Non-citizens Land Holding Regulation Act (No. 17 of 1968)

LAWS OF ANTIGUA AND BARBUDA Non-citizens Land Holding (CAP. 293 1 CHAPTER 293 THE NON-CITIZENS LAND HOLDING REGULATION ACT Arrangement of Sections Section PRELIMINARY Short Title and Interpretation 1. Short title. 2. Interpretation. Holding of Land by Unlicensed Non-citizens 3. Forfeiture of land and mortgages held by unlicensed non-citizen. 4. Licences for non-citizen to hold land and or mortgages. 5. Effect of forfeiture. Restrictions on Companies Under Control of Companies under control of non-citizens. 7. Power for a company to restrict the holding by citizens of its shares and debentures. 8. Licences for non-citizens to hold directorships, shares or debentures. Effect of forfeiture of shares. 10. Transmission of licence to company. 1 1. Registration of licence by company. 12. Restriction on the issue of share warrants or debentures to bearer to licensed non-citizens. 13. Transfer of shares or debentures held under licence. Regulation PART I PART II Non-citizens 6. non 9. LAWS OF ANTIGUA AND BARBUDA 2 CAP. 293) Non-citizens Land Holding Regulation PART 111 Restriction on Trusts in Favour of 14. Restriction on trusts in favour of non-citizens. 15. Licences to hold property in trust for non-citizens. Procedure and Evidence 16. Procedure. 17. Discovery. Stamp Duty Stamp Duty. PART VI Land Appreciation Tax 19. Land value appreciation tax. 20. Powers of Commissioner to require information or make valuation. 21. Tax to be a charge against property. 22. Right of appeal from Commissioner's determination. PART VII Exemption and Transitional 23. Powers of Governor-General. Transitional. Non-citizenJ PART IV PART V 18. Value 24. LAWS OF ANTIGUA AND BARBUDA Non-citizens Land Holding (CAP. 293 3 Regulation NON-CITIZENS LAND HOLDING REGULATION (5th September, 1968 .) PRELIMINARY Short Title and Interpretation 1711968. 511971. 811977. SRO 4611981. S . I . This Act may be cited as the Non-citizens Land Holding Regulation Act. In this Act, unless the context otherwise requires "citizen" means a person who is a citizen of Antigua and Barbuda under and by virtue of the provisions of Part VIII of the Constitution or of any other law relating to citizenship of Antigua and Barbuda; "Commissioner" means the officer for the time being performing the duties Commissioner of Inland Revenue under the Inland Revenue Administra tion Act and includes any officer duly authorised to act on his behalf; "debenture" includes every mortgage or charge by a company whether floating or otherwise on any of the company's property or on its undertaking or on its uncalled capital and also every obligation by the company (not being a bill of exchange or pro missory note) for the payment of a debt or the repayment of money lent or to be lent; "member of a company" includes any person entitled under the memorandum or articles or any resolu tion of the company to participate in its assets or in its divisible profits but a servant or agent of the company shall not be deemed to be a member by reason only that the amounts of his emoluments depends wholly or partially on the amount of the company's profits; 1. 2. of 29/1969. 13/1978. 23/1982. Short title. Interpretation. Cap. 217. OF ANTIGUA AND BARBUDA 4 CAP. 293) Non-citizens Land Holding Regulation mortgage7' includes every instrument creating a mor tgage or charge on land except a debenture; non-citizen" means a person who is not a citizen and (a ) Any company incorporated in Antigua and Barbuda which is under the control of non-citizens in accordance with the provisions of section 6 of this Act; and any company incorporated outside of Antigua and Barbuda; "share" includes stock and in the case of a company not having a share capital the interest of a member in the assets of the company; "unlicensed" means not holding a licence granted under this Act. Holding of Land by Unlicensed Non-citizens Forfeiture 3. Subject to the provisions of this Act, neither land land and in Antigua and Barbuda nor a mortgage on land in Antigua and Barbuda shall, after the commencement of this Act, be non-citizen. held by an unlicensed non-citizen, and any land or mor tgage so held shall be forfeited to Her Majesty: Provided ( a ) Land may be acquired and held by an unlicensed non-citizen under a lease for a term not exceeding five years or for any less interest for the pur poses of his residence, trade, or business but an unlicensed non-citizen shall not so hold more than five acres of land in all. (b) Land acquired by an unlicensed non-citizen under a will or on an intestacy shall not be forfeited if, within one year from the death of the testator or intestate or within such extended time (if any) as Cabinet may decide to be reasonable, the land is sold or the non citizen obtains a licence to hold the land. of ,..,,rte:~es held oy uttJteensecl LAWS includes (b) PART I that LAWS OF ANTIGUA AND BARBUDA Non-citizens Land Holding (CAP. 293 5 (c) A mortgage acquired by an unlicensed non citizen under a will or on an intestacy shall not be forfeited; but the non-citizen shall not unless he obtains a licence to hold the mortgage, be entitled to or enter into possession of the mortgaged land. Nothing in this Act shall affect the interest of a judgment creditor in the land of his judgment debtor, but the debtor's land shall not be acquired by an unlicensed non-citizen. (e) Nothing in this Act shall affect the estate or interest of a non-citizen in any land or mortgage held by him at the commencement of this Act. 4. (1) The Governor-General may, if he thinks fit, grant to any non-citizen a licence to hold land as owner or tenant or mortgagee for any estate or interest either subject to any conditions or not: Provided that a licence be only as to the land described and as to the estate or interest specified therein, and shall be of no force or effect until registered in the Record Office of Antigua and Barbuda. (2) On breach of any condition in a licence to hold land as owner or tenant or mortgagee, the estate and interest of the non-citizen in the land or mortgage held under the authority thereof shall be forfeited to Her Majesty. 5 . Land or a mortgage forfeited under this Effect forfeiture. shall not vest in Her Majesty unless and until a judgment is obtained declaring the forfeiture; but on such judgment being obtained the title of Her Majesty shall relate back to and commence at the time when the forfeiture took place. (2) A judgment declaring a forfeiture of land shall operate to vest in Her Majesty all the estate and interest the non-citizen in the forfeited land. (3) A judgment declaring a forfeiture of a mortgage shall operate to vest in Her Majesty all the estate and interest of the non-citizen in the mortgaged land subject to any right of redemption subsisting therein, and also to vest in Her Majesty the right to recover and receive and to enforce all securities for the mortgage money. Regulation (d) slrall (1) of forclose ope!ative Act Licences for non~ citizen to hold land or mortgages. of LAWS OF ANTIGUA AND BARBUDA 6 CAP. 293) Non-citizens Land Holding Rqulation Restrictions on Companies Under Control Non-citizens Companies under control of 6. For the purposes of this Act a company shall be deemed to be under the control of non-citizens ( a ) if any of its directors is an unlicensed non-citizen; ( b ) if more than one-third of the votes exercisable at any meeting of the company or which would be exercisable if a meeting of the company was held are vested in unlicensed non-citizens; or (c) in the case of a company having a share capital, if more than one-third of the nominal amount of its issued shares are held by unlicensed non-citizens; or in the case of a company not having a share capital, if more than one-third in number of its members are unlicensed non-citizens; or (e) if the amount paid or payable in any period of twelve months as dividends to those members of the company who are unlicensed non-citizens exceeds third of the total amount paid or payable by the com pany as dividends in the same period; or if more than one-third of the nominal value of the outstanding debentures of the company are held by unlicensed non-citizens; or if the annual interest on the debentures of the company for the time being held by unlicensed citizens exceeds one-third of the annual interest on all the debentures of the company for the time being outstanding. Power for a company to Notwithstanding anything contained in any law restrict the relating to companies, or in the memorandum or articles of association of the company, or in any debenture, or in citizens of its shares and any instrument for securing any issue of debentures, a pany incorporated in Antigua and Barbuda holding or intending to acquire more than five acres of land in Antigua and Barbuda may ( a ) restrict or prohibit the issue or transfer of its shares or debentures to non-citizens; PART II of non-citizens. (d) one (/) (g) non 7. holding by non· com debentures. LAWS OF ANTIGUA AND BARBUDA Non-citizens Land Holding (CAP. 293 7 restrict or prohibit the holding by non-citizens of share warrants and of debentures transferable by delivery; (c) refuse to register a non-citizen as a member or as the holder of a debenture; (6) require such evidences as it may think fit as to whether any person desiring to be registered as a member or as the holder of a debenture is a non-citizen or not, and as to whether the holder of a share warrant or debenture transferable by delivery or of a coupon or other document entitling the bearer to payment of any dividend or interest is a non-citizen or not. 8. (1) The Governor-General may, if he thinks fit, citizens to hold grant licences, either subject to conditions or not, or any of the following matters, that is to shares or debentures. (a) For a non-citizen to be a director of a company. (b ) For a non-citizen to vote at meetings of a company. (c) For a non-citizen to hold shares or debentures, and for a non-citizen to be a member of a company having no share capital: Provided that a licence shall be operative only as to the company named therein and as to the number of voters, shares, or debentures specified therein. (2) On breach of any condition in a licence granted under this section, the licensee shall forthwith cease to be a director of the company and to be entitled to vote at any meeting of the company, and all shares and debentures in the company held by the licensee shall be forfeited to Her Majesty. 9. (1) A judgment declaring that a share or ture has become forfeited under this Act shall operate to vest in the Governor-General the right to transfer that share or debenture and to recover and receive dividends or income thereof as from the time when the forfeiture took place. ReJtulation (b) say (d) for all Licences for non directorships, deben- Effect of forfeiture of shares. LAWS OF ANTIGUA AND BARBUDA Transmission of licence to company. Registration of licence by company. Restriction on the issue of share warrants or debentures to bearer to licensed non-citizens. Transfer of shares or debentures held under licence. CAP. 293) Non-citizens Land (2) A share or debenture which has been declared to be forfeited under this Act shall be sold or otherwise dealt with for the benefit of Antigua and Barbuda as the General may direct. Where a licence has been granted to a company under this Act the Governor-General shall cause a copy of that licence to be sent to the company concerned at its registered office. (1) A company shall cause a copy of every licence received by it pursuant to this Act to be recorded in the com pany's register of members or debenture holders (as the case may require) opposite the name of the licensee, and to be endorsed on every share certificate or debenture issued in respect of any share or debenture held by the licensee. (2) If a company makes default in complying with the requirements of this section it shall be liable on summary conviction to a fine not exceeding one hundred and fifty dollars for every day during which the default continues, and every director, manager and officer of the company who knowingly and wilfully or permits the default shall be liable on summary conviction to a like penalty. (1) A company shall not without the consent of the Governor-General issue a share warrant or debenture transferable by delivery in respect of any share or debenture held by a non-citizen under a licence granted under this Act. (2) If a company issues a share warrant or a debenture transferable by delivery in breach of the provisions of this section it shall be liable on summary conviction to a fine not exceeding two thousand dollars in respect of each share specified in the warrant and in respect of each debenture, and every director, manager, and officer of a company who knowingly and wilfully authorises or permits such issue shall be liable on summary conviction to a like penalty. 13. (1) A transfer without the consent of the Governor-General of a share or debenture held by a non citizen under a licence and any entry in the company's register of members or debenture holders of the transferee specified in any such transfer shall be void and of no effect. 10. 11. 12. Holding Regulation authorises Governor LAWS OF ANTIGUA AND BARBUDA Non-citizens Land Holding (CAP. 293 9 Regulation (2) The Governor-General shall not refuse his consent to such a transfer except on the ground that the share or debenture specified in the transfer has become forfeited under this Act. Restriction on Trusts in Favour Non-citizens 14. (1) This section applies to the following property only, namely, land situate in Antigua and Barbuda, mor tgages of such land, and shares and debentures of any com pany incorporated in and Barbuda. (2) With a view to preventing evasion of the foregoing provisions of this Act, no person shall without the licence of the Governor-General hold any property to which this section applies in trust for a non-citizen and any such pro perty so held shall be forfeited to Her Majesty. (3) Any person who intentionally contravenes the pro visions of this section shall be guilty of a misdemeanour punishable summarily by a Magistrate or on indictment, but the punishment on summary conviction shall not exceed a fine of five hundred dollars. (4) Nothing in this Act shall apply to a trust in favour of a non-citizen subsisting at the commencement of this Act. (5) In this section the expression "trust" includes any arrangement whether written or oral, express or implied, and whether legally enforceable or not, whereby any pro perty to which this section applies or any interest therein or any rights attached thereto is or are held for the benefit of or to the order or at the disposal of a non-citizen; but does not (a) the duties incident to a mortgage; the duties of a satisfied mortgagee to the mortgagor, if within three months after satisfaction of the mortgage the mortgaged property is in the mortgagor or his interest therein is extinguished; PARTIII Antigua include (b) of revested Restriction on trusts in favour of non-citizens. OF ANTIGUA AND BARBUDA 10 CAP. 293) Non-citizens Land Holding Regulation (c) the duties of a vendor to the purchaser pen ding payment of the purchase money, or after payment of the purchase money, if within three months after such payment the property sold is vested in the purchaser or his interest therein is extinguished; the duties of a trustee in bankruptcy to the bankrupt or his creditors; or (e) the duties of a trustee for the purpose of any composition or scheme of arrangement for the payment of debts to the debtor or his creditors. Licences 15. The provisions of this Act as to licences and the property in effect of breach of a condition in a licence shall apply to land, mortgages, shares and debentures intended to be held or held in trust for a non-citizen in like manner as it applies to land, mortgages, shares or debentures intended to be held or held by a non-citizen. Procedure and Evidence Procedure. 16. For the purposes of establishing a forfeiture under this Act the Attorney-General may, in accordance with the Cap. procedure provided by the Crown Proceedings Act, apply to the High Court for a declaration that any right title or interest sought to be affected is forfeited to the Crown. Discovery. 17. (1) Without prejudice to any other right to discovery, the Attorney-General may in proceedings for establishing a forfeiture under this Act administer inter rogatories to and obtain discovery of documents from a defen d dant as to any matter or document tending to prove that such defendant is a non-citizen or that any other person is a non-citizen, or to discover any land, mortgage, share or debenture held by him or in trust for him or as to any rele vant matter or document. (2) It shall not be a valid ground for refusing to answer any such interrogatory or to disclose or produce any docu ment that the answer or document might or would expose the defendant or any other person to the risk of a prosecu tion under this Act; but in the prosecution of a defendant under this Act, the fact that he has disclosed any matter in to hold trust for non-citizens. 121. (d) LAWS PART IV LAWS OF ANTIGUA AND BARBUDA Non-citizens Land Holding (CAP. 293 1 1 Regulation answer to any interrogatory administered under this section and disclosed or produced any document in compliance with an order for discovery obtained under this section shall not be admissible in evidence. PART v stamp Duty 18. A licence granted under this Act shall be sub ject to stamp duty to be determined as (a) where the licence is granted to hold land in fee simple and the consideration on sale to the licensee is money or money's worth, the duty shall be at the rate of five per centum of the consideration; where the licence is granted to enable the licensee to hold a mortgage on land the duty payable thereon shall be one hundred dollars; (c) for any other licence, the duty shall be four hun dred dollars. (2) The stamp duty imposed by this section shall be paid by the licensee in accordance with the provisions of the Stamp Act and shall be in addition to any other duty payable under any provisions of the Schedule to that Act. (3) Where the stamp duty is determined in accordance with paragraph (a) of subsection of this section, the amount or value of the consideration and the area of land shall be stated on the licence, and the licence shall not be registered in the Record Office of Antigua and Barbuda until the Registrar is satisfied that the correct stamp duty has been paid. (4) Any person who gives or joins in giving a false valua tion of property for the purpose of securing a licence under this section shall be guilty of an offence and shall be liable on summary conviction to a fine of three thousand dollars or to imprisonment for a term not exceeding six months. (1) Stamp Duty. follows (b) Cap. 410. (1) LAWS OF ANTIGUA AND BARBUDA 12 CAP. 293) Non-citizens Land Holding Land Value Appreciation Tax Land value appreciation tax. 19. ( 1 ) Where any land situate in Antigua and Barbuda and held by a non-citizen, ( a ) pursuant to a licence issued under section 4; or ( b ) without a licence, is disposed of by him whether by sale, gift, exchange or other wise he shall be liable to pay the Commissioner a land value appreciation tax equal to five percent of the difference between the value of the land at the time he became the owner thereof, together with any subsequent expenditure of a capital nature thereon and the value of the land at the time of disposal. ( 2 ) Subject to section no conveyance or transfer of land from a non-citizen shall be stamped by the Commis sioner under the Stamp Act unless he is satisfied that any tax payable under subsection ( 1 ) has been paid. (3) This section shall not apply to the devolution or transmission of land by operation of law nor to any assent to or conveyance by the personal representatives of a deceased person. Powers of Commissioner to 20. Where a disposal of land is about to be made by a non-citizen, for the purpose of ascertaining the liability, if any, of such person tax imposed make valuation. the Commissioner may (a) require the vendor, or any agent acting on his behalf, to submit for examination any documents or information which in the opinion of the Commissioner are relevant to the determination of such liability; ( b ) make an independent valuation of the property being disposed of as to its value at the time of acquisi tion or disposal or as to the value of capital expenditure thereon after acquisition. Tax to be a charge against 21. ( 1 ) Notwithstanding that a transfer of land has property. been made by any person without disclosure to the missioner that the disposal was made by a non-citizen, the .rquire ufformation or Regulation PART VI 22(2) to the whether by ~section 19( 1), Com LAWS OF ANTIGUA AND BARBUDA Non-citizens Land Holding (CAP. 293 13 Regulation tax under section shall remain a charge on the land which the subject matter of the disposal for a period of five years after the date of transfer. The charge created by subsection ( 1 ) shall take priority over any other charge or debt due by specialty or otherwise except debts and taxes due to the Crown in respect Upon payment of a fee of five dollars the Commis sioner may be requested to endorse upon any conveyance or (a ) in the case of a disposal by a non-citizen, that the tax payable under section has been paid or no tax is payable; (b) in the case of a disposal by a citizen, that he satisfied that, by reason of the status as a citizen of transferer no liability to tax arises under this Act. The charge created by subsection ( 1 ) shall not apply in respect of any transfer which bears an endorsement under subsection ( 1 ) Where any person is dissatisfied with a appeal from by the Commissioner- Commissioner's determination. (a) as to any liability to the land value apprecia tion tax; ( b ) as to the amount of such liability, within thirty days after service of notice of such appeal against such determination to the High Court. Where an appeal is made under subsection the shall remain in abeyance pending decision by the High except where the vendor wishes to proceed to com pletion of the conveyance or transfer prior to such decision case the amount of the tax shall be paid or given the satisfaction of the Commissioner before conveyance or transfer is stamped. payable IS (2) of such property. (3) transfer that IS the (4) 22. mination he may, liability, (2) tax Court, in which security the (3). or to full 19(1) 19(1) deter- Right of LAWS OF ANTIGUA AND BARBUDA Powers of General. Transitional. Cap. 105. 1962 Revision. S.R.O. 1511961. S.R.O. 1411976. CAP. 293) Non-citizens Land Holding Regulation Exemption and Transitional 23. The Governor-General may by Order exempt any non-citizen or class of non-citizens from all or any of the provisions of this Act subject to such conditions as may be specified in the Order. 24. Every licence issued to a licensed alien under the Aliens Land Holding Regulation Act shall be deemed to be a licence issued to a non-citizen for the purposes of this Act. (2) The West Oil Company (Aliens Exemption) Order and the Aliens Land Holding Exemption Order 1976 (made in respect of Commonwealth Holiday Inns of Canada Limited) shall be deemed to have been made under section 23. (3) Notwithstanding anything in this Act, a person who, on October, 1981, was regarded as belonging to Antigua under and by virtue of this Act, and who is a non-citizen on the 1st November, 1981, shall, for the purposes of this Act, and only for those purposes, be deemed to be a (a) for a period of eighteen months beginning with the 1st November, 1981; or if before the expiration of that period he applies to be registered as a citizen, until he is so registered, or his application is finally refused. PART VII Governor (1) Indies 31st citizen (b)