate of 33% on the gains made on a disposal of property in Ireland. If the seller is non-resident, this will only relate to the sale of specified assets.
Owning real estate has the following tax benefits:
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Ireland’s commercial property market demonstrated its resilience in 2022, performing better than expected despite the negative impact of external macro-economic factors such as the war in Ukraine, soaring inflation, interest rate increases and the aftermath of the COVID-19 pandemic. The expectation is for the commercial real estate market to show continued momentum in 2023, with increased market activity expected particularly in the second half of the year.
Certain markets such as the Industrial and Logistics (I&L) market performed remarkably well in 2022 and it is anticipated that this will continue into 2023. Dublin’s I&L leasing market had its second most successful year on record in 2022 with overall take up volumes reaching 3.8 million square feet during 2022, marginally below its strongest year on record in 2015. Last year was a better year than anticipated for Dublin’s office market too, with take up coming in above average at a total of 2.64 million square feet notwithstanding the challenges presented by the rise in construction costs and inflation generally. Activity in the city centre was particularly strong, with market analysts observing that office spaces located in Dublin 1 and 2 represented 70% of all transactions in 2022. Demand for space in Dublin’s North Docklands was also on the rise, with transactions in this area amounting to 25% of total activity in 2022. Current rents for prime spaces in Dublin 2 range from an impressive EUR646 to EUR721 per square metre, with the North Docklands area attracting rents of between EUR538 to EUR592 per square metre.
Ireland’s pillar banks, Bank of Ireland and Allied Irish Banks, plc (AIB), have both predicted that commercial real estate values will fall this year, with Bank of Ireland projecting a drop in value of 6% in 2023 and 2.5% in 2024, and AIB estimating prices could fall by up to 10% in 2023. Despite this trajectory however, the banks have indicated that conservative underwriting in their lending to the commercial real estate sector will make any revaluations manageable. The shift in market dynamics presents an ideal entry point for prospective investment, with keen investors taking note of anticipated downward valuations and spotting opportunity for timely investment.
Industrial and Logistics
The I&L rental sector continues to show strong momentum, with take up remaining high and prime rents continuing to grow in an area of the market which has seen increasing levels of investor activity in recent years. Demand remains strong, with close to half of the logistics space currently under construction being already pre-let or pre-sold. A significant milestone in the I&L sector in 2022 was the pre-let of Ireland’s first net-zero carbon logistics building located at Unit 4 Quantum Logistics Park in Dublin 11, which was constructed using a glue-laminated timber structural frame and a cross-laminated timber roof structure. The development of logistics infrastructure using glue-laminated timber is expected to become increasingly popular in the coming years, and will undoubtedly be an area of focus for developers in particular.
The Dublin I&L market is undersupplied how, with demand from tenants in the market for both prime and secondary space outweighing supply. According to market analysts, the vacancy rate at the top 35 business parks in Dublin was a mere 1.3% at the end of 2022. Supply is expected to be an issue for the foreseeable future in light of the lack of appropriately zoned land and delays in the planning system. Inflation and an increase in construction costs have driven rent levels higher, with modern, energy efficient buildings in Dublin attracting prime rents of EUR123.75 per square metre (the equivalent of EUR11.50 per square foot) as at January 2023. In a recent report by the Society of Chartered Surveyors, 70% of Chartered Surveyors surveyed for the report indicated that they expect prime industrial rents to either remain the same or increase by up to 5% in 2023. Landlords and property owners have strong bargaining power in this regard, with prospective occupiers having no option but to commit to longer lease terms than they may otherwise prefer due to lack of supply. Leases for terms of 10 to 15 years are typical for prime stock in the present climate with some examples of 20-year leases now also evident, a further reflection on the level of demand in the market.
An estimated 81% of vacant units in I&L developments are more than 20 years old, evidencing the undeniable preference of occupiers for more sustainable, energy efficient buildings. Supply chain issues coupled with the energy crisis posed certain challenges to the I&L sector in 2022, with the impact of the rising cost of materials acting as an obstacle to property owners seeking to retrofit and upgrade older units. Ireland’s Central Statistics Office indicated that wholesale construction material prices increased by a significant 16.2% year on year in 2022. Despite the challenges however, domestic and international occupiers and investors alike continue to choose to locate and invest in Ireland’s I&L market due to its sophisticated transport links, strong workforce and strategic location within the European Union.
The shift to remote working that resulted from the COVID-19 pandemic put the Irish office market, a sector that had been thriving in recent years due to investment from multinationals in industries such as technology and IT, under strain. Sentiment around the office leasing market had been positive as lockdown restrictions started to be removed. Remote working fatigue and the increased desire for workplace interaction were palpable following extended periods of lockdown and with the removal of all forms of restrictions by early 2022, many employers actively encouraged workers to return to the office. Certain challenges presented themselves, most notably the implementation of the hybrid working model that was borne out of the pandemic. Businesses are still working to formalise hybrid working policies, providing employees with definitive structures to suit their individual needs. Many companies have had to adapt their current office space to reflect new hybrid working arrangements, while others have started the process of sub-leasing space that is no longer required (so called “grey space”).
By the end of 2022, the effects of the slowdown in the global technology sector could be seen in the Irish office market, with technology conglomerate Meta deciding to sub-let part of its grey space at its European headquarters located at Fibonacci Square in Ballsbridge, Dublin 4. According to market analysts, the technology sector accounted for 50% of gross letting activity in the Dublin market between 2017 – 2021. By the end of 2022 however, it accounted for a mere 23%. While take up in the office sector was generally slow in Q1 2023, market sources have indicated that the technology sector accounted for an estimated 56% of office space take up over this period, evidencing the existence of continued activity despite the current challenges. Market analysts have also forecasted that this activity will increase further as the year progresses. The downturn in the technology sector has presented an opening on the demand side of this asset class, indicating that once the technology sector bounces back, leasing of office space in Dublin will thrive again. Demand from professional services and pharmaceutical companies in particular has seen a substantial increase, accounting for over 50% of the office space reserved in the final quarter of 2022.
The level of vacant office space now stands at approximately 13%, with market analysts predicting vacancy rates will peak at 15% later this year or early in 2024 once further development has completed. In the short term, more grey space will most likely come to the market and any excess space on the supply side may result in reduced rents, particularly for those offices with less favourable sustainability credentials. Approximately 216,000 square metres (equivalent to 2.32 million square feet) of office space which is currently under construction is expected to reach practical completion in 2023. The size of the Dublin office market is then projected to reach a new milestone of over 50 million square feet, which will facilitate an increased level of occupancy in the medium to longer term.
Against the backdrop of dramatically increasing energy prices and ongoing climate change, sustainability and ESG concerns are more prevalent than ever. Ireland has committed to reducing its carbon emissions as part of the Government’s Climate Action Plan 2023 and to reaching net-zero carbon emissions by 2050. The sustainability agenda will continue to have a growing influence on corporate decision-making in 2023. ESG and climate action targets are challenging the activities of developers and other key players in the real estate market now more than ever before, with stakeholders coming under increased pressure to incorporate future sustainability policy into their decision-making processes. Sustainability thresholds and standards in the construction sector are by necessity continuing to increase and this is presenting a significant challenge to older office stock that is not optimally energy efficient, with developers and landlords faced with the prospect of having to retrofit their properties, in some cases significantly, to enhance their energy performance in order to attract occupiers and safeguard their investment.
The majority of new offices that are on track to be delivered in 2023 and 2024 boast high energy efficiency and sustainability ratings, however these account for a small minority of Ireland’s overall supply. The market is being divided into three categories of energy efficiency buildings, based on a property’s sustainability credentials, namely between Grade A+ (which has the highest BER, LEED or BREEAM credentials), traditional Grade A and finally secondary stock. BER A1 – A3, LEED Gold or BREEAM Excellent are now the desired accreditations for investors, occupiers and landlords alike, with a premium on rents for these types of buildings emerging. LEED and BREEAM certifications are internationally recognised. As investors and occupiers become increasingly conscious of the environmental and social impacts of the built environment, properties with favourable globally renowned sustainability ratings will have increased marketability. Rental income disparities between energy efficient buildings and secondary stock is likely to act as a catalyst for property owners to upgrade and retrofit older stock where feasible in order to increase occupancy and rent levels. Occupiers are showing an increasing reluctance to commit to leases with lengthy terms, as lease terms beyond 2030 come under increasing scrutiny in light of evolving ESG mandates.
Green leases are leases incorporating clauses which promote the sustainable operation and environmental performance of buildings. They help to future proof the industry from the effects of climate change, and they are becoming increasingly popular in Ireland for that reason. The Chancery Lane Project (TCLP) has recently published a suite of green lease clauses for use in commercial leases in Ireland. The clauses were produced by the Irish Property Working Group of TCLP, which is a collaborative effort of lawyers from around the world working pro bono to develop new contractual provisions to help promote a net-zero future and fight climate change. An example of such a provision is “Odhran's Clause”, which aims to promote co-operation between landlords and tenants in relation to the environmental performance of buildings, data sharing and the monitoring of energy use. This clause encourages landlords and tenants to collaborate in order to improve energy efficiency, reduce and manage waste and reduce greenhouse gas emissions. Optimising operational energy use in the real estate environment is vital in order to attain net-zero targets and there are numerous benefits to implementing green leases for stakeholders in the market. For tenants, a reduction in operational costs can be achieved through improved energy efficiency across building management, services and utilities. For Landlords, energy-efficient buildings are more likely to attract attention from occupiers and investors and there is a growing body of evidence to suggest that these energy efficient buildings are commanding higher rents and sales prices. Both the development and occupancy of these energy efficient and sustainable buildings also assist developers, landlords and occupiers alike to implement their ESG policies and achieve sustainability targets.
Transaction levels in the Irish market are being materially impacted by the current global economic environment. As a direct consequence of pan-European interest rate increases, property yields also have to adjust to meet the rising cost of debt. The increased cost of borrowing in the latter half of 2022 brought yields very much into focus, leading to a mismatch in price expectation between vendors and purchasers. Yields on property investments have had to adjust to these interest rate increases and there is still a bit to go in this cycle before investors can have comfort that rates have stabilised. Recent commentary from the ECB appears to indicate that it is likely to be the latter part of 2023 before the current interest rate cycle will have reached its peak and it therefore remains to be seen when interest rates will stabilise. As interest rates have a significant bearing on investment strategy and activity, investors are likely to proceed cautiously until greater clarity as to the current interest rate cycle is available.
Following a very difficult two-year period due to the COVID-19 pandemic, 2022 saw a resurgence in activity in the retail sector with increased investor and occupier activity seen both in Dublin and wider provincial regions. A number of regional shopping centres and retail parks traded in 2022, such as the acquisition by Camgill of Dundalk Retail Park and Corum’s acquisition of Tullamore Retail Park. On the leasing side of the market, premium locations such as the Blanchardstown Centre saw strong occupier activity with leading brands such as Zara, Flannels and Nike taking significant flagship stores.
One notable development in the retail sector post-pandemic has been the increase in popularity of turnover rent arrangements. Turnover rent structures had historically been negotiated with large international retailers in an attempt to encourage entry to the Irish market and were largely confined to shopping centre/retail park locations. Post-pandemic however, they have become a lot more prevalent across the entire retail sector, including the high street.
Turnover rent arrangements operate whereby the rent payable is determined by reference to a tenant’s trading turnover, with the lease imposing certain turnover reporting obligations on the tenant. A tenant can pay a pure turnover rent, where the entire of the rent payable is based on turnover. Alternatively, and more commonly, a tenant will pay a base rent combined with a turnover top up rent. In these circumstances, a base rent is paid quarterly or monthly in advance and this may be topped up in certain circumstances by an agreed percentage of trading turnover, if certain criteria are achieved. In all instances where an element of turnover rent is payable a transparent method of determining turnover figures is required, usually by means of the provision of audited turnover certificates. A landlord may be entitled pursuant to the terms of the lease to access the tenant’s electronic point of sale (EPOS) software in order to monitor turnover.
Turnover rent arrangements are conducive to aligning landlord and tenant interests, with both parties having a vested interest in promoting increased trade and ensuring that the business performs optimally. Rent affordability is transparent and there are advantages to this for occupiers and property owners alike. There are a number of elements which can determine the applicable level of turnover, such as covenant strength, quality and desirability of the tenant entity and the location of the premises.
Online sales in the context of turnover calculations have become a point of contention as it can be difficult for the parties to agree on how online sales should be treated in an e-commerce transaction. Landlords struggle to police online sales compared to the manner in which in-store sales can be monitored. Many businesses now sell large volumes of their products online and use their “bricks and mortar” stores for showcasing only a limited supply of stock, as well as for click and collect and return facilities. The question then arises – if a product is ordered and paid for online but physically collected in-store, should this revenue be included as part of the turnover generated from the premises? General market consensus on this point is that revenue generated from online sales should be included in turnover figures where the product in question is satisfied from stock held within the store. With the ever-increasing prevalence of online sales, it will be interesting to see how this practice develops over the short to medium term.
2023 is set to remain challenging and the outlook is somewhat unclear, but most analysts remain cautiously optimistic that activity levels in the investment market will improve over the second half of the year. Inflation is expected to have peaked at current levels but is forecast to remain above 5% for the remainder of the calendar year. Capital investment and transaction levels will likely remain subdued until greater visibility is available as to the likely end to the current ECB programme of interest rate increases. However, the longer-term outlook for the Irish commercial property market remains positive despite the immediate headwinds, particularly as the market continues to attract strong interest from investors and occupiers from overseas.
Notwithstanding the effect that the move to remote working has had on the long-term demand for office space, the office leasing market has proven to be resilient. International investors analysing this asset class are well versed in Ireland’s strong labour market and concerns about the impact of job losses in the technology sector are being balanced against this wider backdrop. Office workspace structures are undergoing pivotal change and will continue to adapt in the coming year. Demand for “New, Clean and Green” offices will continue to grow. Considerations such as higher funding and construction costs combined with occupier preference for the most sustainable space is expected to act as a support for current rent levels and an expected return to rental growth towards the end of 2023. Ireland is set to continue to remain of particular interest to international occupiers and investors and while 2023 commences against a challenging global backdrop, the office market is well positioned to accommodate continued strong occupier activity in the coming year, with professional services firms, the pharmaceutical sector and the finance sector expecting to lead demand for office space.
2023 is expected to be another busy year for deal activity in the I&L sector. Dublin take-up is expected to fall marginally in comparison with last year given the low level of available stock in the market, however this could pave the way for greater investment in the I&L sector outside of the Dublin area. Landlords and tenants alike will remain focused on sustainability credentials of buildings in an attempt to drive ESG objectives and work towards net-zero targets.
The Irish real estate sector will continue to strengthen its commitment to investing in ESG-positive assets and working towards achieving net-zero goals. ESG is now a key driver in all aspects of the real estate industry, impacting the ability to raise finance, attract investment, attract and retain occupiers and employees as well as secure regulatory consents.
Overall Ireland remains an attractive choice for international investors as it offers a high degree of political and economic stability together with a favourable tax system that is relatively easy to understand. Ireland is of course strongly aligned with the EU and benefits from the common trade area. All of these factors make Ireland an optimal place for investors seeking to minimise uncertainties from external global and geopolitical risks.
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