The Luxembourg Civil Code regulates the main aspects of real estate law in Luxembourg. It covers ownership, mortgages and leases.

The following legislation also applies:

• the Law of 10 August 1915 on commercial companies, as amended;
• the Law of 17 April 2018 on country planning, as amended;
• the Law of 10 June 1999 on classified establishments, operating permits, the commodo-incommodo procedures regulating the security, environmental and technical aspects of construction, as amended;

• the Regulation of 5 May 2012 on energy performance of residential and functional buildings;
• the Law of 19 July 2004 on communal planning and urban development, as amended;
• the Law of 22 October 2008 on the right of superficies and emphyteusis, as amended;
• the Law of 18 July 2018 on the protection of nature and natural resources, as amended;
• the Law of 15 December 2020 on the climate, as amended;
• the Law of 21 June 1976 on noise control, as amended;
• the Law of 7 August 2023 on individual housing subsidies;
• the Law of 7 August 2023 on affordable housing and amending the Law of 25 February 1979 on housing assistance;
• the amended Law of 19 July 2004 on municipal planning and urban development;
• the amended Law of 19 July 2004 on urban planning and urban development;
• the Law of 30 July 2021 on the Housing Pact 2.0; and
• the Law of 7 August 2023 on individual housing subsidies.

Regarding real estate investments, the main legislation comprises:

• the Law of 15 June 2004 on investment companies in risk capital (SICAR);
• the Law of 5 August 2005 on financial collateral arrangements (the Collateral Law);
• the Law of 13 February 2007 on specialised investment funds (SIF);
• the Law of 12 July 2013 on alternative investment fund managers (AIFM) implementing Directive 2011/61/EU on alternative investment fund managers (AIFMD);
• the Law of 17 December 2010 on undertakings for collective investment (UCI);
• the Law of 23 July 2016 on reserved alternative investment funds (RAIF); and
• the Law of 19 December 2020 on the temporary adaptation of certain procedural rules in civil and commercial matters.

Until 2023, Luxembourg’s geographic and demographic characteristics, alongside its political stability and economic growth, fostered significant growth in the real estate market and attracted foreign workers. This situation has evolved in 2023/2024, reflecting broader economic challenges. With interest rates and inflation rising, combined with international geopolitical tensions and rising construction costs, the real estate market was facing a period of adjustment during 2023 and Q1 of 2024. Demand for residential property remained high, but purchasing capacity has been hampered, leading to a shift towards rental markets. Statistics show that most nationals own their primary residence, often outside Luxembourg City. Luxembourg’s rental market is mostly focused on apartments owned by private investors, with a greater concentration in the country’s centre. Due to high rents and reduced offerings in some areas, newcomers and even nationals often decide to live abroad, in one of the neighbouring countries.

The construction sector, which has been in distress for several months, suffered a major blow in 2023. This impact is clearly reflected by several major bankruptcies of companies in the construction industry.

After an already challenging period in 2022, Q1 2023 witnessed a further decline in occupancy, which fell by 17% to almost 176,000 m², with the biggest transactions being KPMG leasing 31,000 m² in BPI’s Kronos project in Kirchberg, the European Parliament taking occupancy of its new 30,000 m² Konrad Adenauer building, and Intertrust taking occupancy of 6,479 m² in the White House building at the Cloche d'Or, while also leasing 1,800 m² in the Emerald building next door.

The global economic downturn and the rising cost of building materials ultimately led to the suspension of numerous construction projects in 2023. The real estate industry is facing a complex and challenging situation; however, a recovery is still anticipated in 2024 with the expected fall in interest rates.

Notably, the law of 7 August 2023 on individual housing subsidies, which took effect on 1 September 2023, and the law of 7 August 2023 on affordable housing subsidies, which took effect on 1 October 2023, introduced public measures largely to promote access to housing and home ownership for citizens.

A draft bill on heritage foundation was launched in 2013 to complete asset planning. This project is still pending, and has not been amended since 2014.

More recently, a bill on land management and urban development has been under discussion, aiming to implement practical and operational support.

Property rights (for full ownership) are as follows:

• the right to use the asset (usus);
• the right to use the fruits – rents, etc (fructus); and
• the right to dispose of the asset (abusus).

Property rights may be acquired partially or totally through:

• full ownership;
• a lease (rental or commercial, livestock);
• usufruct;
• the rights of emphyteosis (emphyteose) or surface (superficie);
• co-ownership (copropriété); and
• joint ownership (indivision).

The transfer of real estate assets located in Luxembourg is governed by the laws of Luxembourg, as lex rei sitae.

The provisions of the Civil Code mainly govern the transfer of title. Other specific laws or regulations may apply, depending on the type of assets, the type of activity or the quality of the parties.

The transfer of a real estate asset must be recorded in a notarial deed. It is then registered and recorded in the mortgage registry held by the Land Registration and VAT Authorities (Administration de l'Enregistrement, des Domaines et de la TVA), to ensure enforceability against third parties. The deed is also applicable to:

• all other remaining in rem rights pertaining to real estate assets;
• any mortgage inscriptions or easements (with the exception of legal easements); and
• commercial lease agreements with a duration of more than nine years.

Due diligence is usually carried out by making the relevant documentation linked to the real estate available in a virtual data room, which is accessible to the buyers. The findings resulting from the analysis of such documents are summarised in a due diligence report, which may take the form of a full detailed report or a “red flag” summary reporting only the points that might raise an issue for the buyer.

A due diligence report will usually address legal, financial, technical and sustainability/environmental topics.

All due diligence is now conducted (when possible) on a virtual basis.

Typical representations and warranties under Luxembourg law address the following points:

• disclosure;
• the capacity of the seller and the consequences of the sale;
• property ownership (encumbrances, expropriation, conditions of the property, etc);
• leases;
• insurance;
• permitting; and
• easements.

In cases of misrepresentation, the buyer may take legal action in order to have the sale declared void by a judge or, if that proves unattainable, to seek compensation for damages.

Ownership rights are notably subject to Civil Code provisions, land use rules (town and country planning), the protection of archaeological and/or specially classified sites, mandatory expropriation for reasons of public interest (expropriation pour cause d'utilité publique) or pre-emption rights (droit de préemption) in favour of the state or municipalities. Ownership rights can also be restricted by easements for public use (servitude d'utilité publique). Certain plots of land owned by the state may only be available under temporary occupation rights, rather than full ownership title (see 3. Real Estate Finance).

The requirements regarding who is responsible for soil pollution or environmental contamination of a property are integrated into the authorisation to be obtained from the Ministry of Environment (operating permit).

The authorities may impose soil survey or clean-up requirements on the owner, user and/or operator of any land by virtue of other legal frameworks, such as the legislation on classified installations, waste management or environmental liabilities.

In terms of responsibilities, the Law of 20 April 2009 on environmental responsibility with regard to the prevention and compensation of environmental damage, as amended, provides for the responsibility of the user/operator of the land. The user/operator supports the costs of prevention or curative measures ordered by the authorities. The Law also includes certain exceptions designed to prevent the user/operator from being held accountable, primarily in situations where a third party is at fault, which must be substantiated with evidence.

At a national level, the amended Law of 19 July 2004 on municipal planning and urban development provides rules to control and regulate planning and zoning in Luxembourg, and sets out the division of the country into a general development plan (plan d’aménagement général – PAG), corresponding to the administrative division of the country into municipalities (communes).

The territories of the municipalities are governed by two main types of zoning plans: the general zoning plan (PAG) and special zoning plans (plans d'aménagement particulier – PAP).

The municipalities are in charge of issuing the PAG and the various PAPs.

The PAG divides the municipal territory into various zones, stating the following for each zone:

• how the land is to be used (eg, dwellings, economic activity, green zone); and
• the degree of land use (number of houses, green spaces, etc).

Specific zones of the PAG may be divided into PAPs that implement and specify the nature and extent of land use in each zone or part of a zone of the PAG.

Urban planning law also requires a building permit for a wide range of works, including construction or reconstruction, the modification or extension of existing buildings, and changing the use of an existing building.

Building permits are issued by the mayor of the municipality concerned. A building permit may only be issued if the intended building complies with the applicable PAG and PAPs.

An allotment permit is required in order to divide a plot of land.       

Expropriation takes place by authority of justice, through a declaration in a grand ducal decree. It may relate to all or part of a building or real property rights. It must be guided by reasons of public utility and it is only possible with fair and prior compensation.

The state and the municipalities benefit from pre-emptive rights, subject to specific conditions.

In the disposal of a real estate asset located in Luxembourg (ie, an asset deal), a transfer tax of 6% and a transcription tax of 1% are to be paid. If the asset is an office or commercial property located in Luxembourg City, a municipal surcharge of 50% on the transfer tax is levied (leading to an aggregate rate of 10%).

The transfer taxes are usually payable by the purchaser (unless otherwise agreed upon). The taxable base corresponds to either the purchase price or the fair market value of the property, whichever is higher.

As a rule, if a Luxembourg real estate asset is contributed to a company against the issuance of shares, reduced transfer taxes apply, amounting to 3.4% (or 4.6% for an office or commercial property located in Luxembourg City).

No Luxembourg transfer taxes should apply to the disposal of shares in an opaque company holding a Luxembourg property.       

There are no specific legal restrictions on foreign investors.

Acquisitions of commercial real estate in Luxembourg are commonly financed through a combination of equity, quasi-equity and senior debt in the form of a loan, which may be completed with junior (subordinated) debt depending on the risk profile of the transaction, the size of the portfolio and the required loan-to-value ratio.

The debt portion of the financing may take the following forms:

• a mortgage debt for the financing of the acquisition of real estate assets;
• an acquisition debt for the financing of the acquisition of the shares of the entities holding real estate assets; or
• a combination of both for the financing of the acquisition of the shares of entities holding real estate assets and the refinancing of the existing indebtedness of such entities.

The financing of acquisitions and development projects is generally secured by securities created over the assets and the shares of the borrower; lenders usually accept non-recourse financing for the acquisition of commercial real estate assets, whereas investor and/or bank guarantees will usually be required in addition to the standard security package for development projects.

Typically, the lenders will require securities that allow them to recover the financed asset directly or indirectly. Such security may take the form of a contractual mortgage (hypothèque) over the real estate asset and/or a pledge over the shares of the entity holding such asset.

The security package will also include a security interest over cash flow related to the real estate asset or resulting from the financing transaction, usually in the form of an assignment of rights (insurances, rent), a pledge over receivables (generally related to intragroup financing) and a bank account pledge (over the relevant accounts such as rent account).

Depending on the type of transaction, the creditors may also require security over the borrower’s other movable assets.

Generally, there are no restrictions on granting security to foreign lenders, nor on payments made to foreign lenders under a security document or loan agreement. To remain enforceable against third parties, the mortgage on real estate property must be renewed every ten years.

Real estate assets are often secured by first-ranking mortgages, the registration of which triggers a 0.24% registration duty and a 0.05% inscription fee, with both rates being applied to the total secured debt (usually borne by the purchaser).

The notary fees to record the mortgage inscription in the mortgage registry are calculated on a sliding scale and are also generally borne by the purchaser.

The issuance of a guarantee or the granting of security over its assets by a Luxembourg company must comply with the following rules.

• Financial assistance in Luxembourg refers to the prohibition on public limited liability companies or partnerships limited by shares advancing funds, making loans or granting security, directly or indirectly, for the purpose of a third-party acquisition of its shares. It is arguable whether the financial assistance prohibition also applies to private limited liability companies, but the prohibition can be mitigated by the application of the so-called “white-wash procedure”, which allows the management and shareholders of the applicable company to overrule the financial assistance prohibition.
• Upstream and cross-stream guarantees:
1. the possibility of the issuance of a guarantee to third parties or companies within the same group shall be set out in the articles of association of the Luxembourg company; and
2. the managers/directors of the company must ensure that the issuance of the guarantee is in the company’s corporate benefit (intérêt social).
• The corporate benefit test is the responsibility of the managers/directors. The company giving the guarantee shall receive some consideration in return (either economical or commercial benefit), but the benefit shall be proportionate to the burden of the guarantee/security granted.
• More generally, all guarantees issued and security granted by a Luxembourg company shall be discussed and approved at a dedicated meeting of the board of managers/directors.

The events of default are generally provided under the main credit agreement and, as such, Luxembourg security agreements usually refer to them by cross-reference.

If the main credit agreement contains a specific acceleration procedure clause, it should also be applied to the enforcement of Luxembourg security agreements.

If that is not the case, the creditor informs the debtor of the occurrence of an event of default and the enforcement of its security (all or only some of them).

Usually, the enforcement is realised over the shares of the company owning the real estate. The creditor usually creates a specific purpose vehicle, which will appropriate the shares.

Unless there are creditors benefiting from privileged rights, no other creditors may take precedence over the rights of secured creditors.

Contractual subordination is allowed under Luxembourg law. The existing creditor may agree to subordinate the existing secured debt contractually to newly created debt by entering into an inter-creditor agreement or subordination agreement. This will determine the rights of each class of creditors (senior, mezzanine, junior) with respect to, in particular, their rank and subordination, the payment arrangements and the enforcement of security interests.

In theory, contractual subordination survives an insolvency situation of a Luxembourg borrower.

A lender holding or enforcing security over a real estate property or shares should not be liable for environmental damage, provided it did not cause the damage to the environment itself, nor otherwise controlled the activities of the operator of the real estate property at the origin of any environmental damage.

A specific regime applies for insolvency proceedings. Debtors who qualify for bankruptcy must submit their filings to Luxembourg courts within one month. However, due to the pandemic, this deadline was temporarily suspended until 30 June 2022.

The assets subject to the financial collateral arrangement(s) shall not be considered part of the assets subject to insolvency proceedings (estate), enabling the beneficiary to enforce the relevant security regardless of the opening of insolvency proceedings and regardless of other estate creditors. Moreover, any actions taken during the “suspect period” cannot be contested by the court-appointed receiver.

Mortgages over real estate property remain in full force and effect even in the case of an insolvency proceeding.

Under existing rules, the registration of a mortgage loan or mezzanine loans related to real estate triggers a registration tax of 0.29%, corresponding to a 0.24% registration duty and a 0.05% inscription fee, with both rates being applied to the total secured debt (usually borne by the purchaser).

See 2.8 Permitted Uses of Real Estate under Zoning or Planning Law.

The construction of new buildings or the refurbishment of existing buildings is subject to the municipal building regulations (Règlement sur les Bâtisses – Rb), which provide detailed rules regarding the design, appearance and method of construction.

Each municipality in Luxembourg sets its own municipal building regulation.

The state and the municipalities are responsible for regulating the designated use of individual parcels of real estate.

The modified Law of 19 July 2004 applies, as does the given municipality PAG, PAP and/or Rb.

Each project is subject to a building permit issued by the municipality (the mayor – Bourgmestre).

If the parcel(s) of land is (are) situated in a zone identified in the PAG as being subject to the adoption of a PAP, such PAP will have to be defined and adopted by the municipality council before the owner can be put in a position to apply for a building permit.

A building permit is then only granted if the project is compliant with:

• the applicable PAG;
• the PAP for a new or existing development, where applicable; and
• the building, public road and site regulations.

Third parties with a direct interest (eg, neighbours) have a right to participate and object to the issuance of the building permit. Once the building permit application is approved by the mayor, a certificate is issued, which must:

• be clearly and legibly displayed by the developer at the boundaries of the work site; and
• state that the public can view the file at the communal authority (for the period allowed for objections, which is three months from the date when the certificate is displayed on the work site).

Regarding the building permit issuance process, any person may appeal to the court to have the decision overturned. The appeal must be filed within three months of the certificate being displayed by the developer at the boundaries of the parcel of land.

Regarding the PAP adoption process, any person who lodged a complaint with the communal council during the publication period and is not satisfied by the response from the Minister for Home Affairs may appeal to the court to have the decision overturned.

Developers and owners remain free to enter into a contract with the relevant authorities, primarily the municipality, to address potential issues in advance.

The mayor of the municipality is empowered to stop the works and/or to lodge a criminal complaint and initiate criminal proceedings against the developer/owner.

Luxembourg law provides for a wide array of company forms that are capable of acquiring and holding real estate assets, with the most frequently used types being:

• the private limited liability company;
• the public limited liability company;
• the partnership limited by shares; and
• the common and special limited partnerships.

The civil company (société civile) is also very occasionally used to acquire and hold real estate assets, but cannot be used for repeated speculative real estate operations. Therefore, it appears to be of lesser interest to investors.

Luxembourg also offers a wide range of flexible and efficient investment fund regimes, which are of particular interest to real estate asset managers who are willing to raise capital from investors with a view to acquiring real estate assets:

• UCIs subject to part II of the Law of 17 December 2010 on undertakings for collective investment (UCIs Part II):
1. are undertakings for collective investment open to retail investors subject to the ongoing supervision of the Luxembourg Supervisory Authority for the Financial Sector (Commission de Surveillance du Secteur Financier – CSSF);
2. may invest in any type of real estate assets and pursue any real estate strategy, but are subject to strict diversification requirements; and
3. may be established as standalone structures or with multiple compartments under a corporate form – an investment company with variable or fixed share capital (SICAV or SICAF) in any of the legal forms mentioned above or under a contractual form (common fund – fonds commun de placement).
• SIFs:
1. qualify as undertakings for collective investment subject to the ongoing supervision of the CSSF, but are restricted to well-informed investors;
2. may invest in any type of real estate asset and pursue any real estate strategy, and are subject to less stringent diversification requirements than apply to UCIs Part II; and
3. may be established as standalone structures or with multiple compartments under a corporate or contractual form.
• SICARs:
1. are investment companies restricted to well-informed investors, subject to the ongoing supervision of the CSSF;
2. are not subject to any risk diversification requirements but may only invest in “risk capital” qualifying assets – ie, characterised by the concurrent gathering of two elements, namely a high risk and an intention to develop a project (value creation);
3. may not hold real estate directly but may invest indirectly via entities that hold or invest in real estate assets representing risk capital characteristics (private equity real estate) and may contribute capital to real estate companies;
4. would not be permitted to pursue Core/Core+ strategies, as the purpose of SICARs shall, in any case, be to bring about a development (ie, the creation of added value) at the level of the underlying real estate assets; and
5. may only be established under a corporate form, with either a variable or fixed share capital.
• RAIFs:
1. are not subject to the ongoing supervision of the CSSF but have to be either internally managed or managed by a duly authorised external alternative investment fund manager in accordance with the AIFMD so as to offer a certain level of protection to investors through the indirect supervision of the investment management of the RAIF;
2. are more attractive and quicker to market than regulated funds, due to the absence of regulatory supervision and pre-approval requirements;
3. are flexible investment vehicles that may mirror the features of either the SIF (well-informed investors only, any asset class and risk diversification requirement) or the SICAR (well-informed investors only, “risk capital” qualifying assets and no risk diversification); and
4. may be established as standalone structures or with multiple compartments under a corporate or contractual form.

A public limited liability company, a private limited liability company and a partnership limited by shares may only be incorporated by way of a special notarial deed. Each of these company types will acquire its legal personality from the date of the relevant notarial deed. The incorporation deed of each such company form will be published in its entirety.

These entities are subject to corporate income tax and municipal business tax at a combined rate of 24.94% in Luxembourg City for 2024, and to net wealth tax on their unitary value (ie, adjusted net asset value, it being understood that the unitary value of real estate assets is determined based on the value of the property or of a similar property in 1941, which is then multiplied by a communal rate) on 1 January each year at a rate of 0.5% up to EUR500 million of unitary value, and 0.05% for any unitary value exceeding EUR500 million.

These entities are able to recognise tax-deductible depreciation based on the asset’s expected useful life. Business expenses such as management fees are deductible under certain conditions. Arm’s length borrowing costs can also be deducted annually, up to EUR3 million or 30% EBITDA (save for exceptions), whichever is higher. Furthermore, Luxembourg tax law allows (under certain conditions) a Luxembourg company to defer capital gains realised upon the disposal of a real estate asset if an amount corresponding to the sale proceeds realised is reinvested into another fixed asset.

A common limited partnership and a special limited partnership can be incorporated by way of either a notarial deed or a deed under a private seal. While the special limited partnership is deprived of legal personality, the common limited partnership will acquire its legal personality from the day of execution of the partnership agreement, thus allowing for maximum flexibility. The constitutive document of each such partnership will be published by way of extracts only. The relevant extract will include the following:

• the precise designation of the unlimited members;
• the name of the entity, its object and the place of its registered office;
• the designation of the managers as well as their signatory powers; and
• the date on which the company starts and the date on which it ends, thus ensuring an appreciable level of confidentiality.

The formation process is quite straightforward and can generally be completed within a few days.

As a rule, these entities should be considered tax transparent and should therefore not be subject to corporate income tax, municipal business tax or net wealth tax.

With respect to investment fund regimes, investment funds subject to the ongoing supervision of the CSSF (ie, UCIs Part II, SIFs and SICARs) have to be authorised by the CSSF before they are established, and will only be authorised if the CSSF has approved the constitutive document of the fund, the management and the choice of the depositary.

The regulatory approval process usually takes between two and six months, depending on the fund regime and the initiator and fund specifics.

These vehicles, except for the SICAR, are exempt from corporate income tax, municipal business tax and net wealth tax, but are subject to subscription tax. Typically, UCIs are subject to subscription tax at a rate of 0.05% of their net asset value and SIFs at a rate of 0.01% of their net asset value (subject to exemptions).

Additionally, these vehicles, except for the SICAR, are subject as of 1 January 2021 to a lump-sum 20% real estate levy on gross rental income and capital gains derived from real estate assets located in Luxembourg.

SICARs established as tax opaque entities are subject to corporate income tax and municipal business tax at a combined rate of 24.94% in Luxembourg City for 2024, but are exempt from income derived from transferable securities. Although not subject to net wealth tax, those vehicles remain subject to minimum net wealth tax. SICARs established as tax transparent entities are not subject to corporate income tax (except where reverse hybrid rules apply), municipal business tax, net wealth tax or subscription tax.

There is no specific REIT legislation in Luxembourg.

There is no minimum share capital requirement for the common limited partnership or the special limited partnership. Public limited liability companies must have a minimum share capital of EUR30,000, or its equivalent in any other currency; the same requirement applies to a partnership limited by shares. The share capital of a private limited liability company must be at least EUR12,000, or its equivalent in any other currency.

Luxembourg investment fund regimes impose different requirements in terms of minimum capitalisation:

• UCIs Part II – the net asset value of a UCI Part II may not be less than EUR1.25 million, and this minimum must be reached within twelve months following its authorisation; and
• SIFs/RAIFs/SICARs – the subscribed capital of a SIF/RAIF/SICAR increased by the share premium or the value of the amount constituting partnership interests, or the net asset value of a SIF/RAIF under contractual form, may not be less than a certain amount (EUR1.25 million for SIFs and RAIFs, or EUR1 million for SICARs), which must be reached within twenty-four months of the authorisation of the SIF or SICAR or establishment of the RAIF.

Public Limited Liability Company

Under Luxembourg law, public limited liability companies can have either a one-tier or a two-tier board structure.

In a one-tier board structure, the company will be managed by a board of directors comprising at least three members, unless the company has a sole shareholder, in which case the management may be entrusted to a sole director. Directors are appointed by the general meeting of the shareholders for a term that may not exceed six years. The board of directors represents the public limited liability company in dealings with third parties. However, the articles of association may authorise one or more directors to represent the company, either alone or jointly. The board of directors may create specific committees and is entitled to determine the composition, powers and duties thereof. Such committees will act under the responsibility of the board of directors. The articles may further authorise the board of directors to delegate its powers to a management committee or to a managing executive. Such delegation may neither comprise the general policy of the company nor cover all actions reserved to the board pursuant to applicable law.

In a two-tier board structure, the public limited liability company will be managed by a management board, whose powers and duties may be carried out by a sole person if the company has a sole shareholder or if the share capital is less than EUR100,000. Members of the management board will be appointed by the supervisory board, or by the general meeting for a term that may not exceed six years. Both physical and legal persons may be appointed as management board members, but a permanent representative will have to be appointed in the latter case. The company will be represented by its management board, but the articles may authorise one or more members of the management board to represent the company either alone or jointly. As in a one-tier board structure, the management board may create committees. The supervisory board will have an unlimited right to inspect all the transactions of the company.

The supervision of the company’s affairs will be carried out by one or more supervisory auditor(s) (commissaires) appointed by the general meeting of the shareholders for a term that may not exceed six years, unless the accounts are audited by an approved statutory auditor (réviseur d’entreprises agréé).

The general meeting of the shareholders holds certain exclusive powers granted by law, including:

• the appointment/removal of the members of the board of directors;
• the appointment of the supervisory auditor(s);

• any amendment to the company's articles of association;
• the approval of the annual accounts and the allocation of the result; and
• the dissolution and subsequent opening of the liquidation of the relevant company.

Partnership Limited by Shares

Partnerships limited by shares are governed by the same governance rules as public limited liability companies, except for the following features.

• The management of the partnership will be carried out by one or more managers, who may be unlimited members but do not need to be. Typically, the management will be entrusted to a general partner, being the holder of all unlimited shares in the partnership. In order to mitigate any unlimited liability risks, such a general partner will usually be incorporated under the form of a private limited liability company. Even if a limited partner may be a member of the management board, it is strictly prohibited from carrying out any management acts towards third parties.
• The supervision of the company must be entrusted to at least three supervisory auditors (commissaires aux comptes), who will form a supervisory board unless an approved statutory auditor (réviseur d’entreprises agréé) has been appointed.

Private Limited Liability Company

Private limited liability companies are more flexible and allow for tailor-made governance regimes, making this company form the most popular investment vehicle for real estate.

The management of a private limited liability company will be carried out by one or more managers, who will be appointed by the general meeting or by the sole shareholder for a limited or unlimited period of time. The managers have the widest powers to achieve corporate objectives and may take any action necessary in relation thereto, with the exception of those tasks reserved by law or the articles of association for the general meeting.

The general meeting of the shareholders will enjoy certain reserved powers similar to those of the general meeting of a public limited liability company.

The supervision of the company must only be entrusted to a supervisory board comprising one or more supervisory auditors only where the company has more than sixty shareholders and no approved statutory auditor (réviseur d’entreprises agréé) has been appointed.

Common and Special Limited Partnerships

The governance regime of both partnerships is characterised by an extremely high level of contractual freedom, making it a popular company form for real estate investments.

The management of each partnership will be entrusted to one or several managers, who do not need to be general partners. Limited partners may be members of the management body but cannot take any management action towards third parties without jeopardising their limited liability. In practice, as for the partnership limited by shares, the management will be entrusted to a private limited liability company that will act as general (unlimited) partner.

Matters that necessarily fall within the competence of the general meeting of the partners include:

• amendments to the corporate object of the partnership;
• a change of the nationality of the partnership;
• the conversion or liquidation of the partnership; and
• the approval of the annual accounts, as applicable.

Such a list may be freely supplemented in the partnership agreement.

Specific Governance Rules Applicable to Companies Listed on the Luxembourg Stock Exchange

Such companies must further comply with the specific governance rules enshrined in the X Principles of Corporate Governance of the Luxembourg Stock Exchange (eg, the establishment of a nomination committee and an audit committee) and the law of 24 May 2011 on the exercise of certain rights of shareholders in general meetings of listed companies and implementing Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies.

Specific Requirements Applicable to Alternative Investment Funds (AIFs)

Any undertaking for collective investment that raises capital from a number of investors with a view to investing it in accordance with a defined investment policy for the benefit of those investors, and which does not require an authorisation as an undertaking for collective investments in transferable securities (UCITS) pursuant to Directive 2009/65/EC on UCITS, will in principle qualify as an AIF within the meaning of the AIFMD and as such has to either be managed by an external AIFM designated by the AIF or be itself authorised as an internally managed AIF.

External AIFMs may either be authorised by or registered with the competent authority of an EU member state, or be a non-EU AIFM.

Specific Requirements Applicable to Regulated Investment Funds

The directors of a regulated investment fund set up in a corporate form (UCI Part II, SIF or SICAR) must be of sufficiently good repute and sufficiently experienced, having particular regard to the type of investment fund and its investment policy.

Regulated investment funds set up in the contractual form (UCI Part II or SIF only) shall only be authorised by the CSSF if the CSSF has approved the application of the management company to manage that common fund.

Accounting compliance costs will increase significantly if the annual accounts are to be audited by an approved statutory auditor (réviseur d’entreprises agréé). The appointment of an approved statutory auditor is compulsory under Luxembourg law for public limited liability companies, partnerships limited by shares and private limited liability companies, and also for common partnerships under certain specific circumstances. In addition, in accordance with the AIFMD, Luxembourg AIFs managed by a duly authorised AIFM must have their accounts audited.

Real estate may be subject to long-term in rem rights under the following:

• a droit de superficie, which is a tenancy and building right with renewable terms of a maximum of 99 years each time; and
• a bail emphythéotique, which is a tenancy right with a duration between 27 and 99 years, which can be renewed.

Actual leases of real estate only confer personal rights of use of the premises to the tenant, and are split into the following three main categories:

• residential lease agreements, mainly governed by the general lease rules of the Civil Code and the Law of 21 September 2006, as amended on residential leases;
• commercial lease agreements, mainly governed by the general lease rules of the Civil Code and (to the extent the lease exceeds a term of one year) by Articles 1762-3 et seq of the Civil Code, concerning real estate used for commercial, industrial or craftsmanship activities; and
• lease agreements with respect to real estate used for other purposes (eg, office buildings used for administrative purposes or for liberal professions), which are not subject to the specific rules of residential or commercial leases; the leases benefit from the most extensive contractual freedom, and are only subject to the general rules of the Civil Code applying to leases (to the extent not otherwise contractually agreed).

The analysis of the following questions will be limited to commercial lease agreements.

There is only one type of commercial lease, which applies exclusively to real estate used for commercial, industrial or craftsmanship activities.

Rents and lease terms for commercial leases are generally freely negotiable, but the tenant (or subtenant, if subleasing is allowed) may request the renewal of the lease at the end of its term, subject to specific conditions. No specific amendments to the generally applicable legislation have been implemented following the COVID-19 pandemic.

Commercial leases are usually concluded for a duration of nine years, with a possibility for the tenant to terminate the lease after three and six years of occupancy. However, commercial leases can be entered into for any other terms or for an undetermined duration. Leases with a fixed term exceeding nine years must, in principle, be entered into by notarial deed.

Major repairs are at the charge of the landlord, whereas the tenant is liable for the costs of maintenance and “minor” repairs, unless such repairs are caused by dilapidation or force majeure. The parties may derogate from these rules.

As no specific lists of repairs incumbent upon the landlord or the tenant have been established, this has to be determined on a case-by-case basis by the competent courts in cases of dispute. The frequency of rent payments is freely determined by the parties.

No specific COVID-19 practices have been implemented. It is likely that force majeure clauses for future lease agreements will foresee a carve-out in favour of the landlord to exclude any derogation from the lease terms for a specific pandemic; however, at present, no legislation or precedents have implemented this.

Periodic rent adjustments during the course of the contractual relationship are usually provided for in the lease agreement.

A commonly used mechanism is a contractual reference to an index published by the Service Central de la statistique et des études économiques.

It is important to determine in the lease agreement which index is to be applied, and rent will then be adjusted. Lease agreements usually stipulate that the amount of rent may not decrease should the relevant index drop.

The rental of real estate property located in Luxembourg is generally VAT exempt.

However, the right to opt for VAT may be exercised under certain conditions.

The VAT exemption waiver form is to be submitted to the Luxembourg VAT authorities for approval. The standard 17% rate then becomes applicable on the rent.

The tenant may be liable to settle agency fees to the real estate agents. In addition, the tenant will in principle have to make advance payments for the maintenance of common spaces of the building.

All occupants of a building must participate in the maintenance, repair and other costs related to common areas. The proportion of participation in such costs by a tenant depends exclusively on the size of the space rented compared to the total size of the building.

Generally, each tenant has its own subscription for utilities like water, sewer, refuse, electricity and telecommunication services. Where appropriate, each rental unit will have its own meters/counters for such purposes. Alternatively, certain services may be included in the monthly charges for common spaces.

The parties are free to decide who bears the direct cost of insurance policies. The tenant may be liable to take out appropriate insurance cover directly for the rented premises, or the building management may take out policies for the entire building (in which case, the costs are normally reflected in the monthly common charges).

The usual mandatory insurance policies (whether taken out by the building management or individual tenants) cover fire, water, storm, other natural forces and glass breakage.

In any case, tenants are usually required to take out separate cover for damage to their personal assets and general tort liability for any harm caused to visitors within their rented premises.

Issues related to COVID-19 are subject to the specific insurance policies potentially entered into.

The landlord can limit the use of the premises rented out (eg, for office/administrative use only).

Zoning and other legislation may apply and limit the use of premises for commercial, industrial, residential or other use.

For certain activities that are qualified as “hazardous”, the tenant will also be required to obtain specific authorisations from the competent authorities.

Any alteration to the rented premises by the tenant is normally subject to the prior approval of the landlord. If alterations are planned from the beginning, they are usually authorised within the framework of the lease agreement.

Alterations that would interfere with the normal use of their premises by other tenants or owners are generally restricted and will require the additional approval of the building management.

For major alterations, building permits from the competent authorities may be required.

Unless otherwise agreed between the landlord and the tenant, the tenant bears the cost of any alterations and improvements. At the end of the lease term, the landlord usually has the option to either keep the modifications or require the tenant to restore the premises to their original condition.

See 6.1 Types of Arrangements Allowing the Use of Real Estate for a Limited Period of Time.

The insolvency/bankruptcy of a tenant does not automatically result in the immediate termination of a lease agreement. However, lease agreements often contain a possibility for the landlord to terminate the lease agreement without notice if the tenant is declared bankrupt. The landlord and the bankruptcy receiver agree on the termination of the lease and its terms.

For commercial lease agreements, the common security is a security cash deposit, a first demand bank guarantee or other equivalent guarantee covering an amount limited by statute to six months of rent.

Whether or not a tenant has a right to continue occupying the relevant real estate after the expiry or termination of a commercial lease depends on whether the commercial lease has a fixed term (it ends automatically at the end of the term without requiring formal notice) or an indefinite duration (the notice period to be granted is contractually agreed and cannot be less than six months). If no termination notice has been given, a commercial lease agreement that ends for any reason is tacitly renewed for an indefinite period.

For fixed-term commercial leases, it is advisable to send a formal notice of termination at least six months before the lease’s agreed term, requesting the tenant to vacate the premises at the end of the agreed term to avoid an automatic tacit renewal.

However, the landlord only has the right to terminate an indefinite duration lease or to refuse the renewal of a fixed-term lease (if timely requested by the tenant) in the following circumstances:

• if the landlord or their first-degree descendants intend to personally use the premises;
• if the premises will no longer be rented for the same activities; or
• in case of the reconstruction or transformation of the rented building.

If the tenant has occupied the rented premises for at least nine years, the landlord can refuse a renewal of the term lease or terminate an indefinite duration lease without giving reasons, but only if the landlord or a third party agrees to pay an eviction indemnity to the tenant before the end of the lease.

A contractual clause in a commercial lease prohibiting the assignment of the lease or sublease of the leased premises is null and void if the assignment of the lease or the subleasing is made together with the assignment of the commercial activity (fonds de commerce) and an identical commercial activity will remain established on the premises.

A prohibition of the assignment of the lease or subleasing by the landlord should remain possible to the extent it is not made in conjunction with the assignment of the underlying business.

Any assignment of the lease or any sublease must be notified to the landlord, who has 30 days to refuse consent for valid reasons. The tenant has the ability to object before the competent court, within eight days of the refusal.

The tenant remains bound, as joint and several surety, for the performance of the obligations under the assigned or subleased lease agreement.

The landlord may request the competent court to terminate a commercial lease with immediate effect and ahead of term if the tenant does not respect the obligations contained in the lease agreement. The lease agreement can also contain a clause entitling the landlord to terminate the lease with immediate effect for violation by the tenant of substantial obligations under the lease agreement. If the tenant refuses to vacate the premises, the landlord can request a confirmation of termination by the competent court to evict the tenant.

There is no requirement to register a lease agreement or perform any other particular execution formality. Registration of the lease agreement can be made on a voluntary basis with the Luxembourg VAT authorities.

See 6.19 Right to Terminate a Lease.

The landlord can request the competent court to confirm the immediate termination of the lease and to order the eviction of the tenant. The court may grant a reasonable deadline for the tenant to vacate the premises. Court proceedings with respect to lease agreements usually take approximately six months.

If the Luxembourg government initiates an expropriation procedure for premises occupied by a tenant, for public reasons, the tenant will be called by the landlord to participate in the expropriation proceedings and will normally be indemnified by the government if the lease has to be terminated following the expropriation procedure.

The provisions with respect to damages for breach of the lease agreement are typically contracted in the lease agreement, and usually include:

• payment of a certain amount of rent (calculated in months) by the tenant;
• a relocation indemnity (to cover for the period until the premises can/will be leased out again); and
• coverage of costs for damages that may have been caused to the property and which would be attributable to the tenant.

The security deposits have been summarised in 6.16 Forms of Security to Protect Against a Failure of the Tenant to Meet Its Obligations.

There are three main methods used to price construction projects, as follows:

• the fixed price contract is most appropriate where simplicity of management is a consideration due to the size of the project or the management team;
• the cost-plus contract allows the contractor to be paid the full price for all agreed-upon construction-related costs and overheads, and a fee representing the contractor’s profit; and
• the unit price contract is often used for repetitive projects as it sets a price for each unit of work or task to be completed.

The architect is liable for the design in the event of a plan defect, if the plans have been rigorously followed by the constructor (contractor) and the owner (client). The architect is bound by an obligation of result.

The constructor/contractor can be held jointly and severally liable with that of the architect if a defect arises during the works.

Finally, the consulting engineer may also be held jointly and severally liable with the architect because their interventions are intermingled.

All participants can be held liable for a breach of the client’s advice and due diligence.

Risk factors can be split into two groups:

• internal risks, which fall within the control of clients, consultants and contractors; and
• external risks, which include risk elements that are not in the control of key stakeholders.

Constructions are regulated by Luxembourg common law provided by the Civil Code.

All possibilities offered by the Civil Code can operate. In particular, forfeiture clauses allow monetary compensation at key stages of the construction. Parties usually use such indemnification clauses.

The main securities under a construction contract consist of the following:

• cash retention, which involves withholding a small amount from the contractor’s claim (typically 10% of the claim) until a certain value of security has accumulated (typically 5% of the contract sum);
• using a separate bank account to give the contractor greater reassurance that it will eventually receive the security amount once its obligations have been discharged;
• a guarantee given by a bank to pay an amount on demand to the named beneficiary;
• insurance bonds that are similar to bank guarantees, in that they are issued by a third-party financial institution (usually an insurance company) and are payable on demand to the named beneficiary; and
• a letter of comfort, which consists of an assurance given by a third party, such as a bank, accountant or related body corporate, about the financial standing of a particular entity.

Mortgages are often used in construction (see 2.3 Effecting Lawful and Proper Transfer of Title).

Ownership rights relating to real property are entered into the Administration Registry and the Mortgage Registry, which prevents a third party from purchasing the same piece of property in good faith.

In Luxembourg, purchasing an existing building is generally exempt from VAT. However, under certain conditions and similar to renting, this purchase can be subject to VAT by submitting a VAT option form (see 6.7 Payment of VAT).

In the case of a building to be constructed, the construction work is subject to VAT at a rate of 17%.

A super-reduced VAT rate of 3% on the construction and renovation of housing may apply if the property is used as the main residence for a period of at least two years. This VAT benefit may not exceed EUR50,000 per built or renovated residence.

The significant transfer taxes on real estate assets (7% to 10%, depending on the location and nature of the property) led to the vast majority of large real estate transactions assuming the format of share deals. Since the registered owner of the property remains unchanged, no transfer taxes are due. In addition, the underlying capital gains on the property itself will not be realised and thus will not be taxed. The latent tax burden is transferred to the new shareholder and will only be realised when the property is sold in an asset deal. Therefore, the selling price is frequently discounted by a provision for latent capital gains.

Most of the investment vehicles can be structured to ensure tax efficiency.

Each municipality in Luxembourg is authorised to levy a property tax on any immovable property situated within the limits of the municipality, whether built on or not. The property tax ranges between 0.7% and 1% of the unitary value of real property (determined based on the value of the property or of a similar property in 1941, which is then multiplied by a communal rate).

Rental Income

Non-resident companies or individuals are subject to taxation on their Luxembourg-sourced rental income similarly to Luxembourg resident taxpayers, although subject to the provisions of any applicable tax treaty. Double tax treaties concluded by Luxembourg are based on Article 6 of the OECD Model Convention as far as the taxation of rental income is concerned, according to which rental income is taxable in the state where the immovable property is located.

Non-resident companies deriving real estate income (ie, rents) from properties in Luxembourg are subject to the same Luxembourg taxation as resident companies.

For non-resident individuals directly owning real estate assets located in Luxembourg, the rental income will be subject to personal income tax in Luxembourg, in accordance with progressive rates.

Non-residents may be entitled, under certain conditions, to deduct general expenses related to the obtainment of real estate income, and also to depreciate the value of the assets.

Capital Gains Upon the Sale of a Luxembourg Property

The basis for assessing real estate income tax is usually the difference between the purchase price and the sale price of the real estate property.

The capital gains realised upon the alienation of an immovable property are generally taxable in the country of location of such property (ie, Luxembourg). The state of residence of the alienator typically provides relief for the taxes paid in Luxembourg.

Accordingly, capital gains arising from the sale of a Luxembourg property by a non-resident company are subject to the standard Luxembourg corporate income tax rates.

For non-resident individuals, capital gains are not subject to a separate tax but instead to the standard rates of personal income tax (or reduced rates under certain conditions).

As of 1 January 2021, a 20% real estate levy applies to rents and capital gains derived from real estate located in Luxembourg whenever the owner is a tax opaque UCI, a SIF or a RAIF. Specific reporting is required of the relevant fund vehicles in relation to this levy.

When a Luxembourg opaque company owns real estate, the company can recognise tax-deductible depreciation based on the asset’s expected useful life.

Business expenses such as management fees are deductible under certain conditions.

Arm’s length borrowing costs can also be deducted annually, up to EUR3 million or 30% EBITDA (save for exceptions), whichever is higher.

Furthermore, Luxembourg tax law enables (under certain conditions) a Luxembourg company to defer capital gains realised upon the disposal of a real estate asset if an amount corresponding to the sale proceeds realised is reinvested into another fixed asset.

Similarly, individuals are allowed to defer capital gains realised upon disposal of a real estate asset held at least two years after its acquisition in the context of their private wealth management if an amount corresponding to the sale proceeds realised is reinvested in real estate rented out as social housing or in real estate meeting certain energy and environmental criteria.