The UK's new regime for the registration of overseas entities ("OEs") holding UK land has been implemented by the Economic Crime (Transparency and Enforcement) Act 2022 ("ECTEA"). The ECTEA provides for a register of OEs to be maintained by UK Companies House and sets out how OEs should register, what information they need to provide and strict penalties for non-compliance.
The ECTEA is primarily intended to prevent and combat the use of UK land for money laundering by providing transparency over the beneficial ownership of OEs holding UK land. Entities incorporated in the UK are not covered by the new law because their ownership information is already subject to disclosure under the UK's 'people with significant control' ("PSC") regime, which the ECTEA mirrors to an extent.
Bedell Cristin is a leading adviser to many offshore companies holding UK land and is closely following the implementation of the ECTEA and its registration requirements. We have extensive experience with anti-money laundering and similar regulations in our respective jurisdictions, so are well placed to assist clients with these new registration and ownership reporting requirements.
The law applies to OEs, including any body corporate, partnership or other entity which is a 'legal person' governed by the law of a country outside the UK. Most entities established in BVI, Cayman, Guernsey or Jersey, for example, would be OEs.
It will be necessary for OEs, unless exempt, to be registered with UK Companies House if they hold or deal with interests in UK land which are either freehold or leasehold (with a term exceeding 7 years in England and Wales or longer durations in Scotland and Northern Ireland). Specifically:
- OEs will not be able to register acquisitions or dispositions (including mortgages) of land with the UK Land Registry on or after 5 September 2022 unless they are either registered as an OE with Companies House or exempt. Similar restrictions will apply to Scotland and Northern Ireland.
- OEs which already own UK property should register with Companies House by 31 January 2023; this applies to property acquired on or after (a) 1 January 1999 in England and Wales, (b) 8 December 2014 in Scotland and (c) 1 August 2022 in Northern Ireland. The relevant land registry will enter a restriction against the title of any OE which is not registered or exempt.
- OEs will need to disclose details of transfers of UK property made between 28 February 2022 and 31 January 2023.
The new register will be available for public inspection, but sensitive information such as dates of birth and residential addresses will not be disclosed on the public register.
Before registering with Companies House, OEs will need to identify their registrable beneficial owners and obtain specified information about each of them. Beneficial owners broadly include persons who:
- directly or indirectly hold more than 25% of the shares or voting rights,
- are entitled to appoint a majority of the board,
- exercise or are entitled to exercise 'significant influence or control', or
- in the case of trustees or members of partnerships (or similar bodies), meet one of the above conditions or are entitled to exercise significant influence or control over the OE.
Beneficial owners will be registrable if they are individuals, legal entities or governmental authorities. Beneficial owners are exempt if, broadly, their interest in the OE is held through a legal entity which is subject to its own disclosure requirements, under the PSC regime, for example. Like the PSC regime, the ECTEA sets out steps which an OE must take to identify its beneficial owners.
An application to register must include certain details relating to the OE and its registrable beneficial owners or, if these cannot be obtained, details of the OE's managing officers. For any registrable beneficial owners who are trustees, information in respect of the trust will be required. On registration, Companies House will allocate an 'overseas entity ID' to the OE.
Importantly, information relating to an OE's registrable beneficial owners must have been verified by a 'relevant person' who must deliver a statement regarding the OE and its ownership to Companies House in a prescribed form. A relevant person must be regulated under the UK's money laundering regime and must be registered with Companies House for the purposes of verification.
The ECTEA also obliges OEs to keep their information up to date and to provide an annual statement as to their registrable beneficial owners. If these change, the OE must provide updated details. An OE will not be permitted to deal with property during any period of non-compliance with the updating requirements.
As well as preventing transfers of UK land by or to unregistered OEs, the ECTEA provides criminal offences for non-compliance, with penalties including fines and imprisonment in some cases. Where offences are committed by an OE or other legal entity, the officers of the entity who are in default are generally also deemed to commit an offence.
OEs holding interests in UK land will need to act quickly to ensure that they comply with the new law and are able to continue transacting following the upcoming deadlines. Many OEs are facing uncertainty around the detailed requirements of the ECTEA and the procedures which it implements, and will need to engage professional support quickly in order to verify any registrable beneficial owners. Bedell Cristin can assist in this regard.
If you would like any further information or assistance, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.