01 | Introduction
The Finance (Miscellaneous Provisions) Act 2021 was gazetted on 05 August 2021 and it brings into force a number of amendments to the legislations in Mauritius. This last segment of the joint Axis and BLC Robert Finance Act series sets out the key amendments made to the "Property Law" sector. Entailing the Asset Recovery Act, Borrower Protection Act, Landlord and Tenant Act, Non-Citizens (Property Restriction) Act, Real Estate Agent Authority Act 2020, Registration Duty Act and State Lands Act.
02 | Asset Recovery Act
The main amendment which is brought to the Asset Recovery Act relates to property which is the subject matter of an Unexplained Wealth Order under the Good Governance and Integrity Reporting Act. It is to be recalled that if the Integrity Reporting Board has reasonable grounds to believe that a person has unexplained wealth, it must direct the Integrity Reporting Services Agency to apply to a Judge in Chambers for an Unexplained Wealth Order for the confiscation of that unexplained wealth. With the amendment brought to the Asset Recovery Act, an Explained Wealth Order issued under the Good Governance and Integrity Reporting Act takes precedence over a Restraining Order or a Restriction Order under the Asset Recovery Act.
The Enforcement Authority, i.e., the Financial Intelligence Unit, may, if it determines that it is necessary to appoint a trustee to take custody of and manage the property, apply for the nomination of a suitably qualified person for appointment.
The Asset Recovery Act is also amended to require the Financial Intelligence Unit to give notice of the Restriction Order to every person who may have an interest in the property or such reporting person as it considers appropriate. A reporting person has the same meaning as in the Financial Intelligence and Anti-Money Laundering Act. It is to be noted that a person who has an interest in a property which is the subject of a Recovery Order may make an application to exclude his interest from the Recovery Order and the Judge may grant such application if he is satisfied that the property is not proceeds, a benefit, an instrumentality or terrorist property, or the applicant was not in any way involved in the commission of the offence in relation to which the Recovery Order was made, or if the applicant acquired the interest before the commission of the offence, the applicant did not know that any person would use, or intended to use, the property for, or in connection with, the commission of the offence, or where the applicant acquired the interest at the time or after the commission of the offence, the interest was acquired in circumstances which would not have given rise to any reasonable suspicion that the property was proceeds, a benefit, an instrumentality or a terrorist property.
03 | Borrower Protection Act
The Borrower Protection Act 2007 (the "BPA") has been amended by the Finance (Miscellaneous Provisions) Act 2021 in order to widen the protections provided over property given as security. The amendments have been made because of the preference of lenders to take fixed charge over immoveable property rather than mortgages. It applies a uniform regime for the protection of immoveable property offered as security irrespective of the form of security interest.
Previously, the BPA provided that a lender seeking to enforce a mortgage over immoveable property needed to report the matter to the Commissioner for the Protection of Borrowers before issuing execution on security. Following the amendment made to the BPA, a lender will need to report to the Commissioner for the Protection of Borrower before taking enforcement steps over immoveable property subject to a fixed charge in addition to property subject to a mortgage.
In addition, the procedure for sale of property set out under section 20 of the BPA will now apply equally to property subject to a fixed charge in addition to property subject to a mortgage.
Lastly, the BPA has been amended to allow the Ministry of Finance, Economic Planning and Development to issue regulations for the procedure applicable for the sale of property irrespective of the form of security interest created.
Originally published October 5, 2021
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