I OVERVIEW OF THE MARKET

The German real estate M&A market has been growing continually since the financial crisis from 2008 to 2010. According to the EY Trend Barometer, the total volume of transactions reached about €80 billion in 2015, with €56 billion being commercial and €24 billion being residential property transactions.

As recent market activity shows, significant activity has shifted to stock exchange-oriented transactions. Several significant transactions have been executed by Germany’s largest housing companies, with the single biggest transaction being Vonovia SE trying to take over Deutsche Wohnen AG for €14 billion, however, ultimately not being executed. Moreover, DIC Asset AG had been purchasing shares in WCM AG and now holds around 20 per cent. Thus, DIC has become the biggest shareholder of WCM AG.

All in all, special funds, real estate funds and real estate operating companies (REOCs) make up almost 50 per cent of the commercial transaction volume, while only 5 per cent of the deals are concluded by private equity investors.

II RECENT MARKET ACTIVITY

i M&A transactions

In 2014, two commercial portfolios with a value of €1 billion each were sold. The Mars portfolio, consisting of 24 office buildings and two hotels, was sold to Kildare Partners by Deutsche Bank and the Leo I portfolio, consisting, inter alia, of public buildings in Frankfurt, was sold to Patrizia Immobilien AG by Commerz Real. The single biggest transaction of 2015 was the sale of the retail store company Galeria Kaufhof by Hudson’s Bay Company to Simon Property Group for €2.4 billion. Moreover, Alstria took over Deutsche Office AG. The transaction had a volume of €1.7 billion.

2015 was also a busy year for some of the biggest German housing REOCs, especially Vonovia SE, the single biggest private landlord. In March, Deutsche Annington Immobilien SE (now Vonovia SE) took over Gagfah SA for €3.9 billion before purchasing the Süddeutsche Wohnen Group (with 20,000 apartments) from Patrizia Immobilien AG for €1.9 billion. In September, LEG Immobilien AG planned a merger with Deutsche Wohnen AG, while Vonovia SE made a hostile takeover offer to the shareholders of Deutsche Wohnen AG in December. The offer had a total volume of €14 billion. Ultimately, neither of the latter deals was executed.

In 2015 and 2016 a couple of large retail portfolios have been sold. One of the most active players in this field was Patrizia, which purchased three portfolios of a total value of €750 million between December 2015 and July 2016.

ii Private equity transactions

Generally, private equity transactions have not been as attractive for private equity investors in recent years. Strong demand and the corresponding competition between investors has led to rising prices and falling yields. Thus, market activity has shifted to asset management companies and funds investing in real estate as they typically are not as demanding as private equity investors when it comes to rates of return.

However, one significant transaction with a total volume of €3.5 billion was Allianz Capital Partners, together with three co-investors, taking over Tank & Rast (with 350 petrol stations, 390 motorway service areas and 50 hotels).

III REAL ESTATE COMPANIES AND FIRMS

i Publicly traded REITs and REOCs – structure and role in the market

Under German law, REITs have to be organised as stock companies; 75 per cent of their income has to originate from real estate, they have to distribute 90 per cent of their profit and their equity ratio has to amount to at least 45 per cent. Moreover, German REITs cannot invest in apartments that were built before 31 December 2006. Finally, in order to allow small investors to invest in real estate assets, a certain number of shares has to be free floating (15 per cent; by the time of the IPO, 25 per cent)2 and a single shareholder cannot hold more than 10 per cent of the total shares. If a stock company fulfils these requirements, neither corporate nor trade tax are invoked by the REITs’ activities. Only the shareholders’ income is assessed. These strict requirements have led to only a small number of REIT AGs being formed. Currently, only a handful REITs are listed on the stock exchange and have a total market value of €1.2 billion, while the biggest German REIT, Alstria Office AG, has a stock market value of around €780 million.3 The other German REITs, such as Fair Value REIT AG and Hamborner REIT AG, play an even smaller role in the market.

Some of the biggest German REOCs under German law are UnionInvestment, Deka Investment, Deutsche Bank AG and the quickly growing Patrizia Immobilien AG. Often, REOCs with their business focus in Germany are not constituted under German law. Driven by tax considerations, real estate companies are generally constituted as funds under Luxembourg or Dutch law. Open-ended funds are a common form of investment, such as the ECE European Prime Shopping Centre Funds I and II, Wertgrund Wohnselect and Grundbesitz Europa, and Morgan Stanley Real Estate Funds. German open-ended funds held around €82 billion-worth of property worldwide after a record volume of sales of €5.1 billion in 2014. They are very attractive for investors: from December 2014 to April 2015, almost €3 billion have been invested. However, 18 funds have entered their liquidation phase and property worth around €10 billion has to be sold in 2017.

Activities of open-ended funds have been subject to a shift in regulation in recent years. After the financial crisis, the EU adopted the Directive on Alternative Investment Fund Managers in 2011. Germany implemented the regulations in 2013 by issuing the Code on Capital Investments (KAGB). In the KAGB, a network of detailed provisions was established as it applies to all forms of investment funds and brings change to multiple regulatory aspects. The most significant changes for directors of REOCs operating investment funds are the duties of conduct and the obligation to implement organisation of risk management separate from the portfolio management. Also, various distribution regulations were implemented and now also apply to private placements and not only to public distribution.

With regards to the business strategy and the types of property transferred by German REOCs, commercial property, such as offices and shops, makes up about 70 per cent of the transactions. Being commercial property, hotels have been more and more focused on by REOCs. Recent studies predict, however, that as residential construction is currently and will potentially be more heavily subsidised by the government, residential property will increase its market share significantly in the coming years.

ii Real estate PE firms – footprint and structure

As stated above, private equity firms investing heavily in the German market are rare at the moment. Bigger players include Blackstone, Cerberus and Patron Capital. With regard to their structure, the same principles apply: choosing a company structure is highly tax-driven, with most private equity firms being offshore firms or founded under Luxembourg or Dutch law.

IV TRANSACTIONS

i Legal frameworks and deal structures

Typically, negotiations begin with structured tender offers. Parties often agree on exclusive or co-exclusive periods after an initial offer in order to conduct due diligence. Exclusive periods last for around six to eight weeks, after which the seller has to accept one of the offers from the prospective buyers before the final negotiations on the sale and purchase agreement begin.

It is common for the seller to determine the manner in which the object of purchase – either a single property or a portfolio – is transferred to the buyer. Under German law, this can either be done by an asset deal or a share deal. When transferring real estate in an asset deal, one company directly sells the property to another company while in a share deal, the company owning the property is sold. Both structures are equally common as they both offer certain advantages and disadvantages.

An asset deal will achieve a step up to the fair market value of the real estate but will usually result in higher exit taxes for sellers. Also, an asset deal will always invoke real estate transfer tax (RETT) (see Section IV.v, infra) while a share deal might mitigate it if properly structured. The rate of RETT depends on the location of the real estate and rates in the 16 German federal states currently differ between 3.5 to 6.5 per cent.4 However, a share deal will require more comprehensive due diligence as not only the property itself but also the company has to be assessed extensively. Moreover, depending on the company structure, there might be a liability for contributions under company law. When it comes to formal requirements, an asset deal has to be notarised while in a share deal the formal requirements depend on the company structure – a notarisation is only necessary if one of the companies sold is a limited liability company (GmbH). Common share deal structures that mitigate RETT are selling no more than 94.9 per cent of the interest of a propco to one single investor (or a group of affiliated investors) or, particularly if the propco is established in the legal form of a partnership, the seller remaining a minority shareholder of 5.1 per cent for at least five years.

A typical share deal structure consists of a direct acquisition, for example, if a subsidiary operating the property that the parties want to transfer is sold. Usually, sold companies are held by propcos, which are structured as German limited partnerships (GmbH & Co KGs), GmbHs, Luxembourg limited liability companies (Sàrls) or Dutch limited liability companies (BVs).

However, the transactions in the housing sector mentioned in Section II.i, supra were direct mergers, whereas the transactions planned but not executed would have been share purchases (for hostile takeovers, see Section IV.iii, infra).

Another common form of investment is a forward transaction in which undeveloped real estate is purchased, then developed and afterwards resold to a third party.

ii Acquisition agreement terms

German real estate is listed in the land register. The person registered as owner in the land register is deemed the owner except where the purchaser has positive knowledge to the contrary. Accordingly, the review of title and title guarantees do not play a significant role in German asset deal transactions. This is different in share deal acquisitions, where there is no such good faith with regards to the shares; however, even in these cases an integral part of the due diligence is that the propco must have purchased the real property from the registered owner. Accordingly, the typical agreement starts with a detailed summary of the entries in the land register or – especially in bigger transactions – by making reference to land register excerpts. This is associated with the most important part of the purchase agreement: guarantees and warranties, typically including that the property is not encumbered (neither easements nor mortgages).

Under current market conditions, the model for dispositions of real estate is that they are sold ‘as is’ and only few warranties and representations are given, and mostly these are knowledge-based. Typical warranties and representations include that:

a there are no outstanding administrative orders with regards to the property;

b there are no written complaints by authorities that the current development does not comply with building laws; and

c the seller has no knowledge that the construction has not been carried out in accordance with the building permit.

Liability for hazardous materials or second world war munitions, for example, tends to be excluded, whereas German judgments require that any such known defects need to be disclosed for the purchaser to avoid fraud.

German law provides for an automatic transfer of the lease agreements concluded for the respective real property from the seller to the purchaser, and also for transactions by way of asset deal. Given the importance of the lease agreement and its cash flow, the most important warranties and representations are very often those connected with the lease agreements. Typical warranties and representations include:

a the completeness and correctness of a list of lease agreements;

b the payments thereunder within the months or years before signing; and

c the absence of disputes or counterclaims made within a certain period before signing.

Another peculiarity of German law is that lease agreements for real estate with a term of more than one year need to be in writing. This generally includes all agreements between lessors and lessees, and also all amendments. Any oral or tacit change therefore could form a breach of written form requirements. A breach of written form does not mean that the lease agreement would become invalid, but both parties would be in a position to terminate the agreement becoming effective within about six months from the notice of termination. This can potentially cause major issues for investors (as well as for lessees) and can bring the bankability of a transaction into question. The most frequent breaches of the written form requirement are the incompleteness of annexes or later oral changes. Accordingly, the absence of oral or tacit changes to the lease agreement is one of the typical warranties in German acquisition agreements.

Another aspect requiring careful drafting is the purchase price, its calculation and its becoming due. Asset deal transactions need – as laid out above – to be notarised in order to be valid. The execution of an agreement for the acquisition of real estate by way of an asset deal is usually in the hands of the notary public, who also controls the fulfilment of the conditions for the purchase price to become due. The notary public is therefore not only required in order to notarise the asset purchase agreement but is also responsible for bringing about maturity, inter alia, by gathering waivers of statutory or pre-emption rights, registering a priority notice in order to secure the transfer of property, and ensuring he or she has all the documents in order to remove encumbrances in the land register that will not be taken over by the purchaser.

When drafting a share purchase agreement, inclusion of a specification of the company’s assets and their description is recommended in order to determine the seller’s liability. The catalogue of guarantees and warranties is more extensive than when conducting an asset deal as not only guarantees with regards to property itself but also to the shares that are transferred have to be included. Typical guarantees include that:

a the shares exist;

b they are not encumbered;

c the share capital is fully paid;

d the current shareholders’ agreement is complete and correct;

e the company is not bankrupt;

f there are no intercompany agreements in place; and

g the list of shareholders is complete and correct.

The purchase price falling due cannot be decided by a notary public as a notary public is not required in all such cases. Thus, the parties have to take measures (especially the purchaser, who typically wants to ensure that it gets a good deal for the purchase price) in order to bring about maturity. Typical prerequisite requirements are the release from encumbrances and negative clearance (as no priority notice can be registered).

When it comes to the calculation of the purchase price, several forms of purchase price adjustments can be considered. Parties only seldom agree on a locked-box calculation but rather agree on a potential adjustment of the purchase price with the help of projections.

Usually, sellers seek to limit their liability. Typically, there are several limitations such as a combination of thresholds for single breaches, minimum amounts of claims for multiple breaches and overall caps. Whereas the amounts for the thresholds mainly depend on the overall deal volume, the overall cap very often is equivalent to a percentage of the purchase price. Whereas for some years, caps of 15 to 20 per cent were very often agreed, in recent months and years caps of 10 per cent and below have become more frequent.

Terms for the prescription of claims vary mostly between 12 and 24 months after closing of a transaction.

Other typical provisions to limit liability are the exclusion of any claims for facts disclosed before signing or for those claims for which the purchaser can seek indemnities against third parties, such as insurances.

Regardless of the acquisition structure and term, parties focus more and more on warranty insurances, especially in distressed M&A situations. By this, financial pressure is lifted off the distressed seller. This is of special interest to distressed sellers and also sellers who intend to dissolve the selling entity shortly after closing.

iii Hostile transactions

The planned transaction by Vonovia SE to take over Deutsche Wohnen AG would have been a hostile transaction. After LEG Immobilien and Deutsche Wohnen AG published plans to merge in October 2015, Vonovia SE resolved a capital increase in order to offer to purchase the shares from the shareholders of Deutsche Wohnen AG. The offer had a volume of €14 billion. As of February 2016, the required acceptance rate of 50 per cent had not been reached. Thus, the attempt hostile takeover failed.

iv Financing considerations

Recent years show more equity-oriented transactions. Typically, deals are nowadays only financed by borrowed capital up to a level of around 50 to 60 per cent. Moreover, finance by insurances has become more and more attractive, whereas the number of transactions being mezzanine or bridge financed has decreased.

Market players for the bank financing of real estate acquisitions are typically mortgage banks. Their regulations provide for a maximum loan-to-value ratio of 60 per cent if they want to issue credit notes. Since the margins are comparable and low in the long term for these kinds of mortgage loans, the equity proportion is very often no less than 40 per cent.

Another impact bank financing by mortgage banks has on real estate investment relates to the need for the mortgages to rank prior to any encumbrances in the land register that may have an impact on the enforceability of the mortgage or the value of the property. This can very often be the case in relation to easements in favour of tenants. Mortgages banks have developed a standard for tenant easements that they usually accept. If these requirements are not met, the cost for financing are typically slightly higher.

v Tax considerations

Under German law, two major tax issues have to be tackled in almost every transaction: RETT and trade tax.

RETT is generally triggered on both the purchase of real estate in an asset deal and the purchase of at least 95 per cent of shares in a company owning German real estate.5 The amount rate of RETT depends on the location of the real estate as rates differs in the different federal states. An asset deal always invokes RETT, and even the indirect purchase of property in a share deal can be liable for RETT. As a general rule, RETT is invoked when 95 per cent or more of the interest in a property company organised as a partnership (KG) is transferred to new shareholders.6 The same applies when 95 per cent or more of the shares in a GmbH are purchased by one purchaser (or related parties). In order to avoid RETT in this situation, the parties can implement a ‘RETT-blocker structure’, usually involving an unrelated third party acquiring at least 5.1 per cent of a German propco. Real estate investments made by a group of unrelated investors enhance the opportunities to mitigate RETT in many transactions. However, under all circumstances, even blocker structures are considered taxable, which is why, in each case, a tax lawyer should advise on the transaction.

The income of a German corporation is generally subject to German corporate income tax and a solidarity surcharge at a combined rate of 15.825 per cent, and a municipal trade tax between approximately 7 and 17 per cent (depending on location, but in most cities around 15 per cent). However, companies exclusively generating income from the lease of real estate can usually apply for an exemption from trade tax.7 However, this requires that only real estate be leased. If the lessor lets fixtures or supplies services to the lessee that are needed for the operation of the business itself, this could lead to trade tax liability under German tax law. Typical examples are the furniture, fixtures and equipment (FF&E) of hotels. In order to avoid trade tax, propcos are usually separated from opcos, or beneficial ownership of detrimental assets is transferred to the tenant.

vi Cross-border complications and solutions

Non-German resident investors are generally limited to tax liability in Germany on income from a lease, resulting only in corporate income tax of 15.825 per cent. It is important to avoid the creation of a permanent establishment in Germany, for example, by not maintaining the place of management or services, or employees in Germany. Should this not be the case, income may be additionally subject to trade tax unless the specific exemption applies. It is common therefore to use foreign corporations for the acquisition of German real estate having their place of management outside of Germany.

However, it may also be possible to shift the place of management of a propco that was incorporated under German law (GmbH or GmbH & Co KG) to a location outside Germany in order to have a more robust trade tax structure.

Foreign investors should observe the strict German ‘anti-treaty shopping rules’, which require foreign investors, broadly speaking, to satisfy certain substance and economic reason tests to benefit from the exemption from or reduction of German withholding tax on dividends under the Parent–Subsidiary Directive8 or applicable double tax treaties.9 Therefore, investors in German real estate usually structure acquisitions to avoid the need for cash repatriations by way of dividends to be distributed by German-resident corporations. Preferred structures to repatriate cash are shareholder loans benefiting from the absence of German withholding tax on regular interest payments and the repayment of debt. However, also as a result of the global BEPS discussions and its upcoming implementation into German law, financing structures need to be carefully structured and monitored to ensure exemption from withholding tax of interest payments and their tax deductibility. Hybrid financing instruments (e.g., profit participating loans) into Germany can create negative tax effects.

V CORPORATE REAL ESTATE

As mentioned above, in order to avoid trade tax, the company owning the property should be separated from the company operating the property. This tax issue can be tackled by implementing such propco/opco structures. Moreover, it is easier to transfer the property by selling the opco to another propco. Most propcos avoid German taxation by being structured as Sàrls or BVs and only holding the opcos.

Particularly when transferring hotels or shopping centres, careful attention has to be paid to the corporate real estate structure. Not only are propcos and opcos involved, but multiple companies provide the hotel with its FF&E by lease contracts.

VI OUTLOOK

The market outlook is positive, the reasons being the consistently low interest rate and therefore cheap financing, and the positive economic outlook (due to low unemployment rate and a predicted economic growth of 2 per cent). Moreover, demand should be steady as the consumer climate is positive because of very low oil prices and growth of the total population from immigration. Therefore, the total volume of transactions will depend on supply, and the rate of return is expected to decline even further.

A greater question is whether the Brexit will have an impact on the real estate market. Whereas it will most likely have an impact on the London and UK real estate market, and may potentially also influence the landscape of financial institutions in Europe, the German and other large developed markets such as France may potentially continue to be regarded as ‘safe harbours’.

Footnotes

1 Stefan Feuerriegel is a partner at White & Case LLP. He would like to thank Bodo Bender, a partner at White & Case LLP, for his contributions on tax considerations and Sören Burdinski for his research in this chapter.

2 Article 11 (1) of the German REIT Act.

3 All figures as per the end of 2014.

4 Mostly around 5 per cent, but many states have recently increased this or announced increases.

5 Article 11(3) of the German Real Estate Transfer Tax Code (the RETT Code).

6 Article 1(2a) of the RETT Code.

7 Article 9, No. 1, sentence 2 of the German Trade Tax Code.

8 The Directive on the Common System of Taxation Applicable in the Case of Parent Companies and Subsidiaries of Different Member States, first adopted by the European Union on 23 July 1990 (90/435/EC) and later amended on 22 December 2003 (2003/123/EC) and on 20 November 2006 (2006/98/EC).

9 Article 50d(3) of the German Income Tax Code.