Guide to Buying UK Property through a Special Purpose Vehicle

Guide to Buying UK Propertythrough a Special Purpose Vehicle

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TableofContentsPageNo.

• Introduction 3• Whatyoucanexpectfromthisguide 4• Importantnotice 5• LCNLegal:Ourstory 6• Whywewrotethisguide 7• Overview:structureofatypicalPropertySPVpurchase 8• Keydifferencesinriskprofile 9• Differencesinmarketpractice:propertyvSPVpurchase 10• Taxrisks 11• InitialassessmentofaproposedPropertySPVtransaction 13• Checklist:initialassessmentofaproposedpropertySPVpurchase 14• Headsofterms 15• ThepurchasepriceforthesharesastheSPV’snetassetposition 16• Illustration:ApportionmentofIncomeandOutgoings 17• Thecorporatedocumentation 18• Practicalissues 19• Needhelp? 20

©LCNLegalLimited2016 2

Introduction

Welcome to LCN Legal’s guide to buying UK property via a property-holding special purpose vehicle (Property SPV). This guide is forproperty professionals, property lawyers and investors who areconsidering the purchase of a Property SPV, and is based onknowledge accumulated from over 20 years’ experience of advising onthese types of transaction.

Buying the issued share capital of a Property SPV (as opposed tomaking a direct property purchase) can appear an attractive option,not least because of possible tax savings, notably Stamp Duty Land Tax,and the ease of asset transfer (such a leases etc. that may beconnected to the property). It may also be an appropriate approachwhen dealing with the purchase of a portfolio of properties. However,Property SPV transactions have a distinct risk profile, which is verydifferent from that of a direct property purchase. This is primarilybecause, on the purchase of a Property SPV, the purchaser assumesownership of not only the property, but also any liabilities held by theProperty SPV itself.

It is therefore prudent for any potential purchaser of a Property SPVand its advisors, to have a clear picture of the risks involved in this typeof transaction and also to have a good grasp of what questions need tobe asked in order to fully understand the asset being offered for sale.An uninformed purchase could lead to wasted costs if the transactionaborts at a late stage, and to the purchaser being exposed tounexpected liabilities if the transaction proceeds to completion.


What you can expect from this guide

The aim of this guide is very simple – it is to answer the most commonquestions that our clients ask when they are starting out on this kind ofproject.

This guide outlines some of the key legal differences between PropertySPV transactions and direct property purchases. It also sets out somepractical issues which practitioners should be aware of when advisingon a transaction of this nature.

We hope that this will help prospective purchasers to start theirproject off on the right track, and to complete it on time and onbudget. We also hope it may be of use to practitioners as an aidememoire.


Importantnotice

This guide is provided on an “as is” basis. Readers should take theirown professional advice, and this document should not be relied uponas a substitute for the same. No responsibility is accepted by LCN LegalLimited or any other contributors, or any of their respective directors,partners, employees, agents or representatives for any cost, loss orliability, however caused, incurred by any person by reliance on it.


LCNLegal:ourstory

LCN Legal is a niche law firm, established in 2013 and regulated by theSolicitors Regulation Authority in England & Wales. In addition to itsfocus on corporate real estate, LCN Legal also advises large corporates,asset managers and private investors on corporate and investmentstructures.

One of our co-founders, Paul Sutton, was previously a corporatepartner in the London office of Pinsent Masons, and before that aDirector in KPMG’s law firm in London. Our other co-founder, XiaofangSutton, studied law in Beijing and Edinburgh. She then helped theLondon Chamber of Commerce and Industry to establish its ChineseBusiness Association. During that time, Xiaofang worked with manyChinese state-owned and family-owned businesses.

Our senior lawyers have trained at international law firms such asLinklaters and Baker & McKenzie and collectively, our team has over80 years’ experience of real estate investment projects and structures.We have acted on property investment structures for numerousprivate investors, asset managers and property professionals.


Whywewrotethisguide

We have come across many situations where Property SPV purchaseshave been unnecessarily delayed, or even abandoned altogether,because of issues which could have been avoided had the correctquestions been asked at the outset. We have also encounterednumerous property transactions which were structured as a PropertySPV purchase, but should never have taken that form.

We believe that prevention is better than cure and with that in mind,we seek to empower our clients and others to make informed choices,correctly assess proposed projects at the outset and to avoid commonpitfalls.


Overview:structureofatypicalPropertySPVpurchase

Newsecurityoverpropertyetc.

iscreated

Existingloanrepaid

Existingsecurityoverpropertyetc.

isreleased

SaleofsharesinPropertySPV


Newloan(paidtoseller/existinglenderonbehalfofSPV)

PurchaserpaystheSellerthepurchasepriceforthePropertySPV’sshares

(netassetvalueoftheSPV)andrepaysexistingshareholderdebttoSelleronbehalfofSPV

Seller Purchaser

SPVExistingLender NewLender

PropertyPortfolio

1. Key differences in risk profile

In general, the intention of the parties in a Property SPV purchase is toreplicate the commercial position which would apply on a directpurchase of the underlying property. This typically means dealing withproperty-related issues through replies to enquiries and the purchaser’sown investigations, and dealing with any other issues separatelythrough due diligence and the corporate documentation.

However, the actual risk profile for an Property SPV transaction willnecessarily be very different compared to that of a direct propertypurchase.

There are two main reasons for this.• Firstly, on a direct property purchase, the purchaser can rely

directly on property searches and the process of land registrationin order to obtain good title to the property, free ofencumbrances. This is not the case on an Property SPV purchase,where searches give only indirect protection.

• Secondly, the purchaser of the shares of a Property SPV willinherit (albeit indirectly) any actual or contingent liabilities andissues relating to the corporate entity itself. In order to assessthose liabilities, the purchaser must rely on information providedby the seller. This includes information made available in the duediligence process, backed up by warranties and indemnities.Those warranties and indemnities will be of no value if the seller(or its guarantor) does not have the financial standing to meetpossible claims.


The table on the following page summarises some of thedifferences between direct property purchases and Property SPVpurchases, in terms of the risk profile and standard UK marketpractice.

Differencesinmarketpractice:propertyvSPVpurchase

PropertyPurchase SPVPurchase

Passingofrisk Onexchange Oncompletion

Scopeofenquiries/warranties Standardpropertyenquiries Standardpropertyenquiries,plusadditionalwarrantiesinsharepurchaseagreement

Caponseller’sliability None Usuallybasedonthepurchaseprice/netassetvalueofthePropertySPV

Thresholdsforclaims NoneNormallyindividualandaggregatethresholdsare

specifiedinsharepurchaseagreement

Limitationperiodsforclaims 6or12yearsNon-taxwarranties– 1-3yearsTaxwarranties– 6-7years

Protectionagainstenvironmentalrisks Relativelyrare Negotiable

Seller’sfinancialcovenant Lessrelevant Alwaysrelevant


2. Tax risks

Prospective purchasers will need to engage tax advisers to carry outtax due diligence investigations in relation to the target Property SPV,and tax advice will be differ with the specifics of each transaction. Adetailed consideration of tax issues is outside the scope of this guide.However, by way of overview, here are some of the main issues whichmay need to be reviewed:

• Whether the Property SPV holds the property as an investmentor as trading stock, and whether this is consistent with thepurchaser’s anticipated plans for the property. The historicposition should be supported by evidence.

• If the property is held as an investment, what the historic basecost of the property is, and whether any discount should beapplied to the purchase price to reflect any inherent capital gainsliability.

• Where the underlying property has previously been transferredwithin a group and an exemption from Stamp Duty Land Tax(SDLT) or capital gains tax has been claimed, whether any de-grouping charges may apply on the subsequent sale of theProperty SPV’s shares.

• Potential liabilities arising from any historic failure to complywith tax obligations.

• Any ongoing or pending investigations by tax authorities.


• Whetherthepurchaserislikelytobeabletoutilise anytaxlossesinthePropertySPV,andthereforewhetheranyvalueshouldbeattributedtothoselosses.

• Wherethepropertyiscommercial,whatcapitalallowanceswillbeavailabletothePropertySPV.

• If the Property SPV is tax resident offshore, whether theSPV’s central management and control has been maintainedoffshore, and whether this has been properly documented.

• Where residential property is held, whether it falls into theAnnual Tax on Enveloped Dwellings (ATED) regime. If ATEDapplies and relief is not available the effect of the ATED ruleson any inherent gain as well as the cost of future annual taxcharges.

2.Taxrisks(continued)

Additional UK tax considerations relating to the proposed purchaser’scircumstances include the following:

• Stamp duty on the sale of shares in a company is still just 0.5%whereas stamp duty land tax on the sale of property is at rates ofup to 15%.

• Inheritance tax – owning UK property via an offshore companycurrently takes the property outside the taxable estate of a non-UK domiciled individual. With effect from April 2017 the UKGovernment has indicated that this ‘benefit’ will be removed forUK residential property.

• Annual Tax on Enveloped Dwellings – owning UK residentialproperty via an offshore company brings the company within thescope of the annual charge and capital gains tax, except wherean exemption applies (e.g. commercial letting of the property).

• The disposal of residential property by non-UK residents is withinthe scope of UK capital gains tax. This includes disposals byindividuals, trustees and companies. The commercial letting ofproperty exemption does not apply, but there are exemptionsand exceptions.


3.InitialassessmentofaproposedPropertySPVtransaction

When the prospective parties to a Property SPV purchase initiallyreach an agreement in principle, the discussions are often limited tothe basics of the underlying property and the price. It is unfortunatelyvery unusual for any heads of terms document at that stage to addressthe issues arising from the use of a corporate vehicle, except perhapsto refer to the sharing of potential SDLT savings.

Property SPV transactions involve more risk and complexity than directproperty purchases and therefore usually entail higher transactionalcosts. It is not uncommon for a proposed purchase of a Property SPVto be abandoned because of risks or issues which become apparentduring due diligence and negotiation. If there are any significant issues,it is generally better for the purchaser to identify them as quickly aspossible.

The factors listed on the following page should be considered at theoutset, in order to make an initial assessment as to whetherproceeding by way of Property SPV purchase is likely to beappropriate. This assessment should be made in the context of the taxand other benefits.


Checklist: Initial assessment of a proposedProperty SPV purchase

1. Who or what exactly is the seller or sellers? (Meaning the personor legal entity which actually holds the shares in the Property SPV.)Often this is not clear at the beginning. The presence of multiplesellers may mean more complexity in negotiations, because ofpossible differences of opinion on matters such as joint and severalliability.

2. What is the seller’s financial standing, and is the purchaser likelyto be able to enforce any claims effectively? This can rule outProperty SPV purchases where the seller is a trust (and unable togive warranties), or is in jurisdictions where legal recourse isconsidered unreliable. Warranty and indemnity insurance may beavailable, but in practice the parties may be unwilling to bear thecost of the insurance premiums.

3. When and where was the Property SPV incorporated, and whatactivities has it undertaken? Generally speaking, the older it is,the more likely it is to have some issues. Buying a non-UK companywill usually involve additional acquisition costs, because of theoverseas advice and legal opinions required. In addition, theprospective purchaser will need to put in place the arrangementsrequired to operate the Property SPV properly going forwards inthat jurisdiction. This may involve appointing professionaldirectors.


4. Was any tax planning undertaken when the property wasoriginally brought into the Property SPV? Any such planningshould be a red flag for prospective Property SPV purchasers,because HMRC have successfully challenged a number of SDLTplanning arrangements, resulting in additional SDLT beingcollected from certain property groups. Therefore, an acquirerwill need to understand whether a tax liability may have beentriggered or might arise from post-transaction restructuring.

5. Is there debt secured on the property? If so, the lender willneed to be involved in the completion mechanics so that thesecurity can be released.

6. What are the purchaser’s plans for the property and theProperty SPV? if the Property SPV needs to be unwound andthe property extracted, then the costs involved can outweighany savings in transactional taxes.

4.Headsofterms

Assuming that the initial assessment does not rule out the purchase ofthe Property SPV’s shares, it is advisable to clarify the parties’understanding in a heads of terms document before proceedingfurther.

In addition to the terms relating to the property itself, this heads ofterms document should typically cover the following:

• The identity of the seller(s) and any warrantors.• If multiple sellers or warrantors, the allocation of liability

between them (e.g. joint and several, several and proportionate,principal warrantor responsible for 100% of liabilities etc).

• Any cap on the seller’s liability.• Limitation periods for warranty and indemnity claims.• The threshold for individual warranty claims (providing that

warranty claims below a certain threshold will be disregarded).• The threshold for warranty claims in the aggregate (providing

that no claims may be brought unless the aggregate amount ofclaims exceeds a certain threshold).


5. The purchase price for the shares as theSPV’s net asset position

When the parties refer to the “purchase price” in relation to aProperty SPV, they usually mean the commercially agreed value of theunderlying property. However, the actual purchase price for the SPV’sshares is usually the net asset value of the SPV, calculated using thenegotiated value of the property. The net asset value will reflect anycash and any debt in the SPV. It will also reflect the SPV’s income andoutgoings, apportioned on an accruals basis.

This means that the total amount paid by the purchaser on completingthe purchase of the SPV often comprises three main elements:

1. the purchase price for the shares, calculated on a net asset basisand paid to the seller;

2. any debt owing by the Property SPV to the seller or associatedparties (often referred to as ‘shareholder debt’), paid to the seller orassociated parties on behalf of the Property SPV; and

3. any debt owing by the SPV to third parties (such as a bank), paid tothe relevant third parties on behalf of the SPV.


In general, to avoid mistakes, it is advisable for the share purchaseagreement to provide for a completion balance sheet to beprepared in respect of the Property SPV. Ideally, a pro-formabalance sheet should be prepared in advance and included as aschedule or appendix to the share purchase agreement.

The provisional purchase price payable on completion may becalculated based on the pro-forma balance sheet, and thenadjusted by reference to the actual figures in the completionaccounts. This approach is particularly important where the SPV’sproperty is tenanted, so that prepayments and accruals can bedealt with correctly, irrespective of where the completion datefalls in the cycle of rental receipts.

Illustration:ApportionmentofIncomeandOutgoings

ThissimplifiedillustrationrepresentsaPropertySPVwithasingletenantedproperty.

Thecommerciallyagreedvalueofthepropertyis£40million.ThePropertySPVreceivesquarterlyrentof£1.2millioninadvance,andpaysquarterlymanagementfeesof£120,000inarrears.Thereisabankloansecuredontheproperty.Completionofthepurchasetakesplacepartwaythroughthethirdquarter.

NetAssetsasatCompletion

FixedAssets 40,000,000

CurrentAssetsCashatBank 1,200,000

CurrentLiabilitiesRentreceivedinadvance 800,000Managementfeesaccrued 40,000Corporationtax 200,000Loanredemptionamount 28,000,000

29,040,000

NetCurrentLiabilities 13,920,000

TotalNetAssets 26,080,000

OtherIssues:RentarrearsOutstandingrentreviewsServicechargesContingentliabilities


Q1 Q2 Q3 Q4

Rentreceivedquarterlyinadvance–600,000

Managementfeespayablequarterlyinarrears– 60,000

Completion

6. The corporate documentation

In general, the form of the principal corporate documents for aProperty SPV purchase (namely the share purchase agreement, deedof tax indemnity and disclosure letter) will follow those of a standardshare purchase transaction.

However, a typical share purchase agreement for a Property SPVpurchase differs from a standard share purchase in a number ofrespects:• It may include a calculation of the purchase price and the

purchaser’s payment obligations, by reference to completionaccounts, as indicated above.

• Replies to property enquiries may be warranted, as the principalcontractual way of dealing with property matters.

• The specific principles and policies to be adopted in thepreparation of the completion accounts should be set out (andshould override generally accepted accounting principles). Thesespecific principles and policies should include the commerciallynegotiated value of the property, and may also include:

– The value to be attributed (if any) to rent arrears orservice charge arrears – often no value is attributed in thecompletion accounts, but an amount is payable by way ofadditional purchase price if those arrears are receivedafter completion; and

– The treatment of ongoing rent reviews (which may haveretrospective effect).


• It is usual for the appointment of any managing agents toterminate at completion, and the share purchase agreementshould require the seller to procure this.

7. Practical issues

The following practical points can make a significant difference to thetime and cost required to complete a Property SPV purchase.

1. Assembling the professional team early on, and ensuring there is aclear understanding of the objectives and the process. The teamshould include property advisers, corporate lawyers, tax andaccounting advisers and other specialists as required.

2. Producing a pro forma balance sheet early on in the process will bevery helpful in avoiding misunderstandings.

3. If the purchaser will use bank debt to finance the acquisition, clarifythe conditions precedent for drawdown (including reports, opinionsand valuations) as early on as possible.

4. Clarifying the funds flow on completion, including what solicitors’undertakings need to be given by whom and to whom. These aretypical causes of last-minute delay if not anticipated and dealt with inadvance.

5. Ensuring that ‘know your client’ (KYC) information is provided tothe SPV’s bank(s) early on, so that the purchaser’s signatories can gaincontrol over the SPV’s bank accounts on completion.


6. If offshore entities are involved, liaising with the administratorsof those entities early on, so that the necessary KYC informationcan be provided regarding the prospective change of control andmanagement of those entities.

7. Preparing a comprehensive list of legal documents and actionsrequired for the transaction as a whole is essential to avoidsurprises and last-minute delays. As a minimum, this shouldinclude the documents and actions at each stage, the partiesinvolved, who has primary responsibility for what matters and thespecific signatories involved.

8.Needhelp?

LCN Legal provides specialist support for purchasers and sellers ofProperty SPVs, as well as for lawyers in other law firms and in-houselegal departments who may not specialise in this area.

Wherever possible, we work on the basis of fixed fees – not hourlyrates – so you retain full control over your budget. We can provide asmuch or as little support as you need to get the job done.

We typically arrange the work in phases, such as:• Initial assessment and heads of terms• Project planning, including preparation of documents lists and

other project management tools• Due diligence• Drafting and negotiating the principal documents• Drafting and negotiating the ancillary documents (such as

minutes and resolutions)• Project-managing exchange and completing• Dealing with post-completion filings


If you would like help with your project, you call us on +44 20 32868868, or email us at [email protected], to arrange an initialconsultation with one of our specialists..

LCNLegalisthetradingnameforLCNLegalLimited,alimitedliabilitycompanyregisteredinEnglandandWaleswithnumber8496679.Thepracticeaddressandregisteredofficeaddressis71WallaceCourt,42TizzardGrove,LondonSE39EP.LCNLegalLimitedisauthorisedandregulatedbytheSolicitorsRegulationAuthority

Guide to Buying UK Property through a Special Purpose Vehicle

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