WEDNESDAY, JULY 11: Back in 2007, the Bermuda Government passed the notorious Bermuda Immigration and Protection Amendment Act (the “Act”), the main thrust of which was to regulate (and some would say, put a stranglehold) on the sale of Bermudian real estate to non-Bermudians.

A big part of the ensuing brouhaha was the ensnaring of foreign spouses in the frenzy which saw a goodly part of the native Bermudian population feeling discriminated against solely by virtue of the fact that they chose to marry someone from foreign shores.

Recently, amending legislation has been enacted. Also, certain prohibitions under the Act have disappeared as the time limits set under the Act have expired.

One provision made in the Act was the de facto imposition of a moratorium on the sale of Bermuda real estate to foreign buyers.

The Act did this in Section 17 not by stopping people from offering their properties for sale, but (with the same effect) stopping foreign buyers from qualifying for land licences in all but a narrow band of exceptions.

Inasmuch as you can’t sell if there are no buyers, we effectively had a moratorium on foreign sales.

Before June 22, 2007, when the market was still pretty good, Bermudians with houses having ARVs over $153,000 were able to sell their homes to foreigners as long as a foreign buyer qualified for a licence.

Acquire

The 22nd day of June 2007 was defined as the “transition day” under the Act, and section 17(2) of the Act stated:

No application for a licence ……… shall be approved by the Minister and no licence shall be issued in respect of such an application until the expiry of five years after the transition day unless —

(a) the Minister had approved the application before the transition day;

(b) the land that is the subject of the application was licensed at the time of the application;

(c) the application is made by a person described in section 89(4)(a) to (d) of the new Part (people with a Bermudian nexus);

(d) the application is to acquire directly from the developer of a condominium development a condominium unit that —

(i) has not previously been transferred to any other person; and

(ii) was designated by the Minister before the transition day or in regulations made under the new Part after the transition day; or

(e) the application is to acquire an interest in tourist accommodation or a hotel residence.

The effect of s.17(2) was that Non-Bermudians could sell their homes to anyone (including other Non-Bermudians) by virtue of s.17(2)(b), but Bermudians could not (an upshot of the fact that only foreigners are required to have “licences” for land).

The five years mentioned in s.17(2) was up on the 22nd June 2012 but on the same date the Government placed another hurdle in the way of people (Bermudians and restricted persons) trying to sell their homes for top dollar to non-Bermudians.

The Government passed the “Bermuda Immigration and Protection (Minimum Annual Rental Values) Amendment Regulations 2012” to increase the ARV threshold from $153,000 to $177,000.

This has the effect of making less of the “high-end” housing stock available to Non-Bermudians, but will allow transactions that had commenced before June 22, 2012 to proceed, as long they are completed within a year.

Some doubt has recently been raised as to whether the end of the moratorium has freed up Bermudians to sell their condominiums to non-Bermudians.

The short answer to this question is a qualified “yes”.

Condominiums are specifically defined under the Act (and solely for the purposes of the Act) to include leasehold co-operative structures (referred to hereon in this article as “condos”).

Qualify

In actual fact, they are not true condominiums under Bermuda’s Condominium Act 1986, since that statute deals with freehold condominium units.

To be capable of being bought by a non-Bermudian, a condo has to qualify under the provisions of s.92 of the Act.

There is a distinction made between the type of Non-Bermudian and the type of condo he or she can acquire.

Any “restricted person” (the name which the Act gives to people without Bermuda Status) can apply for a licence to own a condo as long as:

s.92(3)(b)

(i) it is one of a number of units designated by the regulations that is eligible to be held or acquired by a restricted person;

and

(ii) it has an annual rental value that is greater than the prescribed minimum.

 

Regarding subsection 92(3)(b)(i), the list of eligible condos appears in the Bermuda Immigration and Protection (Designation of Eligible Condominium Units, Tourist Accommodation and Hotel Residences) Regulations 2011.

This year, 66 units at Coco Reef were added to the list.

Regarding subsection 92(3)(b)(ii), the minimum annual rental value levels for houses and condos is set in The Bermuda Immigration and Protection (Minimum Annual Rental Values) Regulations 2007.

The levels set by this regulation for houses is $153,000 and for condos is $32,400.

This year, the Bermuda Immigration and Protection (Minimum Annual Rental Values) Amendment Regulations 2012 raised the minimum ARV level for houses but did not change the 2007 ARV threshold for condos, therefore the minimum ARV level for condos remains at $32,400.

There are additional categories of condo available to certain categories of restricted persons.

Section 92(2)(b) of the Act states that a “permanent resident may hold or acquire a condominium unit if it is in a development that was developed privately without sponsorship by the government;” and under s.92(2)(c) “an individual who has a residential certificate issued pursuant to section 32 may hold or acquire any condominium unit if its annual rental value is greater than the prescribed minimum.”

Prohibition

As the prohibition in 2007 was regarding the issuing of licences, and a “licence” is defined under the Act as that which the Minister must sign if an application for the acquisition of “land” by a restricted person has been approved, and since “land” is defined in the Act to include “land covered by water and any building erected on land and any estate, interest, right or easement in, over or under any land or building”, it follows that the end of the moratorium on the grant of licences contained in s.17(2) of the Act applies to condos as well as houses.

If anything should be evident after reading this article, it is how convoluted Bermuda’s law is on this subject. A re-think of the law in this area would be in order.

Harry Kessaram is an associate at Conyers Dill & Pearman. He can be contacted at 278-7991 or via e-mail at harry.kessaram@conyersdill.com.