The Non-Citizens (Property Restriction) (Amendment) Act 2021
The real estate sector in Mauritius has experienced remarkable growth in recent years, attracting foreign direct investment, equivalent to billions of Mauritian rupees, into the country.
On 29 April 2021, the Non-Citizens (Property Restriction) (Amendment) Act 2021 came into force, thus modifying and widening the scope of the existing Non-Citizens (Property Restriction) Act 1975 (the Act). This is mainly to ensure greater accountability and oversight with regards to non-mauritian citizens acquiring, holding, and disposing of property (as defined in the Act) in Mauritius.
What does it mean if you wish to sell your property as a non-citizen?
Normally, if a non-citizen* wishes to hold, purchase or acquire an immovable property in Mauritius, he is required to seek a certificate of approval from the Prime Minister’s Office (PMO). However, the Amendment made in Parliament on 29 April 2021, now makes it necessary for a non-citizen to also seek the approval of the PMO through the Economic Development Board (EDB) if he wishes to dispose of:
his immovable property (which he owns directly);
his legal or beneficial rights in an immovable property under a trust;
his shares in a company, partnership, société or any other body corporate, which directly hold immovable property in Mauritius;
his shares in a company, partnership, société or any other body corporate which indirectly hold immovable property in Mauritius, via a share in a subsidiary, partnership or société or any other body corporate.
The definition of the term “dispose of” includes the burdening of a property with a mortgage or charge.
*Before this Amendment, the term “non-citizen” in the Act was defined as (a) a person who is not a citizen of Mauritius, (b) an association or body of persons, whether corporate or incorporate (which is not domiciled in Mauritius or quoted on a regulated market in Mauritius and having its control or management vested in one or more persons who are not citizens of Mauritius or not quoted on a regulated market in Mauritius and having at least one shareholder who is a non-citizen) and (c) a trust (whose beneficiary includes a non-citizen). Such definition thus covered individuals, as well as all types of entities, legal or otherwise (such as the trust) that can be established in Mauritius, with the exception of the foundation.
What about Foundations?
It is vital to note that in this Act, the definition of “non-citizen” has been modified to include a foundation which has a person who is not a citizen of Mauritius as a founder, a beneficial owner or an ultimate beneficial owner and a beneficiary under the Foundations Act.
How to apply for this certificate of approval from the Prime Minister’s Office (PMO)?
A non-citizen who wishes to hold, dispose of, purchase or otherwise acquire a property shall make a written application to the Minister giving, wherever applicable:
the precise location of the property;
a site plan showing its extent and precise location;
the nature of the interest intended to be held, disposed of, purchased or otherwise acquired;
the reason for which the application is made; and
such other information as the Minister may determine.
On receipt of an application, the Minister may issue to the applicant a certificate authorising him to hold, dispose of, purchase or otherwise acquire the property, subject to such terms and conditions as the Minister may determine.
Are there any exemptions?
The only exceptions to the 'disposal' provision are as follows:
a non-citizen who wishes to dispose of an immovable property in accordance with any other enactment or convention to which Mauritius is a party;
a non-citizen who wishes to dispose of an immovable property while he is the spouse, married in accordance with the régime légal de communauté, of a citizen;
a non-citizen who wishes to dispose of an immovable property by inheritance;
a non-citizen who wishes to dispose of an immovable property by the effect of marriage;
a non-citizen or a non-resident who wishes to dispose of shares on the stock exchange of Mauritius.
Ultimately, these amendments may ensure transparency and accountability of non-citizens dealing with immovable property transactions. However, these amendments will not necessarily help in bringing the element of fairness where the PMO is now overseeing instances where the initial “mischief” that this legislation was made to counteract is absent, for example, property disposals to citizens.
This additional step in the already clogged local administrative maze will no doubt impact the perception of “ease of doing business” in Mauritius.
For more information please check the Guidelines from the EDB.