Real Estate Investment Trust (REIT)
Regulatory Summary
Status and structure
A REIT is not a juristic person, but a pool of assets owned by a trustee.
A trustee is entrusted with powers to oversee and administer assets of the trust in interests of the unitholders, who are the beneficiaries of the trust.
A REIT is regulated under 2 major laws:
1. The Trust for Transactions in Capital Market Act B.E. 2550
2. Securities and Exchange Act. B.E 2535.
Acquisitions of real estate as REIT's assets are permissible under the following two cases:
purchasing real estate and acquiring the ownership of the property (freehold);
investing in leasehold contracts.
The REIT will lease the real estate for rental income and distribute the benefits to the unitholders. A REIT Manager (RM) is responsible in managing the trust in the interests of the investors.
Filing of application for an offer for sale of REIT units
A REIT Manager (RM) has the duty to file an application for offer for sale of units.
A Financial Advisor (FA)* is required to jointly submit the application and certifies the correctness of the information. **
In case that the RM manages other REITs, types of the other REITs' assets must not be the same. (except for REITs converted from property funds)
* FA must be independent from sellers (sponsors) of the property to the REIT.
** Except for RM being an asset management company and having no interests with the sponsors, participation of FA in filing of the application is waived.
General provisions
Investment in real estate assets shall not be less than 500 million baht.
Assets to be invested shall be clearly identified.
The launched trust certificates may be categorized in different classes by types of returns, refunds, fees or expenses.
The name of the REIT shall reflect key characteristics of the trusts.
REIT units are required to be listed in SET.
Offer for sale and allocation of units
The offeror may arrange proportions of units to be allocated to different groups of investors.
This shall be disclosed in the filing.
The buyers of the units shall settle unit subscription in cash or cash-equivalence.
The number of units allocated to any persons or a group of the associated persons shall not be over 50% of the units sold.
Information disclosure and advertisement
Compliance with the requirements on information disclosure set out in the registration statement for offer for sale of REIT units (Form 69-REIT) as follows:
Investments
Investments in the real estate ready to produce income shall be > 75% of the total asset value of the trust. The excess of the capital shall be invested in other types of assets* such as government bonds, treasury bills, bank deposits, debt instrument mutual funds (both Thai and foreign), or in units of other RIETs (both Thai and foreign) and property fund type 1.
In case of investments in incomplete real estate:
Investment amount for development + investment outlay for acquisition of the assets shall be
< 10% of the total asset of the trust.
Investments in real estate abroad is permissible.
* the trustee may manage itself or assigns other persons to manage this portion of other assets.
Due diligence on real estate to be invested
Physical issues including location, usage conditions, entrance and exit, useful life of the property.
Financial issues such as financial track records, demand trends for usage of the space, the competition situation, lease contracts accompanied with the property, analyses of tenants.
Regulatory issues such as ownership, disputes, encumbrance, permits, ability of the counterparty in conducting legal transactions, completeness and accuracy and enforceability of the title document or relevant contracts.
In case of investing in foreign property, the due diligence must include opinions of a legal advisor, who is an expert in the law of that country, on possibilities of the REIT to legitimately acquire and hold the property in that foreign jurisdiction.
Leverage Limit
Leverage limit is < 35% of the total asset value. In case of assets with credit ratings of investment grades, the limit is up to 60% of the total asset value.
Borrowing policy must comply with the provisions contained in the trust instrument.
Issuance of debt instruments shall contain no features or conditions of perpetual bond / embedded derivatives* /securitization.
REIT assets can be collateralized.
Encumbrances incurred in other cases shall only be for a normal commercial practice in that business or transactions.
Lending to subsidiary companies is allowed.
* except for rights granted to the debtors to exercise premature settlement of loans (callable option); or rights of the REIT to request debtors to repay loans before the maturity date (puttable option). Interest rates shall be fixed and clearly specified. There shall be no clauses of paying interest rates varied according to other reference factors (as specified in clause 13/2(2) of the Notification No. TorJor 49/2555)
In the case of debt financing from the group of trustees as a part of the mobilizing fund process, such information must be disclosed at the initial stage of the filing.
Guarantee of income
At least one income guarantor shall be a juristic person.
The trust instrument shall contain a provision specifying that the guarantor of income agrees to bind as the guarantor of income and as a joint debtor with the lessee;
An agreement of three parties comprising the guarantor of income, the lessee and the REIT, shall be established with a covenant stating that in case the income guarantor fails to comply with the contract of income guarantee, it shall be deemed that the lessee violates the lease contract.
The filing form requires disclosure of credit ratings of income guarantors+ financial highlights from the latest last three years (or as available) + RM's opinions/analyses on the guarantor's ability in fulfilling the contractual agreements.
Facilitation of benefits
Apart from leasing* real estate, REITs are prohibited to operate other businesses such as hotel, hospital activities.
In case of leasing the real estate to operators of other businesses restricted for RIETs such as hotel and hospital, the variable rent portion dependent on the lessee's business performance must be less than 50% of the fixed rent.
The lessee shall not use the leased real estate to operate immoral or unlawful activities.
*Leasing herein means granting a permission to use the property's space to and including providing services relating to a permission to use the property's space. The rent means compensations from performing such activities.
Transactions on principal assets/with related persons
- Acquisition/disposal of principal assets
Transaction size (X) in propotion to total asset value
| Execution of transactions
|
small X < 10%
| at REIT Manager's discretion
|
medium 10% ≤ X < 30%
| requiring an approval from the board of directors of the REIT Manager
|
large X ≥ 30%
| requiring a resolution of approval by the unitholders
|
- Transactions with REIT Manager and Related Party Transactions (RPT) with REIT Manager:
Acquisitions or disposals of principal assets.
Establishment, amendment, or cancellation of contracts pertaining to benefits from the property, or other actions undertaken.
Transaction size (whicherver higher)
| Execution of transactions
|
small : ≤ million baht or not over 0.03% of NAV
| at REIT Manager's discretion
|
medium > 1 million baht or ≥ 0.03% of NAV
| requiring an approval from the board of directiors of REIT Manager
|
large : ≥ 20 million baht or exceeding 3% of NAV
| requiring a resolution of approval by the unitholders
|
Definition of related parties to the REIT Manager is based on the same principles for listed companies.
- Transactions with the trustee
A trustee shall not perform any actions against the interests of the REITs, nor actions which will cause the trustee to lose independence except for the following:
being transactions with measures or control mechanisms of check and balance for fairness of the transactions;
in case of transactions with conflicts of interest with the REITs, the unitholders should have been sufficiently informed*in advance;
in case of objections from unitholders with the number exceeding one-fourth of trust units sold, the trustee shall not execute/grant a permission to execute the transactions.
*information disclosure through the Stock Exchange or other channels accessible by all unit holders to execute transactions.
Trust certificate holder meetings
A REIT Manager shall organize an annual general meeting for holders of trust certificates within four months from the accounting year-end of the REIT or upon a request of trust unitholders of the number ≥ 10% of the total number of the unitholders.
- Meetings arranged for seeking resolutions from trust unitholders:
with a quorum of not fewer than 25 unitholders or not less than half of the total unitholders who hold an aggregate number of not less than one-third of the total units;
a general resolution: over 1/2 of the number of unitholders with voting rights who attend the meeting;
a special resolution: not less than ¾ of the number of unitholders with voting rights who attend the meeting.
acquisitions/disposals of principal assets with values of not less than 30% of the total asset value of the REIT;
increases/reductions of capital which were not specified in advance in the trust instrument;
raising capital by general mandate;
RPT transactions with sizes over 20 million baht or over 3% of NAV, whichever is higher;
changes to distributions and returns of investment to the unitholders;
changes to the trustee;
amendments to the trust instrument regarding matters that materially affect the unit holders' rights;
dissolution of the REIT.
Other rules
Payout of benefits ≥ 90% of the adjusted net profit (with reference to the cash position of the REIT)
- Termination of REITs upon following circumstances:
The number of unitholders falls below 35.
Disposals of assets and investments in new real estate were unable to make up an aggregate value of > 500 million baht or > 75% of the total assets within 1 year from date of the disposal of the assets.
A resolution passed by the unit trust holder to dissolve the REIT.