Dispute Resolution
Asim Arshad
September 2023
With the increasing adoption of cryptoassets, it is inevitable that we will see a rise in interactions between this sector and more traditional asset markets, such as real estate.
An increased awareness of cryptoassets, and their growing availability over the past decade have presented both individuals and enterprises with access to a risk-on environment, characterised by high risk and reward profiles. Consequently, numerous investors have experienced significant returns on their initial, sometimes modest, investments. One notable trend we have observed is the convergence of crypto wealth with the traditional real estate market, particularly in the form of crypto gains being utilised towards real estate acquisitions.
There are primarily two methods by which individuals and businesses are using crypto wealth to enter the real estate market.
The first and most common approach involves utilising the fiat proceeds from crypto gains to cover part or the whole cost of a property purchase. This approach aligns closely with established conveyancing practices.
The second approach entails the direct use of the cryptoassets themselves to facilitate the property purchase. The property’s purchase price, whilst still being pegged to a fiat value, is not settled in fiat currency but rather in an agreed-upon amount of specified cryptoassets.
Both approaches have their own complexities and advantages, including risk tolerance, market conditions and legal considerations.
Using fiat proceeds of cryptoassets
The approach of using fiat proceed of crypto gains in property purchases is a method which strongly resembles established conveyance process, albeit with some nuances in the process brought on by additional financial planning and legal considerations. This is by far the most common method by which parties are utilising cryptoassets in order to purchase property.
Generally, the process will involve several key considerations.
Conversion to fiat
The first step of this process is to convert cryptoassets comprising part or the entirety of a cryptoassets portfolio into a fiat currency, as the British Pound Sterling.
This will usually occur through a centralised exchange and, given the volatility of the crypto markets, timing may be an important consideration.
Parties will often aim to convert their cryptoassets at a peak value, so as to maximise the return into fiat. If substantial sums are being converted and off-ramped, then it is likely that it will be done in tranches and using multiple centralised exchanges to get the best rates and mitigate slippage.
It is also possible to convert cryptocurrencies into fiat currencies using OTC trades, facilitated by a specialised broker.
Banking considerations
Whilst banks and other financial institutions are undoubtedly more familiar with cryptoassets than they were several years ago, it is still important to note that not all financial institutions are crypto friendly.
As such, when off-ramping substantial sums from an exchange to a bank account, it is vital to consider whether the bank in question is willing to accept the funds into the account, and buyers must be prepared for the bank to make enquiries about the source of funds in line with standard anti-money laundering and know-your-customer requirements.
Legal and tax implications
A conversion between cryptoassets (e.g. Bitcoin to USDC) or a conversion from cryptoassets into fiat is also likely trigger a tax liability, and crypto investors may be subject to capital gains tax or income tax, depending on the nature of the activity.
Solicitors assisting with the purchase of property in such cases will be aware that they will be taking these fiat funds into their account in furtherance of the purchase. As such, they will have a responsibility to determine that these fiat proceeds of cryptoassets activity is genuine and not illicit funds or an attempt to launder money.
In other words, the solicitor must be able to verify the source of funds – a key consideration due to the sector specific knowledge that this requires. Before instructing solicitors with the conveyance of the intended property, potential buyers should ensure they are comfortable and able to verify source of funds coming by way of cryptoassets.
At Lawrence Stephens, our dedicated cryptoasset and blockchain team within the firm works closely with our conveyancing department to be able to review and verify source of funds deriving from cryptoassets activity seamlessly.
Application of the funds
Depending on how fiat funds are intended to be applied, if a cash amount is being used to cover the entire cost of the property, then standard conveyancing procedures will apply to the rest of this process.
However, if funds are intended to be used as a partial deposit, with the rest of the purchase price to be financed through a mortgage, lenders will likely require an overview of your finances including cryptoassets gains.
Completion
Once the parties arrive at the completion stage, the buyer will transfer the fiat funds to their solicitors, as will the mortgage provider if applicable. The solicitors on either side will then ensure the timely transfer of funds and completion of formalities to record the transaction and change of ownership of the property.
Using cryptoassets to purchase property
Whilst certainly a less common route to purchase property, it is also possible to utilise cryptoassets themselves for a property purchase. Whilst this route to acquire property comes with additional considerations, complexities and advantages, it can often be a desirable option particularly for those with large crypto portfolios.
Agreement with seller
One of the main considerations and challenges with such an approach is finding a seller who not only has a property to sell that fits the requirements of the buyer, but is also willing to accept cryptoassets as a form of payment.
Much like any other property purchase, parties will need to arrive at an agreed figure for the purchase price of the property and, even though cryptoassets will be used in the transaction, the purchase price agreed must be agreed in fiat currency. This is not just crucial for contractual clarity between the parties, but it is also important for the calculation of Stamp Duty Land Tax (SDLT) liability, if applicable.
Agreeing the cryptoasset
Both parties will also need to agree the cryptoassets to be used in the transaction, and this will require due diligence on the assets involved. It may also be necessary to the current regulatory environment to ensure there are no restrictions on using the cryptoassets of choice. If a particular cryptoassets was regulated, for example, then strictly speaking it would technically not be permitted to deal in the same without regulatory approval.
From the seller’s perspective, they will have undoubtedly have additional considerations for the cryptoassets to be used, and may likely only want to deal in a cryptoassets that has sufficient liquidity.
For example, assuming the purchase price of the property is agreed in the sum of £800,000, the parties will then need to agree which cryptoasset (or assets) are to comprise the purchase price. In this example, we will assume that the parties agree to transact in Bitcoin and, as of September 2023, the value of 1 Bitcoin is approximately £20,000.
Due to the volatility of cryptoassets, it is not uncommon for parties to reach their own agreed upon conversion rate for the cryptoassets being used. In this example, if we assume that the parties agree that the Bitcoin used for the purchase will be valued at £19,500, the buyer will have to pay the seller 41.02 Bitcoin.
Due to the nature of using cryptoassets in such a transaction, separate agreements may be required that addresses the particular characteristics of these assets. For example, given the volatility of cryptoassets, both parties assume a market risk until the transaction is completed. To mitigate this, specific clauses can be inserted into agreements to address scenarios where the cryptoassets value changes dramatically before completion.
Specialised mechanisms or escrow type services for the actual transfer of the cryptoassets would also likely need to be agreed upon and catered for in a specific agreement. In typical transactions, buyers would usually send the purchase monies to their solicitors, who would then forward it over to the seller solicitors. In a crypto transaction, alternative mechanisms would need to be utilised to ensure that the transaction occurs properly, and payment is sent and confirmed to the relevant parties so subsequent steps in the conveyance procedure can take place.
Solicitors with expertise in cryptoassets transactions are crucial in such instances, to ensure legal compliance and clarity.
Post-completion formalities
After the transaction is complete, the usual formalities such as land registration will follow, and these may require special annotation to indicate the use of cryptoassets in the purchase. The land registry, in the past, has recorded the sale price of property in cryptoassets.
SDLT may also be applicable and will usually be calculated in relation to the value of the cryptoassets on the day of completion, as evidenced by reputable data sources.
From the seller’s perspective, they will want to ensure that they can continue to securely hold and access the cryptoassets or convert them into fiat, depending on their intentions. Oversight in this regard could lead to difficulties in them accessing the proceeds of the sale.
Conclusion
The purchase of property using the fiat proceeds of cryptoassets, or cryptoassets themselves is not only feasible but can also be an attractive option for both buyers and sellers.
Such transactions are accompanied by a unique set of legal considerations that require specialised knowledge and understanding of the cryptoassets sector; from due diligence on the cryptoassets used and their liquidity, to understanding the additional legal mechanisms required to ensure a compliant and clear transaction, the process necessitates an expert legal perspective.
Lawrence Stephens is equipped with specialised knowledge in the cryptoasset sector, enabling us to guide clients through each step of this innovative transaction method. If you are contemplating diving into the world of property purchases via cryptoassets, we are here to assist and advise.
