ESCROW AND HOW IT CAN PROTECT YOU

By Mohanad Alwadiya
CEO, Harbor Real Estate
Senior Advisor & Instructor, Dubai Real Estate Institute

There are not many people who understand the concept of escrow and how this legally binding arrangement can provide a substantial level of protection for investors.

In its simplest form, an escrow can be described as a legally recognised financial instrument held by a third party (typically a bank) on behalf of two other parties (typically a buyer and a seller) who have agreed to conduct a particular transaction in accordance with certain conditions. Funds are provided by the buyer and held by the party (bank) providing the escrow service until it receives the formal advice that certain previously agreed obligations of the seller have been fulfilled upon which time, the seller can receive funds to the amount specified in the agreement between the seller and buyer.

The use of escrow accounts by Dubai developers has been mandated by law for the specific purpose of protecting the prepayments made by buyers for properties that are being bought off-plan. This limits developers from gaining access to funds until certain construction milestones are completed helping to ensure developers are not misappropriating funds provided in advance for purposes other than which they are intended.

Anybody can open an escrow account but not anybody can open an escrow account for the purposes of property development in Dubai. The developer must first be registered as a bona fide developer with the Real Estate Regulatory Authority (RERA) in Dubai which involves the provision of an expansive array of documents ranging from those which establish the bona fide nature of the developer including details of its officers and solvency,  Title Deeds proving ownership of the land to be developed, No Objection Certificates (NOC) from relevant parties such as the Master Developer to performance guarantees backed by a financial institution and all planning and financial details regarding the project.

RERA requires that the land subject to development should be fully paid and a title deed should be issued in the name of the owner.  Where the owner of the land cannot register as a developer, RERA permits the land owner to enter into a property development contract with an existing registered developer to develop the project on behalf of the land owner.  The property development contract however must be approved by the senior legal adviser of DLD to be accepted by RERA.

Only when a developer is recognised as a “registered developer” with RERA can they apply to RERA to open an escrow account.  When selling off-plan, the developer must ensure all proceeds of sale of the units are deposited into the escrow account and are used solely for the purposes of construction of the project.  Failure to comply with the Escrow Law can lead to hefty fines or criminal charges which may result prison sentences being administered. Once the developer has submitted all the required documents to RERA and the developer is granted the authority to sell units off plan RERA will issue an NOC to allow the developer to open an escrow account with an authorized bank in the UAE.

Obviously, the bank which will be providing the escrow service needs to understand all the details of the underlying agreement to ensure that it acts in accordance with the provisions of that agreement. In this way, the bank can help protect the buyers pre-paid funds by referring and strictly adhering to the conditions of the underlying agreement

But while the introduction of escrow as a legal requirement for developers has helped safeguard the funds of off-plan investors, there are other steps that investors must take to provide additional self-protection.

First, buyers need to make sure you are dealing with a reputable developer, regardless if the developer is registered with RERA. Ask around or seek professional guidance, as those in the industry have a good appreciation of who the reputable developers are.

Warranties and any quality assurance policies should be discussed in detail. Have the Sales and Purchase agreement reviewed by a professional, to ensure you have legal recourse should any quality issues arise and make the effort to exercise your right to inspect (snag) your property and report any legitimate issues to the developer for rectification. Items which can be remedied in the short term should be fixed immediately and remember, once you have taken ownership of the apartment, the developer is obliged to fix any issues that may arise for a full 12 months following transfer of ownership.

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Gulf News Freehold – Ask the Agent

I bought a studio in 2008 financed by a lending firm. Since it is not furnished yet, my lawyer told me to cancel the SPA but the lending firm did not agree.

Visit RERA first to sort out the registration issue in Oqood as this is a prerequisite to any further action. Once the property is registered, meet with the lending company. Explain to them that you would like to terminate the finance agreement due to project delay. They will share with you the status of your liability. You then need to obtain compensation from the developer for the delay. Appoint a lawyer to determine if your contract has the proper compensation clause to support your case. If so, plot a course of action to receive what is rightfully yours under the contract. From the information you have provided, it appears that once the course of action is determined, you need to engage all parties and alert them of your intentions. It is then a case of you and your lawyer taking the necessary legal steps to resolve it.

I have an apartment that I have let through an agent. Despite numerous reminders, the agent has refused to pay me. What actions can I take?

The issue here is that you allowed the checks to be issued under the agent’s name. There is no reason to have allowed this and, unfortunately, the decision to do so has placed you in a vulnerable position.

I am not sure of the details of the contract that you have with your agent, but unless you have a proper property management agreement in place with a licensed property management firm, you should never allow the checks to be issued under the agent’s name.

Even if you have a property management agreement, you should stipulate that all cheques be issued in your favour and the property management firm is authorised to receive, issue receipts and bank the cheques into your account.

I am afraid your only option is to hire a legal consultant and go to court and file a legal case against the agent.

My husband and I bought an unfinished penthouse from a non-Emirati guy. Does he have to register it first so he can sell it?

Whatever happens, the penthouse must be registered first. Nothing can happen to affect the legal transfer of ownership of a property unless it is registered first. With regard to MOUs, they come in different formats with different content to suit the particular transaction at hand and each party’s wishes. If you want to ensure that it is legally binding, l suggest you hire a lawyer to draft it for you. Once the property is registered, you should visit the Dubai Land Department office or any of the trustee transfer offices and conduct the transfer of the property there. It appears to me that you have limited experience in concluding a property transaction such as this. My best advice for you is to hire a professional property consultant to take you through this journey in a professional and smooth manner.

I want to modify and extend my villa. What are the documents required and the procedures to be followed when it comes to making alterations?

You need to establish that the amendments do not threaten the structural integrity or safe habitation of your villa by you or by future owners should you decide to sell it one day. Therefore, you should prepare the architectural and MEP drawings for the proposed concept. These need to be viewed in conjunction with the architectural and MEP “as—built drawings” by different authorities and regulatory bodies  to ensure the proposed designs are structurally sound and meet the building codes. You need to obtain NOCs from the owners association, zoning authorities, Civil Defence and even the project developer and DEWA. If the renovation is extensive, you may be required to have the work inspected by the Civil Defence and the Building Department. Your architect or contractor can arrange for all  approvals on your behalf. Engage professionals who can achieve this for you.

 

I know that the market has slowed but is the slowdown being experienced across the board, or do some areas still look promising?

There is no doubt that the affordable segment in Dubai still shows a lot of promise. The properties In this segment will be in high demand as the emirate’s strong population continues to grow on the back of a strong recovery.

Properties located in non-prime areas continue to do very well. With the recovery in real estate going from strength to strength, we have witnessed the more affordable or secondary areas of the market continue to do well.

The demand for this type of affordable accommodation has been growing steadily as Dubai’s population swells in the run-up to the Expo and the demand for affordable housing increases.

Examples of affordable projects that are providing good rental returns and expected capital appreciation are the Skycourts and Queue Point located in Dubailand.

Other affordable residential destinations are the International Media Production Zone, International City and Discovery Gardens. These established communities offer a wide range of housing options for families and singles alike.

There is also the new project Town Square offering “value” apartments to newcomers in the city and families.

Mohanad Alwadiya

Gulf News Freehold – Ask the Agent

With the Dubai property market undergoing a correction, does it make sense to invest or wait until the market is showing signs of picking up?

While the market is cooling a little, there are advantages to be gained from purchasing now. The market will pick up again as the next five years are expected to see strong economic growth, but picking the exact timing is difficult. Start your property search immediately as a property investment requires the same approach regardless of the state of the market. Know what you can afford. If you have the cash, pay for it outright, but don’t be afraid to take a mortgage. Think about location, infrastructure, construction quality, developer reputation and building amenities. Consider the effectivity of the owners association, service charges and quality of maintenance services. Be purposeful, persistent, patient and pragmatic in your approach to make a sound investment decision.

There seems to be a lot of press and activity regarding the Expo 2020. How can I, as a landlord of four apartments, capitalise on any new opportunities?

Seek professional advice on to how to manage your portfolio. Many landlords across Dubai are bound to miss out on the revenue generating opportunities that the Expo will bring because of poor or non-existent planning.

A competent property manager will provide you with the best opportunity to maximise your financial gains. Do not make the mistake of leaving your planning too late. Know the current and likely future market conditions and events, risk factors that may enable or inhibit revenue growth, inflation and cost increases and a complete comprehension of financial modeling and the ever-developing area of industry policy and regulation. Depending on the size and complexity of your portfolio, make a five-year plan which covers pricing, cost management and maintenance schedules and several other considerations.

I have 14 apartments which are becoming too large to manage. I am considering hiring a property manager. What type of fees can I expect to pay?

It will vary by provider. It may be between 3% and 6% of the rental receipts; some will have an administrative fee. Understand what you expect from your property manager as the depth and breadth of their services vary greatly. You can negotiate a fee structure based on your actual requirements. Ask for referrals and make sure you follow up with some existing clients to check their efficiency and professionalism. A competent property manager will provide an assessment, strategy and activity plan designed to harness the financial potential of your property. You should have a rolling five-year activity plan which covers pricing, marketing and tenant management among others. A competent property manager will also provide you with review schedules regular financial reporting and many more.

With many new projects and off-plan opportunities, I am nervous about the quality of end products. Can we expect an improvement in quality?

During the global financial crisis, many developers realised that properties of poor quality were dealt the harshest of value declines. As a result, many developers did not survive. Having said that, the old caveat of “buyer beware” still applies. Deal with a reputable developer. Ask around or seek professional guidance. Ask what proactive measures are taken to ensure the end product has been built to an acceptable standard. Warranties and any quality assurance policies should be discussed in detail and have the sales and purchase agreement reviewed by a professional. Engage an expert to inspect (snag) your property and report any legitimate issues to the developer for rectification. Remember, once you have taken ownership of the apartment, the developer is still obliged to fix any issues that may arise during the full 12 months following the transfer of ownership.

Now that the market has corrected, there are many good opportunities in completed assets. Given the rising value of finished properties, are there advantages of buying off-plan now?

Purchasing an off-plan property. can provide you with superior capital gains by the time of completion, provided you are buying at a discount to today’s finished inventory and the market is expected to strengthen up to the completion date for the particular property that you are considering. This, of course, will depend on an estimation of economic growth, population expansion, the number of competing projects in the pipeline and the eventual industry inventory position.

Be smart about the product that you buy and try to avail yourself of a payment plan.

Look for certain property types complete with amenities and facilities in locations you believe will be keenly sought in the future. Do not assume that all property types in all locations will improve their values homogeneously. No market works this way. Also check the latest Metro route planning.

Deal with reputable developers only and check the status of the escrow account of the development. Escrow accounts were introduced under Law No.  8 whereby all property developers in Dubai must be registered with RERA and hold an escrow account which protects the funds of the buyers and ensures safety of the purchase.

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Gulf News Freehold – Ask The Agent

I own an apartment in Dubai. I got a new tenant and increased its rent but I cannot raise it further according to the rental index. The market seems to have peaked. Should I sell it?

Yes, there is price correction, but we are far removed from experiencing a long-term trend. Looking over the next five years, we expect the market to achieve an average price growth of around 7%. Bear in mind that we are talking averages here and popular areas have a habit of outperforming the average. It really comes down to alternatives. If you have identified an alternative investment to give you a better income stream and capital return than what you expect to receive in five years from your apartment, then the right decision may be to sell. However, if you have not, hold on to the property. You will continue to receive at least a 5-7% net rental return and achieve around 7% per annum capital growth in the future.

Why is it that the rents of not so new apartments in some areas remain high? The rates in these areas did not fall as much when recession struck and when rents increased, their rents also increased fast. How come?

The value of a particular location is usually derived from the levels of pleasure, lifestyle convenience, security, harmony, future economic value or even status that can be derived from the property. Whether it is a spectacular view (sea, lake and others) or proximity to public transport, business districts, entertainment, dining, schools or hospitals, the perceived benefits that a location may bring to a prospective tenant can account for up to 90%, Areas close to the beach and entertainment venues as well as properties located close to/within. Downtown Dubai or the business district will command a location premium. Most potential tenants consider a view as a key factor for their house to be enjoyed.

I think that l am paying excessive service charges. Getting access to information that might prove my suspicions is difficult. Is my OA obliged to provide me with information?

Attending owners association (OA) meetings and requesting details on the service charges would be the logical place to start and they are obliged to address your query. Remember, the purpose of the OA is to manage, operate and maintain the common areas, virtually all of the “owner shared” elements of the building. They do this by appointing contractors with the expertise to carry out the required tasks and set a service charge that all owners must pay to cover the cost of the contractor services. The OA is a “not for profit” business entity in its own right with the powers to operate a bank account, sue (or be sued), purchase, own and dispose of assets and enter legally binding agreements. You can request and view the financial statements of the association to ensure the charges you are paying are justified and correct.

Reports are saying that the market has slowed and prices are correcting. Is it a good time to buy?

Picking the exact timing is difficult. Start your property search immediately as this kind of investment requires the same approach regardless of the state of the market. Know what you can afford. If you have the cash, pay for it outright, but you can always take a mortgage. Think carefully about location, surrounding infrastructure, construction quality, developer reputation and building amenities. If you have close access to the Metro, even better. Also consider the effectivity of the OA, service charges and the quality of maintenance services as these affect the long-term value of your investment. Be purposeful, persistent, patient and pragmatic in your approach and you are well on the way to making a very sound investment decision. However, if you decide to rent, there are also great deals. With robust tenant protection legislation and a rental index to limit your exposure to increases, your rights will be recognised.

The property market seems to swing in favour of buyers and investors. Where do you believe the best investment opportunities are likely to appear?

Definitely in, the affordable segment of the market. We are encouraging clients to invest in this segment as it has great opportunities.

Excellent examples, of high performing yet affordable developments are the Skycourts and Queue Point communities in Dubailand. These have seen excellent capital growth.

Demand for this type of affordable housing will continue to grow and we expect other developments that are located close to the two communities to benefit as well, especially as Dubai’s population swells in the run-up to the Expo and the demand for affordable housing increases.

A smart move would be to invest in an apartment and retain ownership for at least five years as I am confident that you will benefit from superior capital growth and enjoy very healthy net annual rental return in the meantime.

In addition, consider looking at the apartments in Sarah Ajmal and Windsor Residence. They are all expected to perform very well as the demand for affordable properties continues to grow.

Of course, there are the established areas such as Remraam, International City, Discovery Gardens and International Media Production Zone, while the Town Square project is one to watch out for.