German Family Foundations and Real Estate

To begin with: The foundation itself is not a tax saving model! However, a closer look reveals favorable conditions when foundations own and manage real estate. These conditions are not a result of tax loopholes or other short-sighted strategies, but are based on the application of basic principles and rules of German tax law.

Subsequently, there can be a number of advantages if owners and donors transfer rented properties to “their” foundation. The same applies to foundations that buy real estate on the market or from the founding family.

Most property owners become aware of the family foundation through the prospect of income tax optimization. In fact, the unique advantage of the foundation solution lies in its protective effect for real estate. The foundation creates a protective shell around real estate assets and shields them from personal, legal and economic dangers. This results in the following additional advantages for property owners:

In principle, foundations can invest in almost all types of assets. Therefore, foundations can also buy real estate using their basic capital.

For example, the foundation can acquire bank loans for additional financing and leverage, and use the property as collateral. A foundation can also receive one or more loans from the founder. The repayments can provide the founder with tax-optimized lifelong payments.

At the same time, the property is relieved of debt and the foundation's assets grow in a tax-optimized manner.

A prerequisite in all cases is foresighted drafting of the articles of association, as well as precise coordination of the financial concept (rental income, expenses, repayments). Skilled advice on foundation law and tax law from experienced lawyers is essential.

Generally, foundations can continue to invest in almost all asset classes. The foundation can also partially reinvest rental income from existing real estate or profit distributions from companies.

For the purpose of capital investment, the foundation may grant loans to individual family members on terms equal to "third parties" or to third parties as well. Of course, the foundation has to charge interest and needs to secure the claim, but there is a certain amount of leeway when it comes to the arrangement of the details.

The borrower and buyer can either be the founder, another family member or an investment vehicle (e.g. a German Limited Liability Company (GmbH)). The loan from the foundation, in addition to a bank loan, can complete the buyer's investment financing. This way, the buyer achieves an optimized leverage.

Rental income provides repayments to the foundation. The borrower and the foundation can negotiate the repayment amount with each other. This is how the buyer optimizes their liquidity. A prerequisite in all cases is a forward-looking drafting of the articles of association as well as precise formulation of the financial concept. Skilled advice in foundation law and tax law from experienced lawyers is of the essence here.

1. At the beginning there is a layout consultation or feasibility analysis, which should result in a concept that demonstrates the possibilities, opportunities and risks.
2. Secondly, drafts for a foundation charter, the acts of foundation and a transfer contract are drawn up, which also take into account the subsequent investment activities.
3. This is followed by coordination and, in individual cases, negotiations with the foundation authority. As a final result, legal capacity of the foundation is recognized under the respective state law.
4. Finally, the assets are transferred to the foundation and the foundation takes up its work.

The initial setup of a foundation needs to be well thought out and requires careful preparation and counsel in both foundation and tax law. The purpose of the foundation, which is often asset preservation and personal care, is at the forefront of all later activities of the foundation. Arbitrary measures at the expense of the foundation's assets are thus excluded and inadmissible. Ultimately, this is more of an advantage than a disadvantage for preserving the assets.

Psychologically, it can be perceived as a disadvantage that it is no longer the founder who owns the property, but the foundation. With the foundation model, the founder gives up their direct ownership, but receives control over the foundation. This requires a certain foresight, which is often referred to as "foundation maturity". The advantages of the model have already been pointed out and are easy to see if the founder and their advisors use their planning and calculation skills in a future-oriented way.

Some federal states have a supervisory authority for family foundations as well. Their powers vary depending on the state.

With regard to the protective effect for real estate assets, no other legal form offers anywhere near as much protection as a foundation.

In some cases though, an "asset-managing" GmbH might also be worth considering. But the risk of hidden profit distribution is significantly higher in the GmbH.