Aliens Landholding Regulation Act, 1992 (Act No. 4 of 1992)

1992 ALIENS LAMD HOLDING REGULATION 15 COMMONWEALTH OF DOMINICA ACTNo.4oF 1992 I assent c. A. SEIGNORET Presidau 2(jth March,l992. AN ACfTOREGULATE1HEHOLDlNGOFLANDfJYALIENS ANDFOR CONNECrEDPURPOSES. (Gazetted2ndApfil, 1992.) BE IT ENACTED by the Parliament of1heCommonwealth of Dominica as.follows .;... PART~ PRELIMINARY I. This Act maybe-cited as the - Short tide ALIENS LANDHOLDING REGULATION ACT, 1992. 2. In this Act - lnlcJpR:lalion. 16 1992 ALIENS LANDHOLDING REGULATION ACT 4 "alien"means a person whois not a citizenofthe Commonwealth of Dominica, and also includes an "alien company"; "alien company"means a companyincorporatedinsideor outside theCommonwealthof Dominicaof which (i) at least one-thirdofitsmembership are aliens; (ii) atleastQ~;;'ttnroofth~votes exercisableatany m.eeting ofthe company are vested in one or moreflli~Jls; (iii) at least one-thirdof the nominal amountof its issued sharesareheldbyone ormorealiens; or (iv) not having a share capital, at least one-thirdin number of its members are;);liens; "debenture" means a charge by a company whether floating or otherwiseon anyofthecompany'sproperty-except land, or on its uncalled capital and also every obligation by the company (notbeing a bill of exchangeor promissorynote) for the paymentof adebtor the repaymentofmoneylent or to-belent; "interest in land" includes debenturesover land and mortgages; "member of a company" includes any person entitled under the memorandum-ot articleS!oranyresolutiofiof the company to participate'in its assets ofiIUtsdivisibIe profits; but a servantor agent of the companyshall not be deemed to be amemberbyreasononlythattheamountofhisemoluments dependswholly or partiallyontheamountofthe company's profits; "person"includes both a natural person and a legal person; "share" includes stock andin the. Case ofa companynot having a share capital the interest ofa member in the assets of a company; "unlicensed alien"mearis an alien who·cloosnothold alicence granted under this Act. 1992 ALIENS LANDHOLDING REGULATION PART II HOLDING BY UNLICENSED ALIENS ACT4 17 3. (I) Subject to the provisions ofthis Act, neither land nor an Forfeiture of land interest in land in the state shall be held by an unlicensed alien. ~:l~;;: in land (2) Any land or interest in land held contrary to subsec- unlicensed ali.». tion (1) shall be forfeited to the State. (3) Notwithstanding subsection (1) (a) an alien may acquire and hold not more than one acre ofland on an annual tenancy or for aless period of time for the purpose of residence, trade orbusi ness; (b) an alien may acquire land or an interest in land under a will or an intestacy and the 1and shall not be forfeited if within one year from the death of the testator or.intestate or within any extended time as the Minister decides, the land is sold or the alien applies for and obtains a licence to hold the land; (c) an alien may acquire a mortgage under a will or on an intestacy but he shall not be entitled to foreclose or enter into possession of the mortgaged land unless he applies for and obtains a licence to hold the mortgaged land; (d) an alien may acquire the land ofa judgementdebtor on applying for and obtaining a licence to hold the land; and (e) this Act shall not affect the estate or interest of any alien in any land, interest in land or mortgage held by the alien at the commencement of this Act. (4) Any alien applying for a licence under this Act must suppl y all documentation required by the Minister in support ofthe application. 4. (1) Where by reason of a sale or other disposition of the shares or other interest of a company it becomes an alien company, if that company would have required a licence to hold the landor Effect of a company which holds land becoming an alien company. 18 1992 ALIENS LAND HOLDING REGULATION ACT4 Agreements to hold land or interest in land. Effect of forfeiture. other interest in land under its control if at the time of acquisition it was an alien company, the company shall within three months from the sale or other disposition apply for and obtain a licence to hold the land or interest in land in accordance with this Act. (2) Section 3 subsection (2) shall apply ifa company fails to comply with subsection (1). 5. (1) Subjectto section 3(3) any agreement to hold landoran interest in land shall not vest any interestin the land in the purchaser unless a licence to hold the land or interest is obtained. (2) An application for a licence to hold land or an interest in land must contain (a) particulars as to the ownership, location and con sideration proposed for the acquisition of land or interest therein; (b) the purpose for which the land is to be utilised; (c) a plan by a licensed surveyor delineating the land; (d) a receipt for the paymentofthe relevant application fee. and (e) any other information required by the Minister. (3) Where the land is to be used for any building estate or development project except agriculture the applicant shall submit, with the application, evidence that the Planning Division has confirmed that the use intended for the land is not inconsistent wiLh environmental, zoning and planning considerations. (4) The Ministermay refuse to grant a licence ormay issue a licence subject to such terms and conditions as he considers necessary. (5) On the breach of any term or condition in a licence to hold land or any interest in land the land or interest in land of the alien held under the licence shall be forfeited. 6. Land or any interest in land forfeited under this Act shall not vest in the State unless a judgement is obtained declaring the 1992 A-LIENSLA'NDHOhDING REGULATION AC'f4 19 forfeiture.butonthejudgementbemgobtairtedtheState'stitleShaH relate back and commence at the time when the forfeiture took place. PARrIll SPECIFIC PROVISIONS IN RESPECT OF ALIENCQMPANIES 1. 'Notwunstandinganything-containedln any law relati~t()Power of company companies. or in thememoraadum or articles of asso¢.ationof a :y':~~:cc:~~ company,-ormany debenture. ortn anyinstrumentforsecunngany. .anddebentures. is-sue o1rlebentures.awmpanyincorporated inDomimcabolding or intending to acquire -any 'land or interest therein may (aJ :restrictor-probibiuheissue Oftran$fcr ofits~sbaresor ~tures to.-,diens~ {bJ restrict or prohibit tile -hQlditlg by ~iens of~hare warrant.~and ofdellclltures 1{ansf&c3b~.by delWery~ Ie) refusel.o registeranalienasamemberoras.thebolder ofa dcbenl\ire; :or (4' roquireanyevidenceitmaYlhink tltaslOtbeflatiOO~ ality-ofomy:Person ,desiring;to•be- remsterec:1 as ;l memb,er-or as4hehoider of ade~nture and as to the nationality(lfthcholdcfofasharewarntntor4Cbcnture trnnsfer.tb~-bYdclivcry 'Of or:a c-oupon or other d%Ulllcnt -clltWingthe bearer to payment of'any divldcild or interest. 8. (l) Acompany shallrecordacopy-ofeveryIicence issued ~cgistmion of in FcSpect ofIandorany intcresttn -land owllQd -by it in the hcen(:eS. c-ompany's registerof memberserrcgisterofaliens. (2) AlicenceissucdinrespcctoHandoranyinterestinland shallbe endorsedon every-deedortitle relatingto the land. (3) Abccncctssuedinrespceteflandoranyinterestin land shallbeofnoeffect Dr Iorceuntil registered in Ihe' record office. . (4r AcompanyWhichfaits tocomply with this sectionis liableon summary convictiontoafinc of100dollars for everyday during whichthe default continues. and every director, manager 20 1992 ALIENS LANDHOLDING REGULATION ACT4 Restriction on trust in favour of aliens. and officer who knowingly authorisesorpermits,the defaultis ' liable onsummaryronviction to a similar fine; PART IV RESlRICflONS ON lRUSTINFAVOUR OF ALIENS 9. (1) This section applies ttl lanel:and;anY interest in land situatein theState.andsharesofany company incorporatedin the State. (2) No person shall. withOutalicence froni the Minister. .hold anypropertytowhich thissectiofi appliesentrust foran alien whichcausesevasiOn of anyprovisioo of thisAct. (3) Any property held in c;ontraventionofsubsection.(2) shall beforfeited to the St~te.· .. (4) In this section.the expression"trust" includes any ar rangement whether.written'of om; ~ expressed or. implied, and whether legallyenforceablcoruot, wherebyanypropertyto which this section applies or anj'interestthercinor' any rights attached thereto is or are held for the benefit oforto' the" Older or at the disposal ofan alien,but does-nor mcludc-. (d) thedutles inddoortoainorlgage; (b) the duties of asat.isfiedmortgagee tome mortga gor,ifwithiil threemonths aftcr~atisfactiOn of the mortgage the mortgaged property is re-vcstcd in the mortgagoror the mortgagee's interest is extin guished; (c) subject to section5(1),theduticsof a-vendor-to a purchaserpendingpaymentofthe purchascrnoncy, .if within threemeathsefterahe.payment.the prop ertysoldis :veste,dm the purchaseror the.vendor's illte.rest th~r~11 isex~guished; (d) :U1e.dutiesofa tI:"u~eein l?ai1l<.ruptcytothe bankrupt or his creditm;s.;,or, (:e) tfied;uties ofa,quslce fpr the.purpose of any ~rpposition 9[, scheme 9(arrangement for.the payment ofq~l>t~tp,thedebtor or creditors, 1992 ALIENS LAND HOLDING REGULATION ACT4 21 (5) Any person who intentionally contravenes this section is liable on summary conviction to a fine of 1,oqo dollars and six months imprisonment. (6) This Act does not apply to any trust subsisting on its commencement date. 10. The provisions of this Act in respect of licences and the Licences to hold effect of any condition in a licence applies to landor any interest in p~perty in trust for land intended to be held in trust for an alien. aliens. PART V EXEMPTIONS IN RESPECf OF ALIENS 11. (1) The Minister may by Order exempt any alienfrom the Exemptions from provisions of this Act dl~ provisions of this ACL (a) where the alien is party to an agreement or plan entered into with the Government of the Com monwealth of Dominica for financing the holding and development of housing, industry, tourism, forestry, fisheries or agriculture; (b) wherethealienin conjunctionwith theGovernment or aloneembarkson anundertakingwhichhasbeen declaredanapprovedenterpriseundertheprovisions of the Fiscal Incentives Act; or Act No. 42 of () h ... th bli d 1973.C were It IS m ie pu . IC mterest to 0 so. (2) An Orderissued under this Actmay beissued subjectto any condition the Minister considers necessary and may relate to a particular alien or to aliens in general or to a particular interest in land or land in general. PART VI PROCEDURE AND EVIDENCE 12. (l) For the purposes of establishing a forfeiture under this Procedure. Act the Attorney General may, in accordance with the procedure provided by the State Proceedings Act, apply to the High Court for Cap. 5. 22 1992 ALIENS LAND HOLDING REGULATION ACT4 Discovery. Stampduty. Cap. 277. a declaration that any right, title or interest sought to be affected is forfeited to the State. (2) Any dealing in any land or any interest in land of a company subsequent to the date ofany application for a declaration of forfeiture thereof shall be null and void. 13. (1) Without prejudice to any other right to discovery the Attorney General may in proceedings for establishing a forfeiture under this Act administerinterrogatories to and obtain discovery of documents from a defendant asto any matter or document tending to prove his alienage or the alienage of any other person or company orto discover any document relating to land or an interest in land held by him or any alien company or in trustfor him or any alien company or as to any relevant matter or document. (2) It is not a valid ground to refuse to answer any inter rogatory or to disclose or produce any document that the answer or document might or would expose any person to the risk of a prosecution under this Act. (3) In the prosecution of a defendant under this Act, the fact that he has disclosed any matter in answer to an 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 VII SUPPLEMENTAL 14. (1) AlicencegrantedunderthisActissubjecttothepaymentof an applicationfee of 150dollars and takes effectwhen (a) any stamp duty or other duties required under the Stamp Act; and (b) a licence fee equivalent to ten percent ofthe market value of the subject of the licence, are paid. (2) Subsection (l) does not apply to the spouse ofa citizen ofthe Stateorto a citizen ofany Member State ofthe D.E.C.S. that 1992 ALIENSLANDHOLDING REGULATION ACT 4 23 enters into a reciprocalarrangement or treaty witn me common wealthofDominica,exemptingDominicans frompaymentofany similar fees on the acquisition ofproperty in that State. IS. The Minister may by Order exempt any alien from the provisionsof section 14(1). 16. (1) All thefacts andcircumstancesaffectingtheliabilityof any instrumentto duty under this Act, or the amountofduty with which any instrument is chargeable, are to be fully and truly declaredin the instrument. (2) Any person who with intent to defraudthe State (a) executesanyinstrumentin whichall relevantfacts andcircumstances arenotfullyandtrulydeclared; or (b) beingemployedorconeemedinorabouttheprepa rationof anyinstrument, neglectsor omitsto fully and truly declare therein all relevant facts and circumstances, is liable on summaryconvictionto a fine of 5,000 dollarsand one year imprisonment. 17. All subsidiary legislation made under the Aliens Land Holding Regulation Act, 1988 (repealed by this Act) and all licencesgrantedunder the said repealedAct andin forceimmedi atelyprior to the cominginto operationof this Act shall, so far as it is not inconsistent with the provisions of this Act, continue in force. 18. The AliensLand HoldingRegulationAct, 1988is hereby repealed. Passed in the House of Assembly this 26th day of February, 1992. M. ALBERTHA INO. BAPTISTE Clerk ofthe House ofAssembly. Ministerial power of exemption. Factsandcircum stances alfeaing feesorduty to be set forth in instruments. Savings ActNo.9 of 1988. Repeal of Act No.9 of 1988. DOMINICA Printed by the Government Printer at the Government Printery, Roseau (Price$1.80)