How do ASEAN nations stack up in allowing foreigners to own a piece of their land or property?
We compiled a survey of how foreigner-friendly ASEAN countries are when it comes to property ownership and here are the results indicated by the following colour codes:
The ASEAN country with the friendliest policy towards foreign ownership of property is Malaysia followed by Vietnam; while the Philippines and Singapore are quite friendly with some restrictions. Four countries share the distinction of having severe restrictions – they are Indonesia, Thailand, Cambodia and Myanmar. And finally, the least friendly nations – Laos and Brunei.
Results are based on the current scene (in law and in practice) and may change in the near future as countries tweak their property laws governing foreign purchasers. With the exception of Brunei and to a certain extent Singapore, most ASEAN countries are trending towards having more open policies towards foreign purchasers. As AEC (ASEAN Economic Community) nears, it is anticipated that the freer movement of goods, services and people then will prompt governments there to further review their policies.
MALAYSIA
Malaysia has arguably the most liberal foreign property ownership laws among ASEAN. Foreigners can own 100% of the property, can buy as many properties as they want (including freehold), can buy any type of property (except a few types) and can sell at any time to anyone [subject to real property gains tax (RPGT)].
Foreigners can’t own the following:
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1. Properties valued less than RM1 million (in general, may be lower or higher in some states);
2. Low and medium cost properties as defined by state authority;
3. All properties built on Malay Reserved land;
4. Property allocated to Bumiputera;
5. Most agricultural land.
Although the Federal Government passes national laws, the individual States have the option of implementing these or not when it comes to property matters as the States have full powers concerning all land matters.
VIETNAM
With effect from 1st July 2015, any foreigner who is permitted to enter Vietnam may purchase multiple condominiums or landed properties, whether bungalows or link houses. However these properties must be located in a housing project area.
A foreigner now does not need to have a Vietnamese spouse or be employed in a local company or be an investor in a local company in order to buy a residential property. However the maximum term a foreigner can own a property in Vietnam is not more than 50 years (which is extendable) unless he is married to a Vietnamese in which case he is able to own the property for an unlimited time. Foreign entities may own up to 30% of apartments in each apartment building or 250 houses (detached or link houses) in an area with a population size equal to a ward-level administrative unit.
THE PHILIPPINES
It is easy to buy condominiums in the Philippines but foreigners cannot buy landed property. In order to qualify for the latter, the most straightforward one is to set up a company and buy the landed property through the company. However, the law only allows a foreigner to hold a maximum of 40% of the shares in that company. The balance 60% needs to be owned by Filipinos.
Clearly, the above is not ideal but the 60% can be divided into four resulting in four Filipino shareholders holding 60% of the shares with the balance 40% held by the foreigner. An alternative to the above is to rent land and then build a house or building on the land. A foreigner can rent land for an initial period of 50 years which can be renewed for a further 25 years.
If a foreigner is married to a Filipina and his wife dies, he can then legally inherit the property and become the owner.
SINGAPORE
Foreigners can purchase the following without approval from the authorities:
Condominium and flat unit;
Strata landed house in an approved condominium development;
A leasehold estate in a landed residential property for a term not exceeding 7 years,
Shophouse (for commercial use);
Industrial and commercial properties;
Hotel;
Executive condominium unit, HDB flat and HDB shophouse.
Foreigners must seek approval prior to purchasing the following:
Vacant residential land;
Terrace house, semi-detached house, bungalow;
Strata landed house which is not within an approved condominium development under the Planning Act (e.g. townhouse or cluster house);
Shophouse (for non-commercial use);
Association premises;
Place of worship;
Worker’s dormitory/service apartments/ boarding house.
Foreigners would have to pay Additional Buyers’ Stamp Duty (ABSD) of 15% on the purchase of any residential property. Foreigners can own 100% of the property, freehold, can buy as many properties as they want within an approved development and can sell at any time to anyone [subject to real property gains tax (RPGT)].
INDONESIA
The official stand of the Indonesian government is that the “Constitution does not allow a foreigner to own a single inch of land in Indonesia.” Quite clearly, the law is less than clear prompting President Joko Widodo to consider a reform measure that will allow foreigners to buy apartments above IDR2.5 billion in the capital, other main cities and on Bali island.
In practice, foreigners are able to legally buy land by way of a long-term lease. This can be under their company name using Hak Guna Bangunan (Building Rights Title) via a PMA or personally using Hak Pakai (Right of Use).
1. HGB via Penanaman Model Asing (PMA) Company
A PMA company has 30 years to operate after formation, which can be extended for another 30 years plus another 30 years. The advantage is that it can be 100% controlled by a foreigner and it has the Right to Build (Hak Guna Bangunan – HGB). The right to build or construct on land is valid for 30 years which can be extended for an additional 20 years, plus another 30 years.
2. HP via Leasehold Title
This can be granted to qualified foreigners who are domiciled in Indonesia with a KITAS working visa. The lease runs for 25 years, and can be renewed for another 25 years.
Outside of these two lease options, many foreigners have chosen the popular nominee method to purchase property and thus are able to ‘own’ land through an arrangement with an Indonesian citizen. Ownership of land must be transferred from the previous owner to the Indonesian representative. For the foreign buyer’s security, three agreements must be signed with the Indonesian representative:
Loan Agreement – this states that the foreign buyer lent the purchase price to the Indonesian representative.
Irrevocable Power of Attorney – this gives the foreign buyer full authority to sell, lease, mortgage, etc. the land.
Permanent Right of Use Agreement – this gives the foreign buyer full rights to the use and occupancy of the land.
THAILAND
Foreigners are not allowed to buy land or landed property in Thailand under the law. In the case of condominiums however, foreigners are allowed to buy a maximum of 49% of ownership of a condominium while 51% must be retained by Thai nationals.
However, a foreign investor has 2 other options:
a) a 30-year lease on the property; or
b) a foreigner may register a private limited company but again he is only allowed to own up to 49% of said company. Lawyers may offer special purpose vehicles which transfers the directorship and executive rights from the local directors to the foreign director.
MYANMAR
Foreigners are currently prohibited from buying or owning property in Myanmar, hence the only option available is leasing property. Under the new Foreign Investment Law, enacted in November 2012, foreign investors, in the form of a Joint Venture with a Myanmar citizen or entities, can establish, sell and lease residential properties. In addition, foreign real estate developers can now enjoy long-term lease possibilities.
A draft condominium law has been proposed allowing foreigners to purchase up to a maximum of 40% of a condominium’s units provided the units are on the sixth floor and above. The law, delayed since 2013, allows such units to be used as collateral for loans.
Expect even more relaxed policies to come as the Myanmar government is keen to position the country as an attractive destination for property investment and development.
CAMBODIA
In Cambodia, there are generally three main categories of land interests: freehold, leasehold and concessions. Foreigners are not permitted to own freehold land in Cambodia, thus there are various mechanisms for owning land, the main ones being:
1. Cambodian nominee
A foreign purchaser can opt to register a title deed directly in the name of a Cambodian citizen. However, if there is a breakdown in the relationship between the parties, this method can prove problematic and is not recommended.
2. Cambodian landholding company
For companies wishing to own a freehold interest in land, they need to be majority
LAOS
Foreign nationals on all visas are forbidden from purchasing land in Laos, and can only lease land for up to 75 years.
BRUNEI
Since the Bruneian government banned in 2012 the purchase of property through a power of attorney (PA) or trust deed by foreigners and permanent residents (the usual method of purchase); and that all previously issued deeds through PA will be converted into 60-year leases, there has been a lot of uncertainty. Owners are unsure if they will be able to retain their property after the 60 years is up.
The new legislation (yet to be finalised) will effectively prohibit PRs and foreigners from owning freehold property. Pending the finalisation, both foreigners and PRs can still buy land, houses and shophouses but the tenure is valid only for 60 years, while apartments can be purchased under a 99- year lease.
Unless an attractive renewal policy for the 60-year lease is announced, the outlook for property investment by foreigners in Brunei does not look too promising.
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