On March 20, 2016, President Obama became the first United States president in almost 90 years to visit the island of Cuba, located a mere 90 miles from the coast of Florida—signaling not only a renewed diplomatic relationship between the United States and the communist country, but also, the dawning of a new commercial age which will undoubtedly transform Cuba and its real estate industry.
In the past year and a half since President Obama first announced that the two nations would once again engage in a political dialogue, there have been a wide variety of changes that have come into effect, including the re-opening of an embassy in each country, and the loosening of travel restrictions affecting United States citizens and their ability to visit the island. But despite all these monumental changes, the United States embargo against Cuba, which was first imposed on October 19, 1960, still remains effective—though it appears its days may be numbered.
Last month, the Office of Foreign Assets Control (OFAC) of the United States Department of Treasury announced it had approved Starwood’s application to pursue a business transaction in Cuba, making Starwood the first United States hotel chain to have a presence on the island in over 60 years. Similarly, Marriott International announced that its application was also approved and that it was currently in discussions to develop a hospitality relationship with potential partners, though no specific business arrangements have been announced. According to Starwood’s announcement, Starwood is allowed to convert three existing hotels; it’s a start.
Is this it? Is this the beginning of one of the greatest commercial real estate feeding frenzies since, I don’t know, the Chinese Communist party gave Adam Smith a big wet kiss? It could be one of the great real estate plays of this new century. Loads of U.S. real estate interests and particularly everyone in the hospitality industry has been lusting after Cuba and waiting for the ancient regime to totter off or otherwise go the way of the other communist dodos around the world. Look, this wouldn’t be exciting if Cuba had the geographic advantages of Iceland (no offense) or South Sudan, but it’s a vacation paradise and it’s only 90 miles off our coast. I can see the advertising campaign now: What happens in Cuba stays in Cuba. Heaven forfend that we confuse this with the Bush-inspired effort at democratic nation making, we just want to do deals, man. Vietnam with a calypso beat?
As of now, American citizens are prohibited from investing in Cuban property and are subject to criminal charges through the Trading with the Enemy Act (which is definitely a downer), though this presumably will go away once the embargo is lifted.
So, how is this all working? One presumes that one doesn’t blithely violate the Trading with the Enemy Act. So, except for deals limited to managing hotels, much else remains stalled.
The betting is that the embargo will be raised sooner rather than later and Cuba entirely opened up to commercial development, at least as far as the United States government is concerned. President Obama has urged Congress that it is finally time to act and lift the embargo and “acknowledge that [the embargo is] not working.” This, however, may prove to be difficult with a Republican Congress which sometimes appears nostalgic for the Cold War. Perhaps because of President Obama’s executive actions loosening restrictions affecting Cuban relations, most Republicans, including our current and late lamented Republican presidential candidates, have expressed disapproval of engaging in diplomatic relations with the island and have stated that they would thwart Senate confirmation of any ambassador to Cuba. So, it would appear that the embargo is with us, at least until after the upcoming election, but next year is looking like a good bet. Even if the Republicans remain a significant force in the Congress, don’t underestimate the power of the doing-business-in-Cuba lobby and the attendant donor complex; follow the money Baby!
But, of course, just because the U.S. government will not send you to the joint for doing business in Cuba doesn’t mean that doing business in Cuba will get done. There is that pesky Cuban government which, while it may be in the process of transforming into communism-light, is still an authoritarian kleptocracy. So how’s that going to work?
Right now, all our major trading partners across Europe and Asia are busily doing deals in Cuba and are breaking the trail for U.S. companies that are increasingly hyperventilating over the fact that they are losing out to the first movers who aren’t threatened with U.S. jail time to get a deal done. But, shockingly, foreign investments are, right now, still proving to be risky. Most investors have to act through joint ventures with the Cuban government. Has anyone seen the Godfather? Moreover, the Cuban government remains the sole owner of all the land. The state permits “surface rights” to be granted to foreign investment entities, for terms of up to 99 years, but that is something short of a western style lease. Long term leaseholds are fine; half of London is built on long term ground leases. But remember, the Cuban government and the rule of law are barely on speaking terms. Absent a broad national commitment to some notion of the rule of law, investing in Cuba will remain done on the sufferance of a government that is likely to be increasingly mercurial and unstable. Certainly, there is money to be made, but the risks are real.
So the death of this 60 year embargo is step one, but step two is the establishment of a domestic regime that facilitates getting business done. Right now, we really don’t know the answer to questions such as: How is title established and what rights do the property owner and the mortgage lender have in the real estate? Can I enforce my contracts, and where? (This could be a jurisdiction where international arbitration looks like a swell option, but real estate is really tough to move and ultimately real estate disputes will likely involve resolution inside the sovereign envelope of Cuba.) Title insurance? What licenses will be necessary and how many times will I have to reread my dog-eared copy of the U.S. Foreign Corrupt Practices Act. Particularly important for hospitality companies, what’s the relationship between employer and employee? How are they paid, managed and organized? And let’s not even get started about Cuba’s infrastructure and its adaptability to the modern world. Only 5% of Cubans can get online, making it one of the lowest internet-penetrated populations in the world. The electrical grid seems dodgy and don’t even think of waste and sewage.
So there are a lot of important and consequential questions, and the answers are all TBD. But it will happen. Cuba will, in the near future, surrender to the overwhelming pressure of the capitalist world gestalt (dialectic anyone?). Once that happens, the rest is inevitable. But as my economist friends say, I’ll tell you what or when, but I won’t tell you both. Or, as John Maynard Keynes once said, “in the long run, we’re all dead.” Market timing here is tough. A lot needs to be changed before Cuba can be integrated into the world economy. If Cuba wants to develop on an industrialized scale and encourage the flow of truly material amounts of western capital, they are going to have to build a system that allows that capital to protect its investment. Is it going to happen… almost certainly. Is it going to happen soon? The jury is out.