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Laws & Regulations Database of The Republic of China (Taiwan)

Print Time:2024/04/26 10:44
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Chapter Law Content

Title: Clauses of the Real Estate Securitization Act CH
Category: Financial Supervisory Commission(金融監督管理委員會)
Chapter Two Real Estate Investment Trust
Section Two Utilization of Real Estate Investment Trust Funds
Article 17
The investment or utilization of a REIT fund shall be limited to the following objects:
1. Real estate under development or generating stable income;
2. Related rights of real estate under development or generating stable income;
3. Real estate related securities;
4. Scope of utilization as prescribed in Article 18; and
5. Other investment or utilization objects approved by the competent authority.
The minimum investment or utilization ratio of a REIT fund in cash, government bonds as well as investment objects set forth in the preceding Subparagraphs 1 to 3 shall be prescribed by the competent authority.
The investment of a REIT fund in securities set forth in Article 6 of the Securities and Exchange Act shall not exceed a certain ratio and amount of the offering limit. The certain ratio and amount shall be prescribed by the competent authority.
Where a REIT fund plans to invest in real estate or related rights of real estate under development, the REIT fund may not be drawn on until such real estate or related rights of real estate has obtained the construction permits.
The investment of a publicly offered REIT fund in real estate or related rights of real estate under development shall be limited to the following objects:
1. Land, buildings and related rights of real estate within the scope of an urban renewal business project approved pursuant to the Urban Renewal Act;
2. Public constructions as defined in the Law for Promotion of Private Participation in Infrastructure Projects; and
3. Public constructions in which REIT funds may invest as approved by the central competent authority in charge of the target enterprise concerned.
The investment of a publicly offered or privately placed REIT fund in real estate or related rights of real estate under development shall not exceed a certain percentage of the value of the fund’s trust property. The certain percentage shall be prescribed separately by the competent authority in consultation with the central competent authority in charge of the target enterprise concerned. Notwithstanding the foregoing, the certain percentage shall not exceed thirty percent (30%) for publicly offered REIT funds. The real estate or related rights of real estate under development as referred to in the two preceding paragraphs may not be any of the following objects:
1. Real estate or related rights of real estate in which the combined investment by enterprises in which the government or the state has more than twenty percent (20%) ownership and funds or juristic persons directly or indirectly controlled by the government exceeds ten percent (10%); or
2. Real state or related rights of real estate for which the government undertakes to assume its debt or guarantees its operating income.
The objects set forth in the preceding paragraph exclude the following:
1. An infrastructure project in which the authority in charge may, on the part of the non self-financing portion, subsidize part of the interest on loans needed or invest in part of the construction pursuant to Article 29 of the Law for Promotion of Private Participation in Infrastructure Projects; and
2. Real estate participating in urban renewal.
Article 18
The utilization of idle funds of the REIT Funds shall be limited to the following objects:
1. bank deposits;
2. purchase of government bonds or financial bonds;
3. purchase of treasury bills or negotiable certificates of time deposits;
4. purchase of commercial papers with a credit rating above certain level or guaranteed or accepted by banks with a rating above the level stipulated by the competent authority; or
5. purchase of other financial products approved by the competent authority.
Article 19
A trustee may borrow money with the trust property pursuant to the REIT fund contract; however, the purposes of the borrowing shall be limited to that needed for the acquisition, development or operation of the real estate or related rights of real estate, or that for the distribution of profits, interests or other proceeds.
A trustee has the discretion to hypothecate the mortgage or other security interests for the trust property within the scope of the borrowed money. The owner of security interests is only entitled to petitioning to the court for compulsory execution against the trust property within the extent of hypothecation of real estate mortgage or other security interests.
With regard to the money borrowed by a trustee pursuant to Paragraph 1 hereof, the trustee shall make announcements on the local daily newspapers circulated at the place of its principal office or in other manners prescribed by the competent authority within two (2) days after the contract of borrowing enters into force.
To ensure the financial health of REIT funds, the competent authority may prescribe an upper limit of the ratio for the money borrowed by the trustee pursuant to Paragraph 1 hereof. When the money borrowed exceeds the upper limit, the trustee shall make adjustments within the time prescribed by the competent authority
Article 20
To ensure the liquidity of the REIT Funds, the competent authority may prescribe the liquidity asset range and ratio of the REIT Funds. The Trustee which fails to achieve such ratio shall make adjustments within the time prescribed by the competent authority.
Article 21
The guidelines of REIT Beneficial Securities, such as distribution, contract conclusion, information disclosure, risk management, internal auditing, and internal control, shall be enacted by the Trust Association along with other related associations and be submitted to the competent authority for approval.
The Trustee shall engage in the REIT business pursuant to the guidelines as referred to in the preceding paragraph.
Article 22
The Trustee shall ask a Professional Appraiser for an appraisal report pursuant to the Real Estate Appraiser Act prior to utilizing the REIT Funds for trade of real estate or related rights of real estate for above certain amount prescribed by the competent authority.
The competent authority of real estate appraisal or the Real estate Appraiser Association shall prescribe a standard for the appraisal report as referred to in the preceding paragraph.
The Trustee shall be in compliance with the following provisions when appointing Professional Appraisers for appraisal reports:
1. the same trade with the amount of over Thirty Million New Taiwan Dollars (NT$ 300,000,000) shall be appraised by more than two Professional Appraisers. Provided that there is a more than 20% difference among the price appraisal of the professional appraisers on the same date, the Trustee shall proceed pursuant to Article 41 of the Real Estate Appraiser Act;
2. with regard to the appraisal prior to the effective date of the trade contract, the interval between the date of value and the effective date of the contract shall not be over six (6) months;
3. the Professional Appraiser and appraising personnel shall not be the related parties or substantive related parties, as prescribed in Number 6 of the Financial Accounting Standards Gazette, to the trading parties.
4. other matters prescribed by the competent authority of real estate appraisal.
With regard to the trading action as referred to in Paragraph 1 hereof, the Trustee shall make an announcement in the daily local newspapers circulated at the place of its principal office or in other ways prescribed by the competent authority within two (2) days after the contract takes effects.
Article 23
For the utilization of the REIT fund, a trustee shall make investment decisions based on the investment analysis report, put into execution, produce the investment decision records and implementation records, and submit the review reports to the board of directors periodically.
The investment analysis report as referred to in the preceding paragraph shall contain analysis essentials, bases and suggestions. The investment decision record shall contain the types and quantities of invested objects and timing of investment. The implementation record shall contain actual investments or the types, quantities, and prices of objects traded and time of trading, and explain the reasons for the disparity between the decision and the actual investment or trading.
With regard to the utilization of the REIT fund, whether the trust property is managed or disposed by the trustee itself or an appointed real estate management institution, the trustee shall prepare a written management report according to the planning, acquisition, development, sale and operational phases, and shall submit the respective review report of each phase to the board of directors every quarter.
The written information referred to in the preceding three paragraphs shall be recorded sequentially and retained in file by the trustee; the period of retention shall not be less than five (5) years from the expiration date of the trust.
Article 24
With regard to the REIT trust property, when all or part of it is leased pursuant to the trust contract, the rent may not be subject to Article 97, Paragraph 1 of the Land Act; and the term of lease may not be subject to twenty (20) years as prescribed in Article 449, Paragraph 1 of the Civil Code, but shall not be longer than the duration of the trust contract.
Article 25
The Trustee shall publicly offer or privately place and invest or utilize the REIT Funds pursuant to this Act, the REIT plan, the REIT contract, and the following provisions:
1. shall not provide guarantee, make loans or provide security,unless otherwise provided for in this Act;
2. shall not engage in securities margin transactions;
3. shall not trade with respect to the REIT Funds and REAT established by the Trustee;
4. the total amount of money invested in short-term bills of any company shall not be over 10% of the REIT Fund net asset value at the date of investment;
5. the deposit in the same financial institution as well as the total investment amount of bonds or short-term bills issued, guaranteed or accepted by such financial institution shall not be over 20% of the REIT Fund net asset value at the date of investment and 10% of such financial institution’s net value;
6. The total investment amount of Beneficial Securities and Asset-Backed Securities issued or delivered by other Trustees or special purpose companies pursuant to this Act or the Financial Asset Securitization Act shall not be over 20% of the REIT Fund net asset value at the date of investment;
7. shall invest in real estate and related rights of real estate pursuant to the principle of risk diversification;
8. shall not use the REIT Funds approved by or effectively registered with the competent authority as authenticity guarantee to the application or the publicity of profit guarantee to Beneficial Securities; and
9. shall not engage in matters prohibited by the competent authority.
If necessary, the competent authority may prescribe the principles of risk diversification for the investment of the REIT Funds in real estate and related rights of real estate. The Trustee that violates the principles shall make adjustments within the time prescribed by the competent authority.
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