Myanmar: Leasing of real estate by foreigners

Cynthia Herman

Like everything right now in Myanmar, the real estate market is hot. Foreigners and foreign-owned companies are not able to hold land or property in Myanmar, however this looks set to change imminently with the passing of a new condo law. It is expected to be passed in April of this year, and drafts indicate that condominium owners will be able to sell up to 40% of their buildings to foreigners, including condominiums from the sixth floor up.

Until then, foreign-owned companies are restricted to leases, with the maximum duration allowed depending on the type of company. If the company has approval from the Myanmar Investment Commission, a lease of up to 50 years, plus two additional terms of 10 years, is allowable. Otherwise, under The Transfer of Immoveable Property Act (1987), foreign-owned companies and foreign individuals are restricted to lease terms of a maximum of one year.

When entering into a rental contract, the lessee will have to consider stamp duty and withholding tax (WHT). Stamp duty rates vary with the type of lease, duration of lease, denomination of the contract and whether the property is located in a city area.

Table 1 shows stamp duty for normal rental contracts denominated in Myanmar Kyat only. Leases on property located in the city areas of Yangon, Mandalay and Naypyitaw are subject to an additional 2% levy under the Yangon Development Trust Act (1921), Mandalay Development Law (2002) and Naypyitaw Development Law (2009), respectively.

Table 1
Lease period	Stamp duty rate in Yangon, Mandalay and Naypyitaw	Stamp duty rate in all other areas
Less than 1 year	3.5% of whole amount	1.5% of whole amount
1 - 3 years	3.5% of average annual rental	1.5% of average annual rental
More than 3 years	7% of average annual rental	5% of average annual rental

Other rates apply to more unusual types of leases, such as a lease without a definite term, or one that purports to be in perpetuity.

Of particular interest to foreigners may be Notification 105/2012, which provides that lease contracts of any duration denominated in US dollars or other foreign currency are subject to stamp duty of 1% of the annual rental amount.

Stamp duty is payable on all real estate transactions, with an exemption for instance, where the party normally liable for stamp duty is a government organisation. Further, under Notification No. 18/97, an exemption may be applied for if the lease is held by a JV with a government organisation.

WHT should be deducted from rental payments. Lease fees are within the scope of contract-based service income sourced in Myanmar, and therefore are subject to WHT at a rate of 2% where the lease payment is made to a Myanmar resident.

When the purchase of condominiums becomes an option, foreign buyers must again consider stamp duty. The stamp duty levied on the transfer of property is 5% of the contract value, again with the 2% extra applied to properties in Yangon, Mandalay and Naypyitaw city areas, so in total, 7% stamp duty would apply in those areas.

Cynthia Herman (cynthia.herman@vdb-loi.com)
VDB Loi
Tel: +95 942 112 9769
Website: www.vdb-loi.com

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