The Impact of Hurricanes Irma and Maria
Harneys weathered Hurricanes Irma and Maria and our BVI office reopened shortly after the passage of the storms with all teams and practice groups providing normal client service. Our lawyers are physically on the ground and have been busy responding quickly and comprehensively to client queries in our usual timely, commercial and solution-oriented manner.
Now that the immediate threat posed by the storms has passed, attention inevitably must turn to recovery and how best that recovery may be facilitated as quickly as possible. We have set out below an overview of some of the pertinent issues for property owners at this time.
Many property owners will have the benefit of a policy of insurance against which they may submit a claim for loss and damage incurred as a consequence of the storms. While the majority of claims should as a matter of course be processed without the need for legal assistance, our lawyers are available to assist with the claims process and to liaise with the local insurance companies, if required. Please ensure that any damage is properly recorded and items in respect of which a claim is to be made are not discarded. Be sure to read the policy carefully and be aware of any exclusions and time limits within which claims must be submitted. You should also pay particular attention to any obligations on your part under the insurance policy to take action to preserve the property from further loss and damage. Failure to comply with this obligation or any other obligation under the insurance policy may negatively impact your ability to claim.
Many homes and other properties in the BVI sustained significant damage and many property owners will have repair and refurbishment of their properties at the forefront of their mind. Some property owners will consider this to be a good opportunity to remodel or extend their homes. Owners that hold their properties pursuant to a Non-Belongers Land Holding Licence are reminded to review their Non-Belongers Land Holding Licence carefully before undertaking such work. It would be typical for such Non-Belongers Land Holding Licences to be subject to a condition that any alterations to the property (which would result in the property no longer matching the description in the Non-Belongers Land Holding Licence) will require the prior consent of the Cabinet of the Virgin Islands.
Where a Non-Belongers Land Holding Licence has been issued subject to a development commitment and that development commitment is no longer achievable in the original timescale as a consequence of the storms, the holder of the Non-Belongers Land Holding Licence should apply to the Ministry of Natural Resources for an appropriate extension.
While vacation rental demand is likely to be affected by the storms, there is likely to be increased local demand for homes as well as commercial properties that were spared damage by the storms. Leaseholders are reminded to check their leases carefully before giving up possession of their properties to third parties as it would not be unusual for the lease under which the property in question is held to contain restrictions on alienation or otherwise parting with possession.
Owners that hold their properties pursuant to a Non-Belongers Land Holding Licence are reminded to ensure they have the requisite rental permission before they rent their properties. Rental permission is typically found either in the Non-Belongers Land Holding Licence or in a letter issued by the Ministry of Natural Resources and Labour. Where the owner does not have rental permission, an application may be made to the Ministry of Natural Resources and Labour for rental permission.
Landlord and Tenant
If you need to rent alternative commercial premises or a home because of damage caused by the storms, you should ensure that the lease under which you are occupying is appropriate for your needs, does not contain any onerous terms and can be terminated when the original premises are once again habitable, so that you are not in the position of having to pay for two premises for longer than is necessary. Some policies of insurance allow the policy holder to recover the cost of renting alternative accommodation where the insured premises are rendered uninhabitable. If this is the case you should ensure to retain copies of any receipts so that these may be submitted as part of the claim.
Depending on the nature of the damage sustained and the wording of the lease, a tenant may be entitled to terminate the lease and/or a reduction in the rent payable during such time as the premises are unfit for occupation and use. Tenants should also check the terms of their leases carefully to understand who is responsible for carrying out any repairs to the premises following damage by the storms.
To assist the recovery effort, the Government has recently enacted measures to reduce to zero the customs duty payable in relation to the importation of certain items, including the following:
- Books, clothes and shoes;
- Building materials;
- Electrical and plumbing fixtures and materials;
- Ships, boats and floating structures;
- Vehicles, parts and accessories; and
- Household furniture and appliances.
This measure was introduced by the Customs Management and Duties (Amendment of Schedule 4) Order, 2017 and will apply from 3 October 2017 until 31 December 2017. Items that are imported into the British Virgin Islands typically attract customs duty at a rate between 5 per cent and 20 per cent depending on the nature of the item in question and this measure therefore presents the opportunity for a significant saving. Where relevant, it is therefore advisable to file insurance claims promptly so that funds will be available to take advantage of the temporary concession with respect to customs duty.
Employment and Immigration
Many employers will have been negatively impacted by the storms, at least on a short-term basis and may have a requirement for their staff to work flexibly until any damage can be rectified and in this context, employers are reminded to have regard to the Labour Code which protects the rights of employees. Some employers may have a requirement for certain members of staff to work additional hours to assist with the recovery process. The Labour Code sets out detailed rules that are particularly relevant for staff working increased hours including in relation to the payment of overtime, rest periods and limitations on hours of work. An understanding of the work permit application process will be essential where additional staff with specialist skills are required to assist with the recovery process and appropriate staff are not available locally.
The Labour Department has announced that work permit applications for certain workers will be expedited, particularly those involved in the relief effort. In relation to existing work permit holders, the Government has announced that there will be a grace period of up to three months for the holders of work permits to regularise their immigration status following the expiry of their work permits. This will be of particular help to many of those work permit holders that are temporarily away from the BVI.
The retail banks operating in the BVI have announced customer assistance programmes whereby there is an option to defer loan payments for a fixed period of time. Some of these assistance programmes automatically apply but others need to be applied for and we suggest that you contact your bank to ascertain if this is something that is appropriate for you.
For more information on legal matters arising from the impacts of Hurricanes Irma and Maria, please contact Ayana Hull or your usual Harneys contact.