New rules on Permission, Authorizations, limits and exceptions
I) Formalities and procedures.
A) The purchase of the property requires permission to be obtained from the Governor
Buying a property in Tunisia for a foreigner shall be subject to prior authorization to be given by the governor of the region where the property is located. Despite this, in recent years more favourable legal provisions have been recognized as regards certain land and real estate operations carried out by foreigners.
Before requesting the permission of the governor, it is essential to draw up a preliminary deed of sale. It must provide a reasonable period (between 3 and 6 months for example) that allows the purchaser to obtain the aforementioned authorization. At the same time, the preliminary deed must provide provisions for the case in which the authorization is not granted. As in Italy, the buyer’s promise to purchase may be accompanied by a deposit as a percentage of the total sales price. The same deposit can be reclaimed, partly or wholly, in the event of failure to complete the sale.
In order to ensure that the procedure related to the purchase is correctly carried out it is advisable to seek the assistance of a professional in this sector, a real estate agent or better yet a lawyer appointed by one of the parties. The latter, in fact, can provide assistance for the best possible preparation of the file the authorization of the governor and to facilitate the completion of administrative procedures.
The deposit for the purchase request must be accompanied by several official documents starting from the purchaser’s identification documents.
In the case that the authorization is granted, the final contract of sale may be stipulated in order to proceed, within sixty days, to the registration and entry of the sale to be carried out in the competent "revenue agency and land registry.
It has to be pointed out that the above-mentioned request for authorization may be granted or rejected (although in practice the latter rarely occurs).
In case of granting, the final purchase contract can be signed and authenticated only after completing the registration and transcription procedures.
In the case where the authorization request is rejected it will be impossible to complete the sale. In this case, it will be possible to recover the deposit only if, in the preliminary act, the is a clear precise clause that foresees the refund.
In some cases, particularly in tourist areas, the promoters (builders) obtain prior permission in order to market their products without exposing buyers to the complex bureaucratic procedure described above.
Furthermore, the authorization is not mandatory if the property purchased is re-sold.
In fact, recently, Tunisia witnessed significant changes in its legislation on the subject, aimed at stimulating foreign investment. The clearance at present is not required when a foreigner must buy or lease a real estate property in an industrial or touristic area or under projects indicated through ministerial governmental communications. The exceptions that do not require the authorization of the governor to foreign investors, are set forth by Law no. 40 of 11 May 2005 and by subsequent circulars relating thereto.
It is not disputed and is well understood that the above exceptions are related only to the Real Estate property for the construction of economic projects in territories with industrial or tourist destination, according to the actual legislation regarding the development of these areas and the protection of agricultural land .
B) The authorization of the Central Bank of Tunisia
All purchases of real estate by a non-resident foreigner, are necessarily subject to authorization by the Central Bank of Tunisia, according to the actual legislation of monetary exchange.
It is necessary to:
- Open a bank account for non-residents, whether in foreign currency or in convertible dinars, in any bank that will be put into correspondence with the original foreign bank
- Introduce the Currency destined to prior payment of the deposit and subsequently of the purchase price;
- Ask your bank to provide a written statement justifying the reasons for the transfer of funds from abroad ( for investment) and stating that they are for the purchase of a property. It is essential to obtain this statement of investment from the bank ( essential for the resale of the property), 48 hours after the transfer of funds. In the event that the buyer is unable to obtain it, he must obtain a 'certificate from the bank stating the reasons therefor.
The foreigner that is resident or with a residence permit not expired, on the contrary must provide to the administration of land property (CPF) only: the documents proving his residence in the country and the "Declaration of investment" issued by the bank in which he has deposited the corresponding amount of the purchase price .
More precisely, the purchase is not subject to the prior approval of the Central Bank, but must be carried out as an import of currency. Consequently, the buyer will have to open a "special account for residents."
It is advisable that the payment in favour of the seller is done by bank transfer, since, in this way, the transparency and safety of the transaction is guaranteed.
II) Limitations and exceptions
A foreigner can buy a property in Tunisia, a villa or an apartment. On the other hand, he cannot become the owner of agricultural land.
In fact, agricultural land cannot be sold to foreigners for whatever the reason of any purchase.
Persons of foreign nationality cannot therefore take advantage of an agricultural land, except through the lease. If the land is included in the national development plan, it must be considered as "residential"; on the contrary, if the same is not covered by this plan, it should be considered as agriculture and, therefore, not subject to the acquisition by a foreigner.
Avv. Giorgio Bianco
Studio Giambr one Law