I.-Einleitung

In Zeiten der wirtschaftlichen Krise wie die jetzige, wo die meisten Unternehmen keinen Zugang zu Finanzierung mehr haben, hat sich Liquidität zu einem großen Problem und das Hauptziel der Direktoren und Geschäftsführer solcher Unternehmen entwickelt. Daher ist es notwendig, Alternativen zu finden um Liquidität ohne Unterbrechung des alltäglichen Geschäftes zu erlangen, sodass die Unternehmen die Krise überwinden können. Eine solcher Alternativen ist die „Sale and Lease Back“ (nachfolgend „SLB“), ein Vorgang, mit beweglichen Gütern und Immobilien, die anschließend beschrieben ist.

II. – What is SLB?

Although according to the above SLB can be for both movable and real estate assets, this article focuses on SLB in terms of real estate assets.

As the name suggests it consists of a legal transaction whereby the owner of a real estate property sells it to a third party, who then proceeds to lease back the property immediately to the seller. The agreement usually includes a repurchase option upon the expiry of the lease agreement.

According to the above, SLB is an operation that consists of three agreements: sale, lease and purchase option. For this reason there are no specific regulations on this matter, but vague references resulting in a legal adaptation as these commercial transactions occur.

As a result of the real estate boom of the last decade and bearing in mind that the main objective of these operations is to obtain abundant liquidity, most SLB are conducted on real estate assets, with some of them reaching very high prices.

Some authors have tried to identify SLB with leasing but in our opinion there are substantial differences between both, which are set forth as follows:

a) In a leasing agreement the lessor pays a series of instalments until finally only a residual price remains, and is able, if desired, to acquire the property for that price. However, in the SLB there are no instalments, but rental payments and upon the expiration date of the agreement, the repurchase option can be executed, only at the market value of the property at that time.

b) In addition, SLB have a key element that does not exist in leasing and consists of a sale transaction. We should not forget that an SLB arrangement begins with a sale transaction whereby the seller / lessee sells an asset to the buyer / lessor initiating a legal relationship that will bind both parties until the expiration date of the agreement.

III. – Benefits for the lessor / buyer and seller / lessee

An SLB for real estate assets is an operation that allows a number of benefits for both parties to the contract, among which we highlight the following:

For the lessor / buyer:

– Purchase of a real estate asset generally in better conditions and with a better negotiated price due to the liquidity needs of the seller.

– Secure long-term revenue due to the permanence of the lessee, who usually takes on the maintenance and conservation costs of the asset.

– Possibility of resale of the property and return on investment once the contract has expired.

For the lessee / seller:

– The main benefit for the seller is to obtain liquidity through the sale of a property, which, in an adverse situation like the present, is quite complicated. Completing the sale within this framework is often an incentive for buyers, since it guarantees immediate and secure rental income given that the property is already occupied by the lessee.

– Furthermore, there is a significant saving regarding the transfer of materials and employees to new offices since this scheme allows continuation in the same facilities, which are familiar to employees, thus avoiding a waste of money and time for the adaptation of the staff and refurbishment of the building.

In times of economic crisis, this operation has enabled many companies in a pre-insolvency situation to obtain sufficient liquidity to overcome an adverse financial situation. However, it is necessary to clarify that the price can not be established clearly below the market price at the risk that, if in the end it is not possible to avoid insolvency, the receivers choose to file for the reinstatement of the property to the insolvency estate of the company.

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11.05.2012