Tag Archives: Real Estate

What Rights to Land Does a Foreign Invested Company Enjoy in Mongolia?



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Articles 27-44 of the Law of Mongolia on Land regulates granting land for possession or use. In this blog we will discuss difference between the right to possess and use land in Mongolia as well as the right of foreign investment company in this field.

The right to use and possess land are different by the subjects, purpose of its use, size and duration under the Law of Mongolia on Land. For instance, in regards with the subject, the land possession shall be given only to Mongolian citizens, companies and organizations.

Under Mongolian legislations, foreign investment company is considered as Mongolian legal entity. However, according to Article 44 of the Law of Mongolia on Land, there is only right to use the land not to possess for foreign investment company. Also, the article 6.5 of the Constitution of Mongolia specifically state that “the State may allow foreign nationals, legal persons, and stateless persons to use land for a specified period of time under conditions and procedures as provided by law”.

This is related to the concept “Land relations are the basis of national heritage and independence” of the Constitution of Mongolia. Therefore, granting land possessing rights to foreign invested company is contrary to the concept of the Constitution of Mongolia.

Foreign invested economic entities can use land for specific purposes, terms and conditions set forth in the Law of Mongolia on Land and the Government shall set the relevant term and duration to use land.

Are Uncompleted Buildings Real Estate?



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It is common practice for a real estate developer to take an order or advance payment from customer for an apartment building, obtain an uncompleted building certificate from the state registry, and pledge the certificate to a bank or non-bank financial institution and obtain loan in order to finance the project.

According to the State Registration Agency, as of September 30, 2020, 552 uncompleted buildings in Ulaanbaatar were registered as real estate. Of these, 123 uncompleted buildings are pledged as collateral for loans from banks and financial institutions. In addition, there are 333 people who have not been able to obtain a real estate certificate even though the building has been completed and people has purchased the apartment. Moreover, bribery of the General Authority of State Registration in order to obtain a real estate certificate, as well as the creation of a network of bribes through acquaintances, is due to the regulation of registration of uncompleted buildings as real estate.

Therefore, taking into account the above circumstances, Article 10.10 of the Law on State Registration of Property Rights” amended as “An apartment building will not be registered in the state registry of property rights until it is commissioned/ handed over for permanent use” and the amendment was supported by the relevant standing committee and was recently submitted to the plenary session of the Parliament.

It is an important to change the regulations that corrects the practice of registering uncompleted buildings as real estate which violates citizens’ property rights, and creates new regulations related to the rights of public apartment and surrounding land. In addition, the amendments are based on the need to harmonize the Civil Code and the Land Law, including the need to change and improve the regulation of serious violations of citizens’ property rights related to public housing/apartment.

Avoid Risks in Foreign-Mongolian Cooperation Agreements



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Our Mongolian Lawyers regularly assist foreign investors in various forms of joint ventures and business cooperation with Mongolian partners. These partnerships are sometimes necessary to allow a foreign investor to participate where Mongolia law restrictions direct foreign ownership. For example, Mongolian law has certain restrictions on entities with foreign investment owning and using land. One client the firm has worked with, a European party engaged in property development entered into one such arrangement with a Mongolian partner for the development of land located in a special restricted zone of Ulaanbaatar.

The European side, and the Mongolian side entered into a “Cooperation Agreement” which described a cooperative business arrangement in which the European party contributed funding, while the Mongolian party contributed access to the land targeted for development. This type of cooperation, is common in Mongolia between foreign investors and Mongolian property owners, and has been upheld by Mongolian courts.

However, when entering into such an arrangement, a foreign investor should be aware of risks.  A few years into the partnership, relations broke down between the Mongolian party and the foreign investor resulting in extensive litigation over the validity of the Cooperation Agreement and ownership of the land.

Foreign participants in this kind of Cooperation Agreement should engage independent Mongolian legal counsel to review the agreement for compliance with Mongolian law, and to ensure the foreign party is protected. The agreement should be clear about the nature of the cooperation, and the contributions of each party. It is important specify that legal ownership of the land remains with the Mongolian party. To eliminate confusion, there are certain key phrases which should be avoided when describing the foreign investor’s relationship to the land. If the language of the Agreement is ambiguous the Mongolian side may latter attempt to challenge the validity of the Agreement alleging violation of Mongolian law.

Basics of Land Pledges



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Any individual or legal entity may pledge as collateral land they own or possess. If the land was transferred to an individual or a legal entity based on a valid legal agreement, the person receiving such rights has the ability to legally pledge those rights so long as the legal claim to the land rights remains valid. Registration of a pledge of land will require presentation of documentation including the cadastral, and a copy of the land ownership, possession, or utilization certificate along with the pledge agreement.

A bank or a person authorized to conduct credit activities may also receive a pledge to land based on rights granted by a loan agreement. Such rights may be registered by the bank or creditor as pledgee as with any pledge.

Land may be pledged separately from the buildings that are constructed on it, or even which are in the process of being constructed. A pledge agreement must stipulate the land and buildings may not be pledged separately, if this is the intention.

In case of disagreement between a pledgee collecting on pledged rights to land, and an owner of buildings on the land, parties should seek to reach a mutual agreement between themselves, or in extreme cases seek resolution at court.

Time Running Out for Mongolians to Claim Free Land Entitlement



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According to Mongolian law, each Mongolian citizen is legally entitled to own a plot of land. Plot size allotted will be depending on the location, which a smaller plot available in Ulaanbaatar, and a larger plot (up to .05 hectares) available in more rural areas This ownership entitlement is a one-time opportunity granted by “The Law on Allocation of Land to Mongolian Citizens for Ownership”. But the opportunity is not forever and the period to apply for a free grant of land in accordance with the law expires on May 1st this year.

As the deadline is fast approaching, our Mongolian lawyers would like to offer some tips on the application process to Mongolian citizens who have not yet taken advantage of the land grant.

Firstly, citizens applying for the land grant must submit applications materials to the local governor or land development office. The Application requirements as set out by law require applicants to submit the following documentation and materials.

Citizens need to submit their application to the relevant local Governor or land department to acquire land for ownership for the purpose of family needs.

  • notarized copies of birth certificates of family members who have not reached 16 years of age
  • letter of confirmation by a Governor of khoroo or bag on the status of the family and number of its members;
  • if land is possessed according to Law on Land, then copies of the land certificate to possess land or notarized copy of the land possession contract;
  • an outlining map showing location and size of the land requested (if the land is to be owned on a shared basis among a group then an outlining map of every parcel belonging to each owner showing its size, location and boundary).

The local governor will review the application documentation and resolve the application within a period of 3 months from receiving the application. Usually the land is granted unless there are irregularities in the documentation. The land grant issued by the governor will indicate the plot’s location, boundaries, purpose, full name of the new owner, the owner’s identification number and birth certificate number for those who have not yet reached 16 years of age.

Based on the decision of Governor, the local Immovable Property Registration Office will register the land ownership status and will issue a registration certificate for immovable property reflecting ownership.

Can Foreign Companies Acquire Land in Mongolia?



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In this article we shall discuss what land rights are there for foreign citizens, foreign companies /foreign invested companies/ in Mongolia and is it prudent to invest.

Pursuant to laws there are three types of land rights in Mongolia: land ownership, land possession and land use right. All land, other than land granted for ownership to citizens of Mongolia, is owned and managed by the state. Thus, obviously aside from the state only citizens of Mongolia are entitled to land ownership. Therefore, restrictions on private foreign land ownership in Mongolia are absolute, meaning foreign citizens and companies are prohibited from outright land ownership. Domestic companies and Mongolian citizens may “possess” and “use” the land, where foreign companies and citizens may only “use” the land and only for purposes established by legislation.

Foreign citizens, who permanently reside (for more than 183 days) in Mongolia, may acquire land use right through open auctions for residential needs only. Foreign citizens may be given land for use up to 0.05 hectares for a residential lot, and up to 0.1 hectares – for gardening activities (such as cultivating vegetables, fruits and berries). Land may be given for use for up to 5 years through a contract and be extended by up to 5 years at a time.

For foreign companies or Mongolian companies with foreign shareholding the acquiring of land use rights is much more complicated process. Foreign companies may acquire land use rights through an open auction process similar to foreign individuals. However only the Parliament of Mongolia is entitled to make a decision on giving land for use to foreign companies (including or Mongolian companies with foreign shareholding); whereas, a decision on giving land for use to foreign citizens is made by governors of corresponding level. Land may be given for use to foreign companies under lease or concession contracts for up to 60 years and extended once for up to 40 years upon its initial term. The Government determines land borderlines and land use regulations.

Aside from restrictions on acquiring land use rights, there are a couple additional restrictions for foreign citizen and companies’ land rights. Foreign citizens and companies are prohibited to freely transfer, or pledge acquired land use rights. Such transfers and pledges may be undertaken only between Mongolian citizens, companies and organizations. Mongolian citizens and companies, who gave the land for utilization to foreign citizens and companies without proper prior approval from authorized state body, are liable to compensation of damages and termination of their land use rights. In other words, in order to acquire land use right from Mongolian citizens and companies, once again one must obtain approval from abovementioned authorized state bodies. Thus, it makes acquisition of land use right from domestic companies and citizens also complicated.

In conclusion, while the process for a foreign invested company is difficult, it is doable. For those foreign companies for which acquiring such land use rights is important, it will be important to obtain the advice and assistance of an independent Mongolian lawyer.

Foreign Investors in Mongolia: Know the Immovable Property Tax



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The Immovable Property Tax Law was adopted in 2000 by the Mongolian Parliament and has been effective since 2001, over 16 years. Under the law, tax is imposed on all kinds of immovable properties which cannot be used for their original purpose when they are separated from the land. All persons or legal entities, who own immovable property in the territory of Mongolia, are considered taxpayers.

Local governments at the provincial level, and in Ulaanbaatar, are responsible for imposing a tax on immovable property within their respective locality. The tax level may be .6 – 1.0 of the value of the property as calculated considering the location, intended use, size, and overall demand of the property in question.

For tax purposes, the value of immovable property excluding the underlying land is determined, firstly, by the valuation as registered with immovable property state registry. If there is no such registration, the value is determined by the valuation of insurance on the property. And if there is no registration or insurance valuation, the value will be established as the value that is written down in financial records of the property owner in accordance with the law.

According to the law, the following immovable property types are exempt from immovable property tax:

  • immovable property of legal persons financed by state and local budget (state owned or funded enterprises);
  • residential houses;
  • buildings and developments for public use;
  • management of industrial and technological parks, unit production, structures within technological parks and other immovable properties; and
  • buildings and facilities constructed and registered in a designated tax free zone.

A Mongolian company or other legal entity which owns taxable immovable property will pay equal amounts of tax on the immovable property before the 15th of last month of each quarter for their annual tax liability. An individual citizen of Mongolia, or a foreign citizen who owns immovable property, must pay a once annual tax on immovable property before the 15th of February.

We have encountered many clients which confuse the immovable property tax with the tax on income from the sale of immovable property, but these are not the same. The tax on income from sale of immovable property is a onetime tax assessed upon transfer of real estate, and will be equal to 2% of the transaction cost. In contrast the Immovable property tax is owed each year for the duration of ownership of the property.

Mongolia Set to Allow Trading of Real Estate Interests Via Stock Exchange



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Mongolian Parliament approved the Law on Allocation of Land to Mongolian Citizens for Ownership (LALMCO) in 2002 under the authority of Article 6.3 of the Constitution, “the state may give for private ownership plots of land, except pastures and areas under public and special use, only to the citizens of Mongolia”.

Implementation of LALMCO began May 1, 2003, granting every Mongolian Citizen a right to own a plot of land. This was the first time in the history that Mongolian citizens were entitled by law to own land. However, implementation of this law was not satisfactory. The right to acquire land for ownership is opened to all Mongolian citizens according to LALMCO, but implementation mechanism were not set out in this law, as result, many citizens face obstacles to their legal acquisition of land for their ownership. Those individuals who live in an apartment in the city, in particular have encountered difficulty in gaining access to land ownership despite the  guarantee in the LALMCO. Since LALMCO’s implementation only 7.6% of the 1.2 million city dwellers in Mongolia have been granted the land rights as guaranteed.

Reasons for the unsatisfactory implementation of LALMCO are not for lack of available land, or   limitations on use of land. The law is missing specific regulations and procedures with regard to establishing and confirming land ownership rights obtained under LALMCO. As a result of the lack of clear regulations and procedures, some national and local authorities have used the law to distribute land to friends and family through corruption and without transparency or public oversight.

As set forth in the new draft law, a Certificate of the Right to Own Land will be issued to each citizen, and upon establishing Land Ownership, a Certificate of Land Ownership will be issued. A Certificate of the Right to Own Land will represent each respective citizen’s right to own land. The Certificate of Land Ownership will clearly set out the individual’s ownership rights to a specific plot of land.  Details regarding issuance of these certificates and relevant regulations are also set out in the draft law.

The draft law also provides an interesting mechanism regarding the Land Ownership Certificate. Land Ownership Certificates will be able to be securitized and traded via the Mongolian Stock Exchange. This will provide an avenue for profits for those citizens, such as city dwellers, who are not planning on living on or using the granted land rights themselves.

While real estate can be very valuable, undeveloped land, may not always offer any profit or other benefit to the owner. Development of the land often takes substantial resources and time commitment, which owners may not be able to provide. The ability to trade ownership interests in these plots of land could be a major reform for the Mongolian economy enabling many citizens to profit off land ownership in new ways.

Currently, it remains unclear whether foreign individuals or companies will be able to invest in and trade the Land Ownership Certificates once they are listed on the exchange. This could also be a substantial opportunity for foreign investments in Mongolia. We will keep our eye on developments and update here when we know more.