In December 2019 Parliament passed a package of environmental bills geared towards developing, reinforcing and strengthening the laws which promote and support the management, protection, enhancement and proper use of the Bahamian environment. This article provides an overview of the new legislation, including the Environmental Planning and Protection Act, which is one of the most notable new laws with respect to Bahamian real estate and development.
A recent Court of Appeal case is the latest in a series of recent planning law cases to be decided against the developer. The courts seem to be moving towards a simpler but less flexible planning system. This is in contrast to the government's recent changes intended to promote flexibility in the planning system.
The start of lockdown initiated a significant slowdown in the property market in early Spring 2020. Reassuringly, as Jersey came out of lockdown, there was an exponential increase in property transactions, which peaked in August 2020. If the rapid resurgence of the market seen in the summer is anything to go by, any reduction in transactions over the winter months which is beyond the seasonal norm may lead to a similar increase in activity and competition next spring.
The States of Jersey enacted the COVID-19 (Residential Tenancy) (Temporary Amendment of Law) (Jersey) Regulations 2020 in an attempt to address the impact of the COVID-19 outbreak. The regulations temporarily amended certain provisions of the Residential Tenancy (Jersey) Law 2011, applying to all residential tenancies with effect from 10 April 2020, and remained in force until 30 September 2020. As of this date, landlords and tenants must manage leases in the normal way under the law.
The scope of transactions that may now come under Committee for Foreign Investment in the United States (CFIUS) review is much broader, including transactions in the commercial real estate space. Lenders which operate in this market should familiarise themselves with CFIUS, its authorities and its considerations, especially as foreign investment begins to pick back up along with the overall economy.
Over the past few years, there have been numerous queries arising out of uncertainty and lack of clarity in relation to the timescales for the commencement of development under a planning permission in principle and its associated approval of matters specified in conditions. The simplification that will be introduced by the Planning (Scotland) Act 2019 is therefore likely to be welcomed by many, but there are important points to note about the provisions in the 2019 act.
A recent case concerning a landlord's counterclaim for the cost incurred by it in remediating its property prior to undertaking a major redevelopment project provides a useful reminder to tenants on the extent of their potential liability at the end of the term of their lease and sounds a cautionary note to any party undertaking works under licence. The landlord was entitled to recover the full cost of the remediation work to deal with asbestos contamination caused by the previous tenant and its parent company.
New York Governor Andrew Cuomo recently signed a new executive order extending the state-wide moratorium on commercial evictions. The moratorium prohibits the enforcement of any eviction of any commercial tenant, or a foreclosure of any commercial mortgage, for non-payment of rent if the property is owned or rented by any individual who is eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic.
EE Limited v Edelwind Limited is another in the increasing line of cases concerning the operation of the Electronic Communications Code, contained in Schedule 3A to the Communications Act 2003. This one, before the Upper Tribunal, concerned the code's provisions governing the service of a notice to terminate a code agreement in terms of when and on whom the notice should be served.
In response to the COVID-19 pandemic, the federal government, as well as many states, has enacted eviction and foreclosure moratoriums in an effort to keep homeowners and renters in their homes and slow the spread of COVID-19. Citing concerns with the continued spread of COVID-19, the Centre for Disease Control and Prevention recently issued a new order temporarily halting residential evictions nationwide until 31 December 2020 (unless extended).
In a recent judicial review appeal, the Inner House considered the application of Section 104 of the Community Empowerment (Scotland) Act, which deals with consultation in respect of disposing and changing the use of common good property. The petition was for judicial review of the Angus Council's decision to demolish a leisure centre which had been erected on common good land.
A recent Supreme Court case has clarified the law around challenges to covenants which seek to limit the use of land. The case involved an appeal by a retail anchor tenant against its landlord, which had sought to challenge a restrictive covenant in the lease which prevented it from letting space to businesses that competed with the tenant. The landlord sought to argue that the covenant was unenforceable as it fell within the doctrine of restraint of trade.
The government recently published a draft Building Safety Bill as part of its commitment to overhaul fire safety regulation in the wake of the Grenfell Tower fire in 2017, which claimed 72 lives. The draft bill is the latest in a series of actions that the government has taken to improve fire safety in high-rise residential buildings, including the introduction of the Fire Safety Bill.
The government considers that better data on land ownership and control is required to achieve its vision for the planning system, improve the development process and increase the public's understanding of who exercises control over land. The government's particular focus is on rights of pre-emption, options and conditional contracts, and it has published a consultation seeking views on how best to improve transparency around them and what additional data should be made public.
Her Majesty's Revenue and Customs has released helpful guidance confirming that it does not consider that a number of commonly agreed lease concessions should be classed as barter transactions for value added tax (VAT) purposes. During the COVID-19 outbreak, there has been a marked increase in lease concessions being given in exchange for landlord-favourable lease variations. The classification of such arrangements as barter transactions has had VAT implications for landlords and tenants.
A second home in The Bahamas has been a highly sought-after commodity for international buyers from time immemorial. The Bahamas is an archipelagic nation of 700 islands and cays, with each island providing its own charm and unique Bahamian culture. As the value of real property in the jurisdiction tends to hold or gradually appreciate over time, the purchase of real property remains a viable and attainable wealth-creating mechanism.
The government has published legislation to bring sweeping changes to the Use Classes Order for England, which will take effect on 1 September 2020. References to uses and use classes in the General Permitted Development Order remain as currently defined until 1 August 2021. What will be the impact of these changes on existing and new leases of commercial property and their provisions governing what the premises can be used for?
Civil Procedure Rule (CPR) 55.29 came into force on 25 June 2020 and extended the stay on possession proceedings and enforcement proceedings by way of a writ or a warrant for possession until 23 August 2020. Now, the draft Civil Procedure (Amendment 4) (Coronavirus) Rules 2020 provide for a further amendment to CPR Part 55 to introduce a new temporary practice direction which sets out how claims under that part (including appeals) are to proceed following the expiry of the stay.
The Law Commission recently published its reports on leasehold enfranchisement, right to manage and commonhold. The common theme in all three reports is to make each process simpler, quicker and more flexible and to reduce costs for leaseholders. While commonhold was introduced more than 15 years ago, it has hardly been used and the Law Commission seeks to make it a preferred alternative to residential leasehold.
The Federal Council recently submitted to Parliament a preliminary draft federal act on rent payments during the COVID-19 lockdown and opened the consultation procedure with the cantons, political parties and interested organisations. The act is a political decision and its constitutional basis is questionable. Further, a number of the suggested provisions leave room for improvement.