The best investment on earth is earth. ~ Lois Glickman
After more than 10 years of economic stagnation, Saipan is experiencing an economic boom. It started in 2014 after Best Sunshine obtained an exclusive license to operate a casino on Saipan, it picked up speed in 2015 after Best Sunshine was authorized to open a temporary casino training facility, and accelerated in 2016 when construction on the resort casino began. Other major construction projects have now started and optimism for the future fills the air. Business investors are coming to island to investigate what is going on and to open companies and bank accounts and set up offices. The tourists have also started to return. There are now multiple direct flights from China to Saipan bring tourists. Philippine Airlines has resumed direct flights between Saipan and Manila after discontinuing them more than 10 years ago. A second airline is now flying between Saipan and Korea, and a second airline may soon be flying between Saipan and Guam. All this activity in the private sector has meant that government revenues have increased. Business license applications are up, as are employee wage rates. And the real estate market has taken off!
Are you interested in investing in real estate on Saipan and getting in on the boom? Hold on for just a moment. Real property law in the Commonwealth of the Northern Mariana Islands (called the “CNMI” for short) is unique in the United States. Investors interested in acquiring property on Saipan (the most populated island in the CNMI) should absolutely consult with an attorney first. This article is just a brief overview of a few of the issues to be concerned about as you look for property on Saipan to invest in, and this article is not a substitute for talking to an attorney directly about the specific investment you are considering. But, in just a few paragraphs in an outline form, here are some points to consider:
You Can’t “Own” Land Here (Article XII)
Saipan restricts ownership of land to persons of “Northern Mariana Islands descent.” This restriction is found in the CNMI Constitution at Article XII and originated in the Covenant that created the political union between the CNMI and the United States in 1978. A person of Northern Mariana Islands descent (or an “NMD”), is a legal term defined in the Constitution. Being an NMD turns on whether that person or their parents were born or domiciled in 1950 in what is now the CNMI, and whether, at that time (1950), they were a citizen of the former Trust Territory of the Pacific Island1. For everyone who is not NMD, the longest interest in real property that can be held is 55 years. This means that foreign investors (including the vast majority of United States citizens) can only lease2 land.
Article XII is somewhat controversial and was the subject of a great deal of litigation in the late 1980s and early 1990s during Saipan’s last economic boom. For the investor, it is important to keep in mind that the value of the investment can and should be recovered in much less than 55 years. A 55 year lease also provides enough time for banks and other lenders to feel secure that if they make a loan backed by a mortgage in the leasehold estate and have to foreclose, that they can recover their money. Consequently, most investors are satisfied with only being able to obtain a 55 year lease, and for them Article XII is not an issue.
Article XII Condominium Units
There is an exception to the Article XII restriction that only an NMD can own land: condominium units built above the first floor can be owned in fee simple (meaning forever) by anyone. However, the condominium owner can still only lease the ground floor for up to 55 years, including where the electrical and water conduits all pass, where the stairs and elevators and the lobby on the first floor are located, and where the parking lot will be. In short, a Non-NMD can “own” a condominium above the first floor forever, but they won’t be able to get to it after 55 years.
Other attorneys may disagree, but the condominium unit exception to Article XII is a legal mirage. It was created by a 1985 amendment to the CNMI Constitution as a trade-off for the removal a provision that had allowed corporations that were only 51% owned by NMDs to own land. It was not a good trade. The exception allowing Non-NMDs to own condominium units is legally unworkable at present. A further constitutional amendment will be required to make it work; one giving Non-NMDs the right to own easements to the condominium units, as well as own the supporting structures that hold the building up. Until such a constitutional amendment is made (and it may never come) investors should accept that the most they can get is a 55 year lease of real property in the CNMI.
Before You Lease You Need to Do Your Due Diligence
Once you identify the property you are interested in, some due diligence is in order. A common practice is to enter into an “agreement to lease” that allows for a due diligence period, and prevents the lessor from leasing the property to someone else while you spend money and time conducting due diligence. Usually there is already an agreement on the price for the lease when the agreement to lease is entered into. Separate consideration is given for the agreement to lease, but it can be in the form of a deposit toward the lease price, and made returnable if there is a defect with the title to the property or if problems with the property are discovered during due diligence.
Attorneys can only help with a limited amount of due diligence work, such as reviewing title documents, as attorneys generally lack expertise in much of what is done during due diligence (i.e., building inspections, boundary surveys, environmental studies, etc.). When hiring an attorney to assist with a land transaction make sure you know the attorney’s role in the transaction, including with regard to due diligence. If the attorney’s role is just limited to drafting a lease then there may be no one looking out for you with regard to important issues that may affect the development of the property.
Here are some basic parts of due diligence:
The first order of business in due diligence is to find out who really owns the property (you can often get this done before you sign the agreement to lease). The simplest way to check the ownership (referred to as “title”), is to purchase a Preliminary Title Report (“PTR”) from one of the two companies on Saipan that issue these reports, Security Title, Inc3 or Pacific American Title Insurance & Escrow Company4.
The PTR will confirm who the record owner of the property is, if the property has already been leased, and if there are any mortgages or liens on the property. The companies that issue the PTRs are both brokers for Stewart Title, Ltd., a large insurance company, and title insurance is available from Stewart Title for leases of Saipan property5.
Title to property on Saipan is often “clouded,” meaning who owns it is not clear. One of the most common problems is that the property was acquired by a person who passed away and no probate was done of their estate to legally determine who has title now. Another problem often seen is an old lease or mortgage was recorded covering the property that may have ended or been satisfied but no cancellation of lease or release of mortgage has been recorded. If the old lease is in default or an old mortgage paid but no one is around to sign a cancellation or release of mortgage to clear the title, a legal action called a “quiet title action” may needed. A quiet title action is filed with the court and takes time (months or more) to resolve. Investors should be prepared for title problems and delays in entering into the lease and developing the property while a probate or quiet title action is completed, and title made clear.
2. Boundary Surveys
Saipan has rural areas with larger lots and urban areas with smaller lots. Sometimes lots as shown on official title maps as overlapping. Often in the urban areas structures have been built over or crossing a boundary line. Also, particularly in rural areas, access is sometimes a problem with property being land locked. A boundary survey can confirm official lot placements, confirm where structures have been built, and show you where access to the property you are interested in is available. For these reasons a boundary survey is a good thing to do during the due diligence period.
3. Environmental Studies (BECQ)
On Saipan there are environmental issues that can effect development plans. These issues include (but are not limited to) the presence on the property of endangered species, wetlands, floodplains, and sometimes even toxic materials. The Bureau of Environmental and Coastal Quality (BECQ) and several other governmental agencies that operate under BECQ regulate development to address these and other issues6.
Saipan is home to a number of endangered species, particularly certain rare birds, and often before you can develop the property you are interested in you will be required to have a survey done to make sure there are no endangered species on the property. If endangered species are found on the property, generally, you can still develop the property, but you will have to take action, subject to government oversight, to minimize the harm you do to the endangered species. You may have to relocate the species or more likely you will have to contribute to a mitigation bank.
“Wetlands” are also common on Saipan. A “wetland” is an area where there is a watershed or waterway. Developing in areas that contain wetlands is highly restricted or outright prohibited. Make sure the property you are interested in leasing does not have wetlands before you sign the lease.
Floodplains, areas subject to flooding during storms, are something to be concerned about on Saipan. There are restrictions on building in areas recognized as floodplains.
Toxic materials are sometimes present on Saipan property. Discarded transformers that leak PCBs are sometimes found. Old batteries, paint cans, even abandoned cars can present problems related to toxins that can get into the soil. Generally, none of these problems are insurmountable, but they can add to the cost of developing the property.
4. Land Use Restriction Reviews (Zoning)
Saipan has a zoning law and a zoning board7. Not all properties can be used for all commercial purposes. As an obvious example, in a residential area you cannot set up a factory. Check the zoning of the area you are interesting in during due diligence.
There are also setbacks from the high watermark along the lagoon, from roadways, from neighboring property, and from wetlands and waterways. Setbacks can effect what you can do on the property. An attorney can work with you to determine what setbacks apply to the property you are interested in and your intended development use.
There are also special restrictions for certain uses. Apartment buildings, hotels, and condominiums all have minimum parking requirements based on the number of units, usually found under the zoning laws. With land limited on Saipan, having to set aside a lot of it for parking can be very disappointing to a developer, but may be required.
5. Existing Structures Due Diligence
If the property you are interested in leasing has a building already on it, special due diligence will be required. Most buildings on Saipan are made of cement (either poured in place or hollow block). Cement does not last forever and having an engineer or other construction professional preform a survey of the building’s integrity is very important to do before you sign the lease.
If the building is old, there could be issues with the electrical wiring. Depending on the quality of the original construction, there could be plumbing and other issues. All of these construction related factors should be investigated by the right professional.
6. Ongoing Business Liability Due Diligence
If the property you are interested in has an ongoing business on it, like a commercial building or an apartment building, and you are going to acquire all or part of that business with the land, special due diligence will be required. Subtenant leases will need to be verified, issues over security deposits will have to be addressed, and special attention to liens and legal actions will be required.
If you are acquiring an ongoing business it may come with employees. Special due diligence is required when you end up with someone else’s employee related to verifying that they were correctly paid their wages and that under US Immigration Law they can work for you.
An ongoing business will often come with what is referred to as “personal property” or even intangible property (land is called “real property,” everything else that you can touch is called “personal property,” and “intangible property” can include trade names and client lists). To acquire ownership of personal property (like the furniture in an apartment building or a service vehicle) will require the execution of bills of sale and other documentation. Intangible property (like the trade name of a business) may require specialized documentation. What will be required to acquire these forms of property and if this property can be acquired (like a trade name of a franchise) should all be sorted out in due diligence.
Take Your Time and Do Your Due Diligence Right
There is a saying when it comes to real estate that often makes its way into the lease: “time is of the essences.” Lessees and lessors are always in a hurry. But when it comes to due diligence, there is another saying that applies: “Truth is confirmed by inspection and delay; falsehood by haste and uncertainty.”8 Brokers and lessors will tell you that the property they want you to lease is just right for you, and if you skip your due diligence you may find out later those claims were false.
Once you finish your due diligence, it is time to work on your lease.
Drafting a Good Lease
Once you are satisfied with the outcome of you due diligence and ready to sign the lease, having a good lease to sign is of critical importance.
Leases can be extremely complicated and can reach a hundred pages in length. Such a lease can try to plan for every possible contingency that may arise over the entire 55 year term. Or, leases can be very simple. A former CNMI Supreme Court Justice, when he was in private practice, favored one page “quitclaim” of all interests for a 55 year term, as opposed to a detailed lease. The middle ground is to cover all essential terms in a lease with enough detail that if there is a lawsuit the court will know from what the lease says itself what was intended by the parties who signed it. If the court can tell what was intended from the lease, and assuming what was intended was lawful, the court will enforce the lease.
Here are some basic lease pointers, but not a substitute for consulting with an attorney:
1. Who Are you?
At the top of most leases is a statement identifying the lessor and the lessee (together we call them the “parties”). The lessor is the owner of the property. The identity of the lessor you will know from the PTR with the proviso that if the lessor is married you will also need a written spousal consent. The CNMI has a marital property act that protects the property interests of a spouse even though their name may not appear in the record of title.
Who the lessee will be gives you some choices to make. You can hold the lease in the name of a person, in a trust, or in the name of a company.
You can hold the lease in your name, and in the name of your spouse9, or in the name of anyone else you want including in just the name of your spouse or your children. But it is generally not a good idea for you to place the ownership of the lease in your child’s name if your child is a minor. This is because it will make development and transferring the lease more difficult since a minor is not legally able to enter into a contract such as a construction contract or an assignment of a lease. If your minor child holds the lease as the lessee, you may have to set up a guardianship for your child if you want to develop the property or transfer the lease. But then again, for tax or estate planning reasons, you might want to place the lease in the name of your minor child. A trust, which is like a corporation, might be what you want if you want your children to have the exclusive benefit of the lease.
If you chose to hold the lease in the name of a company, and if you don’t already have a company, you can set up a new company and choose between a regular corporation and a limited liability company. Regular corporations that have boards of directors and issue stock may be better for some contemplated uses of the property and ownership structures, but generally, limited liability corporations are preferred for tax reasons. Earnings of regular corporations are essentially taxed twice: once at the corporate level and again when the profits are distributed by dividends to the shareholders. A Limited Liability Company (an “LLC”) is taxed like a partnership and passes the tax on to the members (LLCs have “members” rather than shareholders). Provided that the LLC has more than one member it can elect to be taxed like a corporation and that can actually be preferable for some foreign investors.
Companies (corporations and LLCs) can be 100% foreign owned. There is no requirement that a company have a US citizen as a shareholder or a member for the company to hold a lease or engage in business in the CNMI.10 Nor is it required to have a US Citizen Director or Officer. The only requirement of this nature is that all corporations are required to have a resident representative to receive service of process.
As to how to hold the lease, you should consult with an attorney about your options, and also possibly an accountant with regard to the tax consequences. But, if you are rushed to sign a lease before the deal gets away, you can initially hold the lease in your own name and then transfer it to a company once you set the company up. A person who temporarily and in trust holds title to land for a company until the company is established is referred to as a “promoter,” and if the company that will hold the lease is set up quickly enough, there should be no tax on the transfer to the company from the promoter.
2. Property Description: Identify the Property Clearly
A lease needs to clearly identify the property being leased. Reference to a lot or tract number provides an easy and accurate way to define the property you want to lease, but make sure you have those numbers right. It is also a good practice to reference recorded maps. And attaching a map to the lease to help make clear the property leased is a common practice. If you can state with some accuracy the square meter size, that also helps make clear what property you are leasing. But sometimes reliance on metes and bounds is required and a surveyor may have to help with the property description. A boundary survey conducted during due diligence can help ensure the property is described accurately in the lease.
3. The Consideration to be Paid: Be Clear on the Rent
The simplest of leases provides that all the rent is paid up front upon closing. With a prepaid lease, for the next 55 years, no rent is owed. But rent can be paid over time (monthly, quarterly, annually, or any way the parties agree). Rent can also increase over time, such as by 5% every ten years, if that is what the parties want. However the rent is to be paid, make sure the lease clearly explains payment.
If rent is paid over time, late fees for late payments can be addressed in the lease, and how much time to give the lessee to cure a default if there is a failure to pay rent should be stated in the lease. Likewise, how to give notice during the 55 year term should be addressed.
Saipan law requires that the full amount of rent be disclosed. Normally this is done in the lease. The reason for the disclosure of the rent is that taxes are assessed on the transaction price, and the CNMI government needs to know how much tax is due. There is no avoiding taxes.11
4. The Lease Term: Don’t Exceed 55 Years and Severability
The absolute time limit on a lease to a Non-NMD is 55 years. If you write a lease from January 1, 2017 to January 1, 2072, that will be a lease for 55 years and one day! That violates Article XII.
There are lease provisions that can inadvertently extend the lease term beyond 55 years and violate Article XII. An automatic renewal after 55 years extends your term beyond 55 years and violates Article XII. An option to buy the property if the law on Article XII should change gives you a springing future interest, and although contingent, is an interest that goes beyond 55 years and violates Article XII. Providing in the lease that any improvements built on the land will still belong to the lessee after the lease expires is really an ownership in the land (building are attached to the land and are part of it) and violates Article XII, as does a provision requiring the lessor to buy the improvements at the end of the term of the lease.
A violation of Article XII renders the lease “void ab initio.” This means void from the beginning, as if the lease never existed. Further meaning that the lessee loses not only the lease but everything built on the property. The lessor gets everything back and owes the lessee potentially nothing. (The CNMI Legislature has provided limitations on this draconian result of an Article XII violation12 but the statutes involved have largely been untested by the CNMI courts).
A standard clause in most leases these days to help protect against an inadvertent Article XII violation is one providing that if any lease provision is found unlawful, that provision alone will be “severed” from the lease, saving the rest of the lease. One developer on Saipan didn’t have such a clause in their lease and learned the hard way the consequences.13 If Article XII is violated by having a lease clause that effectively extends the term beyond 55 year, the lease will be rendered void unless there is a severability clause. Without a severability clause the entire lease can be lost along with the value of everything built on the property14. But, a severability clause may not work in all situations.
Generally, being creative is good, but it can be disastrous if you get too creative in a lease. Don’t try to get around Article XII. Stick to 55 years.
5. Use: “Any Lawful Use” is the Usual Language
To avoid issues with what you will do with the property, a clause allowing the property to be developed for “any lawful use” is common to include in a 55 year lease. It is also common to include clauses that authorizes you to demolish and remove anything built on the property during the term of the lease, to change the contours of the land, and not requiring that the property be restored to the condition it was in when the lease was first signed. Such clauses may help avoid future disputes.
You may want a section in the lease specifically allowing the development of condominiums. The CNMI has a Condominium Act and if you want to develop condominiums you will need to comply with that Act. What should be in the lease is a provision allowing for leasehold condominiums that have a duration that does not exceed the term of the lease. Also, as discussed above, there is a form of condominium referred to as an “Article XII Condominium Unit” that can be owned fee simple by a Non-NMD if the unit is built above the first floor. Article XII Condominium Units present special issues as explained very briefly above and if that is something that interests you, definitely talk to an attorney. In any event, as Article XII Condominium Units are fee simple land interests, they should be conveyed separately by deed, and not in a lease that only conveys a tenancy for a term of years.
If you contemplate a use for the property that could harm the value of the property, such as operating a quarrying that will mean when the property is returned at the end of the lease it will be just a big hole, you should address that in the lease and obtain the lessor’s approval. As a general rule, “waste”, meaning harming the land, is not permitted by a lessee.
6. Exit Strategy: Assignments and Subletting
Fifty five years is a long time and it is very likely that you will want to “sell” your lease to a new investor before the 55 years runs out. A clause in the lease that specifically allows the “assignment” of the lease to another is highly desirable (leases are transferred by “assignment”) although as a matter of law, such a clause may not be technically required to allow an assignment.
Subletting is a step down from an assignment. Subletting means you remain the lessee but part of the property (like an apartment, the second floor of an office building, or a separate section of the land you are leasing) is leased by you to another party. Over the 55 year term of your lease you (or your children or your company) might want to sublet part of the property and have a tenant. A clause that allows you to sublet the property should be in the lease so there will be no issues with the owner (or the owner’s children) when you want to sublease to tenants.
7. Disputes: Breach, Notice, Arbitration and Attorney’s Fees Clauses
A good lease will address how a dispute will be handled. One thing that can be done in the lease is to help define violations of the lease. A violation is called a “breach”. There can be a major breach (usually called a “material” breach) such as not paying the rent, and there can be a minor violations, like, for example, not letting the lessor know you changed your mailing address. You can’t anticipate every breach that can occur over the 55 year term of the lease but you can sort out breaches between material and minor to some degree. Then you can require that if you do breach the lease that you receive some notice of what the lessor thinks you did wrong, and a chance to fix it. You can also limit the relief if you don’t or can’t fix the breach in time. An example is that you can limit the lessor to money damages, rather than evicting you, if your breach is minor.
If the parties cannot decide themselves what to do about a breach then they will need help. Usually this means filing a lawsuit and going to court. However, the parties can chose to go through arbitration rather than to court. But if you think you would rather arbitrate you need to have that provided for in the lease (arbitration is a matter of contract and unless agreed to it cannot be compelled).
If there is a dispute between you and the lessor, whoever wins in court (referred to as the “prevailing party”) can recover their attorney’s fees from the loser, but only if the lease specifically allows the prevailing party to do so. If that provision is not in the lease and you win at trial, you still lose because you will have to pay all your own attorney’s fees.
1. Hire an Attorney to Help Early and Don’t Make Your Attorney Rush
The old adage, “an ounce of prevention is worth a pound of cure,” is very true when it comes to leasing property. Hire an attorney to advise you on the due diligence you may want to do and to help you with your lease. Often there is a perception that attorneys have form leases and just change the names of the parties and a few other provisions like the amount of the rent, so they don’t need much time to draft a lease. Yes, we do have forms, and we do use those forms. But every transaction is a little different and some are very different. Hire an attorney you trust and when that attorney tells you that they need more time than just a couple hours to put the lease together, also trust that advice.
2. Consider Using an Escrow
An escrow essentially holds the money to be paid to the lessor for the lease, holds the signed lease until the money is paid, and then when all the conditions of the agreement to lease have been satisfied, the escrow records the lease and releases the money. The event of recording the lease and releasing the money is called the “closing.”
Escrow services are available through the two title companies on Saipan mentioned above. Some attorneys will also provide escrow services. Using an escrow can make a transaction go much smoother and create a good record of what happened with the transaction if there are problems later.
3. Understand How Taxes Here Work
Presently, property taxes are not charged on Saipan. That is a big advantage over most of the United States.
Taxes are charged on income and when property is transferred taxes are charged on the earnings of the lessor.15 The tax amount is based on a percentage of the transaction price. The highest amount is 5% and that applies on transactions of $750,001 or more.16
Taxes owed by the lessor must be withheld by the lessee, and paid to the CNMI within 10 days of the closing. If the lessee does not withhold the taxes owed by the lessor, the lessee can be held liable for the tax, plus penalties and interest.
Lessors are never happy to learn that they have to pay taxes on the transaction. Often they will also be paying a brokerage commission, may be paying the legal fees of their own attorney, and often will have dropped their asking price during negotiations. Sometimes a transaction will blow up when the lessor leans at the closing they also have to pay taxes. There is a possible solution. The CNMI can issue a certification directing that less than the amount stated in the tax chart is due, and the lessee then only has to withhold what is in the certification. Less tax than what is stated in the tax chart will usually be due because the tax owed is an earnings tax and not a gross receipts tax. The only problem with the CNMI issuing a certificate of the tax actually due is that the CNMI is very slow in issuing tax certifications and waiting for one might cause an unacceptable delay of the closing.
4. Last, Get Some Good Help (Actually Do this First)
Land on Saipan is moving. Everyone is in a rush. But land transactions on Saipan can be complicated and present unexpected legal problems and it is the wise investor who will get help. Slow down, hire an attorney, and make informed decisions on the particular land you are being offered for lease.
1 Article XII can be found at the website of the Commonwealth Law Revision Commission at http://www.cnmilaw.org/articlexii.html
2 A “lease” transfers an interest in land for a set time duration, unlike a deed that (subject to restrictions in the deed) transfers an interest in land forever. A lease is a form of contract.
3 Security Title can be found at http://www.securitytitle.net
4 Pacific American Title can be found at http://pamericantitle.com
5 BECQ’s website can be found at http://www.deq.gov.mp/sec.asp?secID=18
6 See, 4 CMC §4105.
7 The Commonwealth Zoning Board’s website is http://www.zoning.gov.mp/sec.asp?secID=1
8 Tacticus. Senator and historian of the Roman Empire
9 The CNMI has marital property laws and how they affect property interests is something to discuss with an attorney.
10 Immigration Laws are unique in the CNMI. Consult with an attorney regarding the requirements of Immigration Laws and the possibilities of taking advantage of such programs as the EB-5 visa program.
11 A nice benefit of investing in the CNMI is that there is no property tax. The tax assessed on a real estate transaction is actual an earnings tax owed by the transferor.
12 See e.g., 2 CMC §4951, Equitable Adjustment.
13 Diamond Hotel Co. ltd. v. Matsunaga, 4 N.M.I. 213 (1995) http://www.cnmilaw.org/pdf/supreme/4NMI-213.pdf
14 This is such a harsh result the Legislature has provided some relief by statute. Unfortunately Article XII is part of the Constitution and the validity of the statutory relief has not yet been considered by the CNMI Supreme Court. The best advice is enter into a lease that does not raise the risk of an Article XII violation so that you will not have to hope the Supreme Court upholds a statute to save your investment.
15 CNMI Code 4 CMC §1823
16 The tax rates are set out in 4 CMC §1301 and are:
(1) $0 to $5,000 No tax.
(2) $5,001 to $50,000 1.5 percent of the amount over $0.
(3) $50,001 to $100,000 Two percent of the amount over $0.
(4) $100,001 to $250,000 2.5 percent of the amount over $0.
(5) $250,001 to $500,000 Three percent of the amount over $0.
(6) $500,001 to $750,000 Four percent of the amount over $0.
(7) $750,001 and over Five percent of the amount over $0.