Has COVID-19 affected Real Estate transactions in The Bahamas?
COVID-19 in The Bahamas
On 11th March 2020, The World Health Organization declared COVID-19 a pandemic. On 15th March, The Government of The Bahamas confirmed the first COVID-19 case in the country and four days later implemented the Emergency Powers (COVID-19) Regulations, 2020 (Chapter 34) among other emergency orders (“Emergency Orders”) which mandated that all non-essential businesses nation-wide suspend operations to the general public commencing on 20th March 2020 until further order.
Additionally, restrictions on both domestic and international travel, lockdowns and curfews have been imposed in The Bahamas to restrict movement in an attempt to reduce the spread of the virus. While law firms were required to close their physical doors to the general public, the attorneys at Lennox Paton continue to operate via remote access, which allows attorneys to manage ongoing matters and onboard new clients. Our real estate and resort development attorneys are well versed in the drafting and execution of real estate contracts and have embraced new and efficient procedures for closing transactions.
Agreement for Sale
Once you have found a property that you wish to purchase in The Bahamas or a purchaser for the property you wish to sell, you will sign an offer letter. The offer letter may be signed by both parties and scanned to the real estate agent and your attorney. Once your attorney has received the signed offer letter, the attorney for the vendor will draft the Agreement for Sale in accordance with the terms of the offer letter and the purchaser’s attorney will review, amend and approve as required. Once the terms are agreed to, both sides will have a final review of the Agreement for Sale and will proceed to sign the Agreement.
Given the current Emergency Orders, Agreements for Sale should be drafted to provide that the parties agree for the scanned and electronic versions of the signed Agreement for Sale are binding on both parties and shall be taken as an original. This ensures that there is a binding Agreement in place for the duration of the transaction. Therefore, there is no need for clients to physically attend offices to enter into Agreements and there is no need for original Agreements to be delivered. It is important to engage a competent attorney who is able to aptly draft (or amend) Agreements for Sale and advise on these matters to ensure that all eventualities are covered therein to ensure you are protected.
Title and Cause List Review
Given that The Bahamas has an unregistered land system, when acting for a purchaser or lender with respect to the acquisition of, or security over real property, an attorney must investigate the title to the property. This is to ensure that the title is free and clear from all encumbrances. This investigation requires that the attorney searches the Registry of Deeds and Documents, the Supreme Court Civil Registry and the Companies Registry among other registries, if necessary, to confirm that title to the property is good and marketable. Due to the Emergency Orders and the COVID-19 Mitigation Protocols issued by the Office of the Chief Justice of The Bahamas, the Supreme Court Registry among other public registries are currently closed to the general public and are operating in very limited capacities.
Technologically advanced title agencies have the capacity to conduct electronic searches of the Registry of Deeds and Documents for any title documents relating to the subject property. Therefore, the attorney is able to review title to confirm that there is a good root and chain of title. However, at this present time, the Supreme Court Registry and other registries are not accessible electronically and therefore an investigation of title requires that a physical search is carried out by a clerk at the appropriate registries.
The Government of The Bahamas has recently granted a relaxation on restrictions and has allowed the opening of certain businesses, therefore, we anticipate that the relevant Registries will soon be open to allow attorneys to carry out a complete investigation of the cause list to ensure that there are no pending judgment debts or Orders which may create an equitable charge against the property as per Section 63 of the Supreme Court Act.
Lennox Paton’s real estate attorneys have adopted contract language which allows for extensions of the normal period for title investigation to allow for the searches to be finalized when the Registries re-open.
Generally, in order for non-Bahamians to acquire property in The Bahamas, it may be necessary to have certain regulatory approvals from the Investments Board and the Exchange Control Department of the Central Bank of the Bahamas in place. During the Emergency Orders, the Investments Board and Central Bank are accepting applications electronically and are processing them efficiently, therefore, there would be no delay in obtaining the relevant regulatory approvals for the transaction. It is extremely important to engage a competent attorney who is well versed in handling regulatory approvals as this is essential to ensure the valid completion of your transaction.
Closing the Transaction
Transactions that have completed the title review stage are still able to close.
Reputable courier companies are operational (having received exemptions pursuant to the Emergency Orders) and therefore, our firm is able to have deeds printed and couriered to clients outside of The Bahamas for the clients’ execution. Once documents have been duly executed, notarized and apostilled (if necessary), the original deeds can be couriered back to our firm in order to effectuate the closing of the transaction.
We are also able to receive and send funds by wire transfer therefore, deposits, the balance of the purchase price and closing costs may be wired to our firm and the proceeds of sale can be wired to the seller in order to complete the transaction. It is vital to engage a competent attorney to ensure that the required documents are duly executed. This is important to ensure title legally passes from the seller to the purchaser. Additionally, a reputable firm should be used to ensure that funds by wire transfers are received and sent in a timely manner in order to efficiently close transactions.
At this time, the Department of Inland Revenue, which is responsible for accepting the payment of Value Added Taxes on the transfer of real property and for real property taxes and the Registrar General’s Office, which is responsible for accepting the lodging of documents for recording in the Registry of Records are currently operating on a limited basis. However, due to the ongoing relaxation of the Emergency Orders, these government offices may soon be allowed to return to full operation.
In the interim, closing deeds will be held in our firm’s fireproof safe and the funds for the payment of these fees will be held in our firm’s accounts until we are able to complete these post-closing items.
Relaxation of Rules
Many financial institutions and businesses have adapted their procedures due to the Emergency Orders to make it easier to do business. As such, during the Emergency Orders some financial institutions are allowing clients to complete due diligence documents electronically and are accepting copies of documents in the interim, with the originals to be delivered to the bank once the Emergency Orders allow. Therefore, it is still possible to arrange financing through financial institutions, if necessary.
Impact on the future of real estate transactions
Given the worldwide impact of COVID-19, we acknowledge that purchasers and vendors may be hesitant to engage in real estate transactions and investors may initially be reluctant to invest in property which they are unlikely to have access to until the Bahamian borders re-open for international travel. However, we are confident that our thriving market for second homeowners will resume its predominant place in the Caribbean market. Fortunately, the Emergency Orders have caused businesses and firms to adapt and become more innovative in the way transactions are handled, which will greatly improve the ease of doing business in The Bahamas in the future.
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For further information on this topic please contact Nateisha Anderson-Bain or Kharin Sears.