Corporate Real Estate: Czech Republic

A Q&A guide to corporate real estate law in the Czech Republic.

The Q&A gives a high level overview of the corporate real estate market trends; real estate investment structures, including REITs; legislation; title and public registers of title; confidential information; state guarantee of title; tenure; sale of real estate; seller's liability; due diligence; warranties; cost; taxes and mitigation, including VAT and stamp duty/transfer tax; climate change targets; third party outsourcing; restrictions on foreign ownership or occupation; finance; leases; planning law and consents; and proposals for reform.

For a full list of recommended corporate real estate lawyers and law firms in the Czech Republic, please visit PLC Which lawyer?

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This Q&A is part of the PLC multi-jurisdictional guide to corporate real estate law. For a full list of jurisdictional Q&As visit www.practicallaw.com/realestate-mjg.

Contents

The corporate real estate market

1. What have been the main trends in the real estate market in your jurisdiction over the last 12 months? What have been the most significant deals?

The real estate market is suffering due to the international financial crisis. Accordingly, most real estate deals and projects have been interrupted or suspended. In addition, there has been a slight decrease in prices and rents. Most developers are offering additional benefits to attract potential buyers and tenants. Banks now require financing terms which are unfavourable to developers (such as requiring a percentage of presales and pre-leases). There is great demand for private equity financing. The most significant deals in the last 12 months included the sale of:

  • Gemini in Prague from Sparkassen Immobilien to Deka for EUR110 million (as at 1 September 2011, US$1 was about EUR0.7).

  • The East Building in Prague from the Sekyra Group to private Czech investors for EUR20 million.

  • Budĕjovická Alej in Prague from ING Reim to DBK for EUR31 million.

  • Thámova 18, Prague from Invesco private to a Slovak investor for EUR12 million.

  • Luka shopping mall from Epic Asset Management to private Czech investors for EUR8.5 million.

 

Real estate investment

2. How is real estate investment carried out in your jurisdiction and what structures do investors use?

Common structures

Commercial real estate is typically owned by limited liability companies or joint stock companies. A special purpose vehicle (SPV) is usually formed to own and operate the real estate project. Joint venture entities are commonly:

  • Formed outside the Czech Republic (for example in The Netherlands).

  • Parents of the SPVs.

Lenders generally require a separate entity to own the real property securing a loan to decrease the risk of bankruptcy.

REITs

Real estate investment trusts (REITs) are used because their income tax treatment is favourable. They are used by individual investors for particular projects, rather than for collective investments. Legislation to regulate REITs is currently being developed. The legal framework for REITs is based on the German model.

Institutional investors

Institutional investors (that is, foreign funds) directly or indirectly (through various foreign vehicles) own and finance real estate. Institutional investors use joint venture structures with private investors to acquire, develop and operate various types of real estate projects.

Private investors

Private investors are the most important group of real estate investors. They include:

  • Developers.

  • Foreign funds.

  • Individual investors.

  • Certain financial groups other than banks.

 

Real estate legislation

3. What is the main real estate legislation that applies in your jurisdiction?

Real estate law is complex and comprises various laws and regulations, including the:

  • Civil Code (Act No. 40/1964 Coll., as amended), which is the most important legislation generally regulating real estate transactions.

  • Act on Lease and Sub-lease of Non Residential Premises (No. 116/1990 Coll., as amended), which stipulates important rules for leases.

  • Condominium Act (No. 72/1994 Coll., as amended), which stipulates the terms and conditions for the ownership of flats and condominiums.

There are also:

  • Zoning laws and a building code.

  • Administrative laws, which apply to registering real estate in the Land Register.

  • Laws protecting the environment.

 

Title to real estate

Title and registers

 
4. What constitutes real estate in your jurisdiction? Is land and any buildings on it (owned by the same entity) registered together in the same title, or do they have separate titles set out in different registers?

Real estate consists of:

  • Land, which is registered as land parcels.

  • Buildings.

  • Flats (including various fixtures), which are regulated as separate units of the building.

Buildings and land can be owned by different parties. Land and buildings are registered in the same title.

 

Evidencing title

5. How is title to real estate evidenced?

The Land Register (which is maintained by the Cadastral Authority) records title to real estate. The Land Register contains the Collection of Deeds, which is public (see Question 6).

The parties must register changes to or transfers of ownership rights to real estate with the Cadastral Authority to make them enforceable. The principle of reliability presumes that the information in the Land Register is accurate and can be relied on by third parties. However, if there is information which contradicts the Land Register, this information can override the contents of the Land Register. An individual intending to buy real estate or to take security over it is deemed to have notice of the Land Register's contents, even if he fails to make investigations.

Information in the public register

6. What are the main information and documents registered in the public register of title?

The Land Register includes information concerning the land parcels or plots, including information concerning the:

  • Cadastral area and dimensions (the size of the land).

  • Types of land, such as:

    • arable land;

    • hops fields;

    • vineyards;

    • gardens;

    • orchards;

    • meadows and pastures;

    • woodlands;

    • water areas;

    • built-up areas.

  • Land use and preservation.

  • Titles and other rights.

  • Number and details of buildings connected to the land by solid foundations.

  • Details of residential and non-residential units.

  • Owners and their addresses.

  • Legal relations and rights to the real estate. The following rights to real estate are registered in the Land Register:

    • ownership rights;

    • mortgages;

    • easements (easements must be registered to take effect as legal easements);

    • rights of first refusal in rem. (In rem rights are proprietary in nature and are related to the ownership of property and not based on any personal relationship. The right of first refusal allows the right holder the option of entering into a transaction with the real estate owner before any third party);

    • other rights in rem.

There are three types of registrations in the Land Register:

  • An entry. This is usually applied for if title is transferred or affected based on an agreement, such as transfers of ownership based on a sale contract.

  • A record. This is suitable where rights are:

    • created;

    • changed;

    • made extinct by operation of law or by a decision of a public authority.

  • An annotation. This records simple information on, for example, court procedures affecting future ownership.

The Land Register is open to the public. Individuals can investigate the Land Register and make copies or extracts. The entries in the Land Register identify the owners (or co-owners) of real estate, along with descriptions of the real estate.

Protection from disclosure

7. Can confidential information or documents be protected from disclosure in the public register of title?

The Cadastral Authority operates an open register and a publicly accessible Collection of Deeds. This means that copies of all documents referred to on the registered title can be obtained by individuals, subject to payment of the necessary fee, including:

  • Transfers.

  • Other in rem agreements.

  • Certain court decisions.

Confidential information and/or documents cannot be protected from disclosure in the Land Register. The parties must disclose the entire agreement by attaching it to the registration application. Therefore, to preserve confidentiality, the parties must use anonymous holding companies and structures.

State guarantee of title

8. Is there a state guarantee of title? Is title insurance available? If so, is it commonly used?

There is no state guarantee of title. Title insurance is available from a limited number of commercial title insurance underwriters (the most frequently used underwriter is Stewart International in Prague). Most institutional investors and banks hold and require title insurance. Title insurance is not widely used for non-institutional transactions.

Tenure

9. How can real estate be held (that is, what types of tenure exist)?

The two ways of holding and using property are:

  • Through ownership.

  • Under a lease.

Real estate is typically held under ownership. Ownership represents the right to use and to dispose of the real estate. The owner of the property owns it absolutely. In certain cases there are various types of co-ownership of real estate.

An apartment unit can be held by its owner. The owner owns a unit and is also an owner of the:

  • Common areas in the building.

  • Built-up land on which the building is constructed.

For tax and liability purposes, the developers and investors generally own commercial real estate through a:

  • Limited liability company.

  • Joint stock company.

  • Similar entity.

 

Sale of real estate

Main stages and documents

10. What are the main stages and documents in the sale of real estate?

Marketing

Sellers generally appoint real estate brokers to market the real estate. Prospective buyers appoint brokers to help them to find real estate. The seller's broker:

  • Advertises the real estate property.

  • Arranges viewings.

  • Agrees heads of terms (under a letter of intent).

Brokers are usually paid through commission, which is generally a percentage of the sale price. In certain cases, the broker is granted an exclusivity period. It is common for the same property to be offered by several brokers and for their prices to differ. A professional seller generally requires a single professional broker with an international reputation. For certain types of properties, Czech brokers are required, including in the sales of:

  • Smaller portfolios.

  • Class B office buildings (that is, buildings that compete for a wide range of users with rents in the average range for the area).

  • Old factories or warehouses.

Commercial negotiation

Initial commercial negotiations usually take place between brokers. Direct negotiations between the buyer and seller only take place after this.

Pre-contractual arrangements

Buyers and sellers typically negotiate and execute the following:

  • Heads of terms.

  • A non-binding letter of intent.

  • A term sheet or memorandum of understanding, which provides the basic transaction terms.

It must be clear from the text of these documents that they are not intended to be legally binding.

Heads of terms for leases must cover the major issues in a lease, such as:

  • The length of the lease.

  • Rent.

  • Use.

  • Alienation.

  • Service charge.

  • Insurance.

  • Repair.

  • The option to break, if any.

In a property sale, the heads of terms focus on:

  • The financial terms.

  • Any conditions to the sale.

  • The timing of the transaction.

  • The scope of due diligence.

The seller usually grants the buyer an exclusivity period, during which the seller agrees not to negotiate with other parties. In certain cases, the parties enter into a binding pre-sale agreement (agreement on future purchase agreement). This type of agreement forces the parties to enter into the sale contract in the future, on the occurrence of certain circumstances (for example, on issue of a building permit or a change of the master plan).

Pre-lease agreements are typical for retail and office projects in construction. Pre-sale or pre-lease agreements can be enforced in court. This means that if the defaulting party fails to enter into the agreement (lease), the other party can enforce a court decision which replaces the signature of the defaulting party and deems that the lease was entered into.

Sale contract

A sale contract is typically negotiated by lawyers appointed by the buyer and seller. The sale contract incorporates the terms contained in the non-binding letter of intent, term sheet or memorandum of understanding (see above, Pre-contractual arrangements), and is generally executed after the buyer has inspected and investigated the property. The contract includes various representations and warranties. When the pre-sale agreement is entered into, it contains a model form of the sale contract. The parties then enter into the sale contract in the pre-agreed form.

When legally binding

The transaction becomes binding on the parties on execution of the sale contract (see above, Sale contract). The contract must be registered in the Land Register. The purchase price is usually paid through an escrow agent. This means that an escrow agreement is executed (usually before the execution of the sale contract). Escrow funds under the escrow agreement are usually held by:

  • Banks.

  • Notaries public.

  • Lawyers.

Due diligence is generally completed before execution of the sale contract. In certain cases, the parties enter into a sale contract with deferred conditions (for example, satisfactory completion of due diligence). The parties sometimes enter into a framework agreement which stipulates the general terms and conditions of completion (such as the exclusivity period and due diligence process) and the sale of the property is concluded on completion.

Registration

Registration of title typically occurs at the same time as or immediately following the execution of the sale contract, but before payment of the purchase price, which is usually part of the escrow deposit (see above, When legally binding). One of the parties makes an application to the Cadastral Authority to register the transfer of title. The Cadastral Authority examines the accompanying documents, and if the agreement complies with the conditions, it makes an entry in the register. Otherwise the application is refused.

When title transfers

Title to real estate passes on execution of registration by the Cadastral Authority, which is effective as of the filing date of the registration application for the transfer (see above, Registration).

Seller's liability to the buyer

11. Does a seller have any statutory or other liability to the buyer in a disposal of real estate?

There is no obligation to disclose any real estate information to the buyer, other than descriptions of the property and the price. The seller takes statutory liability for the property's legal defects (including those relating to ownership) and factual defects (such as environmental burdens). The seller is not liable for defects which are apparent:

  • To the buyer on inspection of the land.

  • From an inspection of the Land Register (such as easements and mortgages).

The real estate seller can avoid liability (for factual defects) to the buyer by conveying the real estate "as is". The seller is liable to the buyer for damage caused by the seller's misrepresentation or concealment of information. Buyers typically require sellers to make representations about the property and agreements generally contain title covenants.

 

Due diligence

12. What real estate due diligence is typically carried out before an acquisition?

Due diligence generally includes:

  • An examination of title. The buyer investigates the seller's title to the property to confirm the seller's ownership, and establishes whether there are any charges, covenants or other restrictions affecting the property. This involves researching all existing acquisition agreements, restitution claims and other documents kept by the Cadastral Authority in the Collection of Deeds.

  • A review of any physical survey conducted, including verification of:

    • environmental hazards;

    • access to the property;

    • the legal status of roads;

    • the infrastructure affecting the property.

    This also includes making drainage and water supply enquiries and enquiries of other utility companies, such as:

    • gas and electricity suppliers;

    • tree preservation;

    • historical preservation.

  • An environmental inspection analysis (this includes a survey of past uses of the property, any risk of contamination, the likelihood of flooding and so on).

  • Zoning and land use analysis. This includes a survey of the applicable:

    • regulatory framework;

    • master plan;

    • planning permissions;

    • occupancy permits;

    • planning proposals;

    • road schemes.

  • Conducting an appraisal.

  • Reviewing:

    • feasibility.

    • financial statements;

    • court and bankruptcy records;

    • leases and other contracts;

    • the standing and authority of seller.

There are no standard pre-acquisition due diligence and pre-acquisition enquires. Investors are advised to trace the chain of ownership titles and documents going back at least ten years. This involves inspecting all sale contracts. In certain cases, privatisation documents (relating to formerly state-owned properties) are inspected. This process can be time consuming.

Due diligence is vital. Investors cannot rely solely on entries in the Land Register. Land Register entries are only presumed to be correct and any evidence to the contrary overrides them (see Question 5). Real estate can be subject to restitution claims.

 

Sellers' warranties

13. What real estate warranties are typically given by a seller to a buyer in the sale of corporate real estate and what areas do they cover?

The seller is not required to provide warranties or representations, which are a matter for negotiation.

The seller commonly gives the following warranties and representations in relation to the:

  • Authority to sell.

  • Authority of signatory to execute the sale contract and other documents.

  • Ownership and title.

  • Technical status of the property.

  • Absence of litigation related to the property.

  • Absence of insolvency.

  • Knowledge of environmental issues affecting the property.

Inheriting liability

14. Can an owner or occupier inherit liability for matters relating to the real estate even if they occurred before it bought or occupied it?

An owner or occupier is generally not liable for pre-acquisition events. However, the new owner takes the place of the previous owner under existing leases and other (in rem) agreements (such as mortgages, easements and liens).

A buyer or a new tenant generally does not inherit environmental liability as an owner or occupier of the real estate if it did not cause it.

Retention of liability after disposal

15. Does a seller or occupier retain any liabilities relating to the real estate after it has disposed of it?

The seller can be liable for environmental burdens and contamination.

The seller can also be liable for certain post-completion events or site conditions based on his representations and warranties in the sale contract, or if the seller committed fraud.

Seller and buyer costs

16. What costs are usually paid by the buyer? What costs are usually paid by the seller?

Buyer's costs

The buyer generally pays the costs of:

  • The purchase price.

  • Financing.

  • Due diligence.

  • Title insurance.

  • Legal fees.

The parties can agree otherwise. The payment of other costs is agreed under the sale contract.

Seller's costs

The seller pays real estate transfer tax and its own legal costs, including the costs of:

  • Due diligence.

  • Drafting the transaction documents.

  • Negotiations.

The sale contract allocates other costs between the parties.

 

Real estate taxes and mitigation

17. Is value added tax (VAT) (or equivalent) payable on the sale or purchase of real estate?

VAT is generally imposed on all taxable supplies including the:

  • Provision of services.

  • Delivery of goods.

  • Transfer and use of rights.

  • Transfer of real estate, buildings and structures.

  • Acquisition of goods.

There are two VAT rates:

  • 20% for most goods and services.

  • 10% for selected goods and services, including:

    • essential food products;

    • books;

    • special healthcare products.

The following property type distinctions are made for VAT purposes:

  • Social housing. The entire floor area of an apartment must not exceed 120 square metres to qualify as a social housing apartment, and the total floor area of a family house must not exceed 350 square metres to qualify as a social housing family house (Czech VAT Act).

  • Other residential real estate.

  • Non-residential real estate.

Transfers of social housing are subject to VAT at 10% if the transfer occurs within three years after obtaining official approval for use.

Other residential and non-residential real estate transfers within three years after obtaining official approval are subject to VAT at 20%. If social housing, other residential real estate or non-residential real estate is transferred after the three-year period following the obtaining of official approval, it is VAT exempt.

Transfers of land are exempt from VAT without the right to input VAT recovery.

However, building land is subject to VAT at 20%. Building land means any unimproved land (where there is no distinguishable structure on the land) on which a construction can be built in accordance with construction approval.

Parliament intends to adopt an amendment to the VAT Act that would change the 10% rate of VAT to 14%. The change is expected to come into force on 1 January 2012. Subsequently, from 1 January 2013, the 14% and 20% VAT rates are due to be unified into one VAT rate of 17.5%.

 
18. Is stamp duty/transfer tax (or equivalent) payable on the sale or purchase and who pays?

Transfers of real estate are subject to real estate transfer tax. The seller usually pays the real estate transfer tax and the buyer is the guarantor. In certain transactions, the seller requires the buyer to pay the real estate transfer tax. Real estate transfer tax is charged at 3% of the higher of the:

  • Agreed purchase price (stated in the sale contract).

  • Officially assessed value of the transferred property.

There are some exemptions from real estate transfer tax, such as a transfer of real estate as an "in-kind" contribution to the registered capital of the company.

In this case, the value for the company is releasing a third party from a liability to the company, to pay off the contribution to the registered capital of the company.

 
19. Are any methods commonly used to mitigate real estate tax liability on acquisitions of large real estate portfolios?

Parties often try to avoid real estate tax liability on transferring ownership by selling shares in the SPV that owns the real estate (rather than transferring the real estate itself). Buyers must conduct proper due diligence on the SPV's legal affairs. This increases transaction costs and lengthens the acquisition process.

 

Holding business premises

Climate change targets

20. Are there targets to reduce greenhouse gas emissions from buildings in your jurisdiction? Is there legislation requiring buildings to meet certain minimum energy efficiency criteria?

Directive 2002/91/EC on the mandatory certification of the energy efficiency of new real estate projects (construction and alteration of buildings) has been enacted. An energy efficiency certificate must form part of the documentation attached to the building permit application. If the project's energy efficiency is deemed unsatisfactory, measures are recommended to fulfil the efficiency criteria. Legislation to reduce greenhouse gas emissions from buildings has been adopted in accordance with EU legislation.

 

Third party outsourcing

21. Is it common for companies to manage their real estate portfolios and their accommodation needs by using third parties through outsourcing transactions?

Companies often instruct:

  • Real estate brokers to do the following in relation to properties:

    • buying;

    • leasing;

    • selling;

    • valuing.

  • Facility managers to manage properties.

Restrictions on foreign ownership or occupation

22. Are there restrictions on foreign ownership or occupation of real estate, or on foreign guarantees or security for ownership or occupation?

There are no restrictions on the occupation of real estate by foreign persons. Restrictions preventing foreign persons from acquiring real estate in the Czech Republic have been recently abolished. Any person can now acquire real estate in the Czech Republic. This is in accordance with the Czech Republic's international obligations under the 2003 EU Treaty of Accession.

Issues on change of control

23. Does change of control of a company affect its holdings of real estate?

Real estate ownership is not generally affected by a change of control of the company. However, a change of control can breach the requirements of a:

  • Lease.

  • Loan facility.

  • Other agreement.

Compulsory purchases

24. In what circumstances can local or state authorities purchase business premises compulsorily? Is the purchase price market value?

Ownership rights are protected under the Constitution. However, local authorities can expropriate property (but only when necessary, and to the extent necessary), to pursue a legally defined public interest for a specific purpose (such as infrastructure planning).

Expropriation can only take place when an agreement with the owner is not possible.

Where real estate is compulsorily acquired, the acquiring authority must pay compensation which is the higher of:

  • Market value.

  • The price set out by law.

Municipal taxes

25. Are municipal taxes paid on the occupation of business premises? Are there any exemptions?

Real estate owners must pay tax on the ownership of real estate. Real estate tax is calculated based on the:

  • Size of the lots and the premises.

  • Number of inhabitants living in the urban area of the real estate.

Since January 2008, municipalities have been able to multiply the basic tax rate by up to five times. Consequently, the resulting real estate tax rates vary widely.

Since January 2009, statutory exemptions from real estate tax have been limited. There is no longer an exemption for new residential buildings. However, a five-year exemption for buildings whose heating was modified to environmentally friendly standards remains in force.

 

Real estate finance

26. How are acquisitions of large real estate portfolios or companies holding real estate generally financed?

Acquisitions are generally financed through:

  • The buyer's own cash resources.

  • A bank facility secured by:

    • the property (mortgage over the real estate itself);

    • pledges over the borrower's shares;

    • bank accounts or the property's rental income.

 
27. How is real estate commonly used to raise finance?

Real estate can be used by its owner as security for a loan or other financing arrangements, the proceeds of which can be used for any purposes allowed under the loan agreement. Rent from a lease can be used as security (usually under a pledge) in the same way, or it can be assigned to a third party.

 
28. What are the most common forms of security granted over real estate to raise finance? How are they created and perfected (that is, made valid and enforceable)?

Real estate-related debt financing commonly requires security in the form of a mortgage. Under a mortgage, a borrower grants the lender a lien on real property to secure the borrower's repayment of the loan. The mortgage is created by recording the mortgage in the Land Register and takes priority over mortgages recorded later in time. An individual intending to buy real estate or to take security over it is deemed to have notice of the contents of the Land Register (see Question 5).

 
29. Is real estate securitisation common in your jurisdiction?

Real estate securitisation is not commonly used in the Czech Republic because:

  • There are various uncertainties in local law which make securitisation difficult.

  • The Czech market is relatively small and therefore there is little interest from international securitisation investors. (Local investors do not use securitisation of real estate.)

 

Real estate leases

Negotiation and execution of leases

30. Are contractual lease provisions regulated or freely negotiable?

The landlord and tenant can freely negotiate the lease terms.

 
31. What are the formal legal requirements to execute a lease?

Leases of non-residential premises or flats must be in writing. The lease has to be signed by both parties.

There is no restriction on the form of a lease of a land plot. The lease can be concluded in writing, as well as orally or implicitly.

The essential requirements of a lease differ and depend on the nature of the leased premises. The most complex requirements apply to a lease of non-residential premises. This lease must contain the:

  • Exact specification of the leased premises.

  • Purpose of the lease.

  • Amount of rent.

  • Amount of service charges.

  • Subject of business undertaken in the premises (if the purpose of the lease is to use the premises for business).

Rent levels and reviews

32. How are rent levels usually reviewed and are there restrictions on this? Is VAT (or equivalent) payable on rent?

There are no restrictions on rent review levels. The level of rent is freely negotiable between the parties. Leases generally include annual rent increases according to an inflation index. There may be annual or periodic rent increases under other lease provisions. VAT is not payable on rent. However, the VAT payer can decide to apply VAT to the lease. Rent is considered as part of the landlord's income and the profits are taxed.

Length of term and security of occupation

33. Is there a typical length of lease term and are there restrictions on it? Do tenants of business premises have security of occupation or rights to renew the lease at the end of the contractual lease term?

There are two main types of lease:

  • Those for a limited period of time

  • Those for an unlimited period of time.

The duration of a lease for a limited period of time is determined by negotiation (usually a five-year period with an option to break). A lease for an unlimited period of time is terminated by notice, served by any of the parties. However, if no notice is served, the lease could theoretically last in perpetuity.

There is no security of occupancy of business premises at the end of the lease term. However, when a tenant under a lease for a limited period of time continues to occupy the real estate for more than 30 days after the lease term ends, and the landlord does not take action to evict in this period, the lease is automatically renewed under the same conditions for the same period of time (for up to one year) each time. There is no statutory renewal right for a lease for an unlimited period of time. Additional or different renewal rights or options can be negotiated under the lease.

Restrictions on disposal

34. What restrictions typically apply to the disposal of the lease by the tenant?

The tenant cannot generally sublet business premises without the landlord's written consent, unless agreed otherwise. The landlord's consent to sublet the premises can be withheld without a reason.

A lease assignment is not valid without the consent of both parties to the lease. The assigning tenant does not generally remain liable under the lease after assignment.

Use of premises within a corporate group

35. Can tenants usually share their business premises with companies in the same corporate group?

The landlord's consent is required before the tenant can share its business premises with companies in the same corporate group, unless agreed otherwise.

Repair and insurance responsibilities

36. Who is usually responsible for keeping the leased premises in good repair?

The landlord must maintain leased premises in good repair, unless agreed otherwise. This does not affect the tenant's responsibility for damage he has caused to the premises. The tenant must notify the landlord of the need for repair and allow the landlord to keep the premises in repair. Otherwise, the tenant is liable for damage caused by breach of these obligations. In lease transactions concerning Class A buildings (that is, the most prestigious buildings that compete for premier office users with above average rental rates for the area), the tenant is generally responsible for keeping leased premises in good repair, and for payment of the associated costs.

 
37. Who is usually responsible for insuring the leased premises?

In Class A building lease transactions, landlords generally only insure the building structure and recover the costs from the tenants (through service charges and operational costs). Leases generally state that tenants must insure the leased premises. If the premises are destroyed or damaged to the extent that the tenant cannot occupy, or can only partially occupy them, and the premises are not reinstated by the landlord, the tenant is entitled to:

  • A discount on the rent.

  • A full suspension of the rent.

  • Terminate the lease.

Grounds for termination

38. On what grounds can the landlord usually terminate the lease? Can the tenant terminate the lease in certain circumstances?

For leases for an unlimited period of time (see Question 33), notice can be served by any of the parties at any time without giving reasons, unless agreed otherwise. The statutory notice period is three months, but the parties can agree otherwise. The notice period starts from the first day of the month that follows the delivery of notice.

Landlord

Leases for a limited period of time terminate on expiry of the lease term. The landlord can terminate the lease of business premises in certain circumstances, including when the tenant:

  • Fails to pay rent or other rental charges, service charges and payments when due.

  • Uses the premises in breach of the lease terms and conditions.

  • Sublets the premises without the landlord's consent.

In addition, the landlord can generally serve notice if a competent authority issues a decision to alter or remove the building that contains the leased premises.

Tenant

Generally, the tenant can terminate a lease for a limited period of time, particularly when:

  • The tenant loses the licence to operate its business in the premises.

  • The premises are unsuitable for the purpose of the lease (without fault of the tenant).

  • The landlord fails to observe the lease terms (for example, his duty to keep the leased premises in good condition).

Different termination events can be agreed under the lease.

Tenant's insolvency

39. What is the effect of the tenant's insolvency under general contract terms and insolvency legislation?

The tenant's bankruptcy allows the tenant to serve a notice to quit on the landlord.

The landlord cannot serve notice on the tenant based on the tenant's bankruptcy. However, the landlord can serve a notice to quit due to the tenant's failure to pay rent or other lease charges when due during bankruptcy. In addition, under a lease for an unlimited period of time, the landlord can serve a notice to quit on the tenant at any time.

 

Planning law

40. What authorities regulate planning control and which legislation applies?

Planning control is regulated by local and state authorities, and more specifically by:

  • Municipal bodies.

  • Regional bodies.

  • Ministries.

All construction matters are dealt with by the construction offices. (Most municipalities have a construction office.) The main statutes that apply to planning control are the:

  • Building Code (No. 183/2006 Coll., as amended).

  • Act on Rules of Administrative Procedure (No. 500/2004 Coll., as amended).

 
41. What planning consents are required and for which types of development?

Two separate permits are required to begin construction:

  • A planning permit.

  • A building permit.

In addition, a certificate of occupancy is required to occupy the new building.

Planning permit

Under a planning permit the construction authority provides its consent to a new building. The permit must be obtained to authorise the following in relation to structures or facilities:

  • Their location.

  • Their alteration.

  • Their impact on the use of the area.

However, a permit is not required for:

  • Movable structures and facilities located in the area for fewer than 30 days a year.

  • Alterations that only affect the structure's interior.

A planning permit application must be filed with the relevant construction office. The permit is valid for two years.

Building permit

Building permits are required for the construction and reconstruction of structures or facilities. However, there are exemptions, such as for small residential or business buildings, which merely require notification to the competent authority.

Certificate of occupancy

A certificate of occupancy must be obtained before a building can be used and occupied for its intended purpose, for which an on-site inspection is required.

Permission to demolish

A notice of intention to demolish must be submitted to the competent construction authority before demolition takes place. Permission to demolish is not generally required unless the competent construction authority decides otherwise on receipt of the notice.

 
42. What are the main authorisation and consultation procedures in relation to planning consents?

Initial consents

Applications to obtain the planning permit and the building permit are filed with the local construction office.

Third party rights

In addition to the applicant, participants in planning proceedings include:

  • The municipality, which always plays a key role.

  • Individuals whose ownership or other rights in relation to the following may be directly affected by a decision:

    • the land itself;

    • neighbouring land;

    • structures on the land itself or neighbouring land.

  • Individuals with rights under specific laws and regulations (such as ecological activists).

The tenants of flats and non-residential premises are not participants in planning proceedings.

The local construction office must deal with objections. The right to object to a permit is limited.

Public inquiries

Decisions on an application for planning consent are made in a closed procedure without a public inquiry.

Initial decision

The construction office has a statutory period of 30 days from receipt of the application to issue its decision. This period can be extended:

  • If the issue is complex.

  • When the application gives rise to more issues that must be resolved before a decision can be made.

Appeals

An applicant can appeal any decision made in relation to the application. The applicant can also file a court claim.

 

Reform

43. Are there any proposals to reform real estate law in your jurisdiction?

Parliament intends to adopt a new Civil Code, which will redefine the rights and obligations relating to the use and ownership of real estate. It is presumed that the code will correspond with general terms under German and Austrian law and amendments will involve:

  • Buildings being automatically owned by the owner of the land.

  • A transfer of property being effective on entering into the sale contract.

There have been extensive discussions on the text of the new Civil Code and it is expected to come into force within the next two years.

There are also discussions on a new Condominium Act, which will reshape the terms and conditions for flat ownership. Certain amendments to the Building Code will also be adopted.

There are ongoing discussions concerning whether the favourable income tax treatment of REITs should be changed. REITs are used by individual investors for particular projects rather than for collective investments (see Question 2), which means that the main aim of REITs is not currently being met. In addition, there are substantial procedural issues that require clarification. The legislation is complicated and must be simplified.

 

Real estate organisations

Ministry for Regional Development (Ministerstvo pro místní rozvoj)

Main activities. The Ministry is the central government authority in relation to:

  • Regional policies.

  • Housing.

  • Planning.

  • Building rules.

  • Expropriation.

  • Investment.

  • Tourism.

The Ministry is also the National Co-ordination Authority (NCO), and provides a single framework for managing and implementing assistance from structural funds and the Cohesion Fund in the Czech Republic. Since 1994, these funds, which are a structural instrument, have helped the Czech Republic (and other EU states) to reduce economic and social disparities and to stabilise their economies.

W www.mmr.cz

Czech Office for Surveying, Mapping and Cadastre (COSMC) (Český úřad zemědělský a katastrální)

Main activities. The COSMC is the supreme administrative body. It is a central state authority headed by a president. The COSMC is directly subordinate to the government. The COMSC is responsible for surveying and cadastral inspectorates in the regions, and cadastral offices in districts.

W www.cuzk.cz

Association for Real Estate Development (Asociace pro rozvoj trhu nemovitostí)

Main activities. The association is a non-profit association whose members are prominent individuals from various real estate market sectors. Their focus is mainly on promoting the interests of the general public.

W www.artn.cz



Contributor details

Gabriel Achour

Achour & Hajek

T +420 270 006 111
F +420 270 006 122
E gabriel.achour@achourhajek.com
W www.achourhajek.com

Qualified. Czech Republic, 1997

Areas of practice. Real estate and project finance.

Recent transactions

  • Advice to European construction heavyweight STRABAG.
  • Acted as legal counsel to The Prague Transport Company.
  • Advising leading Russian soft machinery producer OSTROV.
  • Advising PVN on various issues associated with the zoning permit for the new BAUMAX building in Prague.
  • Advising the town of Milovice on various issues.
  • Advising the major Czech developer Trigema.
  • Representing J&T Real Estate.
  • Advising the leading local developer M & K Development.
  • Advising UK investment fund Mount Capital.
  • Advising the leading European retail chain LIDL.