Government has 'backtracked' on shaky home ownership law

WEDNESDAY, NOVEMBER 9: Government is moving to change a controversial law barring non-Bermudian spouses from owning homes in Bermuda because it is unconstitutional, a lawyer suggested yesterday.

Barrister Mark Diel, of Marshall, Diel and Myers, said the 2007 law introducing licences for non-Bermudians who own a property with their Bermudian spouses contravened European Union human rights laws and the Bermuda Constitution.

Mr Diel said: “No country that is progressive treats wives or husbands of nationals as second class citizens of the country.

“It’s safe to assume Government knows it was wrong — they’re trying to backtrack on a piece of legislation that has only been in effect for 11 months.

“The legislation was introduced three years ago by a Government that did not appear to respect marriages between Bermudians and non-Bermudians but the implementation kept getting pushed back until it came into effect in December last year.”

The Throne Speech, delivered on behalf of Government by Governor Sir Richard Gozney on Friday, pledged to “remove legal barriers denying home ownership to non-Bermudian members of Bermudian families”.

Mr Diel said: “Hopefully, this law will be changed, but we will have to wait and see. Any change is better than none and I certainly commend the Government for realizing there is a problem and at least taking some steps to fix it.

“Every other secure country respects and encourages the sanctity of marriage and rightly extends rights to the spouse, who by the marriage is invited into the society.

Political maturity

“The Bermuda Government has reached a level of political maturity where this is now recognized as it should be.”

Mr Diel said the Bermuda Constitution guaranteed “freedom of association” while European legislation enshrines “the right to family life.”

He added: “Marriage is probably one of the most fundamental forms of association.”

The 2007 amendment to the Immigration and Protection Act meant Bermudians married to a non-Bermudian were banned from owning more than one property if the spouse helped to pay for it or benefited in any way — including living in the property or getting rental income from it.

Non-Bermudians have to get a $1,375 land licence if they give any financial help to a Bermudian for the purposes of buying property.

The legislation, however, does not apply to non-Bermudian spouses granted Bermudian status after ten years of marriage.

The law was designed to clamp down on “fronting” — overseas buyers illegally acquiring property by using a Bermudian as the nominal buyer.

Those found to be in breach of the law face a prison sentence of up to five years with an option for a massive $1 million fine as well.

A Government spokeswoman told us yesterday: “The 2007 Act has been in force from the date it received the Governor’s Assent. Amendments have been made since that time.

“The Act has never been meaningfully tested in the European Court, however the Ministry is aware of various opinions expressed on the legislation.

“The rationale for the provisions has been outlined on innumerable occasions and all right thinking persons appreciate the positive effect it has had on the deceptive process of ‘fronting’.

“The overhaul of the immigration law in Bermuda was first set out in 2010’s Speech From the Throne and so to suggest that any changes signalled a year later are hurried or otherwise is incorrect.

“The Minister of National Security looks forward to expanding upon the items under his remit as set out on this year’s Throne Speech.

“In the meantime the Ministry continues its efforts to protect Bermudians and their legitimate expectations with respect to home ownership while playing its part in examining, and where necessary changing, policies to account for changes in the economy and market conditions.

“The Throne Speech indicates that the Government is focused on implementing policies that are fair to all Bermudians and land holding policy is no exception.”

Lawyers and real estate agents criticized the amendment when it was passed and the Human Rights Commission said that a legal opinion took the view that the legislation “potentially contravenes the Human Rights Act on the grounds of marital status”.

Campaigners against the legislation also pointed out that the need to get a licence for mixed-status couples meant they could lose out when bidding on a house because sellers did not want to wait for potential buyers to get a licence and preferred to sell to Bermudians who do not need one.

The 2007 amendment is being looked at as part of a “major overhaul” of immigration legislation, which dates from 1956, according to the Throne Speech.

The speech said: “A Land Policy Review Group has been empanelled to review the various policies on land holding and disposition in Bermuda, with particular emphasis on Permanent Resident’s Certificate holders and the foreign purchaser market.

“In addition, this year, the Government will focus on outlawing sham marriages and will remove legal barriers denying home ownership to non-Bermudian members of Bermudian families.”