NIGERIA
1. INTRODUCTION
1.1.
1.2.
The rules are too voluminous to be reproduced and explained for the
purposes of this Article, therefore, only the salient points will be
briefly discussed in order to give an idea to the readers of this Article
of how REITs operate in Nigeria, thus, any reader who wishes to
know more about REITs in Nigeria will have to conduct further
research.
2. REITs DEFINED
2.1.
2.2.
The requirements of subsection (c) are not exactly relevant for the
purposes of this paper, as they deal with specific requirements under
the laws of the United States.
2.4.
2.5.
2.6.
2.7.
Real Estate Investment Trusts have also been defined as entities that
are taxed as corporations and that qualify for a tax deduction for
dividends paid to shareholders provided that several organisational,
investment, and operational tests are satisfied on a year-by-year
basis.1
3.2.
Other Analysts and REIT historians posit that the evolution of the
REIT system as its is known today evolved from the industrial
revolution in Boston in the early 1900s, which put money into a few
peoples hands, which in turn led to a demand for investing
opportunities.
However,
existing
state
laws
did
not
permit
corporations to own real estate unless the property was essential for
the business to function, hence, a corporation in Boston could not
buy a building purely for investment or redevelopment purposes.
Hence the Massachusetts Trust was created to legally allow
companies to invest in real estate for non-business purposes.
Through
agreements
with
the
federal
government,
the
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3.3.
3.4.
4.2.
Put in simpler terms, REITs allow individuals pool funds to own real
estate that they would otherwise be unable to purchase individually.
5. TYPES OF REITs
5.1.
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Equity REITs
5.2.1. Equity REITs were organised frequently as blind pools for the
purpose of investing in several undignified rental income producing
properties to be held for an indefinite period for the production of
cash flow from rents, which would be distributable as dividends to
the beneficial owners.8 In contrast to the unspecified trusts there
are specified trusts which are organised for the acquisition of
specific properties which are described in the offer.
5.2.2. Simply put, Equity REITs are real estate companies are real estate
companies that acquire commercial properties such as office,
shopping centres and apartment buildings and lease such
properties to tenants who pay rent. After paying the expenses
associated with operating their properties, equity REITs pay out the
net profits from the rents to their shareholders as dividends. In all
cases, the distribution of profits is designed to approximate the
investment return investors would receive if they owned the
property directly.9
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Section 154 of the Act further provides that the Commission may
approve a collective investment scheme which is administered as:
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7.5.
The SEC Regulations has two separate requirements for trusts and
for companies that operate as REITs. Rules 511 to 525 deal with
the requirements of REITs operating as companies while Rules 526
to 542 make provision for the requirements for REITs constituted as
trusts. Whichever form is chosen, every REIT is required to be
registered with the Commission.10
Registration
with
the
Corporate
Affairs
Commission;
of
incorporation;
however,
the
Corporate
Affairs
See Rule 511 and 526 of the SEC Rules and Regulations
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8.1.3. The required contents of the prospectus of a REIT company are set
out in Rule 515; In addition to the contents set out in Rule 15,
Rule 512 provides that the order of contents need not follow any
particular order after compliance with Rule 515, provided that the
information is not set out in an obscure manner, thereby making it
incomplete or misleading. Rule 513 provides for statements that
must be included in a prospectus while Rule 514 makes it
compulsory for every prospectus to be dated on the front cover and
for such date not to be earlier than the date of the completion of
the board meeting or the date of the execution of the prospectus.
8.1.4. By the provisions of Rule 515(1) the initial public offer of a REIT
shall not be less than N1,000,000,000 (one billion Naira). This is
indicative of the minimum share capital requirement of a REIT
company wishing to float an initial public offer. while subsequent
offers cannot be less than N500,000,000 (Five Hundred Million
Naira)
Scheme
making
compulsory
for
Real
Estate
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8.3. Rule 521 specifies what kinds of assets and in what percentage REITs
can invest their funds in. In a way, this rule recognises the typology
of REITs earlier discussed in this Article as it provides thus:
8.3.1. For close-ended real estate investment company, the following
requirements shall apply:
8.3.1.1. Where the investment company is equity based, at least 75% of
the funds total assets shall be in real estate; the remaining 25%
may be in real estate related assets. Provided that not more than
10% shall be in liquid assets;
8.3.2. Where the investment company is mortgage based, at least 75% of
the funds total assets shall be in mortgage assets; the remaining
25% may be in real estate related assets. Provided not more than
10% shall be in liquid assets;
8.3.3. Where the investment company is a hybrid, at least 40% of the
funds total assets shall be in real estate; at least 40% shall
mortgage assets, while the remaining 20% may be in real estate
related assets. Provided that not more that 10% shall be in liquid
assets;
8.3.4. the level of new development activity by the fund manager shall not
exceed 20% of the fund gross asset value;
8.3.5. The manager shall hold on to any development for a minimum of
two (2) years before disposing of it.
8.3.6. For open-ended real estate investment company, the following shall
apply11:
8.3.6.1. Where the investment company is equity based, at least 70% of
the schemes assets shall be in real estate or real estate related
assets, a maximum of 10% of the schemes assets shall be in liquid
assets at all times and 20% may be in other assets;
8.3.6.2. Where the investment company is mortgage based, at least 70%
of the funds total assets shall be in mortgage assets; a maximum
11
Section 152 of the ISA defines an Open-ended Investment Company as a company with an authorized share
capital whose articles of association authorizes the acquisition of its own shares, structured in such a manner
that it provides for the issuing of different classes of shares to investors, each class of shares representing a
separate portfolio with a distinct investment policy
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8.5.
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9.2.1. Rules 531, 532 and 533 set out the requirements of the
Commission with respect to the Trust Deed setting up the REIT. A
Trust Deed is required to state the following:
9.2.1.1. Date if the trust deed;
9.2.1.2. Name of the management company (fund manager);
9.2.1.3. Name of the trustee company;
9.2.1.4. Name of the scheme constituted by the deed;
9.2.1.5. Name of the scheme constituted by the trust deed;
9.2.1.6. The trustee will be liable will be liable for breach of its duties
where it fails to carry out its responsibilities under the trust deed
or report breach of the terms to the Commission.
9.2.2. Rule 532 specifically makes provision for the compulsory contents
of a trust deed. After approval of the trust deed by the Commission,
the trust deed must be duly executed and stamped by the Federal
Internal Revenue Service
9.3.
9.4.1. The requirements for the above in Rules 540, 541 and 542 are the
same
with
the
requirements
under
REITs
constituted
as
TAXATION
CITA so that REIT entities will be seen as pass-through entities that are
merely investing the pool of funds contributed by individuals.
11.
CONCLUSION
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