개발전문위탁관리리츠를 통한 개발사업에 대한 법적 고찰

개발전문 위탁관리리츠를 통한 개발사업의 법적 쟁점을 검토한다.

For a development-oriented externally-managed REITs which uses the trust agency under the Act on the Sale of Building Units, there are issues of: (i) the conflicts between the inherent characteristics of the asset custodial trust and sale of buildings in units management trust, and with the trust agencies having been granted permission for the trust on the basis of the property units, the resulting problem of the development-oriented externally-managed REITs not being able to bring under the trust any other assets apart from the property and the proceeds of sale and (ii) the prospect of directors of the development-oriented externally-managed REITs facing criminal liability when it disposes of the land for the development project in order to reimburse the creditors in accordance with the trust agency agreement in case of inability and/or failure of the developer to continue the development project, since the Real Estate Investment Company Act prohibits the disposition of land before the implementation of the development project and provides for criminal liability in case of breach.

These problems should be resolved through (i) maintaining two separate trust systems for custody of the property and proceeds of sale and for custody of the other assets and providing for a special provision to the effect that an asset custody agreement is deemed to have been executed once a sale of building in units management trust agreement is signed and (ii) providing for an exception in certain cases to allow for disposal of the land before implementation of the development project. With these issues properly tackled and resolved, the development-oriented externally-managed REITs are expected to engage in development projects more stably.