This week the government brought up a surprise bill amending the Non-Citizens (Property Restriction) Act. But in looking to prevent foreigners from ill-using foundations to buy local property, do these amendments go much further and risk damaging the real estate sector more generally?

Foreign buyers and foundations

The bill amending the Non-Citizens (Property Restriction) Act presented in parliament this week is touted as plugging a gaping loophole in financial services regulation within Mauritius. By forcing foundations set up or owned by foreigners to get the consent of the Prime Minister’s Office (PMO) before buying or selling property within the country, the bill is labelled as one that will slow the skyrocketing of housing and land prices in the country, pricing poor and middle-class Mauritians off the property ladder.

First, what is the logic behind the NonCitizens (Property Restriction) Act? The law is there to shield the local housing market from hyper-inflation and pushing local Mauritians out of the property market. When Mauritius opened its property market to foreign buyers, this was a concern. The Non-Citizens Act was supposed to ringfence the property markets for locals and foreigners away from one another. “According to the law, a non-citizen cannot buy property here unless they fall within one of these categories: buying into an IRS/RES/PDS/Smart City scheme through the Economic Development Board (EDB), inheriting property within Mauritius or through an exceptional authorization from the PMO,” notary Ashvin Dwarka tells l’express.

If you have villas going for between $3-7 million in an IRS development, “that’s not a problem since the inflation in property values is localized to that area and does not inflate housing prices in other areas, such as QuatreBornes or Beau-Bassin, which are residential areas primarily for locals,” Dwarka argues. The law did that by not allowing foreign buyers from splashing dollars in such areas. “The reason this law is important is because it tries to prevent what happened in certain Mediterranean islands which opened their own property markets to foreign buyers only to have wealthy buyers from countries like Germany buying holiday homes that lie idle 11 months a year but priced the locals totally off the market,” he explains.

So how do foundations set up by foreigners come into the picture? The Mauritian financial services sector was engineered to cater not just to offshore business, but also to attract well-heeled foreigners to bring in their cash to put into trust companies. “The problem is that the people drafting the legal framework for our financial services sector were mostly training in British universities and were more familiar with offshore business practices in countries like the UK and the US,” says a source within the industry, “for countries such as France and other European states on the continent, things found in UK law such as trusts just do not exist.”

What that meant is, suppose somebody from France wanted to set up a trust company in Mauritius to manage the family wealth, if that included property in France, he would usually have to set up a company there too since the trust would not be legally recognized. So, in 2012, Mauritius passed the Foundations Act, allowing foreigners to set up foundations in Mauritius to place assets outside the purview of creditors, to hold assets indefinitely, and to channel investments. According to the Eastern and Southern African Anti-Money Laundering Group (ESAAMLG) report in 2018, out of the 345 foundations set up in Mauritius, only 148 of them were charities. The remaining were either there for business or to manage family wealth.

«The FATF was concerned about foundations in mauritius potentially being used for moneylaundering and terrorist financing.»

Abuse of the system

The problem is that the financial regulations of Mauritius contained a glaring loophole when it came to foundations; it did not actually regulate very much. Let us say you are a foreigner, explains Reza Uteem, parliamentarian of the opposition MMM, “if you have a company that wants to buy property in Mauritius, you need the authorization of the PMO. If you want to buy into a company that owns property in Mauritius, you need to go to the PMO. If you want to set up a trust to buy property in Mauritius, you must go to the PMO. If you want to become a beneficiary of a trust that has property in Mauritius, you must go to the PMO. But if it is a foundation, then there is nothing. I can simply lend money to a foundation, get it to buy property and then live in the property as long as I like, pretending that the rent I am supposed to be paying is to settle interest on the loan. On paper, the foundation I set up owns it, but I am the actual economic owner of that property.”

Gaming the system in this way had other benefits too. According to Dwarka, “this loophole about foundations distorted competition by allowing such people to easily buy property and then sell their beneficial interest in the foundation without having to pay registration duties or taxes, while those buying those same properties via the EDB had to pay a five percent registration duty.” The other problem was that, unlike other foreign buyers who could only buy in some luxury housing developments, to prevent inflating a housing bubble everywhere else for Mauritians, foreign buyers buying properties through foundations could technically buy anywhere in the country. Precisely undermining what the Non-Citizens Act was set for.

We have been there before. “A decade ago, the controversy was about South Africans trying to circumvent the law by setting up companies in Seychelles that would then set up trust companies in Mauritius to buy property,” our source points out, “that too had to be plugged up with amendments to the law.” Marc Hein, former chairman of the Financial Services Commission (FSC) sees it as a progression: “the law was there first to restrict the ability of individuals from abroad to buy property, then it was trusts and now foundations, so there is nothing illogical in having this bill to close this loophole too.” This bill can also be seen as part of a raft of legislation to tighten up the financial sector rules after Mauritius was put on the grey list of the IMF’s Financial Action Task Force (FATF) and then on a blacklist of the EU as a “high-risk” jurisdiction last year.

The government is looking to get off the FATF grey list by September this year; the longer it stays on, the greater the risk of losing out on much-needed foreign exchange, losing clients to other offshore jurisdiction and, of course, making it harder for European banks to process payments to purchase real estate in Mauritius. A sector that Mauritius has come to heavily rely on for foreign investment in recent years. “The FATF was concerned about foundations in Mauritius potentially being used for money-laundering and terrorist financing; so after the FATF grey-listing, banks here have become extremely cautious when dealing with foundations,” says Kee Chong Li Kwong Wing, ex-Chairman of SBM Holdings, “even the FSC became genuinely concerned and now asks for a lot of information when it comes to foundations in Mauritius.” In 2018, the Mauritian government changed the Foundations Act to keep records of the beneficial owners of their foundations. “So there is nothing wrong in this tightening up of foundations through this bill,” Kee Chong argues.

So, what effect will getting foundations registered in Mauritius having to get permission from the PMO to buy and sell property have on the real estate sector in Mauritius? Not much. It was the same story with trusts being similarly abused in the past. “I don’t think it will have much of an effect, there are plenty of French, Dutch and Belgian buyers going through the EDB to buy into IRS/RES/PDS projects and not in other areas like Beau-Bassin or Quatre-Bornes, the fact that the government has had to come up with this law indicates that somebody has tried to do precisely that. With this part of the bill, foreigners who have tried to sidestep the law by using foundations set up in Mauritius are now in the unenviable position of not being able to resell their property without cleaning up their act,” concludes Dwarka.

Where is the problem?

Although  the bill does close the loophole when it comes to well-heeled foreigners scooping up property by using foundations to sidestep legal restrictions on property ownership in Mauritius (and jacking up housing prices), it goes much further than that. And this is where the problem lies. Aside from changes to the laws governing foundations, the bill also mandates that “a non-citizen who disposes of a property shall also seek prior authorization under the Act.” This goes much further than foundations but indicates that all foreigners owning property in the country will have to go to the PMO before selling off or transferring their property. “This part of the bill is more complicated,” says Hein. At present, foreigners buying properties in IRS/RES/PDS/ Smart Cities and in apartment complexes are issued with a letter of authorization by the EDB. “The letter simply said that, in case the buyers disposed of the property they would have to notify the EDB; now under this bill they would have to get permission from the PMO before disposing of their property. There is a big difference between simply notifying somebody and asking for permission. A lot of people have not realized this yet,” insists Hein.

This puts limitations on what foreigners buying through the EDB can do: by mandating going through the PMO, it is harder to sell off property in hurry mandates that even when selling to Mauritians, holders of luxury properties will have to get the permission of the PMO (other foreigners would by law have to go through the PMO in any case) and does not allow the foreign buyers of these properties to put them under a mortgage. “There is a lot of confusion about this” maintains Hein, “and this will have a commercial impact at a juncture when we need foreign investment and money.” No mean consideration given the fact that Mauritius has increasingly turned to property sales to attract foreign investment. In recent years, predominantly so. According to figures from the Bank of Mauritius, in 2015, property sales made up 52.1 percent of total foreign investment coming into Mauritius. By 2019 it was 75.6 percent and between January and September 2020, 72.9 percent. For the first three quarters in 2020, France and South Africa together made up nearly half (49.6 percent) of total incoming investments. Predominantly in real estate.

Putting such restrictions on buyers who have come legally through the EDB is also a problem. “This may put a brake on property sales,” says a source within the industry. “After you get them to buy property in Mauritius and bring in investment, you cannot just change the rules of the game after the investments have already been made,” warns Uteem, “we rely on selling property for our foreign investment now and with this bill, the government is just shooting itself in the foot.” For Hein, “this bill has taken everybody by surprise and real estate agents seem not to have fully grasped what it means. They will be hopping mad when they do.”