Buying Using a Trust

Non-Bermudian Acquisition of Bermuda Real Estate using a Trust

Extract from the Bermuda Immigration And Protection Act 1956

Trustee holding or acquiring land without a licence

77.      No trustee shall hold or acquire land in Bermuda in trust for a person that the trustee knows or has reasonable grounds to suspect is a restricted person, unless the trustee has a licence or a deferral certificate.

Although the Bermuda Immigration and Protection Act 1956 admits of the possibility of landholding by Non­Bermudians through the vehicle of a trust, the cases where such licences have been granted in the past amount mainly to estate type situations where a foreigner may have appointed a trust corporation (foreign or local) to be an executor and trustee of his or her will. There are few if any instances where foreigners have acquired land in trust legally in the same manner as many Bermudians have. The draconian changes introduced in 2007 by the Bermuda Immigration and Protection Amendment Act 2007 were aimed at stopping NonBermudians from taking title to Bermuda real estate in trusts which ostensibly looked like trusts for Bermudians but where the Bermudians were acting as “fronts”, thereby breaching the spirit and intendment of the law.

There has been a recent case where the Government has granted a land licence for the benefit of a foreigner for the purpose of taking a life interest in land using a trust, and it is thus reasonable to assume that the Government might be willing to approve other similar such land licence applications.

The licence granted for the life interest trust mentioned above was issued subject to the payment of a licence fee equivalent to that which would have been payable had the life tenant acquired in his own name.

A life interest trust is essentially one that has a fixed duration determined by the life of the “life tenant” and then of the person who becomes entitled on his or her death (the “remainderman”). On the death of the remainderman, the trust would come to an end and the land would have to be sold at which time the possibility exists such land could come back into Bermudian ownership.

What are the benefits of such a trust?

  • Depending on the laws that govern the estate of the life tenant, possibly removing it from his or her taxable estate
  • Ensuring an element of anonymity as to ownership, mainly of use for the rich and famous
  • Asset protection; the asset will be held by trustees rather than the life tenant(s), provided that the trust is properly administered.
  • One should note however that each application for a land licence is viewed on its particular merits and there is no certainty that any future applications by Non­Bermudians for acquisition of land in trust (or otherwise) is certain to be approved.

    *source - Conyers Dill & Pearman*