Moroccan Land Law - AVNA

MOROCCAN LAND LAW - NON-AGRICULTURAL VOCATION CERTIFICATE

When Morocco regained its independence in 1956, one of the characteristics of the country was a clear inequality in agricultural ownership between large, modernized farms mainly owned by settlers and traditional family farms, which were often very small. One of the objectives of the agrarian reform that followed independence was to reduce these disparities.

As part of a series of measures aimed at the reappropriation of agricultural land, in 1973 Morocco adopted Law No. 1-73-213[1] which transferred the ownership of land belonging to foreign natural persons or non-Moroccan[2] legal entities to the State, if it was located wholly or partly outside urban areas[3].

This regulation still prohibits the acquisition by foreigners, whether natural persons or legal entities, of agricultural land or land with an agricultural vocation, it being specified that a legal entity will be considered as foreign if it is not wholly owned by Moroccan persons[4].

However, a foreign investor may apply for a non-agricultural certificate (so called “AVNA”) which results in a rural plot of land losing its agricultural vocation.

Such a non-agricultural certificate [5] is obtained in two steps:

•  A provisional certificate issued on the basis of the project[6] and a provisional sales agreement between the investor and the current owner of the land[7];

• A final certificate[8] issued after the project has been observed in situ by a specific commission.

The AVNA is issued by the Wali of the region after the opinion of the Unified Regional Investment Commission which he chairs, except in the case of delegation to the President of the Regional Investment Centre (named “CRI”)[9]. The application and the documents that must accompany it must be submitted to the competent CRI, as the permanent secretariat of the said Commission[10].

When examining the application for a provisional AVNA, the Commission will ensure in particular that the land covered by the application does not have strong agricultural potential and will assess the value of the planned investment project.

The Commission shall give its opinion within a maximum of 30 days from the date of submission of the project file by the CRI to the Commission[11]. Finally, this procedure is generally rapid, the processing period depending mainly on the dates on which the Commission holds its sessions.

Any decision of refusal must be motivated and can be appealed to the Wali of the region or to a specific ministerial commission called the “Ministerial Pilotage Commission” [12].

Between the issue of the provisional and the final certificate, the land covered by the provisional certificate cannot, in most cases, be transferred. Indeed, the provisional AVNA generally provides for an inalienability clause prohibiting any transfer of the land concerned. The provisional AVNA may also prohibit any change in the shareholding of the acquiring company.

The investor must carry out the project under the terms and conditions set out in the provisional AVNA. Failure to do so will result in the final AVNA not being granted.

The result would be that:

• The Provisional AVNA would be cancelled, which is usually expressly stated in the document enacting the Provisional AVNA;

• The State would theoretically be able to recover ownership of agricultural land under the provisions of Law No. 1-73-213.

The question arises as to whether an ANVA is necessary in the case of a transaction involving a dismembered real right.

Law n° 1-73-645 does not define the notion of ownership. However, this notion may be interpreted either restrictively, as only concerning cases of full ownership (“pleine propriété”), or extensively as including dismemberments of ownership such as usufruct, emphyteusis or surface rights.

For its part, Decree No. 2-04-683 relating to the Regional Commission in charge of certain land transactions uses the expression "real estate transactions" involving foreign individuals, joint stock companies or companies whose capital is wholly or partly owned by foreign persons.

Opinions differ among experts on this issue. It is then recommended to question the Wali of the region or the CRI concerned, but also and above all the Land Registrar in charge of registering such real rights in the land register about the need for an AVNA. Although the latter is not involved in the procedure for granting the AVNA, unlike the Wali of the Region and the CRI, it is up to him to accept or reject applications for the registration of the said real rights and thus to demand or not demand an AVNA in this context, and this independently of the position of the Wali of the Region or the CRI.