REAL ESTATE LAW IN THE BAHAMAS

Would it not be a dream come true for you to own an island, a hotel or just a house in a warm and beautiful sub tropical paradise, where there are almost no taxes? Now, you can do so.

The Commonwealth of The Bahamas is an independent, sovereign nation, consisting of 700 islands (35 of which are permanently inhabited) and 2,400 cays and rocks, extending in a south-easterly direction from Florida to Haiti. The archipelago covers some 233,000 square kilometres of the Atlantic Ocean, but have a total land area of 13,940 square kilometers, which is just a little smaller than the American state of Connecticut. Some of the islands are barely 65 kilometres from the United States or Cuba. It obtained its independence from Britain in 1973, and before that, was internally self governed for a considerable period. At the same time, The Bahamas is a member of the Commonwealth, and recognizes the Queen as its head of state, with her representative being the Governor General, who is appointed by the Bahamas Government.

That political independence is considered one of its strengths, as an international financial centre, in contrast to the colonies, territories and dependencies elsewhere, which continue to be under the control of a metropolitan colonial power. Therefore, one does not have particularly to concern oneself with the consequences of membership of the European Union (EU) and other possible conflicts of interest, which arise because of the colonial power's control and international relations.

The Bahamas has been a well-established, highly respected and sophisticated, international financial centre for more than sixty years, built on the common law, political stability, tax neutrality, a thorough regulatory environment, a modern infrastructure, excellent communications, and proximity to North America and world markets. It is one of the oldest, continuous parliamentary democracies in the Western Hemisphere. Having been the landfall of Columbus in the New World in 1492, the Bahamas saw the permanent convening of its Parliament in 1729, after two centuries of colonial upheaval. Its courts and justice system are very highly regarded; they have applied the common law and developed a jurisprudence that has maintained the integrity of the nation's livelihood in financial services, which are the second most important economic sector.

This salubrious, year round, good weather of this island paradise has traditionally attracted health seekers. The Bahamas not only has the reputation as a sanatorium, but also as a haven for the rich and famous. Ever since Edward Duke of Windsor was exiled as Governor of The Bahamas in the early 1940’s after his abdication from the British throne, The Bahamas has been the retreat of choice for celebrities and high net worth individuals.

The Bahamas, as a premier centre for tourism and business, promotes an investor-friendly atmosphere. Investment in homes, hotels, resort complexes and other businesses is encouraged. Real estate sales and building construction play an important role in the overall development of the Bahamian economy, which consists primarily of tourism and financial services. Therefore, the Government’s investment policy aims for substantial and consistent growth in the real estate field. For the first time, a separate ministry of government has been established, called the Ministry of Financial Services and Investments. In the National Strategy on Financial Services of October 2002, the Minister announced the Government’s intention to streamline the procedures and to expedite the approval of the applications associated with property purchases. The Government promised to replace the red tape with the red carpet, and also to increase the linkages between tourism, investment, real estate and property development.

The purchase contract, also referred to as the agreement of sale or contract for sale, may contain a variety of provisions, depending on the nature and complexity of the project. It is usually made subject to financing and the approval of the relevant government applications, so that the deposit (usually 10% of the purchase price) is refunded to the proposed buyer in the event that financing or approval is not obtained.

Some provisions of the agreement of sale are laid down by law, in particular the Conveyancing and Law of Property Act (section 3). However, the parties can, and usually do, exclude some of these provisions, which apply only if and as far as a contrary intention is not expressed in the agreement of sale. Thus, the agreement usually excludes the obligation under this Act to produce an abstract of title.

Usually within 14 days, the seller is required to produce all of the documents of title in his possession and such other information, as the buyer’s attorneys reasonably require, in order to deduce a good marketable documentary title. Requisitions and objections, if any, in respect of the title or description of the land are to be delivered in writing to the seller’s attorneys within l4 days. The title is deduced for a period of thirty years, or to a grant or lease by the Crown, or to a certificate of title granted by the Supreme Court, whichever period is shorter.

Regarding requisitions and objections, a seller or buyer may at any time apply in a summary way to the court, in respect of any requisitions or objections, or any claim for compensation, or any other question arising out of or connected with the contract (section 4).

The procedures are best considered in general, and then separately for homes, hotels and businesses.

You will have to complete, for your attorney and financial institutions, the due diligence required under the anti money laundering legislation. They compile the Know Your Customer information from you, such as the source of your funds and a copy of your passport, and keep the completed forms.

The other procedures consist of searches, applications, and drafting, executing, stamping and recording the conveyance and associated documents. The title searches are conducted at the Registry of Records. As a system of registered land has not yet been introduced, such searches are a tedious necessity in an archaic system. In addition, a search is done of the cause list and files of the Supreme Court Registry. For example, under the Judgments Act, a judgment against a seller attaches to his land, and is an encumbrance on the title; if you buy the land, you will not receive a good marketable title. Because many of the books of the Supreme Court Registry are worn out with use and age, you are well advised to obtain the services of a specialized search service and also title insurance. Both Registries are in the process of being computerized.

Additional searches are also done of the relatively modest real property tax levied by the Government. In addition, for land in Freeport, searches are done of the charges imposed by the Grand Bahama Port Authority.

Prior government approval is not required for non-Bahamians to purchase residential properties of less than 5 acres. Such purchases are merely registered with the Investments Board. Where the land is 5 acres or more, an application is made to the Investments Board for a permit. A permit is granted on the strength of the investor’s assurances that the land will be used for development and not for pure speculation. For large projects, an application is also made to the Bahamas Investment Authority (BIA) for approval. A project proposal, financial projections and the employment needs of the project must be included. In addition, you apply to the Central Bank for approved investor status, which means that, in the event that you later decide to sell the land, you will be able to repatriate the proceeds, as evidence will have been provided of the foreign source of the purchase money.

In Bahamian land law, ancient forms and language are still used. A conveyance is drafted by the seller’s attorney and approved by the buyer’s attorney, setting out the transfer of the land. It is the responsibility of the buyer’s attorney to stamp and record the conveyance and any other documents, such as a mortgage or debenture, which may be associated with the transaction. Stamp duty, a major source of government revenue, is determined by a sliding scale according to the purchase price. Recording is important for the protection of the buyer. For large projects and for estate planning purposes, it is often desirable to purchase the property in the name of a company. In that case, a company is incorporated under the Companies Act.

The International Persons Landholding Act, 1993, into force on the 1st January 1994, sets out the requirements for the acquisition of freehold and leasehold land in the Bahamas by non-Bahamians. It simplifies the procedure and therefore has renewed and multiplied the purchases of second homes in the Bahamas by non-Bahamians.

The Act encourages non-Bahamians or companies owned by them, to purchase a second home in the Bahamas. If a non-Bahamian acquires a single family dwelling or vacant land to be used in the construction of such a dwelling then he no longer requires a permit from the Investments Board prior to the purchase. The non-Bahamian need only register the acquisition subsequently with the Investments Board.

Permanent residents in the Bahamas and non-Bahamians who inherit property in the Bahamas hold a similar position to second home purchasers. In neither case must they obtain a permit before acquiring land but must merely register it subsequently.

· the property is undeveloped land and consists of five or more contiguous acres in size; or

· the property is not a private residence, or it is not intended for development as such.

In these cases the non-Bahamian must in his application for a permit state his intended use of the property. Failure to obtain a permit will render the acquisition null and void, but the non-Bahamian will be entitled to recover all monies paid in consideration of the acquisition less any legitimate deductions. If a permit has been granted for the acquisition of land and the intended usage changes, then the permit must be varied by the Board. Otherwise, it will be invalid. A registration certificate or permit must be included along with the title document to be recorded in the Registrar General’s Office. Otherwise, the recording will be null and void.

In line with its policy of actively encouraging foreign investment, the Government has included in the Act a provision that a non-Bahamian who owns a home in the Bahamas may now obtain an Annual Home Owner Resident Card upon application and payment of a fee to the Director of Immigration. The card authorises the entry of the holder and his immediate family and also their stay in the Bahamas.

Although it is not provided for in the Act, it is government’s policy that non-Bahamians who purchase a second home in the Bahamas at a cost of $500,000.00 or more are eligible for accelerated consideration for Permanent Residency in the Bahamas, a status which affords to the holder most of the privileges of a citizen save the right to vote.

There are extensive incentives to encourage investment and the accompanying purchases and leases of land. The incentives give relief from customs duties on approved equipment, supplies and raw materials, and allow exemptions from business licenses and real property taxes for up to 20 years.

These incentives promote new industries, export manufacturing, free trade zones, agribusiness, and spirit and beer manufacturing, although the environment is changing dramatically through the Free Trade Area of the Americas and proposed Bahamian membership in the World Trade Organization.

Businesses especially targeted for non-Bahamian investors are tourist resorts; upscale condominium, time share, and second home development; international businesses; marinas; information, data processing, and e-commerce services; assembly industries; high-tech services; ship registration, repair and related services; light manufacturing for export; agro-industries; food processing; mariculture; banking and financial services; captive insurance; aircraft services; pharmaceutical manufacture; and offshore medical centres. This list is not exhaustive.

Typically, a Bahamian company is formed to acquire land or a lease for the conduct of the business. The other requirements mirror those mentioned elsewhere in this chapter.

Investment incentives are designed to increase the purchase and sale of properties, especially for second homes and hotel resort development. Hotels are but one business that is especially encouraged. The Hotels Encouragement Act provides an attractive package of incentives to investors for the development of new hotels, and the expansion or remodelling of existing hotels in the Bahamas.

To qualify under the Hotels Encouragement Act, a new hotel (which includes a club where guests may reside) in New Providence and Paradise Island must have a minimum of 10 to 50 rooms, depending on location, for the accommodation of guests. Subject as indicated below, a new hotel in the Family Islands must have a minimum of 5 bedrooms. The incentives apply to all of the hotel amenities including jetties, utility services, golf courses, roads and marinas.

The definition of a new hotel includes premises to which substantial repairs and refurbishment are carried out for use as a hotel, having not less than 10 bedrooms in New Providence, Paradise Island or Freeport, Grand Bahama and having not less than 4 bedrooms in other Family Islands and where in the opinion of the Government, such repairs and refurbishment renders the premises a new hotel. The "all inclusive hotel" and the "condo-hotel" are recognised by the Act. The former is defined as a "hotel where food and beverage and entertainment are offered at a fixed price to registered guests." To qualify as a "condo-hotel", individual units must remain in the hotel's general rental pool for a minimum period of 9 months per year.

• Exemption from the payment of custom duties in respect of the importation of materials necessary for the construction, equipping and furnishing, of the new hotel. The materials eligible for custom duty exemption are set out in the Hotel Encouragement (Custom Duties Exemption) Regulations, 1999 (“the Regulations”). It is important to note that any materials imported or purchased prior to the grant of the approval of the project will not be exempted from payment of customs duty.

• The right to import construction plant free of customs duties on a Customs bond, with the obligation to re-export it by a given date.

• Admission into the Bahamas of key personnel and special workmen during the construction period and during the operation of the new hotel.

• 20-year exemption from direct taxation upon the earnings of the hotel and its amenities.

• In the case of a Family Island, exemption from the payment of stamp duties payable in respect of the importation of materials.

The owner or tenant of an existing hotel in New Providence who satisfies the Government that his proposal to rehabilitate, remodel, refurbish, re-equip or extend the hotel is substantial and will be in the best interest of the Bahamas will be granted a reduced rate of customs duty of 10% on materials. Hotels in Grand Bahama and the Family Islands are eligible for full exemption from customs duty. The materials eligible for custom duty exemption are also set out under the Regulations.

Formal written application along with appropriate plans must be submitted to the Office of the Prime Minister, addressed to the Permanent Secretary for the concessions offered by the Act. Full particulars including plans of the proposed project, a total estimate of the costs and a list of items for which the investor expects exemption must be provided.

The application is first considered by the Project Co-ordinating Committee which is comprised of the Executive officers of various agencies of the Government. Once recommended for approval by the Project Co-ordinating Committee, the application is then submitted to the National Economic Council, headed by the Prime Minister, for final approval. Once final approval is granted, a formal agreement is prepared and executed by Government and the investor.

It is recommended that investors consult a local lawyer to assist in the preparation of the application and the agreement with the Government.

In view of the congenial, user-friendly atmosphere for investment, the Government has adopted a policy of eliminating purchase and sale restrictions. The BIA was set up to simplify the process. There are no restrictions other than those mentioned above regarding application to the Investments Board and to the Central Bank.

It is best to use an attorney as a one-stop shop to expedite your investment project.

The Act is not intended to be a stumbling block for legitimate credit transactions. It provides that banks, trust and insurance companies licensed in the Bahamas which acquire an interest in or take possession of property under the terms of a mortgage or debenture are exempt from obtaining a prior permit. However, any non-Bahamian or non-Bahamian entity going into possession as a mortgagee or acquiring land under a court order must register that acquisition or fact of possession. Acquisition by way of foreclosure under a mortgage or of land acquired by an authorised foreign state will not require a permit, but must be registered.

Real estate transactions are normally done with the assistance of a Bahamian counsel and attorney. You are well advised to retain and consult your Bahamian attorney before signing any documents at all. An attorney is, by definition, empowered to act on your behalf. Your instructions may be oral or in writing. Therefore, no formal power of attorney is necessary for him to take steps to ensure that your title is good, clear and marketable, and to arrange for the completion.

Because of this role and the speed and convenience of international communications, formal powers of attorney are rarely used in real estate transactions. The parties themselves execute most of the real estate documents directly, or their Bahamian attorneys execute some of them on their behalf, without any further formality. Although the Powers of Attorney Act 1992 makes provision, it is usually not necessary to give your Bahamian counsel and attorney a power of attorney for this purpose. For example, prior to closing, the declaration of real property is usually completed and signed by the attorney, if the proposed buyer is not available. At closing, if the parties are not present for a face to face meeting, the engrossed title deeds are commonly couriered to them for execution, and then are returned to the buyer’s attorney for stamping and recording.

Non-Bahamian investors are encouraged to arrange their financing from their home financial institutions, so as not to exhaust the Bahamian domestic market for such credit. However, as more than 300 international banks and trust companies have a presence in the Bahamas, it is not difficult to make financial arrangements, and to arrange appropriate interbank transfers.

It is expected that the balance of the purchase price is payable at the time of completion. You are also expected to save and produce your bank documents for the application for approved investor status, and for the due diligence required under the anti money laundering laws.

Building permits are granted under the Building Regulation Act for all construction. In Nassau, application is made to the Ministry of Works. In the Family Islands, district councils appoint boards which issue building permits for each district.

The internationally recognized forms of building contracts are widely used, especially for larger projects. For example, the forms of the American Institute of Architects are common for large and medium projects, supplemented to suit local conditions. There is an ample and varied reservoir of architects, contractors, sub-contractors, and other personnel to take your project from the design concept to ultimate completion. For smaller projects, such as most home construction, an exchange of correspondence and construction documents, such as the approved plans, is usually sufficient. Legal advice is also readily available.

A building should be more than 95% complete before it is accepted. All the remedial or defective work should corrected before practical or substantial completion. The architect and his consultants check the site and prepare a punch list of work still to be done by the contractor and sub-contractors.

Provisions relating to deficiencies and warranties are usually covered by the building contract. It is left to the architect to determine whether the building can be accepted with certain deficiencies. It is still the contractor’s responsibility to correct those deficiencies within the stipulated time. Warranties are issued before the architect executes his certificate of substantial or practical completion. Arbitration is commonly used to deal with disputes.

As the Bahamian economy is open, globalized and liberal, you will find a variety of kinds of ownership. The principle kinds are individual and company ownership. Individuals are not restricted in any way in owning property directly. By extension, trustees and partnerships may also own property.

Companies are required to have a physical presence in The Bahamas. Therefore, companies formed elsewhere are required to incorporate in The Bahamas.

Proof of ownership is not generally required, except in connection with the due diligence conducted by the various institutions, such as that required under the anti money laundering laws. Each institution needs information on the actual beneficial owners. Information on intermediaries will not suffice.

Ownership registers are kept only in the sense that registers of shareholders of companies are kept at the registered office of each company. Because of the high degree of business confidentiality in The Bahamas, registers of shareholders are not required to be kept in the public registry, only registers of officers and directors. If confidentiality is required in the purchase of land, you should discuss the various options with your attorney, such as the use of a company or a trust.

Non-Bahamians are not required to obtain permits or register leases or letting agreements, unless they are for trade or business purposes and the term can exceed 21 years.

It is easy to advise on Bahamian taxes, because there are almost none. There are historically no capital gains, estate, income, corporate, inheritance or gift taxes. The Bahamas is, therefore, known as a no-tax country or fiscal paradise.

A relatively modest annual property tax is imposed on land. For owner-occupied property, the tax is collected on that part of the market value of the property which exceeds one hundred thousand dollars but does not exceed five hundred thousand dollars, at the rate of one per cent; and on that part of the market value of the property which exceeds five hundred thousand dollars, at the rate of one and one half per cent.

In respect of unimproved property, the tax is collected on that part of the market value of the property which exceeds three thousand dollars but does not exceed one hundred thousand dollars, at the rate of one per centum per annum; and on that part of the market value of the property which exceeds one hundred thousand dollars, at the rate of one and one half per cent.

In respect of other property, the tax is levied on that part of the market value of the property which does not exceed five hundred thousand dollars, a tax at the rate of one per cent; and on that part of the market value of the property which exceeds five hundred thousand dollars, at the rate of two percent.

However, in respect of unimproved property, the rate of tax is seven per centum per annum if the property is owned by a non-Bahamian, the property remains undeveloped and two years have elapsed since the non-Bahamian became the holder of the property. Therefore, this provision is an incentive to develop the land and not to hold it for speculative purposes. But, a non-Bahamian who is developing a subdivision in Nassau or the Family Islands may apply to the Minister to have any property remaining unsold and unimproved to be exempt from tax. Other exemptions are provided under the Real Property Tax Act.

An assessment is done of the value of the land. When property is purchased, a declaration of real property is prepared and submitted by your attorney. A copy of the conveyance is also sent at the same time to the real property tax authorities, as the purchase price is usually indicative of the market value. The Government levies no real property tax in the port area of Grand Bahama until 2015 by agreement with the Grand Bahama Port Authority and the Grand Bahama Development Company, in order to facilitate development and to create employment in that island.

Then, where does the Government obtain its revenue? It revenue comes principally from customs duties on imports, but also from various fees, stamp duties, and hotel room taxes. However, there is no central tax administration,

As Bahamian law is based on the English common law, the inheritance law rests on the same foundations as English law. However, in 2001, the Government updated and simplified the law by passing new legislation relating to inheritance, wills and the administration of estates.

The applicable law is set out in the Inheritance Act 2002, the Wills Act 2002, and the Administration of Estates Act 2002. A substantial number of persons do not have wills. The legislation explains, for example, the line of succession upon intestacy.

The Wills Act 2002 replaces an act of the 19^th century. Under Bahamian law, a will must be in writing, signed at the foot or end by the testator, with at least 2 witnesses present at the signing, who sign the will acknowledging the testator’s signature. Where a single person gets married after making a will it usually becomes void.

If a testator gets divorced or receives an annulment, the will remains effective to the extent that, (1) where the spouse is the executor under the will, such appointment would be void, and (2) any gifts to the spouse under the will would be void, unless the testator states otherwise in the will.

A will executed outside the Bahamas must conform with the requirements of the place where it is executed. After the testator’s death, the will is probated in that country and, if it is not The Bahamas, that will is subsequently resealed in The Bahamas. In this way, the Bahamian land passes to his heirs. It is not necessary to apply again to the Investments Board.

As indicated above, The Bahamas has no inheritance or gift taxes. This is a very attractive advantage for purchases of real estate.

Reciprocity is a vital element is international tax treaties or double taxation agreements. As there are almost no taxes in The Bahamas, this element would not exist in any treaty relationship. The benefit and flow of information would largely be a one-way street.

Nevertheless, The Bahamas entered into a tax information exchange agreement with the United States in 2002. The Government also gave a letter of commitment to the Organization for Economic Cooperation and Development to provide information in criminal matters and, subsequently, civil matters.

As with many emerging nations, the policies of The Bahamas Government are aimed at ensuring reasonable security, well-being and economic progress of The Bahamas and its people. However, due to our status as an offshore financial center which is utilized by persons from various parts of the world, The Government does give consideration to application for citizenship, permanent residency and work permits subject to applicable immigration laws and governmental policies.

Persons seeking permanent residence must be of good character and prepared to show evidence of financial support. Application is made to the Ministry of Public Safety and Immigration and must be accompanied by the necessary information. Accelerated consideration may be given to fit and proper applicants for permanent residence who demonstrate a genuine intention to reside in The Bahamas at least part of the year and which applicants either already own or intend to purchase a home in The Bahamas with a value in excess of $500,000. Any successful applicant, where applicable, may have his spouse and/or minor children endorsed on his permanent residence certificate.

Non-Bahamians are at liberty to apply for work permits but they must be able to demonstrate a special skill or expertise such that at the time of application there are no suitable Bahamian persons capable of holding the position for which the permit is being applied for. Certain categories of Work Permit applicants may request a permit for longer periods than the standard one-year period. Upon each renewal sought the criteria that was applicable to a new applicant will be required to be met. Should Work Permit applicants wish to be accompanied by their spouse and/or minor children, separate Residency Permit applications must be made.

Depending on the nature of your transaction, your attorney can provide you with a convenient checklist of what information to provide and what to do. Lawyers, real estate agents and brokers, banks, and insurance companies all have active professional associations. Most of them can now be found by a search of the Internet. The Bahamas Government also has a web site www.bahamas.gov.bs, with useful links to its agencies and other helpful addresses. This author can also be contacted at www.maynardlaw.com.

There is no available survey of purchase prices of land. But, you can expect the prices of land and services to be similar to those in the major cities of Europe and North America. The cost of living is relatively high in The Bahamas, and this is reflected in the cost of land and services. Purchase prices of land in the Family Islands are considerably lower than in Nassau.

The objective of owning land and living in a sub tropical paradise, such as the Bahamas is quite attainable in a today’s globalized world. Professional advisers are readily available to inform you of what steps are required, and to take them for you. You can own a piece of paradise.

[1]Counsel and Attorney at Law, specializing in real estate, commercial law, company law, trusts, banking, and civil litigation. President of the Bahamas Bar Association, President of the Organization of Commonwealth Caribbean Bar Associations, Deputy Secretary General for the Caribbean for the International Bar Association. Admitted to practice law in 1979 in England, Wales and The Bahamas; and in 1986 in St. Lucia, St. Vincent and the Grenadines, Antigua and Barbuda and Trinidad and Tobago, in 1996, pro hac vice in the Turks and Caicos Islands. Education: McGill University (B.A., Hons.); Johns Hopkins University (M.A., Ph.D.); Cambridge University (LL.M.); Sorbonne (1966); Cornell University (1968); University of Toronto (1971). Member of the Hon. Society of Gray’s Inn. Former posts: Legal Adviser, Bahamas Ministry of Foreign Affairs; Economics Affairs Officer, United Nations; and Acting Stipendiary and Circuit Magistrate. Contributing Editor, Journal of Financial Crime, Journal of Money Laundering Control, Amicus Curiae, International Journal of Banking Regulation, Company Lawyer and Caribbean Law and Business. PETER D. MAYNARD & CO., Chambers, Jehovah Jireh House, Bay & Deveaux Streets, P.O. Box N-1000, Nassau, Bahamas, telephone: (242) 325-5335, fax: (242) 325-5411, www.maynardlaw.com, email:Peter.Maynard@maynardlaw.com. I especially thank for their help with this article Adele Taheri, real estate, address and Herbert Holzer, who did the translation, address .

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