WHEREVER I LAY MY HAT

Demand for residential property in the Island has steadily increased and has for many years outstripped supply.  The Housing Law, together with the Housing Regulations enables Jersey to control the demand for residential property and seeks to protect the local housing market.

The Housing Law requires every person wishing to purchase or lease land and freehold property to have the prior consent of the Housing Minister.  The ability to qualify for such consent is determined by the Housing Regulations, which are broadly dependent on a period of residence, or due to hardship, essential employment, or social or economic grounds. A person may acquire either specific consent for a particular transaction or acquire full housing qualifications depending upon which regulation they are seeking to qualify under.

Regulation 1 sets out the numerous criteria for granting residential qualifications and they are denoted by letters of the alphabet which accord with the paragraph sub-sections, hence we have become accustomed to such terms as 1 (1) (j) and 1 (1) (k).

Shares acquired in companies which give ownership of certain properties (share transfer) may be purchased by persons without housing qualifications, however, occupancy of such properties remains controlled by the Housing Minister and these properties may only be occupied by persons who qualify under the Regulations..

Inherited properties may also be owned and occupied by persons without housing qualifications, however the rules regarding this are complex and advice should be sought from the Housing Department.

Period of Residence

The majority of the Island’s population gain their qualifications through a period of residence in the Island.  At the moment, the period of residency required for a person born outside of the Island is 12 years. This must however be a continuous period of 12 years. Qualifications obtained in this way will be lost after a period of absence from the Island of five years (see below, ’Five Year Break Rule’).

If a person is born locally, they will obtain their residential qualifications after an aggregated period of 10 years. Such persons can never lose their housing qualifications, irrespective of any absence from the Island.

Housing qualifications may also be granted to those who were not born in Jersey but who arrived in the Island prior to their 20th birthday, have parents who are residentially qualified and have lived in the Island for a total of 10 years or more. Whether or not the five year break rule applies depends upon whether the child’s parent(s) are locally born and whether they would lose their qualifications if they left the Island.

A non-qualified spouse may also be provided with consent to buy with their qualified spouse. Consent is granted for a specific transaction and does not give further residential status to the non-qualified spouse. In addition, non-qualified spouses may qualify in their own right after they have lived together with their qualified spouse in a shared unit of accommodation in the Island for a total of 10 years.  If qualifications are obtained in this way, they will be lost after a period of absence in excess of five years from the Island.

Hardship 1 (1) (g)

The Housing Minister may consider granting a consent to lease or buy a specific property under this regulation where the applicant would not qualify under any other regulation, and where the applicant can demonstrate that they would suffer hardship, other than financial, if consent were not granted.

The Housing Minister will consider each application on its merits and has discretion to permit consent in certain circumstances which may include for example:-

• where following separation or divorce an unqualified spouse, who has a Residence Order for the child/ren of the marriage, who has been married for a minimum of 5 years and who has accrued a long period of continuous residency; or
• where a non-Jersey born person who has lost qualifications through leaving the Island because of job requirements, family responsibility, emigration etc now wishes to re-establish residence in Jersey.

The above circumstances are only examples of where the Minister may apply his discretion and grant consent.  Other circumstances may also be considered.

Essential Employment 1 (1) (j)

Specific consents may be granted under this category where a person is essentially employed and no local person can be found to fill the position.  Under this regulation, the Minister has discretion to grant consent to essential employees to purchase or rent property, or to require such employees to be housed in accommodation owned or leased by their employers (commonly known as ’J Cats’).

In addition, it has been agreed by the Housing Minister that approved essential employees will be able to occupy property purchased in the name of a company of which the essential employee has beneficial ownership of.  This consent is however only valid for the duration of that employee’s full time employment for which consent has been granted, or until such time as they qualify in their own right by virtue of their own period of continuous residency, at which point the five year break rule applies.

Consents granted under this category can either be limited or unlimited in time, at the discretion of the Minister.

Economic or Social Benefit 1 (1) (k)

Alternatively specific consents may be granted where there is a proven economic and/or social benefit to the island.  This benefit may either be a major contribution to tax revenues or other social benefits that would be enjoyed by the Island should consent be granted. Certain properties are classified under this Regulation and are usually luxury houses or apartments.  Applicants must have significant wealth, to be considered under this category.

Spouses of those granted consent to buy under this regulation do not gain residential qualifications in their own right through joint purchase, or after ten years residence with their spouse. They would need to have been continuously resident for twelve years.

If the 1(1) (k) resident leaves the Island prior to gaining their housing qualifications (by residency) s/he loses her/his housing status.

Five Year Break Rule

Under certain of the regulations, a person’s housing qualifications may be lost after a period of absence from the Island of five years. Any person whose qualifications are dependent on maintaining continuous residence in the Island is entitled to leave the Island for one single period of up to five years without losing their residential qualifications. Should a person leave the island for more than five years, they will automatically lose their residential status.

As a general rule of thumb when considering a person’s continuous residence or a period of absence from the Island, anything up to three months can be considered as a holiday and anything over three months constitutes a break from the Island. However, there are instances, particularly with those who are retired, where holidays do exceed three months and assuming they can provide evidence that it will be a genuine holiday and Jersey remains their principle place of residence (i.e. they will not be working or have a permanent residence elsewhere) then they could be granted an extending break from the island.

This is generally a firm ruling, however there are exceptions in some cases. It is however important to seek confirmation from the Housing Department prior to leaving the Island before an extended break.  Do not assume that if you leave it until your return that you will maintain your qualifications.

If housing qualifications are lost through a five year period of absence, but a freehold property is retained in the Island, this property may still be resided in by the owner, but the owner (now unqualified) will not be able to purchase or lease any further property without  completing a further (currently) 12 years continuous residence.

Jersey’s Housing Law and Regulations are comprehensive and complicated.  I have not in this article been able to explain all of their effects and consequences. Whilst the above is intended to be an accurate, albeit limited guide, it is no substitute for seeking proper legal advice or alternatively, advice from the Housing Department, or the Housing Minister (Senator Terrence Le Main).

Zoe Blomfield
Jersey Solicitor
July 2007