TURKS AND CAICOS ISLANDS – A GUIDE TO PURCHASING PROPERTY
Purchasing a property can be one of the most stressful experiences in life, especially when also contending with a foreign country and unfamiliar jurisdiction. However, purchasing your dream property on a paradise island may not be as complicated or scary as you think. We have set out below a guide to the main steps involved when purchasing a property in the Turks and Caicos Islands (“TCI”).
No restrictions on foreign ownership
The good news is that there are no restrictions on foreign ownership of land or properties in TCI. However, if you want to take title to the property in a company, rather than your personal names, you must set up a TCI incorporated company to do. There is no issue with having the TCI company as a fully owned subsidiary of a foreign company, such as a US LLC. We can assist you with this process through our affiliated corporate service provider, G&P Corporate Services Ltd.
If clients are purchasing a property as an investment property which they intend to rent out, rather than keeping it for their own personal use, they usually take title through a TCI company so as to ringfence any liabilities should, for example, a guest have an accident on the property.
Identifying a property for purchase
TCI operates on the MLS (multi-listing system) which is an online database with all of the properties for sale by affiliated brokers, who update it on a regular basis. This allows you to see the properties that are listed on the market in TCI, without having to go through multiple brokers, and will include all property types – undeveloped land, condos, villas, single family homes, multi-family homes and commercial.
Brokers may sometimes get what is known as a ‘pocket-listing’ meaning that they are able to show a property before it is listed on the market / MLS system, so it is useful to make contact with some brokers early on in your process of looking at properties.
You may also be interested in a specific plot of land or a home which is not on the market, and you may wish to prospectively approach the current owner to see if they would be willing to sell. This can be done by obtaining the title register for the property from the Land Registry, which will note the name of the current owner and it will usually have the address of either the attorney who acted for them on the purchase, or the registered agent if the owner is a company. We are able to assist with this process should this be of interest.
Once the commercial terms of the sale/purchase are agreed, the broker will draw up a Preliminary Agreement documenting such terms, and which is signed by the parties. It is usually at this point that a purchaser would engage an attorney to act for them.
This will also set out any conditions that the purchase may be subject to e.g. conditional on obtaining financing, due diligence being completed, or something specific occurring at Land Registry e.g. completion of a re-parcellation (subdivision or combination of parcels), or the removal of a Caution or a Restriction.
The attorney will then need to onboard the purchaser as a client, which will involve the purchaser providing various KYC (know your client) documentation and also providing evidence and confirmation of the source of funds/wealth being used for the transaction. All law firms in TCI are required to obtain such documentation to comply with anti-money laundering legislation.
The attorney will then issue an engagement/retainer letter setting out the terms of the engagement and the firm’s terms of business, and agree on a fee for the transaction.
If part of the purchase price is being funded by debt finance, this should be flagged to the seller at the Preliminary Agreement stage. If a purchaser has not already secured an offer of financing, the contract can be made conditional on an offer of financing being obtained within a certain timeframe. If financing is not secured within the specified timeframe, the contract could be terminated by either party, upon which the deposit would be returned to the purchaser, and neither party would have any further obligations or liabilities to the other.
The lender will provide an undertaking to the seller’s attorney promising to pay the financed portion of the purchase price once their Charge has been successfully registered at the Land Registry. Most sellers will insist on the lender being a Turks and Caicos incorporated bank or lender, although they may on occasion agree to a well-know overseas lending institution being the lender on the transaction.
Review of title and due diligence
A purchaser’s attorney will carry out due diligence on the registered title and any documents registered on title, such as easements, and restrictive agreements (which impose covenants on the property), and report on the same to the client.
A purchaser may wish to carry out surveys and inspections of the property, such as a valuation report, structural survey, or a mechanical, electrical and plumbing engineering (MEP) inspection. We can assist in arranging these for a purchaser.
The seller is usually obliged to provide, on or prior to closing, a boundary survey of the property confirming that all boundary markers are in place, that the property does not encroach on any adjoining properties, and that no adjoining property encroaches on the property.
If you are purchasing a condominium property, this is also known as a strata property. Condominiums are individually owned but the common property is owned and maintained by the strata corporation, with condominium owners paying monthly strata fees to pay for the maintenance and upkeep of the common property. As part of the due diligence, attorneys should request from the strata manager a copy of the strata bylaws, a copy of the strata budget for the current financial year, as well as previous year’s budgets and minutes of general meetings. There may also be a compulsory rental management agreement, which should be reviewed and reported on by the purchaser’s attorney. Please contact us if you would like further information on strata properties.
Contract and other sale documentation
The contract will detail the obligations of the seller and purchaser with respect to the transaction and document the main terms such as purchase price, timing for closing, and any conditions precedent.
The contract will include a set of warranties and representations given by the seller with respect to the property. Such warranties include that (i) the seller is the full owner of the property and vacant possession will be provided on closing (subject to any pre-existing rental bookings), (ii) the seller has no knowledge of any claims threatened or pending against the property; (iii) the property enjoys access from and egress to a public highway, either by the property directly abutting a public highway or by way of easements which have been granted and registered on the title register of the property, (iv) the seller is not aware of and has not received any notice of breach of planning laws/regulations, any restrictive agreement or, in the case of a condominium property, the bylaws.
The contract will also specify what documents are to be provided at closing e.g. Transfer Deed, Bill of Sale (if contents form part of the sale), Discharge of Charge if the seller has an existing mortgage on the property, boundary survey, letters to utility companies informing them of the sale.
Note, in TCI it is common for properties to be sold furnished and with all the fixtures and fittings, subject to some specific exclusions if the seller wants to retain any items of special or sentimental value. The purchase price will be allocated as between the property itself, and the contents, and specified in the contract.
Exchange of contracts
Once the contract is agreed, both parties will sign the contract, upon which contracts will be dated and exchanged between attorneys, and the deposit is paid to the seller’s attorney. The seller’s attorney will hold the deposit in escrow pending either the expiry of the holding period or upon the purchaser’s default, as referred to below.
Once contracts have exchanged, the seller is legally bound to sell the property, and the purchaser is legally bound to purchase the property, subject to the terms of the contract.
If there is a split exchange and closing, the closing documents are agreed in the period before closing. Once the closing documents are agreed, the attorneys will circulate documents to their respective clients for execution ahead of closing. The Transfer Deed and any other documents that require registration at Land Registry require original wet ink signatures, and any such documents executed in a personal capacity are also required to be notarised.
During the period between exchange and closing, the insurance risk lies with the seller. If there is damage to the property between exchange and closing, the contract will set out the options for the purchaser which are usually to (i) insist on the seller making good the damage prior to closing if possible, (ii) proceed with closing but with a reduction in purchase price equal to the value of the damage as determined by a quantity surveyor or (iii) take an assignment of the seller’s insurance policy so that it may receive any If purchasing undeveloped land, there will be no insurance in place and, as such, the risk is with the purchaser from exchange.
The purchaser’s attorney will collect all of the funds that are required to close the purchase in advance of closing – this will include the purchase price (or the balance thereof if there is a split exchange and closing), stamp duty, registration fees, legal fees and any other disbursements that have been incurred.
There may also be apportionments (a reconciliation) to made on closing where the seller has made any pre-payments or is in arrears e.g. for strata fees or strata insurance on a condominium property, and there may also be a deposit payable to the strata corporation if you are purchasing a condominium property. These items would be confirmed in a certificate of the strata manager provided at closing.
If the seller defaults on closing, following the service of a default notice, the purchaser may terminate the contract and have its deposit returned, or it could pursue other available remedies such as specific performance i.e. obtaining an order from the court for the seller to complete the sale. If the purchaser defaults on closing, following the service of a default notice, the seller may terminate the contract upon which the deposit is forfeited to the seller as liquidated damages, or it could pursue other available remedies such as specific performance.
The seller’s and purchaser’s attorneys usually hold a physical closing meeting, although there is no need for the clients to attend this meeting.
At the closing meeting, the seller’s attorney will provide the purchaser’s attorney with the closing documents, any keys and passcodes required for the property. In return, the purchaser’s attorney will hand over a cheque for the balance of the purchase price. The purchaser will then be given vacant possession of the property (subject to any pre-existing rental bookings if they are provided for in the contract).
If the property is constructed and will be occupied, utility accounts need be opened, and deposits may be payable to the utility companies.
If the property is constructed, the purchaser should incept its homeowner’s insurance policy on closing, and we can assist with obtaining quotes from local insurance providers in advance of closing.
There is a holding period (usually either 14 days or 21 days) during which the seller’s attorney must hold the purchase price in escrow. Provided that there are no issues with the purchaser’s registration during that time, the seller’s attorney will then be free to release the sale proceeds to their client. If an issue with registration arises during the holding period, which is attributable to a default by the seller, or it is solely within the power of the seller to resolve any such difficulties, the seller is obliged to assist in resolving such issue, and the holding period is extended until it is resolved.
Any commissions that are payable to a real estate broker will usually be for the seller to pay, unless agreed otherwise.
Registration and post-closing requirements
Once the purchase closes, the purchaser’s attorney will lodge the Transfer Deed and any other documents that need to be registered at Land Registry, such as a Charge (if the property is being financed), Restrictive Agreement or easement. The purchaser’s attorney will also account to the TCI government for the stamp duty which is due on the purchase, which must be paid within 30 days of closing.
Stamp duty varies depending on the value of the property and also varies between the islands. For example, a property on Providenciales costing more than US$500,000 will be subject to 10% stamp duty, whereas the highest rate of stamp duty on North Caicos, Middle Caicos Grand Turk and Salt Cay is 6.5% for any property above $100,000. Note, the portion of the purchase price allocated to contents is excluded for the purposes of calculating stamp duty. Please contact us if you would like further information on the stamp duty rates.
There are no other property taxes that are payable in the TCI – no annual property taxes and no capital gains or other taxes when you sell your property.
Residency permits and permanent residency
Purchasing a property in TCI can also be a route to gaining either a residency permit or permanent residency in TCI, depending on the level of investment and whether you are looking to live here full time and work here. Please contact us if you would like further information on the available residency options.
Please do not hesitate to reach out to us if you are looking to purchase a property in TCI. We would be thrilled to assist you through the process, and minimise any stress or anxiety you may have.
The above is intended to provide you with a general guide to the steps involved in purchasing a property in TCI and should not be relied on as legal advice.