On May 29, the state legislature registered an initiative by 21^[1] Members of the Parliament on the amendments to the law on agricultural land and accompanying package of laws. The aim of the draft law is to regulate the issue related to the sale of agricultural land to foreigners and persons without citizenship of Georgia.

The issue of agricultural land has been actively discussed at the state constitutional commission. According to Article 19 (4) of the initiated project of the constitution “organic law regulates the right to ownership over land, which is recognized as a vital resource”. This provision, as stated by the initiators, assigns land a status of a vital resource and demands for organic law to regulate on the right of ownership of land.

In overall, the decision to draft a unified state policy towards the ownership of agricultural land can be assessed as positive. The imposition of special regulations on agricultural land is a well-known practice in foreign countries as well. The special regulations usually relate to the rational use of land as well as issue of state security, such as the sale of land near state borders. It is important for the restriction of right of ownership of land to serve legitimate purposes, as well as avoiding the creation of artificial barrier and damaging the prospects for the economic development of the country. In order to avoid instances of corruption, it is also important for the law to include effective enforcement mechanisms, as well as clear regulations on restrictions and decisions.

Overview of legislation and practice of the constitutional court on the right of ownership of agricultural land by foreigners

Special law regulates the right of ownership over agricultural land. The law has gone through several amendments related to the subject acquiring the land and has become the topic of discussion for the constitutional court^[2].

Initially, with its 26 June 2012 decision (N3/1/512), the Court established that the restriction, by which foreigners were banned from acquiring the land and were forced to sell inherited land, contradicted the requirements of the Constitution and “broke the reasonable balance between private and public interests, and that the restriction introduced by a disputed norm is disproportionate”. Following this ruling, according to amendments made to the Law on Ownership of Agricultural Land on July 28, 2013, foreigners were restricted from gaining ownership of agricultural land (including through inheritance).^[3]

The temporary ban on the sale of agricultural land was challenged at the Constitutional Court. TI Georgia challenged this ban in September 2013 for being vaguely worded, discriminatory, unconstitutional – and likely to have a negative effect on the development of the agricultural sector. The plaintiff, Mathias Huter, was represented by Transparency International Georgia. During the preliminary hearing, the plaintiff argued that the disputed provision had the idential content of the provision that had been ruled as unconstitutional by the Constitutional Court through its 26 June 2012 decision (N3/1/512). The aforementioned decision ruled as unconstitutional the provisions of the law, which restricted the sale or inheritance rights of agricultural land by foreigners. The plaintiff also argued that the Constitution of Georgia does not allow for temporary restrictions of specific rights.

The Constitutional Court has upheld Transparency International Georgia’s constitutional appeal in the case of Mathias Huter vs. Georgian Parliament. The Constitutional Court ruled the Georgian Parliament’s moratorium (temporary ban) on the acquisition of agricultural land by foreign citizens until 31 December 2014 to be unconstitutional as it contradicted Article 21 (1)(2) of the Georgian Constitution whereby the right of property and inheritance is recognized and inalienable and it is also prohibited to abolish the universal right of holding, acquiring, selling or inheriting property.

The issue of selling land to foreigners has been a topic for discussion during the 8^th convocation of the Parliament. An initiative by the government (Ministry of Justice), which was turned down by the 8^th convocation of the Parliament, was deemed as admissable by the 9^th convocation of the Parliament. According to this draft law, agricultural land in Georgia can no longer be acquired by companies and legal entities founded abroad. The sale of land to foreigners or foreign companies, even if established in Georgia, will not be possible in a five-kilometer distance from the border and other border areas defined by the government. However, foreigners will have a right to ownership to these lands if they receive it through inheritance.

Individuals, foreigners and companies that are established in Georgia will be able to become owners of agricultural land on the following conditions: if they have five years of experience in agricultural sector, while individuals must also have a permanent residency of Georgia or residency tied to investments.

New initiative and proposed changes

The explanatory note of the draft law initiated on May 29 states that “the following changes can not serve as a complete ban on the sale of lands to foreigners and persons without citizenship, however, it will enable special regulations towards land as a vital resource”. However, the presented initiative contains unreasonable barriers, vague wordings and errors on the right of ownership of land by foreigners.

It is important to note that the explanatory note of the initiated draft law on May 25, 2017 is largely similar to the explanatory note of the draft law initiated by the government in 2014.

The amendments include certain conditions for the right of ownership of land for foreigners and legal entities registered in Georgia (if the founder is represented by a foreign individual or a legal entity established by a foreigner holding over 50% of the shares/stock, the capital of which is over 50% with the holder of the shares/stock and/or in total of the non-Georgian citizen and/or legal entity established abroad and/or its branch registered in Georgia). These conditions are:

• A contract drafted through established rules – in total no less than five years of the proof of use of the land
• Note from the Revenue Service, which confirms the payment of the property tax as defined by the Tax Code for a period of no less than five years
• Investment Plan
• Proof that there is sufficient capital and material resources to fulfill the investment plan

A foreigner will gain the right of ownership if:

• The land was received through inheritance
• The land was secured during a marriage with a Georgian citizen under co-ownership or as a result of membership of a homestead
• The foreigner holds a permanent residency card or investment residency (an investment plan, proof and agreement should be presented to the Ministry).

Restrictions by the amendments:

• The agricultural land to be acquired should not be less than 5 hectares, while the overall area of agricultural land owned should not exceed 100 hectares.

• If a person has acquired right of ownership over agricultural land but no longer meets the requirements as defined by the law, then he is obliged to sell the respective agricultural land within a one-year period
• Commercial banks and microfinancial organizations that are registered under Georgian legislation, where over 50% shares/stocks of the basic capital are held by non-Georgian citizens and/or legal entities established abroad^[4] ..., which own agricultural land, retain the right of receiving shares/stocks through mortgage under the condition that they will be obliged to alienate the property under mortgage within a one-year period.

According to the initiative, the following is forbidden:

• The alienation of shares/stock of agricultural land by legal entities registered in Georgia to non-Georgian citizens and/or legal entities registered under Georgian law, 50% shares/stocks of capital of which is held by: 
• Non-Georgian citizens
• Legal entities established under foreign laws and/or its branches registered in Georgia
• As well as legal entities established under foreign laws and/or its branches in Georgia, if over 50% of the basic capital of the legal entity is transferred to the ownership of a non-Georgian citizen and/or legal entities
• The public proposition of securities convertible to shares/stocks by a registered legal entity in Georgia which would allow a non-Georgian citizen and/or legal entity established under foreign law and/or its branch registered in Georgia to hold more than 50% of the securities convertible to shares/stocks.

The exceptions to the regulation of the draft law:

• A foreigner, as well as a legal entity registered by a foreigner under Georgian law, can be conferred ownership (except in cases when the land is within a 10 kilometer distance as defined by the Law on State Borders of Georgia , as well as restriction on border zones as defined by the Georgian Government) of agricultural land under special circumstances, with state and public interests taken into account, through the decision of the Government of Georgia.
• The draft law also notes that it doesn’t have an effect on the privitization of state property as defined by the Law on State Property, except in cases of electronic and/or public auctions of state property

Gaps of the amendments and recommendations

The draft law and the explanatory note does not provide a legitimate reason for the restriction of sale of agricultura land to foreigners. Artificial barriers and vague wording of the law will not provide for an effective enforcement and this entails risks of corruption. This will have a negative effect on the country’s economic development and investment climate.

We present to you TI Georgia’s opinions and recommendations:

Prior to the adoption of the law, it is important to prepare a regulatory impact assessment and determine what effect the law will have on the development of the economic and business environment.

• In case of an acquistion of the land by a foreigner, the draft law stipulates that an investment plan should be presented to the ministry, which includes details on the use of technological innovations on the land being acquired. The wording of “innovative technologies” is vague, as well as its criteria and subjects. It is necessary to determine concrete regulations on who exactly verifies the provided information.
• The draft law imposes difficult bureucratic barries for the acquistion of land by foriegners, which may cause risks of corruption. In addition to the control by the Ministry of Agriculture, the buyer is obliged to provide a recommendation by the Sakrebulo, the criteria of which are also not defined by the draft law.^[5]
• According to the draft law, the foreigner must have five years of experience in the agricultural sector in Georgia^[6], which is an unreasonable barrier and significantly hampers serious investment into Georgia.
• Assessment is required on the impact of the amendments on the banking sector and relationship between private persons, for example,in case of the obligation to alienate the property in a one-year period, it may be difficult to use the land to meet commitments to the bank, which may create problems for the land owners and thus negatively affect the value of the land.
• The rules and procedures for determing the value of the land by the Ministry of Agriculture is vague.^[7] The price should be determined by the market value and not by the Ministry.
• It is expedient for the restrictions on foreigners not to be imposed on persons whose parents were born as Georgian citizens.

It is important to analyze and assess the correlation between the amendments and the economic development. Investments are the cornerstone for the economic development of any country. For a developing country, such as Georgia, it is vital to attract foreign direct investment, especially when there is a shortage of local investors. It can be said that the ban on the sale of land to foreigners was one of the factors that caused a negative impact on the formation of an attractive investment climate in the country^[8] It is important for the country’s economic interests not to be damaged in this process, and for the attraction of investment to remain as a significant interest for the government. It also has to be noted that most of the land in Georgia is not cultivated and therefore it is inexpedient to impose strict restrictions on investors.