Khaleej Times

What is recourse for developers when investors fail to pay?

- EMMA CRONIN The writer is in-house legal counsel at GCP Group. Views expressed are her own and do not reflect the newspaper’s policies.

In the instance of off-plan property purchase, historical­ly a degree of risk is placed on the part of the investor. It is accepted that, with the outlay of funds for a product not yet in existence or at completion, the purchaser requires a certain degree of protection over and above the ordinary due diligence one would be expected to undertake prior to purchase of a premises in a projected real estate developmen­t.

To ensure that investors are adequately protected, lawmakers have prescribed various requiremen­ts that developers seeking to procure funds from off-plan sales must satisfy prior to marketing and sale of off-plan real estate units. In terms of Law No. 8 of 2007, a dedicated escrow account must be opened with an accredited identified agent of the Dubai Land Department (DLD), which agent is tasked with maintenanc­e of complete record of transactio­ns as well as audited account thereof.

Further, mandatory registrati­on of all real estate projects under the Real Estate Regulatory Agency (Rera) is required in terms of Law No. 7 of 2006, as well as appropriat­e developer licensing and documentat­ion delivery in support of their intended project. Any and all disposal of units in the project are to be recorded on the interim real estate register under Law No. 13 of 2008. Further, particular process is identified under Law No. 9 of 2009, equipping the Rera with the ability to cancel stalled projects as and when required.

As with of obligation. all contracts, Any benefit prospectiv­e does property not ordinarily owner accrue commits in the to performanc­e absence under the terms agreed which would ordinarily involve periodic payment toward the subject unit in the proposed developmen­t. In the event of failure to pay the agreed upon amount, the investor could potentiall­y render a developer unable to complete, leading to a propensity for project cancellati­on.

It is, therefore, encouragin­g that lawmakers have deemed it appropriat­e to amend the legislatio­n surroundin­g off-plan purchase and introduce extended protection­s whereby a developer that does not receive payment per the agreed schedule may initiate action to ensure their project does not suffer protracted cancellati­on processes owing to insufficie­nt funding.

The update issued on the law relating to interim property registrati­on, under Law No. 19 of 2017 amending Law No. 13 of 2008, provides particular and substantia­l recourse to developers where an investor fails to perform in accordance with the terms of the sale and purchase agreement.

There are variant degrees of remedy, including withholdin­g amounts and contract terminatio­n,

dependent upon project completion

the 30 The DLD days’ amendments may notice be requested per the provide required to issue that form to an investor whereafter the parties to the contract are invited to resolve issues per amicable settlement. Thereafter, and assuming the parties are unable to reach settlement, the DLD is furnished with the authority to issue an official confirmati­on of the developers’ fulfillmen­t of contractua­l obligation­s specifying the percentage project completion per their records.

Recourse available to developers is now clearly outlined with variant degrees of remedy, inclusive of withholdin­g amounts and contract terminatio­n, dependent upon the statement of project completion as released by the DLD. Further, no formal legal action is required, providing streamline­d and expeditiou­s access to the available remedies.

demanding Under completion to retain the that amendments, amounts reflects the investor 80 received per where deliver cent and the or the continue real above, due estate amount. the with project developer performanc­e Alternativ­ely, percentage is entitled the at subject the developers’ unit for collection option, the of DLD balance may amounts be instructed due by to the auction purchaser, or the developer may unilateral­ly cancel the contract and retain 40 per cent of the purchase price, returning the remaining amounts to the defaulting investor within one year of terminatio­n of the contract, alternativ­ely within 60 days following resale of the unit (whichever occurs first).

The amendments go on to provide variable deductions and options applicable, depending upon percentage completion identified by the DLD. Where the project completion is between 60 per cent to 80 per cent, the developer may cancel the contract, retain 40 per cent purchase price and return the remaining amounts as specified and where completion is at below 60 per cent, the developer is entitled to retention of 25 per cent.

These additions to the existing rules are likely to assist developers that would otherwise be forced to pursue lengthy court process or initiate arbitratio­n proceeding­s against defaulting investors involving substantia­l costs and potential project delay as a result.

Real estate projects invariably encounter delay and face cancellati­on as a result of funding issues. Thus, fewer bureaucrat­ic hurdles in accessing escrow funds and initiating action against a defaulting investor, as well as provision of alternate remedy under the amendment, is valuable in promoting equal protection of contractin­g parties and providing necessary process in retention of funds at critical points in completion of real estate developmen­t.

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