BAHAMAS Law and Practice Contributed by: Alistair Chisnall and Erica Paine, Graham Thompson
the Act came into force on 20 January 2020; many of the Act’s administrative provisions have not yet been fully implemented, and the provisions imposing duties of care or liability have not yet been tested in practi - cal application and effect. It remains to be seen (but certainly appears that it might be the case) whether environmental liability and remediation costs may be borne by a prior landowner under Section 28, not - withstanding that they had subsequently disposed of or sold the land to a third-party purchaser, or whether such liability would simply be inherited by a succes - sor in title or the current owner of the damaged or polluted land. 2.8 Permitted Uses of Real Estate Under Zoning or Planning Law There are a number of Bahamian statutes that include provisions relating to the development and use of land but, generally speaking, development, planning, zon - ing and land-use regulations are set out in the Plan - ning and Subdivision Act, 2010 (P&S Act) and related subsidiary legislation. The P&S Act contemplates that a “Land Use Plan” shall be adopted for each island in the Commonwealth of The Bahamas; but, for various reasons, work on developing and finalising such plans has not yet been completed. With this issue in mind, it is standard prac - tice for a buyer who wishes to ascertain the permit - ted uses of a parcel of real estate under applicable zoning or planning law to contact the Town Planning Committee in the Department of Physical Planning for confirmation of the permitted or zoned use of that property under historic zoning orders or the current non-statutory land-use plans. Approvals in Principle Where a purchaser has development plans in mind for a parcel of land, the securing of requisite approv - als (or, more often, “approvals in principle”) from the Town Planning Committee to facilitate the develop - ment, operation and management of the desired activ - ity on that land would be a condition for closing the purchase transaction. The issuance of further project- specific final approvals from the Town Planning Com - mittee would often be undertaken following comple - tion of the purchase.
Such approval in principle is often sought from the highest levels of government in the purchase and development approval process and covered in a buyer’s or developer’s application to the National Economic Council and Bahamas Investment Author - ity (see 2.11 Legal Restrictions on Foreign Investors ). In the case of major development projects, the buyer/ developer and The Bahamas government will often enter into written and signed “Heads of Agreement” confirming approved uses, permitted development plans and related matters. 2.9 Condemnation, Expropriation or Compulsory Purchase The Bahamian constitution protects private property rights. The Bahamian government’s powers or rights of condemnation, expropriation or compulsory pur - chase (referred to as “compulsory acquisition” in The Bahamas) are limited and can only be exercised strict - ly in accordance with relevant statute law, as follows: • under the Acquisition of Land Act, 1913, land may be compulsorily acquired for public purposes and subject to the process set forth in the Act; • under the Proceeds of Crime Act, 2018, confisca - tion orders may be issued where property was acquired or gifted with proceeds from illegal activi - ties; • under the Environmental Planning and Protection Act, 2019, administrative orders may be issued to halt or prevent environmental damage; • under the Real Property Tax Act, the public treasur - er has the power to sell certain land where annual property taxes are in arrears; and • under the Building Regulations Act, 1971, the minister responsible for building regulations has the power to condemn and/or destroy unsafe or derelict structures. 2.10 Taxes Applicable to a Transaction Generally speaking, all sales and transfers of land between third parties, whether direct or indirect, attract VAT payable to the Public Treasury under the Value Added Tax Act (VAT Act). VAT on a transaction is calculated on either the con - sideration paid for the property or the fair market value of the property, whichever is greater. The fair market
37 CHAMBERS.COM
Powered by FlippingBook