Escrow and how it can protect you

Off-plan investors urged to take other steps to boost self-protection.

Anybody can open an escrow account, but not anybody can open an escrow account for property development in Dubai.

With Cityscape just around the corner, more people will be considering purchasing their first home or investment property, or expanding an existing investment portfolio by making an off-plan purchase.

An important feature of any off-plan purchase is escrow there are not many people who understand the concept of escrow and how this legally binding arrangement can provide protection to investors.

An escrow is 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 providing the escrow service (bank) until the latter receives formal advice that certain agreed obligations of the seller have been fulfilled, upon which time, the seller can receive funds in the amount specified in the agreement.

The use of escrow accounts by Dubai developers has been mandated by law to protect buyer prepayments. This limits developers from gaining access to funds until certain construction milestones are completed.

Anybody can open an escrow account, but not anybody can open an escrow account for property development in Dubai. The developer must first be registered as a bona fide developer with the Real Estate Regulatory Agency (RERA) which involves the provision of an expansive array of documents.

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 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 for an escrow account. When selling off-plan, the developer must ensure all proceeds of the sale of the units are deposited into the escrow account and are used solely for the construction of the project. Failure to comply with the Escrow Law can lead to hefty fines or criminal charges. Once the developer has submitted all the required documents to RERA and 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 authorised bank.

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. In this way, the bank can help protect the buyers’ pre-paid funds.

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.

Buyers need to make sure they are dealing with – a reputable developer regardless if the developer is registered with RERA. Ask around or seek professional guidance.

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. Remember, once you have taken ownership of the property, the developer is obliged to fix any issues for 12 months following the transfer of ownership.

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Boost your portfolio

By Mohanad Alwadiya

Long-term planning is paramount to maximize financial gains

I have a property portfolio consisting of a mix of one and two-bedroom apartments in Jumeirah Lakes Towers and Dubai Marina. How can I capitalize on opportunities that arise as the World Expo 2020 draws near?

You need to seek professional advice. 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 maximize your financial gains by providing an assessment of the opportunities and a strategy. Do  not  make  the  mistake  of  leaving  your  planning  for  too late. You will need to comprehend current and future market conditions and events, factors that may enable or inhibit revenue growth, inflation and cost increases as well as a complete understanding of financial modelling and the ever-developing area of industry policy and regulation. Depending on the size and complexity of your portfolio, you should have, as a minimum, a rolling five-year activity plan, which covers cost management and maintenance schedules, pricing and marketing, and tenant management and policy. A competent property manager will also provide you with communications and review schedules, as well as status and financial reporting.

There are a lot of opportunities to buy off-plan at the moment.  How can I protect myself against buying an apartment of inferior quality?

Firstly, make sure that you are dealing with a reputable developer. A positive effect of the recession was that a lot of inferior developers were exposed and are no longer in business. Seek professional guidance — those in the industry have a good understanding of who the reputable developers are. Secondly, ask about the proactive measures taken to ensure the product is built to an acceptable standard and take the time to inspect the developer’s completed projects. Warranties and any quality assurance policies should be discussed in detail. Get the sales and purchase agreements reviewed by a professional so you have legal recourse should any issues arise. Upon completion you have the right to inspect your apartment and report any legitimate issues to the developer for rectification. Matters that can be remedied in the short term should be fixed immediately.  Remember, once you have taken ownership of the apartment, the developer is obliged to fix any issues that may arise for 12 months following the transfer of ownership.

Mohanad Alwadiya is Managing Director of Harbor Real Estate and advisory board member and instructor at the Dubai Real Estate Institute, the official training and certification arm of the Dubai Land Department.

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Property Weekly

Escrow law protection

With the recent flurry of new developments in Dubai, investors and potential owner-occupiers have been asking me how much protection is provided for the funds they are paying developers in advance. The conversation invariably turns to the concept of escrow and how this legally binding arrangement provides substantial 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 formal advice that certain previously agreed obligations of the seller have been fulfilled, upon which time the seller can receive an amount specified in the agreement between the seller and buyer.

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

Anybody can open an escrow account but a developer must first be registered with the Real Estate Regulatory Agency (Rera), which involves providing an expansive array of documents, ranging from details of its officers and solvency, title deeds proving ownership of the land to be developed, and no-objection certificates (NOCs) from relevant parties such as the master developer, to performance guarantees backed by a financial institution and all planning and details about the project.

Rera requires the land subject to development to be fully paid for and a title deed issued in the name of the owner. Where the owner of the land cannot register as a developer, Rera permits the owner to enter into a property development contract with an existing registered developer to develop the project on behalf of the land owner. The development contract, however, must be approved by the senior legal adviser of the Dubai Land Department to be accepted by Rera. Only when a developer is registered with Rera can it apply to open an escrow account. When selling off-plan, the developer must ensure all proceeds of the sale of the units are deposited into the escrow account and are used solely for the construction of the project. Failure to comply with the escrow law can lead to hefty fines or criminal charges, which may result in prison sentences.

Once a developer has submitted all the required documents to Rera and 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 authorised UAE bank.

The bank that will be providing the escrow service needs to understand all the details of the underlying agreement to ensure that it acts in accordance with its provisions. In this way, the bank can help protect the buyers’ prepaid funds by referring and strictly adhering to the conditions of the 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 protection.

Buyers need to make sure they are dealing with a reputable developer, regardless if it is registered with Rera. One positive effect of the global financial crisis was that many suspect developers were exposed and forced out of business. Seek professional guidance, as those in the industry know who the reputable developers are. Ask the opinion of those who have transacted business with the developer.

Ask the developer what measures have been taken to ensure the end product is built to an acceptable standard and inspect buildings already completed by the developer. Warranties and 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.

Upon completion you have the right to inspect your apartment and report any legitimate issues to the developer for rectification. Items that can be remedied in the short term should be fixed immediately. Remember: once you have taken possession of the apartment, the developer is obliged to fix any issues that would arise 12 months following the transfer of ownership.