Real Estate

Investment in the U.S. real estate market has been popular among foreign investors for decades. In 2010, a significant increase was noted in the demand of such investors, mainly due to the depreciation of real estate in different states, due to the “housing bubble” that occurred between 2006 and 2008.
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The United States has always been a hub for foreign investment, but more recently, there has been a surge in investors from emerging countries due to increased disposal income for investment and because of the relative stability of the United States economy which results in more predictable return on investments.
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The real estate market has many advantages in the United States as illustrated by the consistent rate of returns seen over the long term. Investors earn not only profit through the rising value of their property, but they also obtain a competitive return on their investment through rental income. In addition, there are a significant number of people buying houses or apartments for residential purposes as vacation home in the United States, for security and great personal satisfaction reasons.
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The period of widespread decline in property values caused by the 2008 mortgage crisis, is now behind us. Prices have consistently rebounded, demonstrating a significant recovery in real estate values.
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Therefore, taking into account the recovery of the real estate market mentioned above and the supply of properties, it is a relevant option to invest beyond the borders of one’s own country, but to do it so efficiently requires care. Although the process for purchasing real estate in the United States is among the most direct and less bureaucratic in the world, the complexity of taxes and tax reporting require extensive consideration before making a purchase.

This guide was written using instructional and practical language and its purpose is to assist investors, whether individuals or companies, who are interested in exploring the United States real estate market. It should be stressed that the purpose of this material is to enlighten readers in general, and shows that each real estate investment should be evaluated according to the investor’s particular environment. It is also worth noting that the support of a specialist is essential so that no major mishaps occur in the process of acquiring or investing in U.S. real estate.

For the purposes of this material, investors are treated as non-U.S. tax residents. It is important to remember that the definition of a U.S. tax resident does not depend on place of residence and is not necessarily related to immigration status, which means that a foreign national
may be considered a U.S. tax resident if he or she meets the following criteria:
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Green Card Test – Foreign citizens, who have legal residency status in the U.S. via a Green Card, although not residing in the United States, shall be taxed as an American.
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Substantial Presence Test – Foreign nationals who stay in the U.S. for more than 31 days in the current year and 183 days in the last three years, including the current year.

Planning is critical for buying a property and this should be assessed according to the ultimate goal of the investor. The purchase of a property, which will be strictly used as a residence, requires a different kind of planning than a scenario in which the investor buys several properties that will be resold in the near future or used to generate passive income.
Among the planning stages, the tax impact study is extremely important. Below there is a list of some of the considerations to be analyzed:
- Unlike capital gain on foreign investment in the United States stock market,2 earnings and capital gain from real estate investments by overseas buyers are taxed in the United States.
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- In 1980, the United States enacted the Foreign Investment in U.S. Real Estate Tax (FIRPTA). The purpose of this tax is to “force” foreign investors to comply with U.S. income tax requirements. Through it, the Internal Revenue Service requires a withholding tax on real estate investments in the U.S. by foreign investors of 10% or 35%3 of the total amount invested, defined as (1) the amount paid in cash or to be paid (principal only, excluding interest); (2) the market value of another property transferred or to be transferred as part of the payment; and (3) the amount of any liability assumed or to be assumed before or after the transfer of the property. It is generally the amount paid for the real estate asset at the time of sale, exchange, settlement, donation or transfer, among other definitions established by the Internal Revenue Service (IRS).
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- Besides FIRPTA, the amount corresponding to the distribution of profit for foreign partner in a partnership is subject to a withholding tax, in accordance with the regulations in IRC Section 1446 of the IRS. This tax is withheld on a quarterly basis at the highest rate applicable to each foreign partner and, after the end of the year, the amount actually due versus the amount withheld is calculated. It should be pointed out there is a provision that eliminates the need for the retention of FIRPTA when the tax from IRC Section 1446 is withheld at source. This provision does not apply to foreign partnerships, which are subject to FIRPTA and 1446 taxes.
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- Individual returns and gains from the sale of properties used to generate rental income are generally taxed in the same ratios that would apply to U.S. citizens, and the foreign buyers must complete U.S. tax returns. However, in the case of legal entities, the realization of this type of investment is treated as ordinary income, with a federal income tax rate that can reach up to 35%.
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- Another important factor to be considered is the tax requirements on passive income (for example, rental income). In this case, the earnings or loss of the transaction is determined in order to calculate the tax due. In case of losses in the transaction, it is suspended for future settlement, during profit or after the investment.

- It should also be taken into account that foreign investors are subject to U.S. estate taxes – which is the tax imposed for transfer of property to an heir. This tax can reach up to 40% of the market value of assets that exceeds USD 60,0004, and is applicable to goods and rights acquired in the U.S. (for example, real estate and stocks). Therefore, planning becomes essential to minimize tax exposure if the investor dies.

One of the most important planning decisions is choosing the best structure for carrying out the purchase of the real estate. For example, foreign investors will have to decide whether to make the real estate investment in the U.S. as an individual owner, as a member of a limited liability company (LLC), or as a shareholder of a domestic or foreign company.

One of the options foreign investors can consider when interested in acquiring real estate for personal use only is direct acquisition, which is a less complex structure. Alternatively, foreign investors can acquire real estate through an LLC composed of only one member. Subject to applicable local law, the typical LLC provides limited liability protection corresponding to the capital contribution in the entity and also maintains direct ownership for tax purposes.When the property is sold, the tax structure is simple.There is only one level of levied taxes, and gains onthe sale of property may be qualified as capital gains,which can be considered short and long-term, as perthe definition ahead:

Short-term capital gain – Income earned from investments made less than a year ago, taxed as ordinary income5.
Long-term capital gain – Income earned from investments made over one year ago, taxed at 0%, 15% or 20%.

Investments made by corporations, as foreign owners, in real estate assets in the U.S., provide investors with liability protection, which means that any liabilities related to the acquired property is limited to the capital contributed in the company. The company must also file its own tax return, making it unnecessary for the individual to report income in the United States – except in the case of dividend distribution. However, in the mandatory tax returns, the corporation must disclose the name and full details of the person who owns 50% or more of the company’s shares.
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This structure has a disadvantage: the investment undergoes double taxation, using two levels of tax on earned income: the first level is income tax on the net income of the corporation, which can reach 35% (federal tax), plus state tax; the second is the tax on the distribution of these profits to the owner through dividends which, in the case of non-US tax resident partners, is 30%. At the time of sale of the property, a short or long-term capital gains tax is applied, according to the period in which the investment was made by the entity. It is worth noting that in the case of Brazilians, federal taxes paid in the U.S. can be compensated with taxes to be paid in Brazil, since Brazil has no treaty signed with the U.S. for this purpose.

It is also important to mention that the domestic corporation structure does not eliminate the foreign investor’s exposure to estate taxes in case of death, and the same also applies to shares in American companies.

In a partnership structure, the legal entity is disregarded for tax purposes (systematically also called pass-through). Under this structure, the legal entity does not pay income tax; only the partners, as individuals, are responsible topay income tax.
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The partners are taxed directly on the proportional value of the amount invested, regardless of whether a profit has been distributed. Each of the foreign partners must file an individual income tax return. The percentage is the same as applied to U.S. citizens.

It is vital that investors have a clear idea of what they want to achieve. Each person has different needs or interests, which determine the type of business that will be sought after.
Some people seek to acquire a second or third home, typically a “vacation home”, to meet the needs of families who want to be near a beach, marina or amusement park. For others, it is purely for investment purposes. In the latter case, there are two categories of investors:
- Those who desire a return through rental of either residential or commercial property; and
- Those who seek to make a profit on the sale of the property, through its appreciation over the years.At this stage, it is recommended to arrange a meeting between the parties – the buyer and the real estate agency – so that they understand each other and to ensure that the buying and selling process is absolutely clear to the buyer.

Every company and person accredited to conduct real estate activities in the United States enjoys exclusive access to a listing of all available residences. Information on purchase, sale and rental options are stored in a database called MLS (Multiple Listing Service).

The MLS is controlled by organizations linked to state governments and the federal government – DRE (Department of Real Estate) and DPBR (Department of Business and Professional Regulation).Opportunities for commercial properties, however, are not widely publicized, and require more thorough and extensive research.
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By knowing the needs, investment criteria and client expectations, the accredited real estate agent can access the MLS database and select the options that best fit the customer’s profile.
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The selected properties can be presented to the client by email, or during a second meeting, so that the real estate agent can answer any questions about the property.

There are certain services inherent to the whole process of purchasing real estate in the United States. It can be highlighted those related to the consultancy advising for obtaining mortgage loans, asset protection, estate, corporate and tax planning, and property inspection services prior to purchase.

Foreign buyers have the option of taking out a loan in the United States, referred to as Foreign National Loans. This option is offered by different U.S. banks. A minimum down payment of 30% is generally required for purchasing a house; 40% in the case of apartments, better known as condos; and 50% in the case of commercial real estate; with up to 30-year terms and interest rates ranging from 4.5% to 6.5% per year. It is recommended to inquire three or more banks, in order to compare different terms and conditions.

In the United States, purchase, sales and rental contracts are standardized, for the purpose of properly protecting both of the parties – buyer and seller. The main concerns of Brazilian investors when investing in real estate in the United States are related to repatriation of the funds used, the taxes involved and asset protection.

Therefore, it is worth reiterating that the assistance of a professional and/or specialized company is of paramount importance to avoid future problems and unanswered issues. The repatriation of funds for the purchase of real estate in the U.S., for example, must be done through agents authorized by the Banco Central do Brasil (Central Bank of Brazil) to operate in the foreign exchange market, which may be a bank, brokerage firm, exchange broker or securities company, among others.
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Before the actual purchase, buyers also have the right to hire the services of an accredited company to inspect the property under negotiation. At this time, the electrical installations, plumbing and structure are inspected and analyzed, in addition to checking for termites and mold, etc. Any damages in the property discovered during the inspection can lead to termination of the contract. Through this investigation, the buyer will have a full picture of the actual state of the property being negotiated.

In a real estate transaction, the title company also plays an important role. It is responsible for the legitimate transfer of ownership between seller and buyer, execution of notary services, determination of any possible alienations, or existence of lawsuits against the owners or property. This kind of company also performs the triangulation and financial interface through a trust account. It is important to note that there are law firms that can provide the same services carried out by title companies.

After selecting the property, the negotiation process for
the purchase and sale of the property begins.In the United States, all purchases are done through a real estate agent accredited to carry out this kind of operation. The agent, aware of the client’s needs and goals, will draw up a report called a Cost Market Analysis, which presents a comparison between the sales price of the unit versus the values of similar units sold recently.

Based on this report, the sale price will be stipulated upon approval by the interested parties. All this information, including the tool used to prepare the Cost Market Analysis, is available in the MLS (Multiple Listing Service) database, which all consultants and licensed companies have access to.
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In the case of commercial real estate, this process is a little more complex, mainly due to the financial modeling involved in real estate acquisitions of this type. In this modality, it is recommended to hire a company specialized in real estate appraisal (Appraisal company) and also a company that will be qualified to provide the Due Diligence service.

It is the responsibility of the real estate consultant to explain the Purchase and Sale Agreement and addendum to the buyer in detail.

‍It is worth remembering, again, that this contract and addendum are standardized, precisely to protect both interested parties.
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The contract itself is used as a means to make the price offer, among other specifications, such as: payment method, closing date, inspection deadline, title company name, etc.

It is important to highlight that some specific factors can motivate the breach of contract between the parties. Failure to comply with the following events, on the stipulated dates, will be grounds for breach of contract:
- Failure to sign the contract by one of the parties, making the contract unenforceable;Non-payment or delay of the first payment, or non-payment of the deposit in the trust account previously stipulated in the contract;
- Bad results of the inspection carried out on the property, by a duly certified company;Not accepted by the buyer, in relation to condominium regulations and procedures;
- Non-approval by the bank, in the case of a bank loan; and
- State of the property at the time of delivery of the keys different from the conditions observed when previously visited.

For more details, it is recommended to consult a lawyer specializing in real estate transactions.

Every property generates some fixed expenses. Next, there is a mention of some expenses related to real estate, which can even be paid automatically by debiting the account.
- Electricity;
- Water (already included, in the case of condominiums);
- Structural insurance against natural damage (already included, in the case of condominiums);
- Personal property insurance;
- Condominium;
- Cable TV and internet;
- Pool maintenance; and
- Garden maintenance.
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However, it is worth mentioning that there are companies specialized in the management of acquired properties, which can control the payment of these expenses.
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It is important to highlight especially for investors who want a return on rent that, when it comes to residential properties, unlike in Brazil, in the United States it is not common for the tenant to bear the costs of condominium and property taxes, therefore, the analysis of the costs of the owner, as well as the rent, must consider such expenses.

In the case of commercial real estate, there are five categories of contract that can provide for such issues, they are:Gross Lease Agreement: in this type of agreement, the lessee pays a defined amount for the rent and the owner is responsible for all other expenses related to the property;Single Net Contract: in this type of negotiation, the tenant usually pays the rent, utilities expenses (water, energy, gas, telephone, etc.) and insurance. The owner is responsible for paying maintenance, repairs and fees and insurance not covered by the tenant (which may include IPTU – PropertyTaxes);Double Net Agreement: In this case the tenant is responsible for paying rent, utilities, property taxes and property insurance. The owner is responsible for paying only for maintenance and repairs;Triple Net Agreement: In this case the lessee agrees to pay all real estate taxes, insurance, and maintenance on the property, in addition to all normal fees that are expected under the agreement (rent, utilities, etc.). The owner is responsible for structural repairs only; andAbsolute Net Contract: is a type of contract in which the lessee pays all expenses related to the operation of the property, including structural repairs.