IRELAND Law and Practice Contributed by: Diarmuid Mawe, Craig Kenny, Katelin Toomey and William Fogarty, Maples Group
in the case of a school, the public sector employs the teaching staff; and • Design-Build-Finance-Operate-Maintain PPPs, which may be used in the case of a water-treatment plant where the private sec - tor staffs the plant to ensure service delivery on behalf of the public sector contractor. 4.7 Enforcement of Restrictions on Development and Designated Use The Planning Acts govern restrictions on devel - opment and permitted use. The procedure for planning offences is as follows: • issue a warning letter; • serve an enforcement notice; and • institute legal proceedings. The warning letter, which must be served with - in six weeks of receiving a complaint, gives a developer up to four weeks to rectify or make a submission in respect of the issue. Any submission received from a developer or owner must be taken into account when decid - ing whether to serve an enforcement notice. An enforcement notice sets out the requirements of the local authority in order for the issue to be rectified by the developer/owner and contains a timeframe within which the work must be com - pleted. Non-compliance with an enforcement notice is an offence, and the local authority may institute legal proceedings in the District Court. In urgent cases, the local authority may apply to the Circuit or High Court for an order direct - ing that particular actions take place or cease, as the case may be. The statute of limitations applies to planning enforcement for unauthor - ised development. Typically, this means that the period during which enforcement action can be taken for breach of a condition of a planning per -
mission is limited to seven years from the life of the planning permission (usually five years).
5. Investment Vehicles 5.1 Types of Entities Available to Investors to Hold Real Estate Assets Irish companies, non-Irish companies (such as companies incorporated in Luxembourg), limited partnerships, REITs and Irish-regulated funds are used by investors to acquire real estate assets. A REIT is a type of public limited company (PLC) that must meet certain criteria; it will not be liable to corporation/income tax on its property rental income or profits, or to capital gains tax on dis - posals of assets of its property rental business. A REIT must be in operation for a minimum of 15 years in order to avoid any latent capital gains tax exposures when it ceases to be within the regime. REITS are not commonly used in the Irish market, where just one remains. Institutional investors historically used Quali - fying Investor Alternative Investment Funds (QIAIFs) to acquire Irish real estate. QIAIFs are most commonly established as Irish Collective Asset-management Vehicles (ICAVs). Previously, ICAVs offered investors some tax advantages, but this has changed as are now subject to a 20% withholding tax on profit distributions to investors and are exposed to a deemed income tax charge of 20% if they have debt costs above certain thresholds. As a result, ICAVs have not been as popular for Irish real estate investment in recent years.
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