Cambodian laws towards land titles for foreign ownership have been largely untested amidst the current construction boom. After months of collaboration with the lawyers of Sok Siphana & Associates and National 6A Investment, the Ministry of Land Management, Urban Planning and Construction (MLMUPC) has now started to transfer strata titles to purchasers of residential units - creating legally binding ownership.
James Whitehead spoke with Antoine Petit, executive director for National 6A Investment - the development company and property manager for the Galaxy Residence on Chroy Changvar - about the various pitfalls that all investors should be aware of when acquiring strata titles.
What are the steps to creating a strata title?
At the very first stage, the developer acquires the land that the development will be on with a hard title in the name of the development company. This happened around four years ago for National 6A Investment.
However, from this original master title you cannot directly transfer private unit ownerships to individual buyers. Before this, you must first transfer the total collection of split titles into the developer’s name and ownership. In our case, these were 51 separate titles for 51 units, made from the original, single hard title. The land department of the ministry will also screen your common area regulations and practices at this stage. If the land department is satisfied that the co-owned areas will be correctly managed and insured, then the strata titles will be issued.
Once these 51 titles have been created and transferred into the company’s ownership, we can proceed to transferring these individual titles to the individual buyers.
What is involved in the transfer of the strata title from the development company to the end buyer and owner?
The MLMUPC requires fully certified documentation of the identity and marital status of the end buyer and these documents must also be supplied and translated into Khmer. Importantly, the strata title is solely in Khmer, thus no English names are permitted on the strata title and all buyers need their name to be translated. Khmer buyers, foreign buyers and the development company all must satisfy slightly different process and documentation demands.
During this stage, we chose to engage the services of Sok Siphana & Associates to review the certified documents and their translation, to liaise with the authority at the land department and to provide legal assistance to buyers along the process until the transfer tax payment.
Do buyers have to be in Cambodia to transfer the new strata title into their possession?
Yes. The buyers must physically be present to affix their thumbprint on their certified documentation, but most importantly on Vente Definitive and on Application for Ownership Transfer, both of which are standard templates to be provided by the land department. This means international investors must come back to Cambodia to get the title transferred.
What costs are accrued during the transfer process?
There is a public service fee per strata title for the conversion of the master title. There is also a public service fee for each individual strata title to be issued in the buyer’s name.
Concerning the transfer tax, once the set of certified documentation is reviewed and accepted by the land department, the exact same documentation with other forms will be submitted to the General Department of Taxation. The tax officials will then issue an invoice with the amount of transfer tax to be paid after assessment of the property value based on their determined ranges and calculation method. After issuance of the evidence from the General Department of Taxation that the tax has been paid by the buyer, the land department will complete the title transfer.
What if the buyer refuses the strata title transfer?
In theory, this will bring problems when it comes to resale because the second buyer will have difficulties to do a thorough examination or to have certitude that there are no disputes, mortgages, judgments or unpaid taxes associated with the property sold.
Pure investors are usually resistant to fulfill the physical paperwork and monetary demands to transfer the ownership in their name. Some developers in this case may accept to hold the title for them - but this can cause complications for buyers later. It is not really advised. On the other hand, such an arrangement also creates landlord liabilities for the developer holding the strata title.
An effective way to mitigate this for the reassurance of the buyer is to enlist quality legal support, to ensure constant communication with the developer and to get education surrounding the process. Hiring a professional legal firm with experience in this has been crucial - because they can make this transfer process as smooth and predictable as possible.
James Whitehead is content director for www.realestate.com.kh