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The International Comparative Legal Guide to: A practical cross-border insight into real estate law Published by Global Legal Group with contributions from: Attorneys-at-Law Project Law Ltd BKA Attorneys at Law Brulc Gaberščik & Partners, Law Firm, Ltd. BSA Ahmad Bin Hezeem & Associates LLP Cordero & Cordero Abogados Cushman & Wakefield Gianni, Origoni, Grippo, Cappelli & Partners Greenberg Traurig Grzesiak sp.k Greenberg Traurig, LLP GSK Stockmann Gürlich & Co. Hogan Lovells Howard Kennedy Konečná & Zacha Kubes Passeyrer Attorneys at Law Machado, Meyer, Sendacz e Opice Advogados Maples and Calder Meyerlustenberger Lachenal AG Nishimura & Asahi Norton Rose Fulbright South Africa Inc. Osler, Hoskin & Harcourt LLP PAV Law Offices Prieto Cabrera & Asociados SRL Ropes & Gray LLP Shepherd and Wedderburn LLP Simon Reid-Kay & Associates Tirard, Naudin Toronto CREW Tughans Ziv Lev & Co. Law Office 13th Edition Real Estate 2018 ICLG

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The International Comparative Legal Guide to:

A practical cross-border insight into real estate law

Published by Global Legal Group with contributions from:

Attorneys-at-Law Project Law Ltd BKA Attorneys at Law Brulc Gaberščik & Partners, Law Firm, Ltd. BSA Ahmad Bin Hezeem & Associates LLP Cordero & Cordero Abogados Cushman & Wakefield Gianni, Origoni, Grippo, Cappelli & Partners Greenberg Traurig Grzesiak sp.k Greenberg Traurig, LLP GSK Stockmann Gürlich & Co. Hogan Lovells Howard Kennedy Konečná & Zacha Kubes Passeyrer Attorneys at Law

Machado, Meyer, Sendacz e Opice Advogados Maples and Calder Meyerlustenberger Lachenal AG Nishimura & Asahi Norton Rose Fulbright South Africa Inc. Osler, Hoskin & Harcourt LLP PAV Law Offices Prieto Cabrera & Asociados SRL Ropes & Gray LLP Shepherd and Wedderburn LLP Simon Reid-Kay & Associates Tirard, Naudin Toronto CREW Tughans Ziv Lev & Co. Law Office

13th Edition

Real Estate 2018

ICLG

WWW.ICLG.COM

The International Comparative Legal Guide to: Real Estate 2018

General Chapters:

Country Question and Answer Chapters:

1 Real Estate Joint Ventures: New Paradigm or Passing Fashion? – Iain Morpeth, Ropes & Gray LLP 1

2 Serviced Offices: The Changing Face of the Real Estate Market – Rebecca Davison & Nicky Stewart, Howard Kennedy 5

3 Toronto CREW and an Outlook on the Canadian Market for 2018 – Rosalyn Wallace, Toronto CREW & Stuart Barron, Cushman & Wakefield 9

4 Austria Kubes Passeyrer Attorneys at Law: Dr. David Kubes & Mag. Marko Marjanovic 12

5 Brazil Machado, Meyer, Sendacz e Opice Advogados: Maria Flavia Candido Seabra & Fatima Tadea Rombola Fonseca 20

6 Canada Osler, Hoskin & Harcourt LLP: Heather McKean & Stella Di Cresce 30

7 Costa Rica Cordero & Cordero Abogados: Hernán Cordero B. & Rolando Gonzalez C. 43

8 Czech Republic Gürlich & Co.: JUDr. Richard Gürlich, Ph.D. & Mgr. Kamila Janoušková 53

9 Dominican Republic Prieto Cabrera & Asociados SRL: Aimée Prieto 60

10 England & Wales Ropes & Gray International LLP: Carol Hopper & Partha Pal 70

11 Finland Attorneys-at-Law Project Law Ltd: Matias Forss & Sakari Lähteenmäki 81

12 France Tirard, Naudin: Maryse Naudin & Jean-Marc Tirard 89

13 Germany GSK Stockmann: Olaf Jacobsen & Sascha Zentis 99

14 Hong Kong Simon Reid-Kay & Associates: Simon Reid-Kay & Leslie Kaczmarek 109

15 India PAV Law Offices: Kiron Prabhakar & Navin B. Singh 119

16 Ireland Maples and Calder: Diarmuid Mawe & Craig Kenny 129

17 Israel Ziv Lev & Co. Law Office: Moshe Merdler & Ziv Lev 143

18 Italy Gianni, Origoni, Grippo, Cappelli & Partners: Davide Braghini 153

19 Japan Nishimura & Asahi: Hideaki Ozawa & Yujin Gen 163

20 Northern Ireland Tughans: David Jones & Luke Thompson 175

21 Poland Greenberg Traurig Grzesiak sp.k.: Agnieszka Stankiewicz & Barbara Pancer 183

22 Scotland Shepherd and Wedderburn LLP: David Mitchell & Scott Ritchie 192

23 Slovakia Konečná & Zacha: Mgr. Vladimír Kordoš, LL.M. 205

24 Slovenia Brulc Gaberščik & Partners, Law Firm, Ltd.: Damijan Brulc & Marjetka Kenda 216

25 South Africa Norton Rose Fulbright South Africa Inc.: Pieter Niehaus 224

26 Spain Hogan Lovells: Emilio Gómez Delgado 233

27 Switzerland Meyerlustenberger Lachenal AG: Wolfgang Müller & Christian Eichenberger 243

28 Turkey BKA Attorneys at Law: Göktuğ Can Burul & Onur Atakan 251

29 UAE BSA Ahmad Bin Hezeem & Associates LLP: John Peacock 258

30 USA Greenberg Traurig, LLP: Christina Braisted Rogers 268

Contributing EditorIain Morpeth, Ropes & Gray LLP

Sales DirectorFlorjan Osmani

Account DirectorOliver Smith

Sales Support ManagerToni Hayward

Senior EditorsCaroline Collingwood & Suzie Levy

Chief Operating OfficerDror Levy

Group Consulting EditorAlan Falach

PublisherRory Smith

Published byGlobal Legal Group Ltd.59 Tanner StreetLondon SE1 3PL, UKTel: +44 20 7367 0720Fax: +44 20 7407 5255Email: [email protected]: www.glgroup.co.uk

GLG Cover DesignF&F Studio Design

GLG Cover Image SourceiStockphoto

Printed byAshford Colour Press LtdDecember 2017

Copyright © 2017Global Legal Group Ltd.All rights reservedNo photocopying

ISBN 978-1-911367-86-4ISSN 1749-4745

Strategic Partners

Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720

DisclaimerThis publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations.

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ICLG TO: REAL ESTATE 2018

Chapter 29

BSA Ahmad Bin Hezeem & Associates LLP John Peacock

United Arab Emirates

Law No. 8 of 2007 Concerning Escrow Accounts for Real Estate Development in the Emirate of Dubai afforded protection for a buyer’s money invested in off-plan sales in developments under construction; such protections were later reinforced by the introduction of the Interim Property Register in which off-plan sale contracts were required to be registered.Law No. 26 of 2007, amended by Law No. 33 of 2008, regulates the relationship between landlords and tenants and affords tenants protection against unscrupulous landlords.The Direction for Association Constitutions issued in 2010 in accordance with Law No. 27 of 2007 (jointly, the “Strata Laws”) regulates multi-storey and multi-use property developments. Law No.13 of 2008 and Law No.14 of 2008 created a framework for the registration of lenders’ pre-mortgage interests on the Interim Property Register, as well as mortgages on the main Property Register and mechanisms for the enforcement of the sale of property by public auction. Law No. 9 of 2009 (amending Law. No 13 of 2008) introduced dispute resolution mechanisms to deal with the process and consequences of the cancellation of any real estate or project development contracts. These provisions were confirmed by Executive Council Resolution No. 6 of 2010. Law No. 56 of 2009 established a special tribunal for settling cheque disputes relating to real estate transactions.Law No. 7 of 2013 officially established the Dubai Land Department (“DLD”), initially established by a Declaration in 1960 that established its predecessor, the Tabou (Land) Department.The DIFC has its own real estate laws, based on English Law principles and consists of DIFC Law No. 4 of 2007, known as the Real Property Law, and DIFC Law No. 5 of 2007, known as the Strata Title Law. The DIFC has its own property register and the registration of property transactions for properties situated within the DIFC are dealt with by the DIFC Registrar of Real Property. Emirate of Abu Dhabi:Law No. 3 of 2005 initiated the regulation of the real estate market in Abu Dhabi by establishing a Land Registration Department at the Abu Dhabi and Al Ain Municipalities and requiring that every deed creating, transferring or extinguishing real property rights (including leases with a term exceeding four years) be registered and without which any transaction would be void. Law No. 19 of 2005 (later amended by Law No. 2 of 2007) introduced provisions relating to ownership, development, leasing and mortgaging of land and real estate in Abu Dhabi and differentiated between the rights of UAE, Gulf Community Council (“GCC”) and non-UAE/GCC nationals. This law also introduced the

1 Real Estate Law

1.1 Please briefly describe the main laws that govern real estate in your jurisdiction. Laws relating to leases of business premises should be listed in response to question 10.1. Those relating to zoning and environmental should be listed in response to question 12.1.

The United Arab Emirates (“UAE”) is a federation established in 1971 between seven Emirates, namely Abu Dhabi, Ajman, Dubai, Fujairah, Ras al Khaimah, Sharjah and Umm Al Quwain; all of which adopt a free market economy. The UAE legal system is essentially a civil law jurisdiction influenced by Islamic, Roman and French law, and lately by the principles of Egyptian law. UAE federal law is the law applicable to all of the Emirates; however, each Emirate passes its own legislation regarding mainly administrative issues; such law supplements the federal law. If federal law is silent on an issue, then the provisions of laws issued on Emirate level prevail, and should there still remain doubt as to the legal position, then Islamic Shariah law is applied. UAE federal laws also apply to all free zones and investment zones (essentially, free trade zones offering full ownership to non-UAE nationals of companies accompanied by a tax-free status), except for the Dubai International Financial Centre (“DIFC”) and the Abu Dhabi Global Market (“ADGM”), which have their own independent legal systems and real estate legislation applicable to real estate situate within these free zones. The UAE does not have any specific property legislation at federal level and each emirate’s particular real estate laws are promulgated at Emirate level by way of laws, decrees and resolutions passed at various levels of Emirate governance, and resulting in each Emirate being discussed separately below. The laws were mainly initiated as a result of the federal codes not dealing with the specifics and complexities of real estate transactions which emerged after the opening up of the real estate market to foreigners in the UAE.Emirate of Dubai:In Dubai, the legislative framework relating to real estate developed existentially between 2002 and 2010. With the creation of Dubai’s Real Estate Regulatory Agency (“RERA”) in 2007 by Law No. 7 of 2006, and Law No. 16 of 2007, a strong regulatory authority was created. Regulation No. 3 of 2006 determined the designated areas in Dubai where real estate can be owned by non-UAE nationals. Bylaw No. 85 of 2006 regulated the operation and regulated the real estate broker industry.

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Amiri Decree No. 15 of 2006 permits the registration of mortgages by way of security over long-term leases (i.e. leases with a term exceeding 20 years) in a “Temporary Register” in the Ras Al Khaimah Lands Department. Amiri Decree No. 22 of 2008 established the system for the sale of off-plan properties and of “Guarantee Accounts” similar to escrow accounts. It became compulsory for developers who sell off-plan properties to be registered on the Real Estate Developers Register and to obtain permission/licence for all development projects. Emirate of Ajman:Amiri Decree No. 7 of 2008 was introduced to permit UAE and GCC nationals (and companies/entities owned wholly by them), together with public joint stock companies incorporated in the UAE and public corporations and authorities incorporated in Ajman) to own a freehold right over land in Ajman. Non-UAE nationals are only entitled to own a right of freehold or usufruct, including long leases, for a term of 50 years, with the approval of the Ruler of Ajman. Amiri Decree No. (8) of 2008 requires all developers in Ajman to register as such with the Ajman Land Department, and to open an escrow account for the development project and also regulates the constitution of jointly-owned properties and common areas within such property. Local Order No. 4 of 2008 contains further requirements for, and restrictions on, developers protecting interested parties and even the previous owner of the development property. The Ajman Real Estate Regulatory Authority (“ARRA”) was established in 2008. Emirate of Umm Al Quwain:By way of Law No. 3 of 2006, UAE and GCC nationals and public joint stock companies are allowed to own real estate property anywhere in the Emirate. Non-UAE nationals were granted the right to own “floors” without ownership of the land in terms of a 99-year usufruct right or a 50-year “musataha” right (similar to usufruct right but with development rights) in designated investment areas. Law No. 3 of 2007 prevents any developer from carrying out real estate development unless it is registered in the Developers’ Register at the Survey and Planning Department in Umm Al Quwain. A developer may also only sell units off-plan after applying to open a “Guarantee Account” in the name of the project, to receive funds which are to be used exclusively for the purposes of construction. Emirate of Al Fujairah:There are no specific laws regarding property registration and ownership in the Emirate of Fujairah and the provisions of the Civil Code, along with the instructions of the Ruler, prevail in respect of the real estate sector. There is only one type of freehold property that non-UAE nationals can own and a few areas, such as the Fujairah Free Zone, where long-term leases are available.It can be seen that the real estate laws are somewhat scant and that there is no one comprehensive statute regulating the real estate industry in the UAE.

1.2 What is the impact (if any) on real estate of local common law in your jurisdiction?

As explained in question 1.1 above, the UAE is a civil law jurisdiction, and common law has no impact on real estate law in the UAE.

creation of “investment zones” in which GCC and non-UAE/GCC nationals were entitled to own real property rights and specifically excluded ownership rights to land for non-UAE nationals.Executive Council Resolution No. 64 set out specific directions regarding the registration of ownership rights (including the registration of long term leases) and directions to issue registration certificates (title deeds) to non-UAE nationals for property rights located within the “investment zones”. It further dealt with the registration of property rights in respect of property located outside the “investment zones” and the registration of mortgages over property and property rights, both inside or outside the “investment zones”.Law No. (3) of 2015 introduced strata laws in Abu Dhabi and established the requirements for new developments and projects and to protect the interests of investors. This law mandated the establishment of escrow accounts and lead to the establishment of real estate registers for developers, projects and interests therein, including an ‘interim’ real estate register for off-plan sales. The law also established the decennial (10-year) liability on the developer for the structural integrity of a building.The Abu Dhabi Global Market (“ADGM”) is a financial free zone, established on similar principles as the DIFC, whose geographic area of Al Maryah Island is governed by both property regulations and strata title regulations.There is, however, still minimal legislation and regulations regarding property rights within the “investment zones”, and although the laws have established legal principles, they do not yet have sufficient enforcement provisions. Emirate of Sharjah:Through Law No. 10 of 1972 and its implementing regulations, Sharjah established a real estate registration office which allowed for UAE nationals to own property in Sharjah. Exceptions were permitted only with the Ruler’s approval.Law No. 4 of 1980 regulates ownership of multi-storey buildings which provided an early concept of strata ownership. Amiri Decree No. 1 in 1981 further regulated the rights and obligations of owners in multi-owned buildings and provided for the formation of co-owners’ associations. Law No. 5 of 2010 Concerning Real Estate Registration and Executive Council Decisions No. 32 and No. 38 of 2005 extended the scope of Law No. 10 of 1972, thereby permitting GCC nationals the right of ownership of property in Sharjah.In terms of Executive Council Resolution No. 26 of 2014, the sale of usufruct rights was permitted, and non-UAE/GCC nationals were permitted to purchase real estate through a usufruct property right for a maximum period of 100 years, which right may be assigned to a third party subject to the approval of the Sharjah Real Estate Registration Authority. This law also opened the real estate market to non-UAE nationals through what is essentially a long-term leasehold arrangement.Emirate of Ras Al Khaimah:A 2003 law introduced the concept of ownership of apartments and floors in multi-owned buildings and provided a system of registration of strata ownership of apartments and floors within a building. Decision No. 20 of 2005 provided that UAE and GCC nationals could own property in all areas of Ras Al Khaimah and this was expanded to non-UAE nationals by Decision No. 12 of 2007, which specifically allowed non-UAE nationals and corporate bodies owned by them to own freehold title to property in certain “investment projects” such as those owned by RAKIA, Al Hamra and Rakeen.

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for a specific duration, but for a maximum of 50 years. The musataha has the same principles as that of a usufruct, but grants an additional development right to the holder. The musataha holder has the right to assign or transfer the right along with any improvements to a third party. Termination of the musataha occurs upon the expiry of the period as agreed between the parties or when the holder buys the property over which the musataha right is held. Two years’ notice may also be given, or the right can be terminated in the event that the musataha holder does not make an agreed payment for a period of two years.

(5) Use and Residence Rights: The UAE Civil Code provides for “use and residence” rights, and states that the rules of usufruct would apply to such rights.

(6) Easements: An easement is a right by one party over the property of another and is usually registerable against the title deed of the property, and includes rights to traverse property or receive the supply of utilities over the property of another.

3.2 Are there any scenarios where the right to a real estate diverges from the right to a building constructed thereon?

Yes, in addition to the concept of musataha discussed above, due to the restrictions on commercial activities, owners of real estate who do not have the authority to conduct business as a developer would enter into a developer agreement with a licensed developer, whereby the developer is granted development rights to the property and the right to sell the individual units within the development as provided in the development agreement. The title to the land continues to vest in the owner; however, the transfer of the development right is registered at the DLD against payment of a transfer registration fee.

3.3 Is there a split between legal title and beneficial title in your jurisdiction and what are the registration consequences of any split?

There is no split between legal title and beneficial title in the UAE with regard to real estate.

4 System of Registration

4.1 Is all land in your jurisdiction required to be registered? What land (or rights) are unregistered?

Yes, all non-testamentary documents which create, declare, assign, limit or extinguish any right, title or interest to or in any immovable property are subject to compulsory registration with the relevant Emirate’s Land Registry, in accordance with the laws of the respective Emirate. All testamentary documents are registered with the notary public as per the relevant UAE laws.

4.2 Is there a state guarantee of title? What does it guarantee?

There is no state guarantee of title in the UAE.

4.3 What rights in land are compulsorily registrable? What (if any) is the consequence of non-registration?

All rights in land are compulsorily registrable as stated in question 4.1 and certain transactions, if not registered, shall be void. There are no penalties for non-registration.

1.3 Are international laws relevant to real estate in your jurisdiction? Please ignore EU legislation enacted locally in EU countries.

There are no international laws that specifically apply to real estate in the UAE.

2 Ownership

2.1 Are there legal restrictions on ownership of real estate by particular classes of persons (e.g. non-resident persons)?

Generally, only UAE and GCC nationals (and companies owned 100% by them) are permitted to own property throughout the UAE, and non-UAE nationals (including non-residents) can acquire the same ownership rights in “designated areas” or within “investment zones” as determined by each Emirate’s government or Ruler.

3 Real Estate Rights

3.1 What are the types of rights over land recognised in your jurisdiction? Are any of them purely contractual between the parties?

The UAE Civil Code and various Emirate laws provide for various types of tenure as follows: (1) Freehold/Ownership Rights: Freehold title of real estate is the

most superior form of property right, and allows its owner to enjoy and occupy the property in perpetuity and such right is evidenced by the issue of a title deed by the relevant Emirate’s Land Department.

(2) Leasehold Rights: With leasehold property, “ownership” rights to the property are available to the tenant only for the length of the lease agreement with the freehold owner of that real estate. With the regulatory registration of leases, leaseholders’ rights were elevated from mere contractual rights to rights in rem, allowing the holder of a registered right to deal with property, to a great extent, as a freehold owner would, including the ability to mortgage the leased property. The periods categorising leases requiring registration differ between Emirates. The same provisions regarding “designated areas” and “investment zones” will also determine the ability to register leases by non-UAE nationals; however, the contractual obligations between the parties are not extinguished merely by virtue of the fact that the lease is not registered. There are provisions relating to the registration of short-term leases on simple registers held within the various Emirates, such as the “Ejari” system maintained by the RERA in Dubai.

(3) Usufructuary Rights: Usufructs are where the right to use, enjoy and occupy a property is given by the property owner to another person for a fixed period not exceeding 99 years. The UAE Civil Code adds to the definition of a usufruct the condition that the property subject to the usufruct “must remain in its original condition”, thus transferring the onus for repairs and maintenance to the holder of the usufruct. Usufructs terminate upon expiry of the term, unless otherwise agreed by the parties or terminated as a result of the destruction of the property or by court order due to misuse by the usufructuary.

(4) Musataha Right: A holder of a musataha right has the right to plant on the land of another or to build on the land and thereafter the right holder owns all such buildings on the land

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5.3 Can any transaction relating to registered real estate be completed electronically? What documents need to be provided to the land registry for the registration of ownership right? Can information on ownership of registered real estate be accessed electronically?

No; transactions relating to registered real estate cannot be completed electronically and must be executed in person. Apart from the provision of a valid proof of identity, such as a passport or UAE residency identity card of the parties involved and proof of residential address, document requirements differ between Emirates. Some Emirates require “short form sale agreements” in a standard format and the documents are usually in Arabic or bifurcated into Arabic and English. Information on ownership of registered real estate cannot be accessed electronically.

5.4 Can compensation be claimed from the registry/registries if it/they make a mistake?

It is possible to challenge the validity of information in the various property registers on the grounds of fraud or forgery. In the event that a party has suffered loss as a result of an error within the land registry by reason of fraud or forgery, they will be entitled to certain compensation; however, this is not legislated, except in the DIFC, where it may be possible to claim compensation for mistakes made by the DIFC Registrar of Real Property.

5.5 Are there restrictions on public access to the register? Can a buyer obtain all the information he might reasonably need regarding encumbrances and other rights affecting real estate?

No, there are no public land registers in the UAE and so a buyer is forced to complete extensive due diligence for any information about encumbrances and other rights affecting the real estate property.

6 Real Estate Market

6.1 Which parties (in addition to the buyer and seller and the buyer’s finance provider) would normally be involved in a real estate transaction in your jurisdiction? Please briefly describe their roles and/or duties.

Apart from the buyer, seller and buyer’s finance provider, possible parties that may join as a confirming party to a real estate transaction may include parties holding beneficial rights or family inheritance rights. Generally, the below-mentioned parties are also commonly involved in real estate transactions:(1) Real Estate Brokers: Brokers act as intermediaries that

introduce buyers and sellers and assist in processing the transaction.

(2) Lawyers: Buyers and sellers generally engage lawyers to, on behalf of the buyer, conduct a title due diligence and for both parties to draft, negotiate and finalise the transactional documentation and advise their respective clients on matters relating to the transaction.

4.4 What rights in land are not required to be registered?

As explained in question 4.1, all rights over land are required to be registered, with the exception of certain grants provided by the UAE government to certain businesses or industries that may not require registration; however, such grants will be regulated by statute.

4.5 Where there are both unregistered and registered land or rights is there a probationary period following first registration or are there perhaps different classes or qualities of title on first registration? Please give details. First registration means the occasion upon which unregistered land or rights are first registered in the registries.

Registered land rights will always prevail over unregistered land rights, and there is no probationary period following first registration of a title.

4.6 On a land sale, when is title (or ownership) transferred to the buyer?

On a land sale, title (or ownership) is transferred to the buyer upon registration of conveyance with the relevant Emirate’s land department.

4.7 Please briefly describe how some rights obtain priority over other rights. Do earlier rights defeat later rights?

In accordance with the UAE Civil Code, property rights must be registered in order to be effective and shall rank in priority according to the time of registration.

5 The Registry / Registries

5.1 How many land registries operate in your jurisdiction? If more than one please specify their differing rules and requirements.

Each of the seven Emirates have their own property registry and register the transactions in the relevant Emirate on their own electronic registration systems. In addition, the DIFC and ADGM have their own property registers, independent from the land registries of the Emirate within which they are situated. It follows that each Emirate and certain free zones within these Emirates have established separate rules and requirements pertaining to the process to be followed for the registration of real estate transactions; however, generally, the procedures follow the same format with the signing in person of the conveyancing documentation at the relevant registry and only the supplementary documentation in support of the transaction differing.

5.2 Does the land registry issue a physical title document to the owners of registered real estate?

Yes, the relevant land department issues a physical title document to the owners of the registered real estate in all cases except for the holder of a musataha right, which is merely registered against the title deed and no separate title is issued.

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agreement (as prescribed by the various land registries) and the registration thereof in the relevant land registry.

7.2 Is the seller under a duty of disclosure? What matters must be disclosed?

Yes, the seller is obliged to disclose any material defect in the property or in the seller’s title of which the seller is aware and the buyer would not be capable of discovering with mere ordinary care.

7.3 Can the seller be liable to the buyer for misrepresentation?

A seller can be liable to the buyer for misrepresentation in the UAE.

7.4 Do sellers usually give contractual warranties to the buyer? What would be the scope of these? What is the function of warranties (e.g. to apportion risk, to give information)? Are warranties a substitute for the buyer carrying out his own diligence?

Although not specifically stated within the standard format sale agreements, representations and warranties are given contractually to the buyer by the seller by way of a comprehensive sale contract. Typically, the seller warrants that it is the sole and beneficial owner of and is well and sufficiently entitled to alienate the property without encumbrances, or that it holds full rights to the property. Warranties are mainly included to limit the buyer’s risk as property searches, in the traditional sense, are unavailable without the seller’s consent; the buyer is expected to carry out its own due diligence before committing to the purchase. Some of the land registries have an electronic search mechanism to see if the developer, the project and the units are registered; however, no further information is generally available. Accordingly, the warranties are not a substitute for a due diligence.

7.5 Does the seller warrant its ownership in any way? Please give details.

Yes, as explained in question 7.4, except for the standard format sale contracts, sale contracts in the UAE almost always contain a specific warranty from the seller on his title to the property and will pass such right free of encumbrances.

7.6 What (if any) are the liabilities of the buyer (in addition to paying the sale price)?

In addition to the property purchase price, the buyer will pay the registration fees to the relevant land department. In this regard, according to the laws, both the seller and the buyer are liable for this payment, unless otherwise agreed by them. The buyer will also pay the fees of the Registration Trustees (authorised representatives that electronically process the registrations on behalf of the land registries), the cost for the issue of the title deeds and the costs for the issue of no-objection certificates (“NOCs”) payable to any home owner’s association, developer or master developer.

6.2 How and on what basis are these persons remunerated?

There are no specific provisions regulating real estate brokers’ or lawyers’ fees within the UAE. Brokers are usually remunerated based on a fixed fee basis, payable by the appointing party, unless otherwise agreed and which may be determined on the basis of “prevailing practice” dependent on the type of transaction and the transaction value.Fees chargeable by lawyers depend on the nature of the work done and the seniority of the lawyer attending to the matter, and may be charged hourly or may be in the form of capped fees as agreed with the lawyer.

6.3 Do you feel there is a noticeable increase in the availability of capital to finance real estate transactions in your jurisdiction, whether equity or debt? What are the main sources of capital you see active in your market?

There has not been a noticeable increase in availability of capital to finance real estate transactions within the UAE recently. The main active sources of capital are primarily personal or private equity (not institutional). Mortgage financing has been on the rise in recent years.

6.4 What is the appetite for investors and developers in your region to look beyond primary real estate markets and transact business in secondary or even tertiary markets? Please give examples of significant secondary or tertiary real estate transactions, if relevant.

The appetite for investors and developers in the UAE to look beyond primary real estate markets and transact business in secondary/tertiary markets is on the rise. As an example, within Dubai, demand is increasing in markets such as Dubai International City, Silicon Oasis, Dubai Sports City, and Dubai South, unlike in Downtown Dubai (a primary market) due to higher yield expectations by investors and developers. Similar activity can also be seen in a number of the other Emirates.

6.5 Have you observed any trends in particular market sub sectors slowing down in your jurisdiction in terms of their attractiveness to investors/developers? Please give examples.

There have been periods of decelerated activity in certain real estate market sub-sectors. Retail has slowed down due to lower consumer expenditure and there has also been a lower volume of sale transactions in certain prime locations for residential developments due to lower investment sentiments. Moreover, although the hotel market maintains high occupancies, daily rates have decreased due to an increase in supply of quality hotels.

7 Liabilities of Buyers and Sellers in Real Estate Transactions

7.1 What (if any) are the minimum formalities for the sale and purchase of real estate?

The minimum formalities for the sale and purchase of real estate in the UAE are the signature of a standard format sale and purchase

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8.5 How is a real estate lender protected from claims against the borrower or the real estate asset by other creditors?

The real estate lender is protected against claims from other creditors of the borrower by virtue of the mortgage being a first charge against the property at execution. The security of mortgage bonds ranks in the order of registration.

8.6 Under what circumstances can security taken by a lender be avoided or rendered unenforceable?

Due to both, the strict monitoring of the mortgage registration process, mortgages are absolute and unchallengeable.

8.7 What actions, if any, can a borrower take to frustrate enforcement action by a lender?

The only actions available to a borrower to frustrate enforcement is by court process.

9 Tax

9.1 Are transfers of real estate subject to a transfer tax? How much? Who is liable?

There are no specific tax regulations applied in the UAE relating to real estate. However, transfers of real estate are subject to a transfer registration fee, with the rate varying between Emirates. In the absence of any agreement between the parties, the buyer and the seller are responsible equally for this amount. The standard rate is 4% of the value of the property or the transaction value, whichever is the greater.

9.2 When is the transfer tax paid?

With reference to question 9.1, the transfer registration fee is payable on registration; however, in certain registries, a penalty is payable in the event that the payment is not made within 28 days of the date of the sale contract.

9.3 Are transfers of real estate by individuals subject to income tax?

Individuals in the UAE are not subject to income tax, however may have capital gains tax implications applied in their home jurisdiction, depending on their nationality.

9.4 Are transfers of real estate subject to VAT? How much? Who is liable? Are there any exemptions?

Currently, there is no VAT or stamp duty payable on real estate in the UAE, however VAT is to be introduced on 1 January 2018 at a rate of 5%. Although the entire UAE VAT law is not available as at time of this publication, from the published provisions, developers will not have to charge VAT on the first disposition, either on sale or lease, of a residential property as these transactions will be zero rated for VAT. Second sales of residential properties will be treated as exempt supplies, however commercial properties sales will attract VAT at the standard rate of 5% as from 1 January 2018.

8 Finance and Banking

8.1 Please briefly describe any regulations concerning the lending of money to finance real estate. Are the rules different as between resident and non-resident persons and/or between individual persons and corporate entities?

Mortgages are restricted to banks registered within the UAE, licensed to conduct the activity of mortgage lending by the UAE Central Bank, and subject to the rules and regulations imposed by them. Depending on the relevant Emirate, there are regulations that determine maximum loan to purchase prices percentages and maximum repayment to income percentages. These percentages also differ between first and subsequent properties. There is no distinction between residents and non-residents or individuals or corporate entities; however, there is a distinction between the loan percentages available to UAE and non-UAE lenders.

8.2 What are the main methods by which a real estate lender seeks to protect itself from default by the borrower?

Under UAE law, security can either be by way of mortgage or pledge (which may be used over bank accounts and shares). It is customary for real estate lenders to ask borrowers to create a mortgage, put into effect pursuant to an authenticated deed which is attested by the notary public and entered in the mortgage registrar with the land department or local municipality of the relevant Emirate. A mortgage is the only form of security over real estate in practice, and can be created over leasehold property and an interest in an off-plan property, provided the interest has been registered in the relevant Emirate’s off-plan sale register. UAE law does not provide for security in the form of a floating charge. Mortgage interests in land in free zones are generally also subject to their own regulations.

8.3 What are the common proceedings for realisation of mortgaged properties? Are there any options for a mortgagee to realise a mortgaged property without involving court proceedings or the contribution of the mortgagor?

There are no statutory rights of enforcement or foreclosure remedies available under UAE law, which means that any enforcement must be undertaken through the courts (a mortgagee cannot exercise self-help remedies and be a mortgagee in possession). If the court orders enforcement of the mortgage, it will organise the sale of the land by public auction. The sale proceeds will be distributed among the creditors in the order of priority set out under UAE law: preferential debts (such as judicial costs of preserving and selling the property, government taxes (if any), employees’ salaries, lessors’ rental payments, and amounts due to contractors), secured creditors (such as mortgages) and then unsecured creditors (such as judgment creditors).

8.4 What minimum formalities are required for real estate lending?

Essentially, the mortgage lender may not lend in excess of the loan to purchase price or the repayment to income percentages as legislated, and the mortgage must be registered by the mortgage lender and the buyer in the registry of the relevant land department.

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(c) Tenant’s right to sell or sub-lease – With long-term leases, if the lease is registered in the relevant Property Register, the lessee has the right in rem to assign the leasehold rights or sub-lease the premises after receiving written approval from the lessor. However, in the case of short-term leases or premises given on a licensed basis, the tenant/licensee is generally not permitted to create any third party rights in respect of the premises without written consent.

(d) Insurance – There are no statutory provisions regulating the insurance of leased premises. The onus of insuring the business premises varies depending on the terms of the contract between the lessor and lessee. However, if such provisions are not explicit in the contract, it is by default the lessor’s responsibility to insure the property. Commercial leases also generally enable the landlord to recover insurance costs from the tenant.

(e) (i) Change of control of the tenant – Lease agreements generally contain provisions whereby the change of control of the tenant may not occur without the landlord’s written consent, and in the event of failure to do so, the landlord will have a right to terminate the lease.

(ii) Transfer of lease as a result of a corporate restructuring (e.g. merger) – As with the change of control of the tenant, information about a transfer of the lease as a result of corporate restructuring will have to be given to the landlord to obtain consent.

(f) Repairs – Generally, minor repairs or adjustments to the business premises will be done at the tenant’s expense after receiving the landlord’s written consent. However, the landlord should be informed of major structural repairs and they should be executed within a specified period.

10.4 What taxes are payable on rent either by the landlord or tenant of a business lease?

There are currently no taxes payable on rent either by the landlord or tenant of a business lease, however as of 1 January 2018 all business leases will attract VAT at a rate of 5%, charged by the landlord to tenants of commercial premises.

10.5 In what circumstances are business leases usually terminated (e.g. at expiry, on default, by either party etc.)? Are there any special provisions allowing a tenant to extend or renew the lease or for either party to be compensated by the other for any reason on termination?

Business leases may be terminated by consent of the parties at any time during the lease, or by notice to the other party prior to expiry of the specified period of the lease, subject to certain notice periods and grounds given therefor. Notice for eviction in the case of default requires 30 days and can be delivered at any time during the lease period; however, in the absence of default, landlords can only regain possession after notice giving grounds limited to reoccupation thereof by the landlord for personal use, for purposes of sale by the landlord and for purposes of demolition or renovation as may be required by the relevant municipal authorities and given at least 12 months before the eviction date on condition that the eviction date is not within the current lease term.In most Emirates, leases are subject to automatic renewal and a tenant has the right to compensation for breach of the above provisions.

The Executive Regulations to Federal Decree Law No (8) of 2017 on Value Added Tax, once published, will clarify the application of VAT on both residential and business real estate more fully.

9.5 What other tax or taxes (if any) are payable by the seller on the disposal of a property?

No taxes are payable by the seller on the disposal of a property.

9.6 Is taxation different if ownership of a company (or other entity) owning real estate is transferred?

Please refer to question 9.1.

9.7 Are there any tax issues that a buyer of real estate should always take into consideration/conduct due diligence on?

Please refer to questions 9.1 and 9.4.

10 Leases of Business Premises

10.1 Please briefly describe the main laws that regulate leases of business premises.

There are no separate laws governing leasing for commercial, residential or industrial properties in the UAE, and a standard format lease exists for all these types of properties.

10.2 What types of business lease exist?

It is common for businesses to lease premises to conduct their operations; however, there are also other forms of occupancy methods which include space usage agreements, licences and consignment agreements. The type of agreement varies depending on the location of the premises and the purpose for which the premises is required. These do not create any transfer of title in favour of the occupant and are generally not registrable.

10.3 What are the typical provisions for leases of business premises in your jurisdiction regarding: (a) length of term; (b) rent increases; (c) tenant’s right to sell or sub-lease; (d) insurance; (e) (i) change of control of the tenant; and (ii) transfer of lease as a result of a corporate restructuring (e.g. merger); and (f) repairs?

(a) Lengths of Term – Business premises are generally leased for a term of five to 10 years, although it may be shorter depending on the agreement with the lessor. Leases are automatically renewed in the event that notice is not given by the parties.

(b) Rent increases – Business premises are subject to annual rent increases as provided for in the relevant contract. In the absence of any agreement in the lease, rent increases on renewals are calculated according to a Rental Increase Index Calculator (such as that maintained by RERA), and the amount of rent increase depends on the tenancy contract expiry date, the location of the premises, the type of premises, the extent of the premises, and the current annual rent.

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relevant contract. In the absence of any agreement in the lease, rent increases on renewals are calculated according to a Rental Increase Index Calculator (such as that maintained by RERA), and the amount of rent increase depends on the tenancy contract expiry date, the location of the premises, the type of premises, the extent of the premises, and the current annual rent.

(c) Tenant’s right to remain in the premises at the end of the term – As previously mentioned, leases are automatically renewed and rental increases are subject to the allowable increase allowed in terms of the Rental Increase Index Calculator.

(d) A tenant’s contribution towards costs (insurance and repairs) – There are no statutory provisions regulating the insurance of leased premises. The onus of insuring the residential premises is typically paid by the landlord, who is also responsible for repairs and maintenance of the residential unit. There is, however, a usual provision that places the burden on the tenant to effect minor repairs.

11.4 Would there be rights for a landlord to terminate a residential lease and what steps would be needed to achieve vacant possession if the circumstances existed for the right to be exercised?

A landlord is obliged to give a tenant one year notice to vacate the premises and this notice can only be given:(i) in the event that the landlord wishes to himself (or have close

family) occupy the premises;(ii) in the event of a sale by the landlord; and(iii) for purposes of demolition or renovation (however, also

subject to certain provisions – see question 10.5). The landlord may terminate the lease on the grounds of any breach of the terms thereof after giving notice to the tenant to remedy the breach in accordance with the terms of the tenancy agreement.Should the tenant not vacate the premises after notice has been given or failure to remedy a breach of the tenancy agreement, the landlord has the right to approach any rent committee appointed to adjudicate rental disputes or to approach the relevant court with appropriate jurisdiction to obtain and order for eviction.

12 Public Law Permits and Obligations

12.1 What are the main laws which govern zoning/permitting and related matters concerning the use and occupation of land? Please briefly describe them and include environmental laws.

Each Emirate enacts its own laws to govern zoning and related matters concerning the use and occupation of land and prior to development of any new project, both planning and building approval from the relevant municipal authority is required. Free zone authorities also impose additional planning controls in relation to real estate in their areas. Several Emirates have enacted municipal regulations such as that in Dubai, where the Dubai Municipality issued “Green Building Regulations and Specifications” to be met by governing bodies and private developers, applicable to all new buildings and to extensions or renovations to existing buildings in Dubai (including free zones) with the aim of: reducing the consumption of energy, water and materials; improving public health, safety and general welfare; and enhancing the planning, design, construction and operation of buildings. The specifications that must be complied with include those relating to: ■ access and mobility (including parking and bicycle storage); ■ ecology and landscaping (including the requirement to

include indigenous plants in planted areas);

10.6 Does the landlord and/or the tenant of a business lease cease to be liable for their respective obligations under the lease once they have sold their interest? Can they be responsible after the sale in respect of pre-sale non-compliance?

The obligations of a landlord pass to any landlord taking the previous landlord’s place as in the case of any subsequent owner of a property, and a tenant’s obligations only ceases on termination or expiry of the lease period. The sale by a tenant of its interest does not release the tenant from the obligations under a lease without the consent of the landlord. Furthermore, parties also remain responsible for acts and omissions in the performance of their obligations committed to prior to such sale and transfer.

10.7 Green leases seek to impose obligations on landlords and tenants designed to promote greater sustainable use of buildings and in the reduction of the “environmental footprint” of a building. Please briefly describe any “green obligations” commonly found in leases stating whether these are clearly defined, enforceable legal obligations or something not amounting to enforceable legal obligations (for example aspirational objectives).

“Green obligations” are rarely found in lease agreements executed in the UAE, and unless contractually specified between the landlord and tenant they do not amount to enforceable legal obligations.

11 Leases of Residential Premises

11.1 Please briefly describe the main laws that regulate leases of residential premises.

Each Emirate of the United Arab Emirates has its own real estate laws pertaining to the regulation of residential premises. In the Emirate of Dubai, Law No 26 of 2007 Regulating the Relationship between Landlords and Tenants in the Emirate of Dubai, Law No 33 of 2008 Amending Law No 26 of 2007 Regulating the Relationship between Landlords and Tenants and Decree No 43 of 2013 Determining Rent Increases for Real Property in the Emirate of Dubai govern the regulation of residential premises. In the Emirate of Abu Dhabi, there is only Law No 19 of 2005 that deals with leasing. The other emirates have no law dealing directly with leasing of residential real estate.

11.2 Do the laws differ if the premises are intended for multiple different residential occupiers?

No, the same laws apply.

11.3 What would typical provisions for a lease of residential premises be in your jurisdiction regarding: (a) length of term; (b) rent increases/controls; (c) the tenant’s rights to remain in the premises at the end of the term; and (d) the tenant’s contribution/obligation to the property “costs” e.g. insurance and repair?

Typical provisions would include the following;(a) Lengths of term – Residential premises are generally leased for

a term of one year; however they are automatically renewed in the event that notice is not given by the parties.

(b) Rent increases – Residential premises (as for business premises) are subject to annual rent increases as provided for in the

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commonly obtained in the UAE and implied permission cannot be obtained in any way.

12.6 What is the appropriate cost of building/use permits and the time involved in obtaining them?

The cost of building use/permits and the time involved in obtaining them depends heavily on the size and scope of the project and the activities to be carried out. Therefore, it is not possible to make a precise estimate of the same.

12.7 Are there any regulations on the protection of historic monuments in your jurisdiction? If any, when and how are they likely to affect the transfer of rights in real estate?

Currently, minimal regulations exist at the federal level for the protection of historic monuments in the UAE. However, the federal government is in the process of drafting a federal law for the protection of antiquities, which are to be defined as items of national interest and importance and which include historical monuments.

12.8 How can e.g. a potential buyer obtain reliable information on contamination and pollution of real estate? Is there a public register of contaminated land in your jurisdiction?

There is no public register of contaminated land in the UAE. The buyer must carry out his own inspection and assessment regarding contamination and pollution of real estate, and can take the necessary representations, warranties and indemnities on these issues.

12.9 In what circumstances (if any) is environmental clean-up ever mandatory?

There are no direct obligations regulating environmental clean-up in the UAE; however, successors in title inherit this obligation in the event that any spillage or seepage causes damages to adjacent properties or the environment. The environmental standards are mainly applied in oil or industrial entities in relation to the disposal of waste and regulated at a federal level by various laws such as Federal Law No 24 of 1999 regarding the protection and development of the environment.

12.10 Please briefly outline any regulatory requirements for the assessment and management of the energy performance of buildings in your jurisdiction.

The UAE has a variety of energy performance regulations and a range of building efficiency measures in place which are designed to improve the sustainability performance of buildings from design through to construction, operation, and tear-down. Such regulations are usually passed at Emirate level such as a programme called Estidama in Abu Dhabi, which regulates the design, construction, and operation of buildings through phased approvals. Estidama also uses an assessment scale called the “Pearl Rating System”, which measures the sustainability performance of villas, buildings, and communities. For Dubai, we refer to the “Green Building Regulations” mentioned in question 10.7.

■ light pollution restrictions; ■ solar reflection requirements for the exterior of buildings; ■ responsible construction methods; ■ having an Environmental Impact Assessment (applicable to

certain buildings only); ■ building vitality (including air quality and ventilation) – in

accordance with the standards of the American Society of Heating, Refrigerating and Air-Conditioning Engineers, and in part refers also to various UK codes of practice;

■ energy performance (including glazing and lighting, electricity and air-conditioning metering and particular requirements for hotel rooms) – in part, this refers to the standard of the Chartered Institution of Building Services Engineers;

■ water performance (including conservation and metering); and ■ materials and waste (including a requirement that for all

new buildings at least 5% of the total volumes of materials used must be recycled and 5% of all material used must be available regionally).

12.2 Can the state force land owners to sell land to it? If so please briefly describe including price mechanism.

Local and state authorities expropriate real estate if required for the public interest, such as for the construction of highways. Such an approach is equivalent to the “right of eminent domain” in other jurisdictions. The purchase price is generally determined to be the property’s market value.

12.3 Which bodies control land/building use and/or occupation and environmental regulation? How do buyers obtain reliable information on these matters?

The local municipality in each Emirate controls the land/building use and/or occupation and environment regulation within the Emirate, and on a localised level the free zones and also master developers regulate additional controls by way of regulation or master development property declarations, which confer contractual responsibilities upon sub-developers and owners. Generally, the municipalities and the free zone authorities publish these regulations and the property declarations are available from the master developers.

12.4 What main permits or licences are required for building works and/or the use of real estate?

All business activities are regulated within the UAE and an enterprise cannot conduct business unless authorised by licence to do so by the relevant economic department of the Emirate concerned. Developers must reflect the “development of land” as an activity on their commercial business licence in order to develop real property. In addition to obtaining municipal approvals for the project and the plans for any building, NOCs are often required from master developers. Most importantly, the relevant Emirate’s land department requires registration of the developer and the development with them prior to the commencement of any building works. Free zone authorities may impose additional planning controls in relation to real estate in their area.

12.5 Are building/use permits and licences commonly obtained in your jurisdiction? Can implied permission be obtained in any way (e.g. by long use)?

Yes, as explained in question 11.4, building/use licences are

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John Peacock BSA Ahmad Bin Hezeem & Associates LLPLevel 6, Building 3, The Gate Precinct Dubai International Financial CentreDubai

Tel: +971 4 368 5555Email: [email protected] URL: www.bsabh.com

BSA Ahmad Bin Hezeem & Associates LLP was founded in 2001 and is a dynamic law firm whose character has been shaped through the adaptive innovation of its talented lawyers.

Our firm has been a major contributor to the development of the real estate market in the UAE and had advised the public sector and private investors, collective investment funds, developers, real state regulatory authorities and individuals to create, regulate and maximise the investment opportunities of and within the UAE property market.

The real estate department focusses on structuring of mixed-use developments with jointly owned property including strata arrangements. They assist clients with real estate financing, arbitration, litigation and dispute resolution.

Legal services are also offered in licensing and registration of developers, projects and property with the relevant authorities and advising on escrow and the acquisition and disposal of all types of property including all due diligence work.

John Peacock is a Senior Associate with the Corporate and M&A and Real Estate practices, based in our DIFC office in Dubai. An admitted attorney and property conveyancer since 1995, he specialises in a vast range of corporate matters including commercial contracts, and advises on all aspects of property transactions, including strata developments. John has been practising law for over 23 years in both South Africa and the UAE. John is an admitted Attorney and Conveyancer of the High Court of South Africa and registered with the Dubai Legal Affairs Department and the Kwa-Zulu Natal Law Society in South Africa.

John regularly advises on international commercial and property matters, including joint ventures, hotel and restaurant management, trademark licensing and property development transactions. He has assisted clients in the drafting, review, and operation of strata plans for large composite property development.

BSA Ahmad Bin Hezeem & Associates LLP United Arab Emirates

13 Climate Change

13.1 Please briefly explain the nature and extent of any regulatory measures for reducing carbon dioxide emissions (including any mandatory emissions trading scheme).

In accordance with the United Nations Framework Convention on Climate Change, the UAE, as a non-Annex 1 country, is not obligated to reduce carbon emissions. The UAE has, however, chosen to implement actions to reduce carbons emissions, albeit without federal legislation therefor.

13.2 Are there any national greenhouse gas emissions reduction targets?

According to the UAE National strategy 2021, efforts are under way to reduce the UAE’s GHG emissions and the UAE is beginning to monitor and track GHG emissions and assess policies for reducing such emissions.

13.3 Are there any other regulatory measures (not already mentioned) which aim to improve the sustainability of both newly constructed and existing buildings?

Each Emirate government is pursuing projects and implementing strategies to improve the sustainability of both newly-constructed and existing buildings.

The Emirates Authority for Standardization and Metrology has regulated the standards for air-conditioning equipment and lighting for the UAE, and uses an international ranking of efficiency that divides the cooling capacity of each air conditioner by the total electrical input to ensure optimal energy efficiency levels and which monitors newly constructed and existing buildings for compliance at a federal level.

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