move money and property out of China

Moving money, assets and property out of China is quite a sensitive matter in China, though such moves take place every day across the Chinese borders. It is a known secret that a bulk of the money so moved is illegal proceeds generated by corrupt officials and their cronies. While we see a great deal of illegal transfer across the border, for ordinary people, moving money and fund out of China may be a big headache, and many foreigners will be willing to attest to the very headache: "how to transfer money out of China".

This post is discussing the money transfer out of China in general terms. China has put in place many detailed rules regarding transfer or repatriation of their money out of China, in particular money earned through their work or business activities in China. But still there are cases foreigners (including immigrant Chinese) may feel puzzled in regard of transferring their fund and property out of China.

1.  Transfer of Money in the case of Inheriting Estates in China

In the case of inheriting estates in China, the inheritor will have to consider how he or she can move the estates out of China. China has stepped up a piece of regulation, Provisional Administrative Measures on Sale and Wiring of Foreign Exchange In respect of Transfer of Personal Properties, concerning foreigners, and people from Macau, Hong Kong and Taiwan transferring money out of China that is generated from cashing in the inherited estates. These Measures set out in details what documents shall be submitted and what formalities shall be undergone in order to transfer out of China the money stemming from inheritance of estates in China.

However, through one of the cases I handled on behalf of my foreign clients in getting their money out of China, I c0me to learn that some of the rules in the Measures are not enforced in practice. In this case, my client was an American lady, the administrator of estates appointed by US court, who inherited a sum of bank deposit of more than RMB 500,000 sitting in HSBC Shanghai branch. The money is earned by the deceased through his job in Shanghai. According to the Measures, transfer of RMB 500,000 and more shall be subject to the approval of China State Administration of Foreign Exchange (the "SAFE"), which means the bank will convert the RMB into foreign exchange and wire the same to inheritor's bank account abroad without such an approval. Because of the bureaucracy, it is quite disappointing to have to obtain this approval from top central agency which will for sure takes a long wait. To my great surprise, after I explain the facts of the case to the official at SAFE, I was told that the approval can be dispensed with. The reason is that money to be transferred is salary earning by a foreigner only and transfer salary earned in China is always allowed without approval. The official then added such approval will be necessary in the case of a foreigner inheriting money from a Chinese national. You got it? My understanding is that SAFE is more concerned about foreigners taking "Chinese" money out of China.

That said, emigrant Chinese who may inherit estates left by their family member at home will be disappointed by this.

Another point worth a note in this case, though not much related to the topic here, is that the HSBC bank has agreed to send the money out of China to the inheritor without asking the inheritor to do any legal work in China to prove his inheritance right to the bank deposit. Instead, HSBC simply took the legal documents proving the client's administrator status made by the American court as necessary to establish my client's right to inherit the bank deposit. I am not saying HSBC is doing anything wrong. I actually do agree with such practice which alleviates foreigner inheritors' burden in China. However, it will be a question whether other banks (remember, that was HSBC in my case) esp those home-grown banks such as Bank of China, will follow such suits. It is very likely those banks will request the foreigner inheritors to prove their inheritance right in such bank deposits in accordance with Chinese inheritance law.

2.  How Can a Foreigner Spouse Take Out His or Her Share in the Community Property in China

This is an interesting situation. The client is en emigrant Chinese who is now Canadian citizen. This man emigrated to Canada in nineteen nineties but left his family in Shanghai. The couple have bought a villa in Shanghai a couple of years ago which is however registered in the wife's name only. Now the husband, believing the Shanghai property market is going to collapse soon, wishes to sell the property. He knows that in China property bought during life of their marriage belongs to the community property of the couple, which means he is entitled to half of the sale proceeds of the property though it is registered only in the name of his wife. so his question is: how to get his share of the property sale proceeds out of China to Canada?

It is quite a an interesting question. I don't have an immediate answer for him, though I have handled a number of matters of helping foreign clients to sell their property in Shanghai, China. In those cases, it is straightforward in that the property was originally bought by and registered in the name of the foreign client, and he can just sell the property and get all the money out smoothly. The problem here in this case is that the Canadian client needs to rely on the community property rule in Chinese family law to establish his ownership in the property.  So whether and how he could get his share of sale proceeds out of China require further legal research on it.

My finding is that the confusion is caused by different legal implications of the ownership concepts in Chinese Marriage Law and Chinese Property Law. People tend to think that because of the Chinese community property rule, one spouse will automatically become the owner of real estate purchased by and registered in the name of the other spouse, and that he will be regarded as the legal owner of the said property. While such understanding holds true to some extent, it does flaw in taking the ownership concept in Chinese marriage law as equal to the ownership concept in Chinese Property Law.  In fact, they are different in that without proper registration, the co-owner as created by Chinese family law is not recognized as the legal owner of the property in question by a third party (unless he knows the co-ownership) who will simply rely on the title deed of the property to ascertain and judge who is the legal owner of the property.

In that sense, the SAFE will not recognize the husband's ownership share in the property (though community property) registered in his wife's name only. Literally speaking, the husband has no way to take his share of the sale proceeds out of China.

BUT, this does not mean he has not way to circumvent the rule. The core issue is to get the husband's name onto the title deed of the property before sale of the property. As a couple, the husband can get his name also registered as an owner on the title deed (for more in this regard, please refer to: Add your name onto the title deed of the property registered in the name of your spouse.

After getting the name onto the title deed of the property, then the husband will have no problem in getting his share in the sale proceeds out of China.

There seems to be another interesting question to be answered yet: how can the husband take more than half of the sale proceeds out of China?

 

Jason Tian

Jason Tian, senior partner, specializes in foreign-related legal services ranging from foreign investment in China, banking and capital, real estate, M&A, corporate, international trade, estate planning, inheritance and divorce at his blog: https://www.sinoblawg.com.

23 Comments

  1. Susan Orchids   •  

    Dear Jason – My husband has a bank account in China. We both hold foreign passport although he is originally from China. The account is under his name. Does he need to organise a will and get it notarised in China and do I need to be present at the notary office in China as the beneficiary of the will and do banks in China recognise a will that has been notarised in China? Thanks in advance for your help.

    • Jason Tian   •     Author

      In China, with a valid will, you cannot move the money in his account out of China. He can write a will at a notary office without you being there. Upon his decease, you will need to do the “inheritance right notarization” in order to get the money out. This inheritance right notarization can be complicated and lengthy. so better to send the money out of China in his life time.

      • Susan Orchids   •  

        Thank you very much Jason for your prompt response. We appreciate it very much. What about opening a joint bank account? I understand HSBC and IBCB allows foreigners to open bank accounts. Would I still be able to get money out?

        Kind regards

        Susan

        • Jason Tian   •     Author

          A foreigner can open bank account with any bank in China. so far as i know, joint bank account for individuals is not common, if even possible. You need to check with the bank.

  2. Rene   •  

    Dear Jason,
    Just found this website and thought I could ask an expert.
    I have a house, bought 7 years ago. Lived in it by my self also 7 years. The deed is in my name. Question is. I will leave China in 2 years and want to sell. Will it be possible to transfer the total amount out of China, since I have all docs showing the money is legally obtained?. If possible, is it easy or difficult?.. I had many friends ask me this the recent couple of years as they all are getting to that time in their life, so your answer would be greatly appriciated by many I think.

    • Jason Tian   •     Author

      Hi Rene, where is your property? As a foreigner, you can repatriate your sale proceeds out of China once for all. I will not say how difficult it is. but it does take time to go through different government departments. Many clients entrust me to do the job for them simply because they don’t want to spend their time on such things and save themselves a lot of trouble.

      • Lo Pui Sang   •  

        Dear Mr Tian

        Recently, the Guangzhou Intermediate Court had auctioned my property in Guangzhou and I have about RMB 400,000. Can you please enlightened as to how I can repatriate this money back to Singapore, which I am a Singaporean by birth and, that goes without saying, I am a Singapore citizen

        Do you have a branch in Guangzhou so that I can visit them for their help.

        Thanks and regards
        Lo Pui Sang

        • Jason Tian   •     Author

          ok, i will send your request to a colleague in Guangzhou.

  3. Christian   •  

    Hi Mr Tian,

    Just stumble upon your website and found the information interesting. My fiancé is chinese citizen living in Shanghaï but will immigrate to Canada this summer. Will it be a problem for her getting her balance account from Bank of China transfer to her new Bank of Montreal account? The amount is about 3,000,000 RMB that comes from the sale of her apartment.

    Thank you so much for your input
    Christian Delaney

  4. Steven   •  

    My father is selling property in China he acquired 20 Yrs ago . He is an American citizen Can he just wire the proceeds to a US account?

  5. Steven   •  

    Hi my father is an American citizen that is selling property he acquired in China over 20 Yrs ago. What is the best means to withdraw the money from China? Can he just wire it out or are there restrictions and tax ramifications. He is willing to pay all China taxes but is worried about American taxes

    • Jason Tian   •     Author

      Hi Steven, yes, there is a tax verification procedure that needs to be done before you can wire the sale proceeds out of China. Things are not less complicated as China Foreign exchange authority relaxes its scrutiny on money transfer to foreign account. Also whether he is an American or Chinese at the time of his purchase of the property matters a lot. If back then he was a Chinese, it won’t be easy to wire the sale proceeds out at all.

  6. marco alongi   •  

    Hi Jason

    I have a property for sale in the UK and the lady purchasing my house is a Chinese national now living in London.

    She is a cash buyer and all her money is in a Chinese account

    She has gone back to china for the 3 weeks and she is transferring the money across to the solicitors account. I have now heard that she is only able to transfer £10,000 a day to the solicitor. I have since done a lot of research online about conversion of Chinese currency and transferring it out of the country but everyone has different views on the restrictions.

    What I would like to know, if the money in her Chinese account is legitimate, should there be any problem with her transferring out £370,000 to her solicitor? What is required for her to do this and how long would you suggest it takes to complete?

    Many thanks in advance.

    • Jason Tian   •     Author

      Hi Marco, for the time being, China has not publicly allowed its citizens to buy properties in foreign countries and therefore, Chinese citizens cannot legally transfer money that is to be used for purchasing overseas properties. so she is not likely to be able to transfer the money in a lump sum to you. The best thing she can do is to find her friends in UK who has pounds and then get her friend to pay you while she can transfer equivalent Chinese money in China to that friend who may be willing to take RMB in China. Or she may have to find a few friends in China and ask them to each transfer a sum up to USD 50000 to your account till satisfaction of your demand.

      Chinese People that buy overseas properties are mostly those who already have overseas assets (coming into being by whatever ways) or use underground banking to transfer money out of China.

      Good luck with your buyer!

  7. Rob Chen   •  

    Hi,

    I have purchased a property a while back in China during the time I was still a citizen there. Now I am not a citizen anymore and am an American citizen. I am planning on selling the property.

    What regulations are there for getting the earnings out of China? Thank you.

    • Jason Tian   •     Author

      Hi Rob, it is kind of complicated to wire your sale proceeds back to USA for the reason that you were a Chinese a citizen at the time of purchase.

      Where is the property? In Shanghai or other cities in China?

      • Rob Chen   •  

        Hi Jason

        The place is in Shanghai.

        • Jason Tian   •     Author

          Dear Rob Chen, how is it going with your sale of property in Shanghai? Let me know if you need my help. Please send me email, not just leave message here.

  8. Pandora   •  

    Hi Jason,

    I recently heard that if Chinese who are buying properties in Canada, they can transfer their funds from Bank of China in China to Bank of China in Canada. As long as the clients have a firm contract to confirm the fund is for property purchase in Canada, and the once will only be transferred to a lawyer’s trust account before completion. Then Bank of China can send the money, up to RMB $30 Million, to Canada. Have you heard of this? I asked someone from HSBC in Canada and was told they heard about this policy since a month ago. If there is such policy, where can I find some confirmation about it?

    Thank you,
    Pandora

    • Jason Tian   •     Author

      Dear Pandora, I never heard of such a policy, but i heard of such practice before, not Bank of China, but some foreign-invested banks in China. I will need to do some homework to find out more. But I believe there won’t be such a formal policy mandating such practice.

  9. Oliver Schneider   •  

    Dear Sir or madam, we have a Chinese collegue who is working with us in Germany as an intern for one year. The issue is, that she came back to Germany on Sunday from a trip home to China. She brought 20.000 € in cash. She does not have a customs declaration from Chinese custom service and she didn’t declare the import to German custom service either. Did she act correctly when leaving China with 20.000 € in cash?

    Best
    Oliver

    • Jason Tian   •     Author

      Hi Oliver, she is violating Chinese foreign exchange control rules. China has in place a specific regulation regarding inflow and outflow of foreign currencies cross Chinese border. So far, any person that takes foreign currency equal to USD 5000 shall have to obtain a permit from the bank or foreign exchange authority (as the case may be, depending on amount of the money) . Without this permit, the taking out of this foreign exchange is in violation of the rule.

  10. Pingback: A good case for reference regarding moving money out of China : Chinese Lawyer in Shanghai

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