How to buy commercial real estate in Ukraine for a foreign legal entity?

Every day Ukraine is becoming a more and more interesting investment platform for a foreign business. A sufficiently large market for both goods and services encourages foreigners to open representative offices of their companies in Ukraine and develop their business here. This was the case before the war and will continue to be so after the war, when foreign investment will flow into the country and active reconstruction will begin.

To do business in Ukraine effectively,  a businessman needs an office or industrial premises. An office can be bought by an individual, such as the owner of a business, registering it in his name. But often there is also a need to purchase offices for a foreign legal entity (company). So, how can a foreign legal entity safely acquire real estate in Ukraine?

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What foreign legal entity can buy commercial real estate in Ukraine?

Commercial real estate includes buildings, structures or non-residential premises built into residential buildings which are not residential real estate and which are used for economic (commercial) activities for the purpose of earning profit, investment income or rental income. 

This concept includes office buildings, office premises, commercial buildings or premises, integral property complexes (production facilities), hotels, garages, warehouses, agricultural enterprises, etc. 

According to the current legislation of Ukraine, both individual persons and legal entities, residents and non-residents of Ukraine, can own commercial real estate. 

Please note! The notions of “foreign legal entity” and “foreign enterprise” in the Ukrainian legislation are not synonymous.

A foreign legal entity is a company established on the basis of the legislation of another State, and which is located outside Ukraine. Such entities include:

• foreign diplomatic missions and consular offices; 
• representative offices of international organizations in Ukraine;
• permanent representative offices of a foreign business entity – an institution or an entity representing the interests of a foreign business entity in Ukraine, which has duly executed respective powers.

A foreign enterprise is an enterprise established under the legislation of Ukraine and operating on the basis of ownership by foreigners or foreign legal entities, i.e. an enterprise with the 100% foreign investment in its authorized capital.

This difference is important when foreign legal entities acquire ownership, for example, of land plots on the territory of Ukraine: 

• For foreign legal entities this process is more complicated and lengthy, and requires additional coordination with the local authorities at the location of the land plot; 
• In addition, a foreign legal entity, prior to acquiring the ownership of real estate, is required to register with the controlling authority at the location of the immovable property. 

If you are planning to buy premises in Ukraine, which are separated from the land plots, most often the specified distinction of legal entities does not matter. The process of acquiring such commercial real estate for a foreign legal entity and a foreign enterprise will be the same, and without additional restrictions.

Our company was contacted by a Client with a request to conduct legal due diligence of the company selling real estate. The given property was listed in the pledged assets of Swedbank, OJSC, which, as it was known, left Ukraine by selling its assets to Delta Bank (OMEGA BANK, PJSC became the legal successor).

The main part of the legal due diligence was dedicated to the corporate management of the selling company, the place of the company in the group scheme of related companies, the powers of the management bodies and existing court disputes in which the seller was involved. In addition, we studied the documents on the property, checked the “history” of the property and analyzed the proposed transaction terms and conditions.

In particular, it was noted that according to the incorporation and corporate governance documents of the selling company, all agreements, transactions and other documents (banking, financial) shall be signed both by the General Director and the Chairman of the Supervisory Board on behalf of the LLC; or by the General Director and a designated person approved by the General Meeting. Thus, the signing of any agreement on the part of the selling company shall involve two persons (including their signatures). This fact was very important for the Client because, according to him, it was initially planned that the purchase and sale agreement would be signed by the General Director of the selling company only.

In addition, we have drawn the Client’s attention to the fact that since the amount of the transaction exceeds EUR 200,000, it, according to the company’s charter, this transaction had to be approved in advance by the General Meeting.

Thanks to the legal due diligence conducted by our company’s lawyers, the Client has signed a Sale and Purchase Agreement under the transparent terms and conditions, being completely confident of the legitimacy of the transaction.

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What documents do I need to buy commercial real estate in Ukraine?

Let's see what documents each party must provide for the commercial real estate transaction.

The Seller

• The original passport document and original tax identification number (for individuals)/original statutory documents (for legal entities);
• The original title document for the commercial real estate;
• The original certificate of information from the Bureau of Technical Inventory (if the real estate was obtained as property before 2013);
• The original expert appraisal of the market value (for individuals)/reference on the balance sheet value (for legal entities);
• The original technical passport;
• The original certificate of absence of debts for public utilities; 
• The original notarized consent of a spouse, in case of officially registered marriage (for individuals);
• The original certificate of marriage, in case of officially registered marriage / certificate of death, if the spouse died (for individuals).

The Buyer:

• The extract from the state register of the legal entity/notarized translation of the apostilled or legalized extract from the commercial or court register or certificate of registration of the legal entity – for non-residents;
• The articles of association/notarized translation of the apostilled or legalized articles of association of the non-resident legal entity;
• The director appointment order or power of attorney to another representative/notarized translation of the apostilled or legalized director appointment order or power of attorney to another representative of the non-resident legal entity;
• The passport and tax identification number of the director or other representative under the power of attorney/notarized translation of the passport of the director or other representative of the non-resident legal entity;
• The VAT payer certificate (if a legal entity is a VAT payer)/ certificate of registration in the tax authority of Ukraine of the non-resident legal entity.

Important:

• All transactions involving foreign persons must be concluded in the presence of the translator;
• The foreign legal entity and individual is obliged to open an account in a bank institution of Ukraine.

Our company provides our Clients with comprehensive support throughout the entire procedure of buying real estate in Ukraine, including the preparatory stages. We help with opening an account in a reliable Ukrainian bank and provide advice on how to transfer money from a foreign account to a Ukrainian account to pay for the real estate transaction.

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Basic rules for the purchase of commercial real estate by a foreign legal entity in Ukraine

A foreign legal entity may buy real estate by concluding an agreement for the sale of immovable property. The procedure of its conclusion is determined by the current legislation of Ukraine. An agreement for the sale of a land plot, unified property complex or an object of commercial real estate must be concluded in writing and is subject to notarial certification and state registration.

The notarial agreement is subject to detailed proofreading and editing in order to reveal errors in the data of the parties and the information on the object of purchase. In the process of real estate investment transactions we regularly find spelling mistakes in agreements, and if they are not corrected before signing, it can lead to problems which will most likely be solved in court. 

The text of the agreement is usually standard, and if you have agreed on any special conditions, you should formulate them correctly and put them in the text of the agreement. Once the text is agreed upon and approved by the parties, the agreement is printed on a special notarial form, signed by the parties, the payment is made, and then comes the registration of property rights. It is extremely important to check the accuracy and completeness of the information entered in the register. 

For safe investment (purchase) in real estate, the foreign entrepreneur must check the desired object for the absence of claims to the owner from state agencies and third parties, and correctly fix all the essential terms of the agreements with the seller.

In the purchase of commercial real estate notary verifies some of the information just before the certification of the agreement. But the notary only checks the facts that may prevent from concluding the transaction specifically at the time of certification, and does not “dig deep” beyond. However, not knowing where to look, you can miss an important little thing that could lead to trouble. 

In turn, a lawyer during the inspection of real estate will analyze all of the submitted documents for their authenticity and compliance with the current legislation, and if necessary, he/she will find (obtain) them, check all the nuances of the transaction and give you his/her reasoned opinion, so that you can make the right decision. Read more about the commercial real estate inspection in Ukraine here.

We are a local expertise, which better understands the laws and rules of doing business. 

• We will advise you on the best way to proceed in your specific situation with your specific goals and business principles; 
• We will check and analyze the nuances of buying real estate; 
• We will agree all terms of purchase with the parties in advance; 
• We will arrange the deal with a proven, reliable, competent, “white” notary; 
• We will monitor the actions of all parties involved in the purchase/lease of commercial real estate; 
• We will study the checks that a notary makes before certifying the deal; 
• We will analyze or draw up a customized purchase and sale agreement. If necessary, we will make the necessary changes, so that you become a satisfied owner of commercial property.

You can find out the fees of legal support services for real estate transactions in Ukraine here.

If you are planning to start your own business in Ukraine or to invest money in the industrial sector of Ukraine, don’t hesitate to contact us. We will take care of your funds and ensure a simple solution to any legal problem.

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