Updated: May 2020
Land use rights in Myanmar are governed by a multitude of laws and regulations that were adopted by the British Empire and the subsequent governments of Myanmar.
These numerous laws resulted in a complex land classification system, which remains in place until today. Restrictions apply both with regard to the categories of land, the ownership, leasing and use of immovable property, and the registration of titles.
Furthermore, Myanmar laws distinguish between Myanmar citizens (and Myanmar-owned companies) and foreign citizens (and foreign-owned companies), which also affects ownership, leasing and use of land and immovable property.
Under the current legal confines of the Transfer of Immovable Property Restriction Law 1987, foreigners and foreign-owned companies are not permitted to own immovable property and are restricted in its use and leasing.
Exceptions from the restrictions on long-term leases were available under Myanmar’s Foreign Investment Laws since 1988, but foreign ownership was only mentioned for the first time in 2016, when the Myanmar Parliament approved the Condominium Law 2016. The new law would enable foreigners or foreign-owned companies to purchase up to 40% of the total housing units in a condominium.
Comment Luther: It should be noted, however, that the implementing regulations of this law are still being drafted.
Foreign ownership, leasing and use of land and immovable property are governed by the Transfer of Property Act 1882 and the Transfer of Immovable Property Restriction Law 1987.
Pursuant to sec. 3 Transfer of Immovable Property Restriction Law 1987, no person shall sell, purchase, give away, mortgage, exchange or transfer by any means immovable property to a foreigner or foreign-owned company. Correspondingly, no foreigner or foreign-owned company shall acquire immovable property by way of purchase, gift, mortgage, exchange or transfer, sec. 4 Transfer of Immovable Property Restriction Law 1987.
Further, the law limits the term for leases of immovable property to foreigners or foreign-owned companies. Pursuant to sec. 5 (a) Transfer of Immovable Property Restriction Law 1987, no person shall grant a lease of immovable property for a term exceeding one year to a foreigner or foreign-owned company. Correspondingly, no foreigner or foreign-owned company shall receive a lease of immovable property for a term exceeding one year, sec. 5 (b) Transfer of Immovable Property Restriction Law 1987.
Comment Luther: It should be noted, that the Transfer of Immovable Property Restriction Law 1987 does not in any way differentiate between foreigners and (foreign) permanent residents.
Myanmar laws provide certain exemptions from the aforementioned restrictions.
1. Myanmar Investment Law 2016
The most important exemption is provided in the Myanmar Investment Law 2016, pursuant to which any (foreign) investor who has obtained a Permit or Endorsement of the Myanmar Investment Commission may apply for Land-RightsAuthorisation to enter into long-term leases of up to 50 years with the possibility of two extensions of 10 years each.
This is a clear improvement from the provisions of the former Foreign Investment Law 1988 and Foreign Investment Law 2012, which allowed long-term land use only for foreign investors with a Permit of the Myanmar Investment Commission, which was generally only available to large, capital-intensive investments in the manufacturing and infrastructure sectors.
Of particular interest is further, that any (foreign) investor is allowed to sub-lease immovable property from an investor who has received a Land-RightsAuthorisation from the Myanmar Investment Commission. This means that (foreign) investors holding a Land-RightsAuthorisation are permitted to sub-lease (parts of) their immovable property to (foreign) sub-lessees within the limits of their Land-RightsAuthorisation, without the sub-lessees having to apply for a separate Land-RightsAuthorisation from the Myanmar Investment Commission.
2. The Special Economic Zones Law 2014
Pursuant to sec. 79 Special Economic Zones Law 2014, foreign investors in Special Economic Zones are permitted to enter into long-term leases within the Special Economic Zones for a period of up to 50 years, with the option to extend the lease for a further period of 25 years.
3. The Condominium Law 2016
On 29 January 2016, the Myanmar Parliament passed the longawaited Condominium Law 2016, pursuant to which foreigners and foreign-owned companies may purchase up to 40% of the housing units in condominiums.
Comment Luther: In previous drafts, foreigners were only allowed to buy housing units on or above the sixth floor of a condominium. This requirement has, however, been deleted from the final law.
Condominium is defined as a high-rise building of six floors or more, built as a collectively-owned structure on collectivelyowned land in compliance with such specifications as stipulated by the Ministry of Construction and registered under the Condominium Law 2016. The law does not, however, provide for a comprehensive definition of “collectively-owned land”.
Pending such a definition in the implementing regulations, the Condominium Law 2016 remains ineffective.
4. Transfer of Immovable Property Restriction Law 1987
Pursuant to sec. 14 Transfer of Immovable Property Restriction Law 1987, the relevant Ministry may allow exemptions from the provisions of the law to a foreign government for the use of its diplomatic mission accredited to Myanmar, to United Nations’ agencies, and to any other organisation of individuals.
The new Myanmar Investment Law 2016 provides that any (foreign) investor may apply for a Land-Rights Authorisation to enter into long-term leases with private landlords, or – in case of stateowned land – the relevant government departments or government organisations, if the investor has obtained a Permit or Endorsement issued by the Myanmar Investment Commission (sec. 50 (a) Myanmar Investment Law 2016).
Upon issuance of the Land-Rights Authorisation, a foreign investor may enter into leases with an initial term of up to 50 years with the possibility of extension for two additional terms of 10 years each. Longer leases may be allowed by the Myanmar Investment Commission to promote the development of remote regions with lower economic development.
An investor who has received a Land-Rights Authorisation shall, within 20 working days from execution of the lease agreement, submit the details to the Myanmar Investment Commission.
No separate Land-Rights Authorisation shall be required, if the investor proposes to sub-lease immovable property from another investor, who has received a Land-Rights Authorisation from the Myanmar Investment Commission (rule 135 of the Myanmar Investment Rules 2017).
Comment Luther: Investors do, however, have to file Form (15) – Notification for Sub-lease of Land or Buildings with the Myanmar Investment Commission.
The new Myanmar Investment Law 2016 has simplified and streamlined the application for long-term land use rights. Fewer documents have to be provided to the authorities, and applications involving investments of less than US 5 million may be handled at the State/Regional level, with the close involvement of senior Directorate of Investment and Company Administration staff stationed in the State/Region.
Investors who have not been issued a Permit by the Myanmar Investment Commission are required to apply for an Endorsement to be eligible for a Land-Rights Authorisation.
The procedure for the Endorsement application with the Myanmar Investment Commission is as follows:
Pursuant to rule 79 Myanmar Investment Rules 2017, the Myanmar Investment Commission or the relevant State/Regional Committee must consider the objectives, principles, rights and responsibilities of the Myanmar Investment Law 2016 and apply the following criteria in the assessment of an Endorsement application:
2. Land-Rights Authorisation
While often applied for simultaneously with the application for a Permit or Endorsement from the Myanmar Investment Commission, the application for Land-Rights Authorisation is technically a separate process.
Pursuant to rule 117 Myanmar Investment Rules 2017, the application for Land-Rights Authorisation shall contain the following information:
Upon receipt and acceptance of the application, the Myanmar Investment Commission or the relevant State/Regional Committee shall assess the application within 30 days, and if approved, issue the Land-Rights Authorisation within 10 working days from the date of its decision; a copy of the LandRights Authorisation shall be delivered to the relevant Union Ministries and State/Regional Government Authority.
The Myanmar Investment Commission or State/Regional Committee may request additional information from the investor at any stage of the procedure. If such information is not provided in time, the application shall lapse.
The Stamp Act 1899 stipulates, which instruments are subject to payment of stamp duty, a form of tax charged on certain legal instruments such as lease agreements, which requires the affixation of physical stamps on the instrument in question.
The payment and affixation of the stamps is generally due before or at the time of execution of the instrument, unless the relevant instrument has been executed outside of Myanmar.
A fine of three times the payable stamp duty (but at least MMK 500) may be imposed, if stamp duty:
The Registration Act 1909 distinguishes between compulsory and discretionary registration.
Pursuant to sec. 17 (1) Registration Act 1909, leases of immovable property from year to year, for any term exceeding one year or reserving a yearly rent must be registered (for leases of immovable property for a term not exceeding one year, and leases exempted under section 17 Registration Act 1909, registration pursuant to sec. 18 Registration Act 1909 is optional).
Comment Luther: On 5 May 2017, the Myanmar Parliament published a draft of the Law concerning the Registration of Deeds. Upon enactment, the Registration Act 1909 will be repealed and replaced.
The draft continues to distinguish between compulsory and discretionary registration. According to sec. 16 of the Draft Law concerning the Registration of Deeds, the registration of leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent will continue to be compulsory.
Pursuant to sec. 17 of the Draft Law concerning the Registration of Deeds, the registration of leases of immovable property with a term not exceeding one year will continue to be optional.
The registration with the Registration of Deeds Office is due within four months from the execution of the document. Late registration may be permitted upon payment of a fine, provided that delay does not exceed four months.
For the registration of a lease agreement, the following documents and information must be submitted to the Registration of Deeds Office:
The above documents may be submitted in English and/or Myanmar language. A notarised Myanmar translation is usually required, if the original documents are not in Myanmar language.
Any lease agreement to be registered shall, together with the supporting documents, be examined by the deputy officer and the registrar of the Registration of Deeds Office. The registrar shall scrutinise the relevant title document to assess whether the property may be leased to a (foreign) investor and used for the desired purpose.
The registration fee depends on the term of the lease. For a lease of more than one year, which is subject to mandatory registration, the fee is 0.5% of the average annual rent.
After payment of the registration fee, the lessor, the lessee and the two witnesses shall sign and stamp with their fingerprints the original and copy of the lease agreement as well as the relevant registration books.
The Registrar will issue the chalan (i.e. receipt of payment) for the lease agreement and start the internal registration process.
After registration, the original lease agreement will be returned to the registering party, supplemented with a registration number, registration book number, registration file number, and the date of registration.
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