Landholding Control Act (Montserrat)

Landholding Control Act

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Landholding Control Act
MONTSERRAT

CHAPTER 8.02
LANDHOLDING CONTROL ACT and Subsidiary Legislation

Revised Edition showing the law as at 1 January 2008
This is a revised edition of the law, prepared by the Law Revision Commissioner under the authority of the Revised Edition of the Laws Act.
This edition contains a consolidation of the following laws—
Page LANDHOLDING CONTROL ACT 3 Act 2 of 1970 .. in force 1 March 1970 Amended by Acts: 9 of 1975 .. in force 6 May 1975 9 of 1981 .. in force 4 November 1981 24 of 1982 .. in force 1 January 1983 5 of 1993 .. in force 17 May 1993 19 of 1993 .. in force 30 December 1993 16 of 1998 .. in force 25 January 1999 9 of 2003 .. in force 30 January 2004
LANDHOLDING CONTROL (FEES) ORDER - Section 13 17 S.R.O. 42/2006 .. in force 1 October 2006 LANDHOLDING CONTROL (EXEMPTION) ORDER – Section 22 18 S.R.O. 41/2005 .. in force 22 July 2005

MONTSERRAT

CHAPTER 8.02
LANDHOLDING CONTROL ACT and Subsidiary Legislation

Revised Edition showing the law as at 1 January 2008
This is a revised edition of the law, prepared by the Law Revision Commissioner under the authority of the Revised Edition of the Laws Act.
This edition contains a consolidation of the following laws—
Page LANDHOLDING CONTROL ACT 3 Act 2 of 1970 .. in force 1 March 1970 Amended by Acts: 9 of 1975 .. in force 6 May 1975 9 of 1981 .. in force 4 November 1981 24 of 1982 .. in force 1 January 1983 5 of 1993 .. in force 17 May 1993 19 of 1993 .. in force 30 December 1993 16 of 1998 .. in force 25 January 1999 9 of 2003 .. in force 30 January 2004
LANDHOLDING CONTROL (FEES) ORDER – Section 13 17 S.R.O. 42/2006 .. in force 1 October 2006 LANDHOLDING CONTROL (EXEMPTION) ORDER – Section 22 18 S.R.O. 41/2005 .. in force 22 July 2005
Landholding Control CAP. 08.02 3 Revision Date: 1 Jan 2008

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CHAPTER 8.02
LANDHOLDING CONTROL ACT
ARRANGEMENT OF SECTIONS
SECTION 1. Short title 2. Interpretation 3. Forfeiture of land and mortgages held by persons not belonging to
Montserrat 4. Licences to hold land or mortgages 5. Annual General Licence in respect of mortgages 6. Rights of next-of-kin 7. Effect of forfeiture 8. Restriction on trust in favour of persons not belonging to Montserrat 9. Licences to hold property in trust for persons not belonging to
Montserrat 10. Procedure 11. Discovery 12. Certificate granted by the Governor in Council 13. Licence fees 14. Governor in Council power to remit licence fees 15. Corporations under the control of persons not belonging to Montserrat 16. Licences for persons to hold directorships, shares or debentures 17. Effect of forfeiture of shares 18. Transmission of licence to company 19. Registration of licence by corporation 20. Restriction on the issue of share warrants or debentures to bearer to
licensed persons 21. Transfers of shares or debentures held under licence 22. Special provisions for Caribbean Community Nationals 23. Power of companies to control transfer of share SCHEDULE
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CHAPTER 8.02
LANDHOLDING CONTROL ACT
(Acts 2 of 1970, 9 of 1975, 9 of 1981, 24 of 1982, 5 of 1993, 19 of 1993, 16 of 1998 and 9 of 2003)
AN ACT TO RESTRICT AND CONTROL THE HOLDING OF LAND BY NON- BELONGERS.
Commencement
[1 March 1970]
Short title 1. This Act may be cited as the Landholding Control Act.
Interpretation 2. In this Act—
“a person belonging to Montserrat” means a person who is deemed to belong to Montserrat under the provisions of section 2(2)(b) of the Immigration Act; (Substituted by Act 24 of 1982)
“a person not belonging to Montserrat” means a person other than a person belonging to Montserrat, and includes a corporation incorporated in Montserrat if it is under the control of a person or persons not belonging to Montserrat as defined in this Act, and also every corporation incorporated in any other country; but shall not include any of the subjects or citizens of a foreign state upon whom there has been conferred by treaty the right to hold land in Montserrat;
“Caribbean Community” means the Community of States established by the signing of the Treaty of Chaguaramas at Port of Spain, Trinidad on the 4th day of July 1973;
“land” means any estate or interest in land and includes a lease; “National of a member state” means any person who—
(a) is a citizen of a member state of the Caribbean Community; or
(b) has a connection with a member state of the Caribbean Community which entitles that person to be regarded as belonging to it, or, if it be so expressed as being a native of, or belonger to that member state for the purposes of its laws relating to immigration as are for the time being in force;
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“person” includes any corporation, either aggregate or sole, or any club, society, association or other body;
“unlicenced person” means a person not belonging to Montserrat who does not hold a licence granted under the provisions of this Act.
(Amended by Act 19 of 1993)
Forfeiture of land and mortgages held by persons not belonging to Montserrat
3. (1) Subject to the provisions of this Act, neither land in Montserrat nor a mortgage on land in Montserrat shall, after the commencement of this Act, be held by a person not belonging to Montserrat, and any land or mortgage so held shall be forfeited to Her Majesty*:
Provided that land may be acquired and held by a person not belonging to Montserrat under a lease for a term not exceeding five years or an annual tenancy or for any less interest for the purposes of residence, trade, or business, but such person shall not so hold more than five acres of land in all.
(2) Save as otherwise provided in section 6 of this Act, land acquired by a person not belonging to Montserrat 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 the Governor in Council may allow, the land is sold or such person obtains a licence to hold the land.
(3) Save as otherwise provided in section 6 of this Act, a mortgage acquired by a person not belonging to Montserrat under a will or on an intestacy shall not be forfeited: but such person shall not unless he obtains a licence to hold the mortgage, be entitled to foreclose or enter into possession of the mortgaged land.
(4) Nothing in this Act shall affect the estate or interest of a judgment creditor in the land of the judgment debtor, but the debtor’s land shall not be acquired by a person not belonging to Montserrat unless he holds a licence granted under the provisions of this Act.
(5) Nothing in this Act shall affect the estate or interest of a person not belonging to Montserrat in any land or mortgage held by him at the commencement of this Act.
(Amended by Act 9 of 2003)
Licences to hold land or mortgages 4. (1) The Governor in Council may, from time to time, grant to any
person not belonging to Montserrat a licence in Form A of the Schedule to hold land as owner or tenant or mortgagee of any estate or interest therein either subject to any conditions or not: * By Act 2 of 2005 it is provided that the Landholding Control Act does not apply to
financial institutions licensed under the Banking Act.
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Provided that a licence shall be operative only as to the land described and as to the estate or interest specified therein.
(2) On breach of any condition in a licence granted under the provisions of this Act, the estate and interest of the person not belonging to Montserrat in the land or mortgage held under the authority thereof shall be forfeited to Her Majesty.
(3) Where application is made to the Registrar of Lands by or on behalf of any person for the registration of any transfer, mortgage or lease of land under the provisions of the Registered Land Act, the Registrar of Lands shall not register such transfer, mortgage or lease unless and until he is satisfied that the person in whose name such transfer, mortgage or lease is to be registered either—
(a) is a person belonging to Montserrat, within the meaning of this Act; or
(b) has been granted a licence under the provisions of this Act to hold such land as owner, mortgagee or tenant respectively (in which case the licence and a copy thereof shall be attached to the instrument submitted for registration) and has complied with any conditions precedent to the grant of such licence.
(4) After registering any transaction under this section the Registrar of Land shall return to the applicant the original licence submitted with the application and shall keep a copy thereof with the documents relating to that transaction.
(Amended by Acts 9 of 1981 and 9 of 2003)
Annual General Licence in respect of mortgages 5. (1) Notwithstanding anything contained or provided in this Act, the
Governor in Council may, subject to the provisions of this section, grant to any person not belonging to Montserrat a general licence to hold any land as mortgagee; and any mortgage held under such licence by such person shall not be subject to forfeiture save for the breach of any condition of such licence.
(2) A general licence granted by the Governor in Council under subsection (1) shall be subject to the following conditions—
(a) land acquired by the holder of such licence as a result of the exercise of his power of sale or foreclosure shall be sold or otherwise disposed of absolutely within a period of five years or within such longer period as the Governor in Council may consider reasonable after it is so acquired so that the holder of such licence no longer has, directly or indirectly, any interest or control in respect thereof save by way of security;
(b) the holder of such licence shall if so required by the Governor in Council submit to him at the end of every
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calendar year a statement containing the following particulars—
(i) the total number of mortgage loans taken during the calendar year to which the statement relates and the number of such loans taken by persons not belonging to Montserrat;
(ii) the total amount advanced and the amount advanced to persons not belonging to Montserrat;
(iii) the average of the rates of interest charged on mortgage loans taken during the year;
(iv) the number of mortgaged properties which have become vested in the holder of such licence by virtue of the exercise of his powers as mortgagee, the respective dates on which such properties became so vested, the sums due thereon and a description of the properties so vested;
(c) such other conditions as the Governor in Council may at the time of the grant or renewal of the licence impose.
(3) A general licence granted under subsection (1) shall be valid for a period of one year from the date on which it is granted and shall be renewable annually on the anniversary of the date on which it was first granted.
(4) The Governor in Council may at any time revoke a general licence without assigning any reason therefor but such revocation shall be without prejudice to anything lawfully done in pursuance of that licence.
(Substituted by Act 9 of 1975 and Amended by Act 9 of 2003)
Rights of next-of-kin 6. Where any right, title or interest in any land or in any mortgage or
other interest in land devolves under a will or other testamentary disposition or on an intestacy upon a person not belonging to Montserrat who is the next-of-kin of the testator or intestate as the case may be, such next-of-kin shall hold such land or mortgage or such other interest in land without having to obtain a licence under the provisions of this Act in the same manner in all respects as if such next-of-kin was a person belonging to Montserrat.
Effect of forfeiture 7. (1) Land or mortgage forfeited under this Act 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 of the person not belonging to Montserrat in the foresaid land.
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(3) A judgment declaring a forfeiture of a mortgage shall operate to vest in Her Majesty all the estate and interest of the person not belonging to Montserrat 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.
Restriction on trust in favour of persons not belonging to Montserrat 8. (1) With a view to preventing evasion of the foregoing provisions of
this Act, no person shall without the licence of the Governor in Council, hold any land in trust for a person not belonging to Montserrat and any such property shall be forfeited to Her Majesty.
(2) Any person who contravenes the provisions of this section shall be guilty of an offence punishable summarily by a Magistrate or on indictment: provided that the punishment on summary conviction shall not exceed a fine of $500 or on indictment to a fine not exceeding $5,000.
(3) In this section the expression “trust” includes any arrangement whether written or oral, express or implied, and whether legally enforceable or not, whereby any land or mortgage of land or any rights attached thereto is or are held for the benefit of or to the order or at the disposal of a person not belonging to Montserrat; but does not include—
(a) the duties incident to a mortgage; (b) the duties of a satisfied mortgagee to the mortgager, if within
three months after satisfaction of the mortgage the mortgaged property is revested in the mortgagor or his interest therein is extinguished;
(c) the duties of a vendor to the purchaser pending 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 extinguished;
(d) the duties of a trustee in bankruptcy to the bankrupt for 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.
(Amended by Act 9 of 2003)
Licences to hold property in trust for persons not belonging to Montserrat
9. The provisions of this Act, as to licences and the effect of breach of a condition in a licence, shall apply to land and mortgages on land to be held in trust for a person not belonging to Montserrat in like manner as it applies to land and mortgages intended to be held or held by a person not belonging to Montserrat.
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Procedure 10. For the purpose of establishing a forfeiture under this Act the
Attorney General may, in accordance with the 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 11. (1) Without prejudice to any other right to discovery, the Attorney
General may in proceedings for establishing a forfeiture under this Act administer interrogatories to and obtain discovery of documents from a defendant as to any matter or document tending to prove his or any other person’s qualification as a person belonging to Montserrat or to discover any land or mortgage held by him or in trust for him or as to any relevant matter or document.
(2) It shall not be a valid ground for refusing to answer any such interrogatory or to disclose or produce any document that the answer or document might or would expose the defendant or any other person to the risk of a prosecution under this Act:
Provided that 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.
Certificate granted by the Governor in Council 12. (1) For the purposes of this Act any person who considers that he is
a person belonging to Montserrat may apply in writing to the Governor in Council for a certificate to such effect and shall submit with or after his application such documentary evidence as the Governor in Council may require proving that he is a person belonging to Montserrat.
(2) If the Governor in Council is satisfied with the documentary evidence tendered, he may grant such certificate in Form B in the Schedule to this Act, and such certificate shall be conclusive evidence that the applicant is a person belonging to Montserrat.
(Amended by Act 9 of 2003)
Licence fees 13. (1) There shall be charged, levied and collected in respect of every
licence granted under this Act a licence fee which shall be paid at the time of the grant of the licence by the person to whom the licence is so granted in the manner prescribed for the payment of stamp duty under the provisions of the Stamp Act. (Substituted by Act 9 of 1975)
(2) The licence fees payable under this section shall be— (a) in respect of a general licence—
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(i) on the first grant thereof, $2,500; (ii) on every renewal thereof, $1,000;
(b) in respect of any other licence— (i) where the licence is granted to own land, a sum equal to
five per centum of the consideration paid for the land or $2,500 whichever shall be the greater;
(ii) where the licence is granted to lease land, a sum equal to fifteen per centum of the annual rental value as determined by the valuation officer in accordance with section 17(2) of the Property Tax Act, or $1,500, whichever is greater.
(Substituted by Act 9 of 1975 and amended by Act 5 of 1993, S.R.O.s 13/1999, 24/2005 and 42/2006)
(3) Any person who knowingly gives or joins in giving false information as to the consideration paid for any land or as to the annual rental value of any property for the purpose of paragraph (b) of subsection (2) shall be liable on summary conviction to a fine of $1,000 or to imprisonment for a term not exceeding six months. (Substituted by Act 9 of 1975)
(4) The Governor in Council may by Order vary the licence fees levied under this section and the fine imposed under subsection (3) hereof. (Inserted by Act 16 of 1998 and amended by Act 9 of 2003)
(5) An order made under subsection (4) shall be placed before the Legislative Council and shall be subject to a negative resolution of the Council passed within 90 days of signature. (Inserted by Act 16 of 1998)
Governor in Council’s power to remit licence fees 14. The Governor in Council may in appropriate cases remit in part or in
whole the licence fees payable by any person under section 13. (Inserted by Acts 5 of 1993 and 9 of 2003)
Corporations under the control of persons not belonging to Montserrat 15. For the purposes of this Act a corporation shall be deemed to be
under the control of persons not belonging to Montserrat— (a) if any of its directors is an unlicensed person; or (b) if more than one-third of the votes exercisable at any meeting
of the corporation or which would be exercisable if a meeting of the corporation was held are vested in unlicensed persons; or
(c) in the case of a corporation having a share capital, if more than one-third of the nominal amount of its issued shares are held by unlicensed persons; or
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(d) in the case of a corporation not having a share capital, if more than one-third in number of its members are unlicensed persons; or
(e) if the amount paid or payable in any period of twelve months as dividends to those members of the corporation who are unlicensed persons exceeds one-third of the total amount paid or payable by the corporation as dividends in the same period; or
(f) if more than one-third of the nominal value of the outstanding debentures of the corporation are held by unlicensed persons; or
(g) if the annual interest on the debentures of the corporation for the time being held by unlicensed persons exceeds one-third of the annual interest on all debentures of the corporation for the time being outstanding.
Licences for persons to hold directorships, shares or debentures 16. (1) The Governor in Council may, from time to time grant licences,
either subject to conditions or not, for all or any of the following matters, that is to say—
(a) for a person not belonging to Montserrat to be a director of a corporation;
(b) for a person not belonging to Montserrat to vote at meetings of a corporation;
(c) for a person not belonging to Montserrat to hold shares or debentures; and
(d) for a person not belonging to Montserrat to be a member of a corporation having no share capital:
Provided that a licence shall be operative only as to the corporation named therein and as to the number of votes, 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 corporation and to be entitled to vote at any meeting of the corporation, and all shares and debentures in the corporation held by the licensee shall be forfeited to Her Majesty.
(Amended by Act 9 of 2003)
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Effect of forfeiture of shares 17. (1) A judgment declaring that a share or debenture has become
forfeited under this Act shall operate to vest in the Governor in Council 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.
(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 Montserrat as the Governor in Council may direct.
(Amended by Act 9 of 2003)
Transmission of licence to company 18. The Governor in Council shall send a copy of every licence to the
corporation concerned at its registered office. (Amended by Act 9 of 2003)
Registration of licence by corporation 19. (1) A corporation shall cause a copy of every licence received by it
to be recorded in the corporation’s register of members or debenture holders 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 corporation makes default in complying with the requirements of this section it shall be liable on summary conviction to a fine not exceeding $50 for every day during which the default continues and every director, manager and officer of the corporation who knowingly and wilfully authorises or permits the default shall be liable on summary conviction to a like penalty.
Restriction on the issue of share warrants or debentures to bearer to licensed persons
20. (1) A corporation shall not without the consent of the Governor in Council issue a share warrant or debenture transferrable by delivery in respect of any share or debenture held by a person not belonging to Montserrat under a licence granted under this Act. (Amended by Act 9 of 2003)
(2) If a corporation issues a share warrant or a debenture transferrable by delivery in breach of the provisions of this section it shall be liable on summary conviction to a fine not exceeding $500 in respect of each share specified in the warrant and in respect of each debenture; and every director, manager, and officer of the corporation who knowingly and wilfully authorises or permits such issue shall be liable on summary conviction to a like penalty.
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Transfers of shares or debentures held under licence 21. (1) A transfer without the consent of the Governor in Council of a
share or debenture held by a person not belonging to Montserrat under a licence and any entry in the corporation’s register of members or debenture holders of the transferee specified in any such transfer shall be void and of no effect.
(2) The Governor in Council 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.
(Amended by Act 9 of 2003)
Special provisions for Caribbean Community Nationals 22. Notwithstanding anything in section 3 and in section 16(1)(c) of this
Act, where the Governor in Council is satisfied that reciprocal provisions have been made by the legislature of any member state of the Caribbean Community to permit belongers of Montserrat to acquire shares in companies resident in that state or to hold land in that state, without obtaining a licence, the Governor in Council may by Order declare that the nationals of that member state may acquire shares in companies resident in Montserrat or may hold land in Montserrat without obtaining a licence. (Inserted by Act 19 of 1993 and Amended by Act 9 of 2003)
Power of companies to control transfer of share 23. Notwithstanding anything contained in any Order made pursuant to
section 22 of this Act, or in any law relating to companies, or in the Memorandum or Articles of Association of a company or in any debentures or in any instrument for securing any issue of debentures, a company incorporated in Montserrat holding or intending to acquire any land or an interest therein may—
(a) restrict or prohibit the issue or transfer of its shares or debentures to a non-belonger;
(b) restrict or prohibit the holding by non-belongers of share warrants and of debentures transferable on delivery;
(c) refuse to register a non-belonger a member or the holder of a debenture; or
(d) require any evidence it may think fit as to the nationality of any person desiring to be registered as a member or as the holder of a debenture and as to the nationality of the holder of a share warrant or debenture transferable by delivery or a coupon or other document entitling the bearer to payment of any dividend or interest.
(Inserted by Act 19 of 1993) ___________
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SCHEDULE

FORM A
LANDHOLDING CONTROL ACT
(Section 4)
LANDHOLDING LICENCE

REGISTRATION SECTION
.............…………………….
BLOCK
.............………
PARCEL
…………….................
Upon payment of the fee of ..………........…………..…….... dollars ($...............)
Licence is hereby granted to ………………………………………………................
of .………………………………............ to own/mortgage/lease for ………................
years the above land.
Conditions (if any):
Given under my hand this .........……... day of ………..…............ 20............ .

GOVERNOR IN COUNCIL.

(Amended by Act 9 of 2003) ___________
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FORM B
LANDHOLDING CONTROL ACT
(Section 12)
CERTIFICATE

I hereby certify that ………………………………………………….……….
is a person belonging to Montserrat for the purposes of the Landholding Control Act.
GIVEN this ………… day of ………………………, 20……..

GOVERNOR
___________
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LANDHOLDING CONTROL (FEES) ORDER – SECTION 13
(S.R.O. 42/2006)

Commencement
[1 October 2006]
Short title
1. This Order may be cited as the Landholding Control (Fees) Order.
Licence fees
2. The licence fees payable under section 13 of the Landholding Control Act are—
(a) in respect of a general licence—
(i) on the first grant thereof, $2,500.00;
(ii) on every renewal thereof, $1,000.00;
(b) in respect of any other licence—
(i) where the licence is granted to own land, a sum equal to five per centum (5%) of the consideration paid for the land or $2,500.00 whichever shall be greater;
(ii) where the licence is granted to lease land, a sum equal to fifteen per centum (15%) of the annual rental value as determined by the valuation officer in accordance with section 17(2) of the Property Tax Act, or $1,500.00, whichever shall be greater.
___________

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LANDHOLDING CONTROL (EXEMPTION) ORDER – SECTION 22
(S.R.O. 41/2005)
Commencement
[22 July 2005]
Short title
1. This Order may be cited as the Landholding Control (Exemption) Order.
Exemption
2. For the purpose of trading securities under the Securities Act, any person trading securities on an exchange licensed by the Eastern Caribbean Securities Regulatory Commission is hereby declared to be a person belonging to Montserrat for the purposes of the Act.
Definition
3. For the purposes of this Order “trading securities”, in relation to any securities, means the buying, selling and/or transferring of securities.
_____________