29 April 2020
In Myanmar, it is common for loans granted by financial institutions to be secured by mortgages over immoveable property. This article discusses the procedure for the registration of mortgages over immoveable property made in favour of foreign financial institutions in Myanmar and an anticipated change in practice in this regard.
Under the Transfer of Property Act 1882 (“TPA”), a mortgage is the “transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability”. As a mortgage involves the transfer of an interest in immoveable property, a foreign financial institution, in receiving such mortgage, would technically be in breach of the Transfer of Immoveable Property Restrictions Law 1987 (“TIPRL”). The TIPRL prohibits the sale or transfer by any means of immoveable property to a foreigner or foreign-owned company (“TIPRL restriction”).
The Registration Law 2018 (“Registration Law”) requires a mortgage deed documenting the creation of a mortgage to be registered with the Office of Registration of Deeds (“ORD”), failing which the mortgage will not be effective against the land in question. This was also the position under the old Registration Law.
The Myanmar Companies Law 2017 (“MCL”), which came into effect on 1 August 2018, introduced an exemption to the TIPRL restriction, allowing a foreign financial institution to take security over immoveable property in Myanmar as collateral for a loan granted by the foreign financial institution to a borrower in Myanmar. Section 228 of the MCL specifically provides that the grant of a mortgage over immoveable property wherever situate, or any interest therein, and the exercise by or on behalf of the mortgagee of its rights under such mortgage to realise the value of any property secured by the mortgage, should not be taken to be in breach of, or be restricted by, the TIPRL.
However, even after the passage of the MCL, the ORD continued to apply the TIPRL restriction and generally did not accept the registration of a mortgage in favour of a foreign financial institution.
Registration of mortgages with the ORD
Allen and Gledhill (Myanmar) has been involved in efforts to engage the ORD on this issue through various workshops, roundtables and meetings, including those organised by institutions such as the Asian Development Bank. Following these dialogues and engagements, it is understood that the ORD in Yangon is now ready to accept registration of mortgages made directly in favour of foreign financial institutions (i.e. without the involvement of a local security agent). While the ORD did not elaborate on the specific types of mortgages (e.g. simple mortgage or English mortgage) that will be accepted for registration, it is anticipated that the ORD will gain familiarity with the different types of mortgages and will be willing to accept various types of mortgages for registration over time.
Requirements for registration of mortgages with the ORD
The following documents are required for the registration of a mortgage under the Registration Law:
- Duly completed application form prescribed by ORD
- One original and one copy of the duly stamped and executed mortgage deed
- A notary public-certified Myanmar translation of the mortgage deed
- One original and one copy of the duly stamped and executed facility agreement
- Original of all title documents in relation to the land being mortgaged
- Original updated Forms 105 and 106 issued for the purpose of bank loan / mortgage
- Original of the board resolutions of the mortgagor and (if applicable) borrower, authorising execution of the mortgage deed by directors, and registration of the mortgage deed, on its respective behalves
- Original of the board resolutions / power of attorney authorising the bank’s signatory
- Original Certificate of Incorporation of the mortgagor and (if applicable) borrower to be shown to the ORD, with a certified true copy of the same to be submitted to the ORD
- Original identification documents of each person (including witnesses) who has signed the mortgage deed, or his / her representative authorised by way of power of attorney
It should be noted that each person (including witnesses) who has signed the mortgage deed, or his / her representative authorised by way of power of attorney, is required to be present in person at the ORD for the registration.
The fees payable by the party registering the mortgage are as follows:
- Stamp duty payable to the Internal Revenue Department (“IRD”) on the:
- Mortgage deed: 0.5% of the amount of loan being secured
- Facility agreement: Nominal stamp duty as adjudicated by the IRD (usually MMK2,500 or MMK300), on the basis that the facility agreement is stamped as an instrument secondary to the mortgage deed, pursuant to section 4 of the Stamp Act 1899
- Registration fee payable to the ORD at the rate of 0.5% of the amount of loan being secured, to be paid on the mortgage deed
Following submission of the documents to the satisfaction of the ORD, processing of the documents would typically take at least 21 days, after which the registered mortgage deed will be ready for collection upon notification by the ORD.
The ORD in towns or cities outside of Mandalay city and Yangon may not have experience in registering mortgages, and have sometimes prescribed different documentary requirements on a case-by-case basis.