A Q&A guide to corporate real estate law in the Cayman Islands.
The Q&A gives a high level overview of the corporate real estate market trends; real estate investment structures, including REITs; legislation; title and public registers of title; confidential information; state guarantee of title; tenure; sale of real estate; seller's liability; due diligence; warranties; cost; taxes and mitigation, including VAT and stamp duty/transfer tax; climate change targets; third party outsourcing; restrictions on foreign ownership or occupation; finance; leases; planning law and consents; and proposals for reform.
To compare answers across multiple jurisdictions, visit the Corporate Real Estate Country Q&A tool.
This Q&A is part of the PLC multi-jurisdictional guide to corporate real estate law. For a full list of jurisdictional Q&As visit www.practicallaw.com/realestate-mjg.
While no one expects a rapid economic recovery, there are signs that indicate the real estate market is starting to recover in the Cayman Islands.
The Cayman Islands government's commitment to enter into agreements with the private sector to stimulate the economy, including the real estate industry, has continued over the past 12 months.
The Cayman Islands government is in various stages of negotiation with investors such as:
Dart Realty (in relation to the continued development and expansion of Camana Bay and the improvement of infrastructure on the island).
Dr Shetty, an Indian entrepreneur (in relation to a new health city on the island called Narayana Cayman University Medical Centre, starting with a 140 bed hospital and medical university).
Dart Realty acquired and continues to acquire large areas of real estate, some of which have been combined and are being developed into a self-sufficient town known as Camana Bay. Cayman International School opened in September 2006 at Camana Bay. The first commercial phase of Camana Bay was completed in 2007, which includes offices housing tenants such as Ernst & Young, Goldman Sachs, Cayman National, Digicel, State Street, London and Amsterdam, Citco and the offshore law firm Ogier. The development also includes a cinema complex with six cinemas. There is a large amount of construction currently taking place and also planned for the future. The most recently completed office building is the new home of AON and Mourant Ozannes.
The Cayman Islands government has also recently signed a definitive agreement with Cayman Enterprise City Ltd. concerning the establishment of a knowledge-based special economic zone, which would be an intelligence led commercial business park within a tax free zone.
Cayman Enterprise City will have six sectors in its special economic zone (Cayman Internet Park, Cayman Media Park, Cayman Biotech Park, Cayman Commodities Park, Cayman International Academic Park and Cayman Outsource Park) which will eventually be located in one million square feet of class A office space. The Cayman Enterprise City will be the first of this kind in the Caribbean.
Finally, there are large commercial projects now underway, having previously been put on hold, including the construction of Watercolours, which will comprise 60 ultra luxury condominiums in the first nine-storey development on Seven Mile Beach.
The structures most commonly used are corporate structures.
There is generally no restriction on foreign ownership of real estate in the Cayman Islands, but there are legal restrictions designed to protect local businesses, which effectively restrict foreign investment in commercial real estate (see Question 22).
However, foreign nationals willing to persevere will usually be granted the necessary licences, provided the investment is substantial. As the Cayman Islands is geographically quite small, investment opportunities are limited.
REITs and real estate derivatives from Cayman Islands real estate are generally unavailable and are not commonly used.
Institutional investment in the Cayman Islands is increasing, as the size of projects requires large amounts of capital. However, at least two-thirds of commercial real estate is held privately.
See above, Institutional investors.
The main legislation in the Cayman Islands relevant to real estate is the:
Registered Land Law (2004 Revision).
Registered Land Rules (2003 Revision).
Development and Planning Law (2011 Revision).
Development and Planning Regulations (2011 Revision).
Strata Titles Registration Law (2005 Revision).
Governor (Vesting of Lands) Law (2005 Revision).
Landlord and Tenants Law (1998 Revision).
Stamp Duty Law (2011 Revision).
Land Holding Companies Share Transfer Tax Law (2007 Revision).
Companies Law (2011 Revision).
Trade and Business Licensing Law (2007 Revision).
Local Companies (Control) Law (2007 Revision).
Settled Land Law (1998 Revision).
The Property (Miscellaneous Provisions) Law (2011 Revision).
The Registration (Land) Law (1996 Revision).
Building Code Regulations (2006 Revision).
Land Adjudication Law (1997 Revision).
Prescription Law (1997 Revision).
Decisions of the Grand Court of the Cayman Islands and English common law are sources of law, but only to the extent that they are consistent with the laws of the Cayman Islands.
Real property includes:
All things growing on the land.
Other things permanently affixed to the land.
Title to land and any buildings on it (if owned by the same entity) are registered together. However, by using the Strata Titles Registration Law, separate lots can be created on the land and within the building, and separate titles are issued for these strata lots.
Title to real estate is evidenced by registration at the Cayman Islands Land Registry (Land Registry), where land parcel files are open to public inspection. The Registrar of Lands manages the public register.
The land register for a parcel of land or lease indicates:
Whether title is absolute or provisional.
Whether the land is private or crown land.
The area of the land (where the land has been surveyed).
The name and address of the owner(s).
Details of any matters to which title is subject and any encumbrances affecting the land.
Details of any matters of which the title has the benefit.
Relevant documents that are registrable include:
Transfers of land and transfers of leases.
Stays of registration.
Charges, cautions, restrictions and inhibitions.
Third party rights, including easements and restrictive covenants.
Leases where the term is more than two years (leases for two years or less can be registered voluntarily). If leases are registered then any variations of those leases also need to be registered.
There is a separate register for leasehold interests and a note of the lease is made in the encumbrances section of the land register for the freehold title.
The land register and all documents mentioned in it or contained in the parcel file are open to public inspection and copies are available for purchase.
The state guarantee is that any proprietor who suffers loss arising from a register error which cannot be rectified is entitled to compensation from the Cayman Islands government.
Title insurance is not commonly used and is not generally available. However, large institutional United States lenders sometimes insist on title insurance in large financing transactions, and obtain it in the United States to cover larger commercial developments.
Real estate is held as:
Freehold. A freehold title is held by the registered proprietor indefinitely.
Leasehold. A leasehold title is held by the registered proprietor for the term of the lease.
Strata title. The Strata Titles Registration Law (2005 Revision) provides for the subdivision of freehold and leasehold interests in land to create strata lots, each of which is registered with a separate strata title (which is held by the registered proprietors indefinitely). Strata titles are also used for office buildings and shopping centres, but most commonly for residential condominium developments.
A contractual licence can also be used to allow occupation of land, but this is a personal right and does not create an interest in the land.
Specialist agents market corporate real estate.
Specialist agents handle the negotiation of corporate transactions prior to execution of documents.
Commonly used pre-contractual arrangements include letters of intent, heads of terms and pre-contract enquiries.
The parties' lawyers generally negotiate a sale contract and procure execution of documents once the terms of the sale contract are agreed.
The parties are legally bound on execution of the sale contract, subject to following established formalities.
A change of title is registered as soon as possible, following closing of the sale.
Legal title transfers on registration of the new proprietor at the Land Registry.
The seller does not have statutory liability in a real estate disposal. However, liability may arise contractually, and remain with the seller on closing of the sale.
The primary source of information on title is the land register for the property to be acquired.
A buyer usually obtains:
A copy of the land register and registry map extract for the property.
A copy of the registered strata plan and the bye-laws.
Copies of any instruments registered on title which are considered relevant to the buyer, such as:
cautions, restrictions or inhibitions;
planning restrictions; and
Public records relating to real estate are relatively limited.
Unless the buyer proposes a new use for the real estate, due diligence is typically limited to title.
A buyer usually raises some pre-contract enquiries in respect of the property to be acquired and it may also undertake proposed road searches, planning searches and compulsory acquisition order searches.
Warranties are always subject to negotiation, but on the sale of an individual commercial property, the seller generally gives limited warranties concerning:
Third party interests.
The accuracy of replies to pre-contract enquiries.
More wide-reaching warranties are normally required for the sale of an ongoing business.
It is technically possible in certain limited circumstances for an owner or occupier to be liable for matters relating to the real estate before it bought or occupied it, such as a continuous creation of an action or nuisance. Otherwise, the English rules of privity of contract apply. In addition, the buyer of a strata title lot can be liable for unpaid strata levies after acquiring the lot, as this debt attaches to the strata lot.
A seller or occupier does not generally have any liabilities relating to the real estate after it has disposed of it. This is subject to any contractual provisions to the contrary.
The buyer is generally responsible for paying:
Other land registry fees in relation to an acquisition of a freehold or leasehold real estate.
Typical acquisition fees and costs, such as:
lender fees, where financing is being obtained.
However, these costs can be subject to negotiation.
The seller is responsible for paying any marketing costs, for example, listing with a licensed real estate agency.
Generally, each party is responsible for its own legal costs.
The Cayman Islands has no equivalent to VAT.
Stamp duty is payable (subject to certain exemptions) on:
The transfer of land.
The transfer or grant of a new lease.
Any agreement or memorandum of agreement for the purchase of land or strata title, and the assignment of any rights under such an agreement.
A debenture or legal charge of land.
The buyer generally pays the stamp duty in relation to an acquisition of freehold or leasehold real estate. The tenant usually pays stamp duty for the grant of a lease. However, this is negotiable between the parties.
The current rates of stamp duty payable on a transfer of land, a strata title or lease vary from 0% to 7.5%, depending on:
Whether the buyer is a Caymanian citizen.
The location of the real estate.
The value of the real estate.
The duty is paid on the consideration stated in the instrument of transfer or the market value of the property conveyed or transferred, whichever is the higher, irrespective of any mortgage, charge, lien or other encumbrance to which the property is subject.
The current rates of stamp duty payable on a lease or lease agreement are:
If the term is for less than one year: 5% of the aggregate rent.
If the term is one year or more, but does not exceed five years: 5% of the average annual rent.
If the term exceeds five years, but does not exceed ten years: 10% of the average annual rent.
If the term exceeds ten years, but does not exceed 30 years: 20% of the average annual rent.
If the term exceeds 30 years: the same duty as on a sale based on the full market value of the real estate or interest in it.
If the rent in the lease is less than market value, for the purposes of calculating the stamp duty, the average annual rent will be declared at the market value having regard to any premium charged.
Stamp duty is also payable on any mortgage (legal or equitable) or charge on immovable real estate at the rate of 1% or 1.5% of the sum secured, depending on the secured sum.
An agreement or memorandum of agreement for the purchase of land or strata title may be stamped with a minimal fixed stamp duty or with ad valorem stamp duty (that is, the amount paid is proportionate to the value of the asset), depending on whether the agreement confers or grants a right of possession or the right to receive rent or income. If the agreement confers or does not specifically prevent any right of occupation or confers the right to receive income, ad valorem duty is payable. Where full ad valorem stamp duty is paid on the agreement or memorandum of agreement, no additional duty will be payable on the transfer, provided the transfer has been executed in conformity with the agreement, and relates to the same real estate as the agreement.
If there is an assignment of any rights of an agreement or a memorandum of agreement relating to the purchase of any land or strata title then, depending on the terms of the assignment, varying, fixed or ad valorem stamp duties are payable.
There are a few exemptions, which include transfers:
For natural love and affection between certain family members.
To successors entitled under an estate.
Which do not bring about any change in beneficial ownership.
However, all stamp duty exemptions and waivers are at the discretion of the Minister of Finance.
Share transfer tax is also payable on the transfer or issue of equity capital in a land holding company (Land Holding Companies Share Transfer Tax Law (2007 Revision)).
Methods are not commonly available or used to mitigate real estate tax liability on acquisitions of large real estate portfolios.
The Cayman Islands is not big enough to have large real estate portfolios similar to those in the UK.
There are no targets to reduce greenhouse gas emissions or legislative requirements for energy efficiency, although some companies establish their own environmental policies.
Outsourcing is commonly used to manage corporate real estate.
The following restrictions apply:
A foreign company wishing to purchase or lease (or otherwise hold an interest in) real estate in the Cayman Islands must be registered at the Cayman Islands Companies Registry as a foreign company.
Any foreign company, or Cayman company which is foreign controlled, wishing to own and rent out commercial real estate must be licensed under the Trade and Business Licensing Law (2007 Revision) and the Local Companies (Control) Law (2007 Revision).
Any foreign company, or Cayman company which is foreign controlled, wishing to take a lease of premises to carry on a business from those premises, must obtain a licence under the Trade and Business Licensing Law (2007 Revision) and the Local Companies (Control) Law (2007 Revision).
Any foreign company or Cayman company which is foreign controlled wishing to own and rent out more than two residential properties must be licensed under the Trade and Business Licensing Law (2007) and the Local Companies (Control) Law (2007 Revision).
An exempted company must obtain the approval of the Minister of Finance to hold land in the Cayman Islands.
On registration at the Companies Registry, a foreign company or Cayman company which is foreign controlled can give guarantees or security in relation to real estate, in relation to ownership or occupation, provided its memorandum and articles of association allow it to do so.
A change of control of a company does not affect its holdings of real estate. However, a change of control of a company may trigger liability to pay share transfer tax (see Question 18, Share transfer tax).
The Cayman Islands government can compulsorily acquire any land. Compensation is payable, and is generally at the property's market value.
No taxes are payable on the occupation of business premises.
Large real estate portfolios or companies holding real estate are not common in a jurisdiction the size of the Cayman Islands.
Real estate is offered by borrowers as security for loans, and financiers most commonly register legal charges against the borrowers' real estate.
The most common forms of security over real estate are:
Legal charges registered against land.
Legal or equitable charges over shares in a company that holds land.
Assignment of rental income.
Assignment of insurance proceeds.
Deed of waiver.
Legal charges over property must be registered on the title for the land at the Land Registry, and charges over shares are recorded on the register of shares for the land holding company.
An assignment of rental income is usually created by deed and notice of the assignment must be given to the tenant to perfect the security.
A deed of waiver is usually created by deed.
Real estate securitisation is only used in a limited number of resort developments.
Rents or lease terms are freely negotiable. However, certain covenants by the landlord and by the tenant are implied in a lease by sections 52 and 53 of the Registered Land Law (2004 Revision) unless otherwise expressly provided in the lease.
If the term of the lease is for more than two years, it must be executed in triplicate and the signatories to the lease must sign the lease before a notary public who must complete the certificate of identification on the reverse of the lease front sheet and affix his notarial seal. The notary public must also state the date his commission expires. If the parties are not known to the notary, then a witness must also appear before the notary and identify the signatories to the notary, or the notary must record details of identification inspected. The witness must sign the leases.
There are no particular formal legal requirements for the execution of a lease for a term of less than two years.
There are currently no statutory restrictions on rent levels. Rent levels are typically reviewed in line with the consumer price index (CPI), by a fixed percentage or by market review. VAT is not payable in the Cayman Islands.
A lease term of five years is most common. There are no restrictions on the lease term although a lease of more than 30 years is treated as a conveyance for stamp duty purposes (see Question 18, Stamp duty).
Tenants of business premises do not have security of occupation, or rights to renew the lease at the end of the contractual lease term, unless those rights are expressly set out in the lease. However, where a tenant, having lawfully entered into occupation of any premises continues to occupy those premises with the consent of the landlord after the termination of the lease, the tenant will be deemed to be a tenant holding the premises on a periodic tenancy on the same conditions as those of the expired lease so far as those conditions are appropriate to a periodic tenancy.
The tenant can usually assign the lease or sublet the premises with the landlord's prior consent, which cannot usually be unreasonably withheld or delayed where criteria (such as ability to comply with the head lease) are met.
A tenant's affiliates are generally allowed to share premises, provided notice is given to the landlord. The tenant remains liable for its affiliates in relation to the premises.
The tenant is usually responsible for keeping the non-structural components of the leased premises in good and substantial repair, and the landlord is usually responsible for keeping the structure in good repair.
The landlord is usually responsible for insuring the leased premises, and the tenant usually contributes to the insurance costs.
The landlord can generally terminate the lease if the tenant has breached a fundamental or essential term of the lease (these terms are usually specified in the lease). The landlord must first give the tenant written notice of the breach and allow the tenant an opportunity to remedy the breach within a reasonable time, failing which the landlord can terminate the lease. The tenant has a statutory right to apply to the court under the Registered Land Law (2004 Revision) for relief against forfeiture.
The tenant can terminate the lease on common law contractual principles if the landlord is in breach of a fundamental or essential term of the lease. The tenant can also terminate the lease if there is an express right to break the lease. Express termination rights for a breach by the landlord are not usually specified in the lease.
The landlord and the tenant may have termination rights in certain circumstances, following substantial damage to the premises (for example, where there is major damage following a hurricane and the landlord elects not to rebuild or reinstatement of the building is not possible).
Lease terms usually allow a landlord to terminate the lease if the tenant becomes insolvent. A landlord also has a statutory right to terminate the lease if the tenant is adjudicated as bankrupt (in the case of an individual) or goes into liquidation (in the case of a company).
The following pieces of legislation provide control mechanisms in connection with the development of land:
The Development and Planning Law (2011 Revision).
The Development and Planning Regulations (2006 Revision).
The Development Plan 1997.
The Development and Planning Law (2011 Revision) also establishes a Central Planning Authority for Grand Cayman and a Development Control Board for the Sister Islands (Cayman Brac and Little Cayman). These statutory authorities:
Review and consider applications to obtain planning permission for development.
Take enforcement actions where necessary.
Planning permission is required for any development of land or change of use. Development of land includes:
Carrying out building, engineering or other operations in, on, over or under any land.
Materially changing the use of any land or the use of any building on the land.
The following exclusions apply:
Where renovations, alterations or improvement works are being carried out on the interior of a dwelling house and do not materially affect the external appearance of the dwelling house.
Enlargements of a dwelling house within certain limits.
Carrying out certain works by government personnel.
Applications are made to the Central Planning Authority for Grand Cayman and the Development Control Board for the Sister Islands (Cayman Brac and Little Cayman).
If third parties receive notice of a development application, they have the right to object or make representations.
On receipt of an application for planning permission, the Central Planning Authority or the Development Control Board can hold an inquiry, to consider whether there are issues of substantial importance relevant to the determination of the application which may require further evaluation.
An initial decision typically takes between two to three months.
There is a right of appeal, but this is restricted to the person who applied for the planning permission and to individuals residing or owning land within a radius of 1,500 feet from the boundaries of the land to which the application relates.
There are proposals to reform the Strata Titles Registration Law (2005 Revision), which is currently under review.
Main activities. This department is part of the Ministry of District Administration, Works, Lands and Agriculture in the Cayman Islands government. It comprises several sections linked by a common dealing and involvement in land.
Main activities. This department covers planning in relation to four areas:
Main activities. This is the only professional association of real estate brokers in the Cayman Islands and has been in operation since 1987.
Main activities. The Chamber of Commerce was established in 1965 and represents businesses and associate members that collectively employ over 20,000 residents from every major industry sector.
Description. This is the website of the Cayman Islands government. Information pertaining to the real estate legislation, case law and rules in the Cayman Islands can be found here.
Description. This is the website of the Cayman Islands Lands and Survey Department. Information pertaining to the real estate legislation, case law and rules in the Cayman Islands can be found here.
Description. This website provides information on planning matters.
Description. This is the website of the Chamber of Commerce, which provides information on commerce in the Cayman Islands and other general information.
Qualified. Cayman Islands, 1994; Canada, 1992
Areas of practice. Property development; property finance; and property transactions.
Qualified. Cayman Islands, 1997; England and Wales, 1993
Areas of practice. Property development; property finance; and property transactions.
Qualified. Cayman Islands, 2007; Australia (Supreme Court and High Court), 1996
Areas of practice. Property development; property finance; and property transactions.