I OVERVIEW OF THE MARKET
The Polish real estate market continues to grow and after several years of impressive and steady increase in the value of transactions, it maintains its reputation as the most important real estate market in Central–Eastern Europe (CEE). In 2014, the volume of transactions on the investment market reached €3.1 billion, which constituted 30 per cent of all transactions in CEE.2 In 2015, the volume of investments exceeded €4 billion placing Poland, again, in the leading position in the region.3 Constant development of infrastructure, flow of new technologies, expansion of e-commerce and centres for shared services are key factors contributing to this development.
As an example, a brief look at transactions on the office property market shows a considerable number of transactions between investment funds with a total value for 2015 of €1.3 billion (offices only).4
Foreign private equity and institutional investors dominate the Polish real estate M&A market. International investment platforms, strong funds investing social security premiums from Germany or the United Kingdom, as well as US-based private equity funds are, thus far, overly strong competitors for Polish private equity. The lack of legal regulations allowing the creation of REITs does not encourage Polish investors. According to various sources, the share of Polish funds in the investment market ranges from 3 to 11 per cent.5 The tendency, however, is reversing, which corresponds to the fact that local investors managed to accumulate capital in the past decade to enter the market now.
Another significant feature of the Polish real estate M&A market is its growing maturity. In transactions, there is an upward trend of ‘earn-out’ structures, where the parties share risk and link the final price of a company to enterprise income at the time of closing.6 Similarly, a fall can be seen in the liability level of sellers for a breach of representations and warranties, which is caused, inter alia, by market security and predictability.
To sum up, Poland is the first choice for private equity funds interested in investing in CEE.7 The country’s major assets include not only a highly absorbent domestic market and a fast pace of economic growth, but also a mature real estate market.
2015 was characterised by high activity in the Polish M&A market, which is reflected both in the number and value of transactions, the highest since the financial crisis in 2008. In total, over 220 deals were carried out in Poland in 2015.8 The same trend continues this year.
II RECENT MARKET ACTIVITY
Poland still lacks relevant legal regulations allowing entities in the form of REITs to operate on the Polish market, although some initiatives were undertaken recently, which should speed up the process of adopting relevant laws.9
In 2014, the largest M&A transactions in Poland concerned office properties. The largest acquisition concerned the Rondo 1 office skyscraper (over 64,000 square metres of offices in a 40-storey tower and holder of the first LEED Gold environmental certificate in Europe in the category of existing buildings), which, for a price of approximately €300 million, passed from Blackrock Europe Property Fund II to two investment funds managed by Deutsche Asset & Wealth Management.
Another top transaction was the sale of Plac Unii in Warsaw, one of the largest (40,000 square metres of A-class offices and 15,500 square metres of retail space in a shopping centre) commercial properties with mixed functions recently developed in Warsaw and located at a historic square in the capital. It was acquired by Invesco Real Estate from Liebrech & Wood and BBI Development for €226 million.
The strong position of German investment funds on the market was reinforced in the same year with a purchase of the Metropolitan office building for approximately €190 million. This iconic building was sold by another German investment vehicle, Aberdeen Asset Management Deutschland.
The following year, for a change, was dominated by retail property transactions. Certainly, the most important and interesting transaction was the acquisition of 75 per cent of shares in a real estate portfolio from Echo Investment Spółka Akcyjna by one of the biggest REITs from South Africa, Redefine Properties, listed on the stock exchange in Johannesburg. With a total value of approximately €1.2 billion, the transaction was announced as the largest in the history of Polish real estate acquisitions thus far and the largest in CEE in recent years. Most assets were shopping centres and the portfolio included 18 office and retail parks in 11 regional cities.
Also in 2015, a well-known shopping centre in Poznań, Stary Browar, was sold for approximately €290 million by a special purpose vehicle (SPV) controlled by one of the wealthiest Poles, Grażyna Kulczyk. The purchaser again was Deutsche Assets & Wealth Management, through one of its companies.
The third emblematic transaction that took place in 2015, and which is worth mentioning, was the acquisition of the Riviera Shopping Centre, the largest retail park in Gdynia (city on the Baltic coast), comprising over 70,000 square metres of retail space. Mayland RE, the company that developed and managed the shopping centre, retained its management under the new owner. The announced value of the transaction was 1.2 billion zlotys. The property was sold by Fonciere Euris and the new owner is a company from the German group Union Investment Real Estate.10
III REAL ESTATE COMPANIES AND FIRMS
i Publicly traded REITs and REOCs – structure and role in the market
Certainly, the Polish market needs REITs as vehicles allowing investment in the real property market. It is estimated that approximately 75 per cent of pension funds in the world invest in the REIT formula and that such vehicles constitute 10 per cent of their assets.11
In Europe, the first REITs were founded in the late 1960s in the Netherlands. The first CEE country to introduce REITs was Bulgaria in 2004, followed by Lithuania in 2008 and Hungary in 2011.12 It is definitely time for the largest market in the region to also cater to the need of investors. REITs would give Polish investors considerably easier access to the property market and possibilities to invest on a long-term basis.
Such a need was noted long ago, but only in 2015 was the ‘Polish REIT’ report released by the Warsaw Stock Exchange (the WSE) in cooperation with leading consulting and law firms.13 The WSE has assumed a leading role of coordinator of work on preparing a solution to introduce commercial real estate companies in the form of REITs into Polish law. According to its preliminary proposal, a REIT is to be a listed company that manages its real estate portfolio on its own or through a professional firm and that regularly pays a dividend at a level of at least 80 per cent of its income. It brings REITs closer to life, but specific legal regulations have not yet been implemented or even drafted. The Urban Land Institute Polska estimates that Polish REITs could appear on the market within the next two years14 depending on the speed of legislation.
ii Real estate PE firms – footprint and structure
The Polish real estate investment fund market is diffused and different sized players can be found. At the top level are companies such as Griffin Real Estate managing funds with investments in all major Polish cities and having shopping centres, offices, and a student hostel chain (Student Depot) in their portfolio, as well as undeveloped properties treated as a ‘land bank’. At the other end of the scale are small investors, often individuals, who join forces through SPVs to acquire undeveloped property and sell it after its development (or redevelopment) and when space is fully leased. It is worth noting that companies like Griffin, apart from investing their own resources, also very often provide management services for assets of global investment funds.
i Legal frameworks and deal structures
Poland is a civil law jurisdiction and specific regulations that apply to M&A transactions (in general) and M&A real estate transactions (in particular) are stipulated in several legal acts. Although transactions encompassing shares and assets (specifically involving real properties) are very broadly codified in Polish law, the Polish market is very much ‘internationalised’. This is not only in terms of the parties involved in transactions, but also with respect to legal instruments and structures actually utilised. This internationalisation of the market means that numerous legal institutions commonly recognised in global transactions (whether originating from common law or continental legal systems) have been implemented in Polish transactional practice.
It is worth mentioning the general legal constraints that actually affect parties’ flexibility in adjusting contracts to their individual needs and global market standards.
First of all, as for transactions directly involving real properties, Polish law requires a disposal contract to be concluded in the form of a notarial deed drawn up by a Polish notary public. Accordingly, in the case of share deals involving shareholding in the most popular company type – a limited liability company – although less formalised, notary involvement, however much more limited, is also necessary.
Second, a disposal of real estate cannot be on a conditional basis (see below concerning acquisition agreements terms).
Third, in asset deals as well as share deals (where properties are only indirectly involved) certain legal constraints affect the transferability of a transaction object depending on, for example, the identity of a prospective buyer15 and the market effect of a transaction (including any competition aspects).
One essential issue that distinguishes the two transaction types is the scope of legal protection provided to the buyer by law. In asset deals, an acquirer of real estate, as part of an enterprise or organised part of an enterprise, enjoys protection of the warranty of public reliance on the land and mortgage register. This principle means (subject to certain limitations) that if there is a discrepancy between the legal status of real estate disclosed in a land and mortgage register and its actual legal status, the content of the land and mortgage register will decide in favour of a party that acquired ownership or other right to property in a transaction with the party or entity disclosed in a land and mortgage register as the rightful holder. In other words, even if the seller was not the owner of real property, but was entered in the land and mortgage register as its owner at the time of transfer and there were no other entries or annotations in register entries that could raise doubt of the purchaser, the acquisition will be valid. This naturally does not mean that buyer prudence at the pre-transactional stage should be limited and verification of technical parameters should still be regarded indispensable. However, with regard to the very essence of a transaction – that is, effective acquisition of proper legal title to real estate – it functions as a far-reaching protective measure.
As for direct real estate acquisitions, a significant restriction must be considered, namely the statutory right of pre-emption with respect to real estate under which certain public entities are provided a right of priority to acquire real estate. If a statutory pre-emption right exists, it is necessary for the parties to first conclude an agreement promising to sell the property on the condition that the holder of a pre-emption right does not exercise such right.
In share deals and generally in transactions involving the merger, division or transformation of companies, acquisition of real estate will not be protected by the warranty of public reliance on the land and mortgage register. This is because the subject of a transaction is the shares in a company, and not its assets, including real estate. In the case of a merger, division or transformation of companies, the warranty of reliance does not function because such transaction involves the acquisition of assets as an entirety of rights through universal succession. Therefore, in such transactions due diligence should include an assessment of the correctness of real estate acquisition.
On the other hand, restrictions arising from the statutory right of pre-emption discussed above will not, in general, apply in such transactions.
Finally, since real estate transactions often do not relate to land alone, but often to certain projects designed or contemplated for a given property or partially performed event, it is worth noting a practical and remarkable difference between share and asset deals. In the case of share deals, a buyer practically steps into the shoes of the seller with the acquired company not only holding the real estate in question, but also all applicable administrative decisions concerning real estate development and construction (e.g., a decision on construction terms or a building permit). On the contrary, in asset deals, a buyer only purchases property and such rights and decisions that are directly attributable to the property. All other rights and decisions must be separately transferred to the buyer or otherwise be re-obtained.
ii Acquisition agreement terms
As already outlined, a transfer of title to real estate under Polish law cannot be conditional and, accordingly, all prerequisites, conditions precedent and the like must be met by the time of conclusion of a final contract that effectively transfers legal title to real estate. However, this does not the preclude parties’ right to structure relevant deals in a manner assuring that any applicable conditions to a successful transaction or other covenants are, in fact, fulfilled at the time of title transfer.
In the Polish legal framework, such conditions encompass not only purely business matters (such as furnishing a property in an agreed upon manner) or acquiring any necessary contractors’ consents (e.g., for a transfer of contracts related to the property – which is of specific importance if the property itself is a shopping or office centre), but specifically all relevant administrative consents and approvals. The latter group particularly relates to the receipt of a merger clearance (if a transaction itself affects or may affect competition) and acquisition permits for the acquisition of real properties by foreigners within the meaning of a relevant Polish law. Such investors (deemed foreigners), as a rule, must obtain an acquisition permit issued by the Ministry of Internal Affairs and Administration. There are numerous exceptions to this rule, in particular, for foreigners from the EEA or Switzerland. However, if a permit must be obtained, it affects the structure of a transaction, as the transfer of title to real property without a permit is invalid. Usually, the parties conclude a preliminary conditional sale agreement in which a condition precedent for closing is receipt of an acquisition permit.
There are also specific far-reaching restrictions related to the sale of agricultural land. Generally, since 30 April 2016, only an individual farmer can purchase agricultural land barring the exceptions set out in relevant law. The agricultural property market is also protected in the case of a sale of shares in a company being an owner or perpetual usufructuary of agricultural property – in such case a state agency has a statutory pre-emption right to shares. These regulations apply to agricultural properties exceeding an area of 0.3 hectares.
The aforesaid legal constraints pertaining to conditional transfer of real properties practically mean that as long as parties to a contract wish to make it conditional on something, they must divide a transaction into two parts. First, a preliminary or obliging contract is signed. Each of the two legal types of such contracts, although having different practical consequences, generally creates the parties’ firm obligation to finalise a transaction by signing, respectively, a final or transfer contract once relevant conditions are met.
Although Polish law includes a rather complex regulation regarding seller liability and corresponding rights of a buyer, these matters are always an issue of the utmost importance when negotiating contracts. Polish law contracts – specifically contracts concluded between entrepreneurs (who by nature usually are parties to real estate transactions that are of our interest in this publication) – may stipulate certain deviations from statutory terms. Such deviations mainly refer to the issue of seller liability, its scope and the time within which a buyer may raise claims under a contract. Therefore, it is common market practice to exclude the application of a statutory warranty in full or in part and to contractually agree on liability mechanics applicable to transaction parties. Such contractual structuring of liability usually signifies its limitation, for example, to circumstances covered by relevant representations and warranties or specific indemnities, and with an exclusion of respectively disclosed matters. Furthermore, transactional contracts usually provide for liability thresholds and limit the time during which the parties may effectively raise claims under contracts. It is worth noting that while contractual freedom in the discussed area is quite extensive, it is anyhow subject to certain limitations that generally encompass fraudulent actions or other forms of wilful misconduct that cannot serve to exclude or limit a given party’s (usually the seller’s) liability.
iii Hostile transactions
The Polish capital market does not provide many examples of companies listed on the WSE that have fallen victim to a successful hostile takeover. It is also difficult to indicate any hostile takeover transactions with regard to real estate companies.
The specific situation in the real estate transactions market means that experts do not perceive it as being particularly exposed in terms of hostile takeovers. It is possible that more investors will seek opportunities for such acquisitions in Poland in the coming years because of improved prospects and higher profit margins than in western Europe or the United States,16 but this will most probably affect other businesses (e.g., natural resources mining, pharmaceutical or IT sectors) where it is easier to underestimate the price of shares than in a publicly traded real estate companies.
Hostile takeovers of listed companies fall within the general rules relating to acquisitions of companies listed on the stock exchange in Poland, which implement the EU Takeovers Directive.17
A very important aspect of hostile takeovers is the measures made available to the management board in a takeover attempt, as well as ways to protect a company against such takeover. In Polish legal reality, preventive defence measures come to the fore and are quite commonly used by Polish listed companies. They are designed to deter a purchaser from attempting to acquire control by making a company less attractive legally or economically, or by significantly impeding or preventing its takeover against the will of the management board. These measures stem from the organisational structure of a company formed in statutes by its shareholders. Most are introduced well in advance, even at the stage of a company only planning its IPO. Most popular among these measures are restrictions on disposal of shares, the introduction of voting preference shares, restrictions on voting rights on a specific holding (e.g., 10 per cent) and rights personally granted to a shareholder, for example, to appoint management or supervisory board members.
Polish legislation does not provide for an automatic exclusion or limitation of the effectiveness of preventive measures to defend against takeovers (i.e., the breakthrough principle) and does not restrict defensive actions that may be taken by a management board in the face of an attempted hostile takeover (i.e., the neutrality principle) by putting these decisions into the hands of shareholders. That said, companies themselves may introduce such principles by including relevant provisions in their statutes and making the management board responsible for compliance towards shareholders. However, companies very rarely decide to adopt these solutions in their statutes.
The lack of automatic application of the breakthrough principle causes a situation where means of defence provided in company statutes may, in practice, prevent the takeover of a listed company. This is particularly important for those shareholders whose holding of approximately 30 per cent of share capital secures de facto control over a company through relevant statutory provisions.
iv Financing considerations
Typical sources of financing for real estate transactions in Poland, in addition to sponsor equity, include bank loans, leasing and bond issuance. There has been a limited number of larger transactions (acquisition of a large real estate portfolios) financed by consortia of senior and mezzanine lenders (including sovereign funds). Some acquisitions are financed or co-financed by international funds (for instance, the acquisition of Echo Investment, a local developer, by Griffin was co-financed by Oaktree Capital and PIMCO).
A number of real estate companies benefit from the status of a listed company to collect funds on the public market. The introduction of a REIT regime in Poland is expected to create a new promising source of financing in the near future.
Equity may have the form of a loan, bond issuance, promissory notes or share capital increase, ‘additional contributions’.
As for traditional bank lending, this source of funding is very easily accessible. In addition to Polish general and mortgage banks, foreign banks are also very active on the Polish market, especially German and Austrian ones. This is particularly visible in the investment loan segment. Their lending activity on the Polish market has been increasing recently as the result of a number of local factors negatively affecting the competitiveness of Polish banks, including a newly imposed banking tax.
There is a broad selection of banks competing against each other in the cost of financing, available leverage and tenor and other specific conditions (e.g., required pre-let level, or scope of required sponsor support). Bank financing is widely available not only in Polish currency, but also in foreign currencies (in particular, the euro).
Bonds may be issued either as listed securities or within a private offer. The advantage of bond financing is that it is very often covenant-loose and is less frequently secured with underlying assets.
As regards cross-border financing, its structuring is heavily affected by tax considerations.
On the documentation side, the LMA (Loan Market Association) form of finance documents (adjusted to Polish law) is commonly used by Polish banks. Banking documentation is typically very detailed in listing various types of covenants, including financial, general and information covenants.
As for collateral, banks typically require a mortgage on real estate, security assignment of receivables under lease agreements, insurance policies and, in the case of projects at a development stage, also through key project agreements (such as contracts with a general contractor and architect) as well as a pledge of shares or other equivalent rights of a borrower. All bank accounts are pledged for the benefit of the lender and all equity injected into a project is subordinated. In order to secure continuity of debt service in the case of incidental problems with debt service, security deposits are often required.
Although a mortgage in Poland is effective only upon its registration (which may take several weeks to several months depending on the court), it is a market standard that banks accept only a filing for such registration as a sufficient condition precedent for utilisation of a loan without a need to wait.
Financing structure and a typical timetable may differ depending on whether a financed transaction is a share or asset deal. In the case of an asset deal, due to the noted prohibition on conditionality of real estate acquisition transactions, escrow accounts are often set up to secure safe transfer of the purchase price. Funds are released from such escrow once the property is transferred and a mortgage is established for the benefit of the lenders financing a transaction.
v Tax considerations
Among the different transaction structures outlined above, asset deals prevail in practice in the case of real estate transactions, mainly for tax reasons.
As regards income tax, in the case of an asset deal a step-up of the tax value of real estate can be achieved. From the seller’s perspective, income tax of 19 per cent applies as a rule. However, if the ultimate seller is a Polish investment fund controlling real estate through a partnership, a transaction does not elicit income tax (an income tax exemption applies).
As for transactional taxes, in the case of an asset deal the parties usually opt for VAT taxation. In such case, VAT is paid by the seller and is recovered by the buyer. Opting for VAT taxation excludes a transaction from 2 per cent transfer tax (civil law transaction tax), which is less favourable because it constitutes an additional transaction cost for the buyer. Opting for VAT taxation is also often important to the seller because it does not raise the issue of correction of input VAT deductions made by the seller when buying or developing real estate. An asset deal is beyond the scope of VAT and is subject to transfer tax (2 per cent for real estate) if the object of a transaction is classified as a going concern – in the case of a real estate transaction, such transaction object classification rarely occurs.
In the case of share deals, a capital gains tax of 19 per cent applies, unless the seller is protected by a double taxation treaty without a real estate clause (a clause under which capital gains from a disposal of shares in real estate companies can be taxed in Poland).
As a rule, a share deal is not subject to VAT, but instead to transfer tax of 1 per cent due from the buyer (a transfer tax exemption can apply if a company has the form of a joint stock company).
In order to manage tax risks related to a transaction (e.g., the right to opt for VAT or classification of the transaction object as not constituting a going concern), each party can apply for a tax ruling.
On 15 July 2016, a general anti-avoidance rule was introduced into the Polish tax system – this should be taken into account when tax structuring a real estate transaction.
vi Cross-border complications and solutions
Transactions between European real estate investment funds increasingly comprise multi-jurisdictional acquisitions of entire portfolios scattered across several countries.
If such a deal is based on an ‘all or nothing’ arrangement, it is sometimes very difficult to coordinate the time of simultaneous transfers of title of all real properties. If there are conditions precedent for closing, it is not possible in some jurisdictions (e.g., Poland) to transfer ownership or perpetual usufruct (leasehold) to a property on the condition, thus another notarial deed transferring title will have to be drawn up upon fulfilment of the final condition. Such transactions are therefore structured with rights to withdraw from a contract to enable a party step back from a deal in some jurisdictions if there is a deal-breaker in another jurisdiction. Such a mechanism requires complex unwinding procedures and strict discipline between the parties and other involved entities (legal advises, notary public and financing institutions). Another instrument that can make such a transaction easier to coordinate is a master agreement providing a substantial mechanism for the sequence of events and general payment terms applicable to all jurisdictions, while all individual purchase agreements in a form specific for transfer of real property in each jurisdiction are complementary and are governed by the master agreement to the extent possible under relevant jurisdiction.
If the acquiring party is deemed a foreigner within the meaning of a relevant law and does not originate from the EEA or Switzerland, the transaction must then include a two-step agreement in which the purchaser will have to obtain an acquisition permit from the state authorities during the period between signing and closing (conclusion of a final sale agreement). As a rule, the acquisition permits must first be obtained, even if the purchaser is a company founded under Polish law but is controlled by a foreigner (within the meaning of the relevant law), or if a foreigner intends to purchase a Polish company holding title to real estate and, as a result of the acquisition of shares, the company becomes controlled by a foreigner.
V CORPORATE REAL ESTATE
In terms of the corporate structure of real estate investment funds investing in Poland (funds purchasing already developed office, retail or warehouse premises), there is usually an SPV for each property or at least for each location. Such an approach facilitates the management of projects, distribution of cash flow, control of costs, and liquidation of an SPV once a property is again sold on the market.
An ‘opco/propco’ structure is also used in a holding structure, albeit not exactly for the purpose of REIT spin-offs, but rather for having a clear division of know-how and management services within a group and allocation of assets to specific property companies, apart from cost optimisation.
The forecast for the Polish market in the near future is optimistic. The same economic factors will stimulate growth and strengthen its position in the CEE region: the low cost of credit, higher return rates than in western Europe, a stable and mature market, uninterrupted GDP growth, and the development of transport infrastructure.18 Most investment funds will likely focus more in the next several years on properties in regional cities (Kraków, Łódź, Wrocław, Poznań or the Tri-city). The Polish market follows global or European tendencies where the volume of real estate transactions increases.19 A specific segment of the market that will be of special interest in the near future is logistic and warehouse properties, as a result of recent legal regulations significantly hindering trade in agricultural land. As a consequence, the value of non-agricultural land within municipal boundaries should increase.
The introduction of REITs will change the manner of activity of funds in Poland and will, no doubt, be the biggest expected change in legal instruments encouraging investment in real estate. Recent years have been dominated by European, in particular, German, funds. Now, there is the increasing presence of capital from more distant countries such as the United States, South Africa and Arab oil-financed economies. It is also possible that after Brexit, some funds concentrated until now in the saturated but very stable UK market will turn their eyes to Poland and other countries in the region.
1 Izabela Zielińska-Barłożek and Łukasz Szegda, Michał Nowacki are partners, and Michał Wons, Maciej Szewczyk and Marcin Pietkiewicz are senior associates at Wardyński & Partners.
2 Colliers, ‘Przegląd Rynku Nieruchomości’, Podsumowanie roku 2014. www.colliers.com/pl-pl/-/media/Files/EMEA/poland/reports/2015/colliers-poland-podsumowanie-roku-2014.pdf.
5 The City, May 2016, p. 11.
6 CMS European M&A Study 2016. www.cms-cmck.com/CMS-European-MA-Study-2016
7 Private Equity in Poland – Facts and Opinions, report by KPMG, available at https://assets.kpmg.com/content/dam/kpmg/pdf/2016/06/pl-raport-kpmg-rynek-private-equity-w--polsce-2016.pdf.
9 For this reason, no distinction is made between REITs and private equity transactions when describing the largest real estate M&A transactions in Poland in the past two years.
10 All transactions were described on the basis of information published on www.propertynews.pl, www.pb.pl and www.eurobuildcee.com.
11 The City. Magazyn Nieruchomości Komercyjnych, ‘Polish funds still waiting for REITs’ (May 2016), pp. 12–13.
12 ‘REIT czyli wielka szansa dla rynku’ at www.parkiet.com/artykul/1432860.html.
15 For example, nationality or country of registered office and, pursuant to a new recent law, occupation, with regard to agricultural land.
18 Grupy Doradztwa Nieruchomości w EY – raport at www.ey.com/Publication/vwLUAssets/Broszura_Grupa_Rynku_Nieruchomosci_w_Polsce/$FILE/RE_Broszura_2015_pol_small.pdf.