BAHAMAS Law and Practice Contributed by: Alistair Chisnall and Erica Paine, Graham Thompson
and warranties in commercial real estate trans - actions, representation and warranty insurance is not typically sought by the parties to the trans - action. A purchaser may have remedies commonly available under common law for misrepresenta - tion or breach of agreed representations/warran - ties. In the absence of agreed seller disclosures, representations and warranties, the representa - tions and warranties of a seller are limited under Bahamian law and generally relate to implied covenants for title only (regarding the right to convey, quiet enjoyment, freedom from incum - brance, and further assurance). In general, where representations and warranties are included in commercial real estate transac - tions it is not typical for them to be time limited, nor for the seller’s liability to be subject to any cap. The general position under Bahamian law, and a matter of good commercial local practice, is that the buyer must satisfy themselves as to the condition and fitness for intended use and pur - pose of the land they intend to purchase before proceeding and carry out all the necessary due diligence it would be prudent to undertake. 2.6 Important Areas of Law for Investors While obtaining general guidance on Bahamian real estate law and contracts is important, an investor should ensure that they are advised on: • how closing and carrying costs may arise (whether as taxes or additional fees); • the preferable structure for the holding of title to their property (and how this may interplay with estate planning or exchange control considerations);
• how zoning or planning may affect desired development plans; • in the case of non-Bahamians, the regulatory requirements for owning and developing real estate or operating a business in The Baha - mas; and • in the case of non-Bahamians interested in establishing immigration status in The Baha - mas by virtue of their purchase and invest - ment, the considerations to be understood in planning and co-ordinating these two goals. 2.7 Soil Pollution or Environmental Contamination The environmental liability laws of The Baha - mas are contained in various statutes, but the Environmental Health Services Act, 1987 and the Environmental Planning and Protection Act, 2019 are of primary importance. Generally, the environmental laws are not onerous and seek to hold liable the person responsible for any envi - ronmental damage. A buyer of real estate in which there is soil pollu - tion or environmental contamination may (prac - tically speaking, as much as legally speaking) inherit the responsibility of remediating pre- existing environmental issues. However, Section 28 of the Environmental Planning and Protection Act, 2019 provides that the liability for histori - cal pollution is imposed on any person found to have polluted the environment before 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 practical 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 land - owner under Section 28, notwithstanding that they had subsequently disposed of or sold the
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