Immobilienfinanzierungen in Japan und deutsche Pfandbriefe

Abstract

The contribution deals with the complex legal questions that arise in the context of cross-border financing of real estate located in Japan. In the past, a German Pfandbrief bank panning to engage in real estate finance had to use a branch in Japan that in turn needed a banking license in accordance with the Japanese Banking Act. However, if that subsidiary planed to only engage in real estate finance without offering general banking services the Financial Services Agency (FSA) would not grant such a license. In principle, also a license as money-lender based on the Money-Lender Act would be sufficient for the business of real estate finance. However, a branch of a foreign banking institution was not regarded as suitable for such a license as the Banking Act exclusively regulated its business. This blockade was overcome in October 2008 after the FSA declared that a branch of a German Pfandbrief bank is deemed suitable to apply for a money-lender license.

If a Japanese money-lender corporation has granted a loan to a Japanese customer for financing real estate the claim for repayment of that loan and the underlying collateral can be made part of a trust. The resulting property loan trust beneficiary interest (TBI) can then be transferred by the money-lender corporation to the German Pfandbrief bank without the need of obtaining a banking or money-lender license first.

Furthermore, the article discusses various issues of a high practical interest with respect to the Japanese land register and the role of mortgages in real estate finance. Quite a number of similarities with the pertinent German and French law can be observed in this regard.