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SUMMARY
AUGUST 2007
This briefing explains the provisions of Dubais new escrow law and how to comply with it. The rules affect all property developers who sell units off-plan and receive monies before completion of the development. All those subject to the escrow law must comply with it by 28 December 2007.
Introduction
Dubais new escrow regime has wide-ranging implications for the Dubai property market. Law No. 8 Concerning Guarantee Accounts of Real Estate Developments in the Emirate of Dubai (the escrow law) regulates property developers by requiring all funds received in relation to a development to be administered through an escrow account controlled by the Dubai Lands Department (the Department). The escrow law allows a six-month transitional period from the date of publication (28 June 2007) for developers to comply with its requirements. Therefore all persons and entities to which the escrow law applies must comply with it by 28 December 2007. The practical considerations of the escrow law are set out below.
unless they are registered. Registration forms may be obtained from the Department. The requirement to be registered is in addition to the requirement to have a valid trade licence.
Once a developer is registered with the Department, can he sell units from a development?
After a developer has been registered, he must make a separate application to open a guarantee account for the administration of funds received from financiers, investors or purchasers in the development. This application should include the following: the developers trade licence and certificate of registration with the Dubai Chamber of Commerce & Industry; the original title deed of the plot to be developed; a copy of the contract for the sale and purchase of the plot between the developer and the master developer; a letter of approval for the development from the master developer;
New Dubai escrow law
Will there be a record of who is licensed in accordance with the escrow law?
The Department will administer a register setting out the names of all developers licensed to carry on such business in Dubai. Developers will be unable to conduct any property development activities (including advertising)
architectural plans approved by the master developer and the concerned authorities (the Dubai Municipality); a financial statement, prepared by the developers consultant and certified by an accountant, that details projected cash flows and all sums payable to the developments creditors; a building permit issued by the concerned authorities; a copy of the developers pro forma sales contract for off-plan sales; and an undertaking by the developer to commence construction after obtaining the master developers approval to sell off-plan.
Once the funds are deposited into the guarantee account, how are they dealt with?
The escrow law does not specifically deal with payments to third-party consultants or contractors. However, the Department has confirmed that, provided consultants and contractors costs can be linked to the development to which the guarantee account relates and an invoice is issued, the developer will be able to receive payments from the guarantee account for such costs. This is subject to further rules that may be issued by the Department. If a developer wishes to draw from the guarantee account (for example, for construction payments to be made to the contractors), he must apply to the account trustee, submitting a claim for payment and a certificate from its project manager describing the completed stage of the development. The account trustees engineer will then inspect the development to confirm that the construction milestone has been achieved before issuing any payments.
The Department has acknowledged that it may not be possible to provide all of the above items before the guarantee account is established. However, all items that are in the developers possession at the date of application must be provided to the Department and all outstanding items must be provided when they are obtained by the developer.
What are the costs involved in complying with the escrow law?
The escrow law provides that the Department may collect fees for the services offered under the law. The size of such fees is not given. The developer must also pay for any costs of the account trustee and any establishment and management costs of the guarantee account. The Department has confirmed that there are no costs involved in registering or in applying for the written permit for advertising a development.
This material is for general information only and is not intended to provide legal advice. Freshfields Bruckhaus Deringer 2007 www.freshfields.com
Joseph Huse
T + 971 4 5099 141 F + 971 4 5099 111 E joseph.huse@freshfields.com
Duane Keighran
T + 971 4 5099 143 F + 971 4 5099 111 E duane.keighran@freshfields.com
Can we expect further regulations or direction from the Department on the escrow law?
Yes. The escrow law states that the Department will issue decisions regulating the terms and conditions for advertising developments. The Department has also advised that, through the newly established Real Estate Regulatory Authority (RERA), it will issue further guidance on the interpretation and application of the escrow law and any applicable fees. It is not clear when such clarifications will be issued.
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