The Moroccan real estate sector is regulated by numerous laws and decrees, which are regularly amended and completed. Most of the laws are not codified.

The main sources of real estate legislation can be found in the following texts (non-exhaustive list):

• the Obligations and Contracts Code regulating the general rules of contract law dated 12 August 1913 (as amended from time to time);
• Law No 39-08 dated 22 November 2011 forming the Real Property Code (Code des Droits Réels);
• Law No 14-07 dated 22 November 2011 amending and supplementing the Dahir of 12 August 1913 on land titling;
• Law No 107-12 dated 3 February 2016 amending Law No 44-00 on off-plan sales;
• Law No 18-00 dated 3 October 2002 regulating the co-ownership rules applicable to erected buildings, as amended by Law No 106-12;
• Law No 12-90 dated 17 June 1992 on urban planning, as amended by Law No 66-12 dated 25 August 2016 on control and infringements in the field of town planning and construction;
• Law No 25-90 dated 17 June 1992 on allotments, housing groups and subdivisions;
• Law No 67-12 dated 19 November 2013 governing contractual relations between landlords and tenants of premises for residential or professional use;
• Law No 49-16 dated 18 July 2016 relating to the leases of buildings or premises rented for commercial, industrial or artisanal use;
• Law No 12-03 dated 12 May 2003 on environmental impact assessments;
• Law No 47-18 dated 21 February 2019 on regional investment centres; and
• Law No 70-14 dated 24 August 2016 introducing the Organismes de Placement Collectif Immobilier (OPCI) investment vehicle dedicated to real estate (similar to REITs).

The COVID-19 health crisis has directly and deeply impacted the Moroccan real estate market, with Morocco's GDP experiencing a 6% contraction in 2020.

After this unprecedented shock, Morocco is now entering a phase of normalisation, with GDP growth expected to reach 3.2% in 2022. However, this recovery remains fragile and the risk of default in rent or loan payments remains fairly high, particularly for small and fragile businesses.

Unsurprisingly, hospitality has been the sector most affected by the pandemic, with operators suffering an immediate decrease in business due to the closure of the country’s borders for commercial flights (even recently to contain the Omicron variant of COVID-19). In this context, the Moroccan government approved a MAD2 billion emergency plan in January 2022, with MAD1 billion to support the recovery of the tourism sector, providing in particular for the implementation of financial support to hotel owners and operators to help them improve the quality of services offered.

It is also worth mentioning that the price of new-build property is expected to increase in 2022, mainly due to increases in the price of building materials. Indeed, real estate promoters are already experiencing a rise in prices and a lack of several essential raw materials for construction, such as glass, aluminium and concrete. The price of steel also continues to increase, rising from MAD7.5 per kilo before the crisis to nearly MAD12.5 per kilo currently, according to the vice president of the National Federation of Real Estate Developers.

The Moroccan real estate sector has not yet been impacted by blockchain technology, decentralised financing, proptech or other disruptive technologies.

Professionals in the real estate sector are calling for a facilitation and simplification of the procedures for issuing authorisations (building permits, certificate of conformity, etc).

Some reforms are expected in 2022, including a new bill on urban planning documents and a new bill on industrial areas. There is also a proposal to set up a single national portal for urban planning documents, which will enable the electronic publication of approved urban planning documents.

Land Tenure

The Moroccan legal framework that applies to property rights remains complex, principally due to the variety of legal regimes governing lands and the co-existence of unregistered and registered property.

Categories of Moroccan land tenure can be summarised as follows.

• State ownership:
1. public domain of the Moroccan State; and
2. private domain of the Moroccan State.
• Collective ownership:
1. collective lands (terres collectives) – lands owned by local communities/tribes;
2. habous lands – lands belonging to religious institutions (such as mosques, schools, etc); and
3. guich lands (terres guichs) – lands owned by military communities.
• Individual ownership:
1. registered title deed – characterised by the registration/publication process and the probative effect of being recorded in the Land Registry held by the National Agency for Real Estate Conservation, Property Registries and Cartography (ANCFCC); and
2. individual property of unregistered property called moulkiya – property governed by the traditional system based on local customs, under which ownership is based on peaceful possession and uninterrupted common knowledge for a period of ten years (towards third parties) or 40 years (towards family members). Such ownership is proven through the issue of a document called moulkiya from traditional notaries (adouls).

Rights in rem (droit réels)

Law No 39-08 forming the Moroccan Real Property Code (Code des Droits Réels) lists Moroccan rights in rem as follows.

• Main rights in rem (that can be defined as autonomous rights not depending on any other rights):
1. freehold;
2. easements and encumbrances;
3. usufruct right;
4. right of use;
5. surface right;
6. emphyteusis right;
7. right of habous;
8. right of zina;
9. right of houa; and
10. customary rights properly constituted before the entry into force of the Real Property Code.
• Ancillary rights in rem (that can be defined as rights depending on a personal right):
1. privileged liens;
2. mortgages; and
3. antichresis.

In addition to the general rules of contract law related to sale and purchase agreements, the transfer of private registered property is governed by specific pieces of legislation, such as:

• Law No 39-08 forming the Real Property Code (Code des Droits Réels);
• Law No 14-07 amending and supplementing the Dahir of 12 August 1913 on land titling; and
• Law No 107-12 amending Law No 44-00 on off-plan sales.

Furthermore, specific laws apply to the transfer of certain types of real estate (land belonging to the private state domain, collective lands, individual property of unregistered land (moulkiya), etc). There are no specific provisions that apply to the industrial, office or retail sectors.

Under Moroccan Law, ownership of registered land is not transferred to the buyer until the notarised deed of sale – which must be signed before a notary public or equivalent – is registered with the Land Registry (Conservation foncière). The Moroccan Constitution guarantees ownership, and the title for registered land is granted by the Land Registry, which ensures that the deeds are properly registered. The information contained in the Land Registry is available to the public and can be obtained for a nominal cost. Therefore, title insurance is not a common practice in Morocco.

Limitations in governmental office functionality and in-person availability for document signing or notarisation caused by the COVID-19 pandemic resulted in new processes or procedures for the documentation and completion of real estate transactions.

Indeed, since September 2021, notarised deeds of sale and ancillary documents must be filed electronically with the Land Registry by the notary public. In addition, the professional order of Moroccan public notaries has developed its own electronic signature tool.

Buyers generally conduct the necessary due diligence reviews, which cover technical, commercial and legal matters.

With regard to legal matters, the review will generally cover the following:

• the title and encumbrances, in order to confirm the valid and full ownership of the seller, and that the title is free and clear from any liens or encumbrances such as mortgages, preventative seizure, etc;
• construction matters (building permits, certificate of conformity, guarantees and related insurance coverage);
• third party rights;
• the rental situation;
• contracts relating to the property;
• corporate matters (comprehensive corporate due diligence should be conducted if the asset is acquired through a share deal); and
• documentation regarding litigation and other contracts relating to the property and the target company.

Particular attention must be paid to the way force majeure clauses are drafted, especially following the COVID-19 pandemic.

The following guarantees are imposed by statutory law on the seller, and can be extended or limited by the parties:

• a guarantee of eviction, which protects the buyer against the seller or any third parties that claim rights over the property placing any restriction on their ability to use the property; and
• a guarantee against hidden defects (vices cachés), which must be brought within 365 days of the handover of the property (unless otherwise agreed).

The warranties granted by the seller in a share deal include the typical representations and warranties relating to the company being sold (the existence of the company, share capital and ownership of the shares, corporate matters, the accuracy of the accounts, the company’s activity, financial standing, significant contracts entered into by the company, employment matters, litigation, tax matters, etc).

Investors should take the following into account when considering purchasing real estate in Morocco:

• the general principles of contract law, including the provisions that are applicable to the sale and purchase of real estate;
• tax regulation and structuring aspects;
• foreign exchange control regulations, especially the rules applicable to transferring abroad any revenue generated from investments made in foreign currencies in Morocco;
• registration and publicity formalities;
• construction, urban planning and zoning regulations;
• environmental law;
• regulations applicable to the contemplated business activity to be conducted from/within the building; and
• regional and local practice or customs.

Moroccan environmental law is based on the "polluter pays" principle, meaning that the person responsible for the pollution shall be liable for damages and is responsible for taking appropriate actions to remediate such pollution. If pollution is discovered, the owner of the property has the burden of proving that the previous owner or a tenant generated the pollution, in order to avoid liability.

Zoning and planning regulations must be checked before planning a construction project and applying for a building permit.

The plans and regulations for each local region are usually available to the public for a nominal fee from the relevant local urban agency (agence urbaine), through a dedicated application form (note de renseignement) informing about the applicable uses and restrictions regarding footfall, the maximum height of buildings, etc.

No agreement with public authorities is necessary in order to facilitate a private development project. However, in some cases involving a specific real estate project (mostly to promote touristic, industrial and/or artisanal projects, as well as social housing), it is possible to request and obtain an authorisation from the relevant authorities to derogate from the applicable urban regulations.

Under Law No 7-81, the Moroccan State is permitted to expropriate land for reasons of public necessity or for temporary use (following a dedicated administrative and judicial procedure). In such cases, the expropriated entity must be compensated. The compensation is based on the current and effective damage directly caused by the expropriation, according to the value of the property on the day of the decision pronouncing the expropriation.

In an asset deal, the following taxes and fees are payable:

• notary public fees, which vary depending on the value of the transaction and are generally borne by the buyer, unless agreed otherwise:
1. sale price of MAD300,000 or less – fixed fees of MAD4,000;
2. sale price from MAD300,001 to MAD1 million – 1.5% of the sale price;
3. sale price from MAD1,000,001 to MAD5 million – 1.25% of the sale price;
4. sale price from MAD5,000,001 to MAD10 million – 0.75% of the sale price; and
5. sale price of more than MAD10 million – 0.5% of the sale price;
• registration duties with the tax administration at a rate of 5% (or 4% in the purchase of constructed properties) computed on the purchase price and payable by the buyer within 30 days of the execution date of the purchase agreement; and       
• registration fees with the Land Registry, amounting to 1.5% of the purchase price (required to register the deed of sale with the tax administration and update the Land Register), also borne by the buyer.

In a share deal, the following fees are due.

• Registration duties with the tax administration, if the target company qualifies as a “real estate company” – ie, a company whose gross fixed assets are composed of at least 75% real estate assets (including other real estate companies), determined at the beginning of the financial year in which the taxable sale occurs (properties used for the purpose of a commercial, industrial and other activity are not taken into account in the 75% threshold). The sale of shares triggers the payment of registration duties at the rate of 6% of the purchase price, payable by the buyer. If the target does not qualify as a real estate company, a share purchase agreement has to be registered with the tax authorities, but is not subject to the payment of registration duties.
• Registration fees with the Land Registry/notary public fees – the purchase of shares in a real estate company does not trigger the payment of notary public fees nor the payment of property registry fees (the title deed does not need to be updated, as the owner of the property remains the same).

As a general rule, there are no restrictions on foreign investors acquiring real estate (either directly or indirectly through the purchase of a company holding real estate assets), except for specific business sectors such as agriculture, fishery, audio-visual, banking and insurance.

Pursuant to the provisions of the Dahir dated 23 April 1975 relating to the purchase of agricultural land in rural areas, foreign individuals, or entities whose share capital is held at least in part by foreign entities, were not allowed to acquire agricultural land for agricultural purposes. However, under the provisions of the new Law No 62-19 dated 14 July 2021 promulgating special provisions relating to the acquisition of agricultural lands by joint-stock companies (sociétés anonymes) or limited liability partnerships (sociétés en commandite par actions), such companies are allowed to acquire agricultural lands intended for agricultural purposes, even if they are held by foreigners.

However, if a foreign investor plans to carry out a non-agricultural project on agricultural lands (such as an industrial or residential project), a specific temporary and final certificate of non-agricultural purpose must still be obtained from the administration, which will allow the foreign investor to acquire the land and carry out the contemplated project.

Commercial real estate acquisitions in Morocco are generally financed by real estate investors through a combination of equity (including internal financing by the shareholders) and/or banking debt.

The following securities are usually required by lenders:

• a mortgage (hypothèque) over the real estate asset;
• a pledge over the general business concern (nantissement de fonds de commerce);
• a pledge over receivables (nantissement de créances);
• a bank account pledge (nantissement de compte bancaire);
• an assignment of insurance proceeds (délégation des indémnités d'assurance); and
• a pledge of shares (nantissement d'actions).

It is also common to obtain personal securities, such as a guarantee from a company (usually a parent company) covering cost overruns, completion, interest and principal.

The enforcement of any security in Morocco that benefits a foreign lender would result in a transfer of the enforcement proceeds outside of Morocco. As the Foreign Exchange General Instruction does not authorise this operation per se, such a transfer would require the foreign exchange office to allow a spot authorisation for the borrower.

Concerning repayment under a loan agreement, the General Instruction pre-authorises foreign financing under certain circumstances that would allow a Moroccan borrower to repay a loan to a foreign lender.

There may also be difficulties and delays related to the creation with the Land Registry of the administrative file of the beneficiary, called a "dossier special", which must gather corporate and administrative documentation in original, certified or apostilled format and sometimes involves exequatur proceedings.

The registration of a mortgage triggers the payment of registration duties and Land Registry fees, which are charged as follows.

• Registration duties – the total amount mortgaged composes the taxable basis and includes, in particular, the amount mortgaged in principal, the estimated expenses (or 6% of the principal if there is no estimation) and the interest (capped at the value of interest paid over two years). The amount of the mortgage thus calculated is subject to registration duties at the rate of 1.5%.
• Land Registry fees – the fees depend on the value of the mortgage, as follows:
1. lower than MAD250,000 (around USD27,000) – 0.5%;
2. between MAD250,000 and MAD5 million (around USD530,000) – 1.5%; and
3. above MAD5 million – 0.5%.

A fixed duty (per property) of MAD100 also applies.

There are no stamp duties on credit or security agreements (subject to exceptions).

The enforcement of a security requires no specific fee.

In addition to corporate authorisations, a Moroccan entity must ensure that the following rules are complied with when granting any security.

• Financial assistance (assistance financière) rule – pursuant to Article 280 et seq of Law No 17-95 relating to joint-stock companies, providing financial assistance to the target company in the form of advances of funds, loans or security with a view to the subscription or purchase of its own shares by a third party is prohibited. Article 280 refers to financial assistance "in view of" the acquisition/subscription – ie, at the time of the transaction or in contemplation of a transaction. In theory, the provisions prohibiting financial assistance under Law No 17-95 do not apply to limited liability companies, and the SARL code does not set out similar provisions.
• Corporate benefit (intérêt social) rule – any decision for a company must be taken in its best interest. The existence of a corporate benefit is ultimately a business decision and, as such, is an issue for the company’s directors to resolve. Any assessment of whether there is a benefit to the company must be made on a case-by-case basis.
• Corporate purpose (objet social) rule – any security granted by a Moroccan entity to the benefit of third parties must comply with the corporate purpose of the entity. Moroccan law does not provide any definition of corporate purpose, but Law No 17-95 notes that the corporate purpose must be specified in the articles of association.

In addition, the establishment of movable and immovable securities will require (as the case may be) the completion of registration formalities with the National Register of Securities over movable assets (registre national éléctronique des sûretés mobilières) or with the competent Land Registry.

As long as the following conditions are met, the secured lenders should enforce a mortgage without any obstacle:

• the mortgage is duly registered in the local Land Registry (Conservation foncière);
• it is a first ranking mortgage; and
• the borrower is not undergoing insolvency proceedings.

Section 169 of Law No 39-08 provides that the priority ranks from the date of registration, with same-day registration ranking equally, and retains its rank and validity without any additional formality, until the valid registration of its withdrawal (mainlevée).

In order to subordinate a mortgage already registered in favour of a new mortgage, a specific subordination or intercreditor agreement between the creditors concerned exchanging ranks is required. The rules of subordination among creditors and governing the enforcement rights will be set out in that agreement.

In principle, and provided that they did not cause the damage themselves, the holder of security over real estate cannot be held liable for environmental damage.

Under Moroccan law, a security interest granted by a borrower may not be made void if the borrower becomes insolvent.

However, borrowers will not be authorised to proceed with the enforcement of any security interest for the duration of the borrower's insolvency proceedings. Indeed, any creditor whose receivables are not privileged by law are prohibited from commencing or continuing any individual legal action against the debtor.

In addition, the insolvency court can void securities granted during the six-month period prior to the borrower's declaration of insolvency, if it is considered that granting such security is prejudicial to the borrower's bankrupt estate.

In light of the expiration of the LIBOR index, parties to foreign currency facilities based on this index should take care to ensure that the risk of LIBOR being discontinued is appropriately covered in those agreements. The best way to achieve this is to draft interest clauses that set out fallback options if the reference rate cannot be determined (such as alternative reference rates or interest adjustment clauses).

Law No 12-90 on urban planning sets out the general principles applicable to strategic planning and zoning.

Strategic plans and zoning schemes are established through the issue of Urban Development Master Plans (Schémas Directeurs d'Aménagement Urbain) and zoning plans (plans de zonage). Development plans (plans d’aménagement) are prepared by each municipality, dividing the area into zones of different use, and attributing building density ratios to each zone.

In practice, the ability of a landowner to construct a new building or refurbish an existing one is controlled by public law by means of an administrative authorisation, which must be obtained prior to starting any construction works.

Overall responsibility for regulating the development and designated use of individual parcels of real estate lies largely with local authorities, including the urban agencies and the Regional Investment Centres (Centres Régionaux d’Investissement) responsible for issuing building permits.

The construction of a real estate project requires the following authorisations and permits (the list is not exhaustive as the situation depends on each particular project).

• An environmental acceptability decision (décision d’acceptabilité environnementale) must be obtained from the Ministry of Environment for projects relating to some types of activity. The results of an environmental impact study are used as the basis for granting this approval.
• Hazardous facilities (installations classées) – an authorisation must be obtained from the relevant authorities (or a declaration has to be filed, depending on the nature/class of the facilities) prior to the commencement of construction works on the facilities concerned.
• A building permit must be obtained in order to carry out construction work. In practice, the permit is delivered once all the authorisations and visas required by specific laws and regulations have been obtained.
• A certificate of conformity (certificat de conformité) or a permit to inhabit (permis d’habiter) – upon the completion of any construction, the owner must obtain a permit to inhabit or, if the building is not dedicated to housing, a certificate of conformity confirming that the building is erected in compliance with the provisions of the building permit. This certificate is a prerequisite to using, renting or selling the erected building.

As an administrative act, any decision taken by the authorities must be justified and may be appealed before the relevant authority (recours gracieux) and/or the administrative courts (recours contentieux). A lawsuit may also be filed by third parties with a specific interest that deserves protection before the administrative authority or before the court, by asking for the decision to be annulled.

Generally, there is no need to enter into agreements with local or governmental authorities or agencies, nor utility suppliers, in order to facilitate a development project.

The following consequences could occur in a failure to comply with the applicable regulation related to construction and planning law:

• the closing of the construction site if a proper building permit is not obtained;
• the obligation to change constructions to bring them into compliance with the regulations in force; or
• the obligation to demolish the construction works.

In any case, a fine ranging from MAD1,000 to MAD100,000 may be ordered against the violating party.

Furthermore, anyone who continues to operate a project despite receiving a notification to close the construction site may be punished by imprisonment ranging from 15 days to three months.

Either individuals or legal entities can acquire real estate assets. Companies generally own large or high-value assets, with the most commonly used corporate forms being as follows:

• the joint-stock company (société anonyme – SA) governed by Law No 17-95 (as amended);
• the simplified joint-stock company (société par actions simplifiée – SAS) governed by Law No 17-95 (as amended);
• the limited liability company (société à responsabilité limitée – SARL) governed by Law No 5-96; and
• the real estate civil company (société civile immobilière – SCI) governed by the Moroccan Obligations and Contracts Code.

Law No 70-14 dated 24 August 2016 introduced REITs known as Organisme de Placement Collectif Immobilier (OPCI) into the investment legal framework.

There are two different forms of OPCI:

• a real estate investment trust (fonds de placement imobilier – FPI) organised in the form of a co-ownership without legal personality; or
• a real estate investment company (société de placement immobilier) organised as a joint-stock company, listed for trading on the stock exchange.

A joint-stock company (SA) is a form of limited liability company in which the liability of each shareholder is, in principle, capped to the amount of its contributions to the company. An SA must include at least two shareholders. Unless otherwise provided in the company's articles of association (which may provide for restrictions on the transfer of shares, such as a temporary lock-up or prior approval clause (agrément)), the shares in an SA are freely transferable.

A simplified joint-stock company (SAS) is a flexible corporate form that is suitable for companies with high growth potential. The shares of an SAS cannot be listed. An SAS may be constituted by one or several shareholders, being legal entities or individuals. The liability of the shareholders is capped to the amount of their respective share contributions. The shares are freely transferable, unless otherwise set forth in the articles of association of the company. If the articles of association of the company include a lock-up clause, Moroccan law provides that this lock-up period cannot exceed ten years.

A SARL is the Moroccan form of a limited liability company. It can be incorporated as a sole shareholder company (in which case the company is a sole shareholder limited liability company – SARLAU) and may have up to 50 shareholders. The SARL is often used for smaller businesses, especially because of its lighter and simpler management organisation and process.

Unlike a joint-stock company, a SARL cannot be listed on a stock exchange and cannot issue preference shares and debt or equity securities that are convertible into shares.

A real estate civil company (SCI) is a civil company whose purpose is to hold real estate assets. Because it is a civil company, in principle an SCI cannot have a commercial or trading nature. The shareholders are indefinitely liable for the company debts, in proportion to the shares they hold in the share capital.

A joint-stock company requires a minimum share capital of MAD300,000. Contributions can be made in cash (numéraire) or in kind (en nature). Contributions in kind are subject to a specific appraisal procedure by an independent appraiser.

Moroccan law imposes no minimum share capital requirement on an SAS.

A limited liability company has no minimum share capital requirement. Contributions must be made in cash or in kind, with it being specified that contributions in kind are subject to a specific appraisal procedure by an independent appraiser.

A minimum share capital of MAD1 is required for a real estate civil company. Contributions can be made in cash or in kind, or may consist of technical skills (apport en industrie).

An SA can have either (i) a board of directors (conseil d'administration) or (ii) a management board (directoire) and a supervisory board (conseil de surveillance). The CEO (directeur général) is responsible for the day-to-day management of the SA and has the broadest power and authority to represent the company towards third parties.

The SAS is primarily governed by the terms and conditions of its articles of association.

A SARL is managed by at least one manager, who must be individual and who has the broadest power and authority to represent the company towards third parties, except for matters legally restricted to shareholders.

An SCI is managed by at least one manager, who must be a shareholder of the company (if the articles of association of the company do not mention this point, all the shareholders are empowered with the powers and authority to manage the company).

An SA must appoint at least one statutory auditor (two if the company is listed), and is required to file its accounts annually. These accounts must be certified by the statutory auditors, closed by the board of directors and approved by the shareholders’ meeting before being filed with the local tax authorities and the trade registry. Stamp duties apply (up to MAD200), to which are added the statutory auditors’ fees for the certification of the annual accounts.

There is no legal obligation to appoint statutory auditors in an SAS, except where the company has an annual turnover (excluding VAT) exceeding an amount fixed by decree (it being specified that this decree has not yet been promulgated). An SAS is also required to file its annual accounts, duly approved by its president, with the local tax authorities and the trade registry.

A SARL must appoint statutory auditors only if its annual turnover exceeds MAD50 million. A SARL’s annual accounts must also be filed – duly approved by its shareholder(s) – with the local tax authorities and the trade registry.

There is no requirement to appoint a statutory auditor in an SCI, nor to file annual accounts.

In Morocco, there are several types of arrangement allowing a person, company or organisation to stay in a property for a limited period of time without purchasing it. The main types of arrangement are the lease agreement, the usufruct, the commodat (a free lease agreement for the use of the property) and, in connection with private state land, the authorisation to temporarily occupy publicly owned land.

In addition to general rules governing leases, as laid down by the Dahir dated 12 August 1913 forming the Obligations and Contracts Code regulating the general rules of contract law (as amended from time to time), Moroccan legislation has enacted two specific laws governing commercial leases and professional and residential leases.

The Dahir No 1-13-111 dated 19 November 2013 promulgating Law No 67-12 regulates contractual relations between tenants and landlords for residential or professional premises. The professional lease is mainly relevant for liberal professionals not practising any commercial, industrial or handicraft activities.

The commercial lease is regulated by the Dahir No 1-16-99 dated 18 July 2016, promulgating Law No 49-16, which sets out a complete list of situations in which it applies. Pursuant to the provisions of Law No 49-16, the landlord must grant a commercial lease for:

• premises or buildings in which a business (fonds de commerce) is operated;
• premises or buildings that are considered an accessory to the main premises in which the business is operated;
• premises consisting of undeveloped lands that will be developed and used to operate a business;
• premises or buildings used for commercial, industrial and handicraft purposes and as part of the private state domain; and
• premises and buildings used as private schools, clinics or pharmaceutical laboratories.

Law No 49-16 expressly states that a lease agreement cannot be concluded for certain premises, including:

• premises or buildings that are part of the public state domain;
• premises or buildings that form part of the private state domain but are used for public interest;
• premises or buildings incorporated in a habous;
• premises or buildings rented following a court order;
• premises or buildings located in a shopping mall; and
• premises or buildings located in a dedicated zone gathering companies operating information technology, industrial or offshoring activities.

The right for the tenant to renew the lease is one of the main characteristics of a commercial lease. Therefore, if the landlord wishes to terminate the lease ahead of the agreed contractual term, the tenant is entitled to claim compensation (indemnité d'éviction), which is assessed by considering the value of the considered business.

As a general principle, rents are freely negotiable between the landlord and the tenant.

Although permitted by law, variable rents are not common in leases for office premises, but are a common feature in retail leases for premium international brands (expressed as a percentage of the annual gross revenues of the tenant’s business, subject to a specified minimum fixed rent).

The only measures relating to rents following the COVID-19 crisis affected a specific category of property: the so-called habous properties, which are subject to a very specific legal regime. During the lockdown, habous tenants were exempted from paying their rent.

Duration

As the duration of commercial leases is not regulated by Moroccan Law, the parties are free to enter into a lease agreement for any amount of time. In practice, commercial leases are entered into for an initial period of three to nine years.

The right for the tenant to freely assign its lease and to renew the lease is one of the main characteristics of a commercial lease, which implies that, in the event of non-renewal, the tenant is entitled to an eviction indemnity based on the value of its business, among other considerations. The tenant must have been occupying the premises for two consecutive years or paid "key money" (pas-de-porte) in order to be entitled to such a right of renewal.

Work and Repairs

The parties are free to allocate the various types of work and repairs. However, in general, ordinary repairs and maintenance are borne by the tenant, and the landlord bears the costs of structural and major repairs, as well as repairs resulting from wear and tear, force majeure and construction defects.

Frequency of Rent Payments

The parties are free to negotiate the frequency of rent payments. Rent for commercial premises is usually payable monthly or quarterly in advance.

COVID-19

For now, there is no published information on the effectiveness of a force majeure provision for justifying the non-performance of a lease.

Since the situation resulting from the COVID-19 crisis is particularly exceptional, the courts should tend to rely more on the principle of good faith of the parties. In this context, some facilities have been set up by landlords (owners of major shopping centres), notably including the approval to exempt their tenants from paying rent for the period of closure of their premises as imposed by the Moroccan authorities.

Under Moroccan law, force majeure legal provisions are not of a mandatory or public order nature, so it is possible to include contractual/tailormade force majeure definitions when relevant. Therefore, it is now relatively common to address the unforeseen consequences of the COVID-19 pandemic in contractual arrangements.

Under the applicable regulations, the amount of the rent, the conditions of its revision and the rate of its increase or decrease can be freely determined by the tenant and the owner.

However, Law No 07-03 on the revision of the amount of rent for premises of commercial, industrial or handicraft use forbids increases in rent within the first three years from the date of concluding the lease agreement, or from the date of the last judicial or contractual review, and/or forbids parties from agreeing on an increase in excess of the rates set out by law (ie, 8% for residential leases and 10% for others, including commercial and professional leases).

If no agreement has been reached between the tenant and the landlord regarding the rent revision conditions and the rate of its increase, the parties may apply for judicial review based on the rates mentioned above.

In practice, the parties generally stipulate a rent review clause that is based on the conditions imposed by Law No 07-03 (ie, an increase in rent by 8% or 10% every three years).

Law No 07-03 provides that a rent increase may only apply every three years following the conclusion of the lease or the date of the previous judicial or contractual rent review, provided that any such increase is limited as follows:

• for commercial leases – a 10% raise of the current rent; or
• for residential leases and professional leases – an 8% raise of the current rent.

VAT is payable on rent in the following cases.

• Taxable rental transactions:
1. rental of furnished premises;
2. rental of equipped premises for business purposes;
3. rental of non-equipped premises for business purposes in which an intangible asset of the business is included; and
4. rental of premises in commercial complexes ("shopping malls").
• Rental transactions not subject to Moroccan VAT:
1. rental of unequipped premises for business purposes; and
2. rental of equipped premises with an annual turnover of less than MAD500,000.

The landlord can opt to pay VAT (at 20%) on non-equipped business rentals. This option is made by means of a formal request and can be applied globally or partially to the taxpayer’s activities (ie, the option can be applied to a given real estate project, or to just a single building/premise/apartment).

According to Moroccan law, there are no additional costs to be paid by the tenant at the beginning of the lease term, except a registration duty payable to the tax administration (set at MAD200). Market practice is for the tenant to pay and bear the registration fees, although the Moroccan Tax Code (MTC) does not expressly specify which party must pay them.

The tenant generally bears the costs of maintenance and repairs for common areas (ie, gardens, parking areas, stairways and elevators) by way of service charges, in proportion to the area of the premises occupied by each tenant compared to the total area of the property. In practice, the service charges are usually agreed as a lump sum.

Parties are free to determine which of them will pay the operating fees (eg, electricity, water, telecommunications and other utilities), but the utility costs are generally borne by the tenant according to its specific needs and usage.

A provision may be added in a lease whereby the tenant undertakes to take out insurance covering its professional civil liability, as well as damage caused to third parties or property as a result of its activities on the premises, or due to external events (fire, explosion, water damage, theft, etc). Landlords may take out an insurance policy for the building itself, but this process is quite unusual.

As far as is known, tenants did not recover rent payments or other costs under business interruption insurance policies as a result of premises closures and clean-up costs incurred during the COVID-19 pandemic.

The parties generally provide that the leased premises are rented for a specific purpose, with any change being subject to the consent of the landlord. Moreover, the use of rented premises may be limited by legal or regulatory provisions, such as urban planning and zoning regulations.

With regard to commercial leases, a judge may authorise the tenant (even after a refusal by the landlord) to carry out one or more activities that are ancillary or related to the initial business activity, provided that they are not in conflict with the purpose, characteristics and location of the building, and that they are not likely to affect its security.

No details are provided by Law No 49-16 governing commercial leases relating to works initiated by the tenant.

In any event, the parties are entitled to agree on the favoured work regime for the tenant, and it is generally provided that the tenant may not alter or improve the premises without the prior consent of the landlord, especially if the work is substantial and impacts the structure of the building.

Specific regulations apply to financial leases (credit bail), lease agreements for the use of agricultural land (bail à ferme), authorisations to temporarily occupy publicly owned land (autorisation d’occupation temporaire du domaine public), etc. The habous properties, which are subject to a very specific legal regime, were subject to particular measures following the COVID-19 pandemic crisis, with habous tenants being exempted from paying their rent.

The Moroccan Commercial Code provides for the regime applicable to insolvency proceedings, but does not provide for a specific regime or scheme applicable to a lease if the tenant is deemed insolvent. In the case of insolvency proceedings that do not lead to liquidation, it is customary for the court to appoint an administrator, who may decide to uphold the lease in force if it is deemed necessary for the tenant's business operations.

To protect themselves against a failure by the tenant to pay rent, landlords are provided with the following main forms of security:

• a cash security deposit for an agreed amount (limited to two months’ rent for professional leases);
• prepaid rents; and
• guarantees issued by a bank or a parent company.

A tenant does not have the right to remain in occupation of a property after a lease has expired or been terminated. Therefore, if the real estate is not vacated on the due date, a court order can be obtained by the landlord to recover possession thereof. The lease agreement may also provide for other penalty clauses if the property remains occupied without due cause after the expiry of the lease.

Pursuant to Law No 49-16 governing commercial leases, the tenant under a commercial lease cannot, in any circumstances, be deprived of the right to assign its leasehold interest – with or without its business (ie, separately).

The tenant and the assignee must, however, give a notice referring to the assignment to the landlord. This assignment is not effective against the landlord until the date of the notification.

The tenant remains liable to the landlord with respect to all prior commitments.

According to Law No 49-16, a tenant is permitted to sublease any part of the leased premises, unless the lease agreement sets out otherwise. The tenant must notify the landlord about the sublease, and the sublease is enforceable against the landlord only from the date of receipt of the notification.

Law No 49-16 governing commercial leases provides that a judicial termination of the lease can be requested by the landlord if the lease contains a termination clause (clause résolutoire) and at least three months’ rent are still unpaid by the tenant, despite a 15-day formal prior notice being served.

There are also a number of instances in which the landlord has the ability to deny the right of the tenant to renew the lease without paying an eviction fee (indemnité d’éviction). These cases include notably unauthorised alterations to the premises, default of payment, sublease of the premises contrary to the terms of the lease use of the premises in breach of the originally agreed use, etc.

Market practice is for the tenant to pay and bear the registration fee, even though the MTC states that the party to whom the lease is beneficial must pay the registration fee, but the agreement can provide for a different situation. Such registration duty also applies to signatures of amendments and schedules.

As mentioned under 6.19 Right to Terminate a Lease, the landlord is entitled by Law No 49-16 to request from the court an early termination of the lease agreement and the eviction of the tenant in certain cases. However, in practice, it is a fairly time-consuming and difficult process.

Third parties are not entitled to seek the termination of a valid lease agreement. However, Law No 49-16 states that any public authority may terminate the lease if it is in the public interest, in which case the landlord is not required to pay an eviction compensation (indemnité d'éviction) to the tenant.

The parties may choose between two types of pricing mechanism for construction projects (which may sometimes be combined):

• quantity construction contracts (marché au métré), by which the contractor performs construction work for a price based on the quantities actually used for the work; or
• lump sum price construction contracts (marché à prix forfaitaire), in which the contactor carries out the work for a fixed and non-revisable price agreed upon at the time of signing. The contractor does not have the right to request additional payment or compensation, unless in limited cases such as for modifications or when the client requests additional work.

Different types of contractual arrangement can be adopted by the owner:

• separate contracts with the design team (architects, engineers, etc) and the construction contractor, in which case responsibility for the design will be assumed by the design team, whereas the contractor will be in charge of the work; or
• a single design and construction contract (contrat de contractrant général) with a contractor, under which the contractor responsible for the work will also be responsible for the design.

In any case, the assistance of a Moroccan architect is mandatory when applying for a building permit. This architect is responsible for preparing the conception plans and the building permit application file, monitoring the proper execution of the work and assisting the owner at the delivery of the work, as well as issuing the declaration of completion in order to obtain the certificate of conformity or the occupancy permit.

Under a private construction contract, the devices typically used to manage construction risks are as follows (and are freely negotiated by the parties):

• representations and warranties of the contractor regarding the feasibility of the project, its knowledge of the technical, environmental and legal framework applicable to the project and its ability to carry out the work under the conditions provided for in the contract;
• holdbacks, whereby the owner retains payments of a certain amount (usually up to 10% of the contract price) to guarantee the remediation of any defects arising on the date when the work is provisionally accepted. Generally, the contractor will ask to replace this retainer with a bank suretyship (cautionnement bancaire);
• a performance bond, usually from 3% to 10% of the contract price, to secure the payment of any penalties that may be imposed on the contractor for a delay or breach of contract, which is normally returned to the contractor or waived following the final acceptance of the work (occurring 12 months after the provisional acceptance of the work);
• a penalty for breach/liquidated damages; and
• insurance policies covering professional constructing activities (civil liability insurance of contractors, or professional insurance of architects, experts, engineers, etc) and the coverage of certain assets (such as all-risk insurance for a construction site and a ten-year warranty owed by contractors).

Delay provisions in the event that the agreed-upon milestones or completion dates are not met (unless the delay is due to force majeure or other unforeseen event, or is attributable to the owner) are generally used to avoid any schedule-related risk on construction projects. Delay penalties are often capped at a specific percentage of the contractor’s contract price.

Article 264 of the Moroccan Obligations and Contracts Code provides that the judge may always assess and then reduce the amount of contractual penalties.

Security from contractors to guarantee both timely completion and the correct performance of the work is generally requested by owners. The contractor commonly gives the client a completion guarantee/performance bond and holdbacks (usually replaced by a bank guarantee) (see 7.3 Management of Construction Risk). It is also market practice for the client to request an advance payment bond, payable on first demand, to guarantee the repayment of any advance payment paid by the client at the beginning of the work.

Moroccan law does not provide for specific provisions regarding the possibility for contractors and/or designers to place a lien or otherwise encumber an asset in the event of non-payment by the client. The client is the only one entitled to use the property as collateral, as the real estate is generally owned by the client.

Generally, the conditions precedent that must be met before the handover can take place are set out within the construction contract.

In practice, upon completion of the work, the parties will hold a provisional handover/acceptance (réception provisoire), even if there are some slight defects or snagging still outstanding, which the contractor undertakes to repair during the warranty period (which normally is one year long). Once the warranty period has expired, a final handover/acceptance takes place (réception definitive).

In any case, upon completion of construction, the owner must obtain an occupancy permit or, if the building is not intended for private accommodation, a certificate of conformity certifying that the building as erected complies with the provisions of the building permit. This certificate is a prerequisite to the use of the erected building; using a building without such permit may give rise to fines and criminal liability.

VAT is generally not payable on the sale or purchase of real estate. Pursuant to Article 89-I 4° of the MTC, VAT is payable on real estate work, subdivision/allotment operations and real estate development transactions (the sale of plots in a real estate development project is subject to VAT at a rate of 20%).

The acquisition of large real estate portfolios has the same tax consequences as the purchase of a single real estate property: if the transaction involves the direct purchase of real estate, it is subject to registration fees and property registration (see 2.10 Taxes Applicable to a Transaction).

However, in order to minimise the tax cost, it may be possible to acquire shares in a company that does not qualify as a real estate company (ie, does not have gross fixed assets composed at least 75% of real estate properties/other real estate companies). In that case, the transaction would be free of registration duties and no property registration fee would be payable (see 2.10 Taxes Applicable to a Transaction).

There are two main local taxes that must be paid when occupying commercial/industrial premises: business tax and the tax on municipal services.

Business Tax

Pursuant to Article 6-II-1° of Law No 47-06 on local taxation, all newly created professional activities benefit from a total exemption of business tax for the first five years after starting their activity. Business premises benefit from this exemption.

In principle, the gross annual rental value of all the assets at the company’s disposal (including assets purchased and rented) is the taxable basis for business tax.

Newly incorporated companies benefit from a five-year business tax exemption, regardless of their legal purpose.

For hotel/housing activities, the taxable basis is determined by multiplying the construction/building cost with the following proportional rates:

• 2% if the construction cost is lower than MAD3 million;
• 1.50% if the construction cost is between MAD3 million and MAD6 million;
• 1.25% if the construction cost is between MAD6 million and MAD12 million; and
• 1% if the construction cost exceeds MAD12 million.

Companies that do not own the premises they occupy must also include the amount of rent paid to the owner for all types of leases (real estate, leasing, etc) in the taxable basis.

The applicable rate is based on the nature of the activity and ranges from 10% to 30%, applicable on the annual rental value of assets used for the activity.

Tax on Municipal Services

The taxable basis for the tax on municipal services is determined by reference to the rules applicable to business tax. In principle, the municipal tax services taxable basis is identical to the business tax taxable basis (the taxable basis is reported in the same return for both taxes).

There is no exemption for the start of the activity regarding this tax (ie, it is payable from the first year).

The tax rate for the municipal services tax differs according to the geographical location of the activity, as follows:

• 10.5% for properties located within the scope of urban municipalities, delineated centres and summer, winter and spa resorts; and
• 6.5% for properties located in outlying areas of urban municipalities.

Companies that do not occupy the premises or buildings they own are not subject to business and municipal taxes on these properties; the tenant is subject to the taxes relating to these properties on rent.

The applicable regime is based on the distinction between companies and individuals.

Companies

According to the MTC, foreign investors owning property in Morocco are subject to corporate income tax on revenues deriving from that property (depending on the provisions of any double taxation treaty that may govern taxation, but generally capital gains on real estate are taxed in the country where the property is located).

The following rates apply, depending on the taxable income (ie, mainly the capital gain generated by the sale of a real estate property located in Morocco and made by a foreign investor):

• net tax income lower than MAD300,000 – 10%;
• net tax income between MAD300,000 and MAD1 million – 20%; and
• net taxable income higher than MAD1 million – 31%.

Individuals

The real estate rental income of individuals is subject to the following rates:

• less than MAD30,000 – exempt;
• between MAD30,001 and MAD120,000 – 10%; and
• more than MAD120,000 – 15%.

If a professional pays the real estate income (public or private legal entities or individuals), this professional will withhold the personal income tax on behalf of the real estate owner, although owners can choose a withholding waiver and handle the filing and tax payment requirements themselves.

Capital gains on real estate properties are subject to personal income tax at the rate of 20% (a specific rate of 30% applies in limited cases); in the case of a capital loss, the minimum tax payable amounts to 3% of the sale price.

Exemption

The following are exempt from personal income tax:

• the amount of the gross annual taxable real estate income up to MAD30,000; and
• capital gains made by anyone who, during the calendar year, transfers buildings with a total sale price up to MAD140,000.

Double Tax Treaties

Double tax treaties entered into by Morocco generally provide that income/capital gains from immovable property may be taxed in the Contracting State in which the property is located.

Thus, the domestic treatment provided by the MTC is generally confirmed and the rental income received by a foreign investor (on a property located in Morocco) will be subject to (corporate) income tax in Morocco.

In the absence of a tax treaty, taxation will generally be applicable in Morocco and may generate a situation of double taxation.

When legal entities such as companies subject to corporate income tax own real estate, they may benefit from amortisation, which is deducted within the cap of the authorised rates, pursuant to the practices of each profession, industry or branch of activity.

The recommended rates for the tax deduction of the taxable basis by the tax authorities are 4% for residential or commercial buildings, and 5% for permanently constructed industrial buildings.

Furthermore, the main new innovation in real estate ownership is the setting up of Moroccan REITs (OPCIs), which enjoy the following tax incentives.

• Regarding the OPCIs’ upfront capital investment:
1. an exemption from the tax on capital gains on in-kind contributions (apport en nature) for all OPCIs created before the end of 2022;
2. taxes on capital gains are paid on the sale of all or part of the OPCI shares, with a 50% deduction for all contributions made before the end of 2022;
3. an exemption from registration duties to the tax administration; and
4. 1.5% for registration fees with the Land Registry.
• Regarding the taxation of the OPCI:
1. an exemption from corporate income tax; and
2. an exemption from taxes on dividend and interests.
• Regarding the taxation of shareholders:
1. corporate income tax at the standard rate;
2. taxes on dividends received by individuals at a rate of 15%;
3. taxes on dividends received by non-residents at a rate of 15%;
4. capital gains tax for individuals at a rate of 20%;
5. capital gains tax for companies at the standard rate; and
6. an exemption from registration duties to the tax administration.

The OPCI may obtain a total exemption from corporate income tax (rental income, capital gain, dividend) if it meets the following conditions:

• assessment is made by an auditor;
• it holds the assets for a minimum of ten years from the date of contribution; and
• it distributes:
1. at least 85% of the result of the fiscal year relating to the leasing of buildings built for residential or professional use;
2. 100% of the dividends and shares received;
3. 100% of the fixed investment revenues received; and
4. a minimum of 60% of the capital gains on the sale of securities.