The US Treasury has released an online tool to help purchasers and lessees of real estate determine whether the deal is subject to review by the Committee on Foreign Investment in the United States or CFIUS. The tool is available on the US Treasury’s website.
CFIUS is an interagency committee of 16 federal agencies that reviews foreign acquisitions of US companies for national security issues.
Under new rules, CFIUS has authority to review certain real estate transactions. (For more information on CFIUS’s expanded authority, see “Scrutiny for inbound US investments” and “Expanded reviews of US in-bound investments”.)
A bare acquisition of real estate was not subject to CFIUS review in the past because it did not involve the acquisition of a US business. Now, CFIUS may review the purchase or lease of “covered real estate” by a foreign person if the transaction provides the foreign person three out of the four following rights: the right to physical access, the right to exclude others from access, the right to improve or develop the site or the right to affix structures or objects to the site.
However, not all sites are “covered real estate.” The site must be part of an airport or seaport or be near certain military installations or other sensitive US government facilities. The final regulations include a list of military and sensitive sites. Different sites have different standards for determining whether land is near enough to fall within CFIUS jurisdiction. The online tool allows a person to enter an address or coordinates to determine the distance of the location to the relevant military and sensitive sites.
Certain investors from Canada, Australia and the United Kingdom are “excepted real estate investors” and do not have to vet site purchases or leases.
Filings related to real estate investments remain voluntary. All real estate transactions — whether or not they involve “covered real estate” or an “excepted real estate investor” — remain potentially of interest to CFIUS under its broad authority to review acquisitions of controlling interests in US businesses by foreigners.