Residential Qualifications
In Jersey unless you are fortunate to own or occupy a non residentially qualified property, it is necessary to have residential qualifications and the formal written consent of the Housing Minister in order to either buy or rent property.
Whether or not you have residential qualifications is determined by the Housing (Jersey) Law 1949 (as amended) (the "Housing Law") as supplemented by the Housing (General Provisions) (Jersey) Regulations 1970 (as amended) (the "Regulations").
A brief summary of the Regulations is set out below:-
Index
1. 1(1)a - Jersey born + 10 years residence
2. 1(1)b - pre 1949 resident
3. 1(1)(c) - previously exempt transaction
4. 1(1)(d) - previously granted consent and continually resided since
5. 1(1)(e) - previous consent to rent + 10 years continuous residence
6. 1(1)(f) - 12 years continuous residence [this period is likely to reduce year on year until it is 10 years]
7. 1(1)(g) - hardship (other than financial hardship)
8. 1(1)(h) - child of residentially qualified parent + 10 years residence
9. 1(1)(j) - Essentially employed person
10. 1(1)(k) - High net worth individual
11. 1(1)(l) - Trust or Association registered with Royal Court
12. 1(1)(m) - religious bodies
13. 1(1)(n) - spouse of residentially qualified person
14. 1A - Renting property
15. 2 - the Public, Parishes and Company acquisitions
16. Five year break rule
17. What constitutes Residence?
1. Regulation 1(1)(a) - Jersey born + 10 years residence
This Regulation applies to a Jersey born person who has lived in the island for a total aggregate period of ten years. Such period does not need to be continuous residence but can be accumulated at any time. Such persons can never lose their Housing qualifications irrespective of any absence from the Island.
> Back to top
2. Regulation 1(1)(b) - pre 1949 resident
This Regulation applies to a person who owned or leased dwelling accommodation prior to the Housing Law coming into force in 1949 and who has remained resident in this accommodation. With the passage of time this Regulation has effectively become redundant. As with all Housing qualifications that are gained by continuous residence these can be lost by an absence from the island (subject to the "five year break rule" referred to below).
> Back to top
3. Regulation 1(1)(c) - previously exempt transaction
This Regulation applies to individuals who owned or leased accommodation, the acquisition of which was a transaction exempt under the Housing Law, and who has remained resident in this accommodation. In the main this would relate to property acquired from the Crown. Again, these residential qualifications can be lost by an absence from the island subject to the five year break rule.
> Back to top
4. Regulation 1(1)(d) - previously granted consent and continually resided since
This Regulation applies to people who have already been granted a consent to purchase property under the Housing Law and have actually bought and occupied that property for the whole period commencing no later than six months from the date of the relevant Housing Consent.
This applies to a spouse who does not have residential qualifications in their own right who purchased property in joint names with their residentially qualified spouse prior to 11 October 1995 and who is then entitled to purchase or lease alternative property in their own name.
This Regulation however does not apply to persons who obtained their previous consent under Regulations (g) (hardship), (j) (essentially employed), (k) (high value net worth individuals), (n)(i) (n)(ii) (spouse) or to unqualified spouses who purchased jointly with the person qualifying under Regulation (g) (hardship), (j) (essentially employed) or (k) (high net worth individuals).
Again, residential qualifications under this paragraph can be lost by an absence from the island (subject to the five year break rule).
> Back to top
5.
Regulation 1(1)(e) - previous consent to rent + 10 years continuous residence
This Regulation applies to a person who has rented property with the consent of the Housing Minister for a continuous period of at least ten years immediately prior to an application to purchase.
It also applies to persons who have been in essential employment under Regulation 1(1)(j) for a continuous period of ten years on completion of which they qualify under this Regulation in their own right to lease or purchase property.
Again, residential qualifications under this Regulation can be lost by an absence from the Island (subject to the five year break rule).
> Back to top
6.
Regulation 1(1)(f) - 12 years continuous residence
This Regulation applies to a person who has achieved 12 years’ continuous residence in the Island immediately preceding the purchase or leasing of accommodation. Having established this period of residence they may either purchase or lease property in the Island. This period has come down successively from 20 years and the Housing Minister has proposed that it is reduced to ten years.
Again, as these residential qualifications depend on continuous residence they can be lost by an absence from the Island (subject to the five year break rule).
> Back to top
7.
Regulation 1(1)(g) - hardship (other than financial hardship)
This Regulation applies to a person who does not qualify under any of the other Regulations but would experience hardship (other than financial hardship) in the view of the Housing Minister if consent were not granted.
This, together with Regulation (j) (essentially employed) and (k) (high net worth individuals) and Regulation 2 are the only Regulations where the Housing Minister can use his discretion and can establish a policy as to how this discretion is exercised. Under all the other Regulations as long as a person can establish the relevant criteria they are entitled to a consent under that particular Regulation.
The Housing Minister has to be satisfied that the degree of hardship which the applicant would suffer is sufficient to outweigh the fact that he has no residential status in his own right.
A typical example of persons who can apply under this Regulation are:
7.1 A residentially unqualified spouse of a residentially qualified person who is left alone, with or without children, following divorce, separation or desertion by or death of the qualified partner.
7.2
A residentially unqualified person with significant residence who becomes seriously ill or handicapped.
7.3
A non Jersey born person who had lived in the Island as a qualified resident for many years but who lost those qualifications by emigrating and who wishes to re-establish residential rights after a period of absence.
The Housing Minister considers each application under this Regulation on its own merits and has to apply a consistent policy. The decisions of the Minister can be open to challenge either by an administrative review board (whose decision does not bind the Housing Minister) or the Royal Court by way of judicial review (whose decision does bind the Minister).
Again, any person who has been granted a Consent under this Regulation stands to lose their residential status if emigrating from the Island, subject to the five year break rule.
The present policy in relation to granting consent under Regulation 1(1)(g) in relation to a marriage or relationship breakdown is that:
(a)
The unqualified spouse or partner has been married to and/or living with the qualified spouse or partner in the Island for at least the previous five years; and
(b)
The unqualified spouse or partner has been continuously ordinarily resident in Jersey for at least the previous ten years; and
(c)
The unqualified spouse or partner has care and control of the child or children either by means of a legal separation or Court Order. Any Consent granted to occupy accommodation will be conditional upon the unqualified spouse in question continuing to have care and control of the minor child or children. In the case of a common law relationship breakdown, no Court Order will be granted but care and control of any child of a relationship must still be with the applicant on a full time basis.
> Back to top
8.
Regulation 1(1)(h) - child of residentially qualified parent + 10 years residence
This Regulation applies to a non Jersey born person who:
8.1
Arrived in the Island before their 20th birthday; and
8.2
Is the child of a residentially qualified person; and
8.3
Has lived in the Island for an aggregate period of at least ten years. This ten year period does not need to be continuous.
This Regulation also applies to children of (j) (essentially employed) and (k) (high net worth individuals) except where those individuals leave the Island prior to the children obtaining their qualifications. In all other instances if the child is in the process of qualifying under the Housing Regulations or has qualified and their parent either dies or leaves the Island then the child can continue to qualify under the Regulation provided that they remain continuously ordinarily resident from the date on which their parent lost their qualifications.
Once qualified such persons will lose their residential qualifications if emigrating from the Island subject to the five year break rule.
> Back to top
9. Regulation 1(1)(j) - Essentially employed person
This Regulation applies to a person whom the Housing Minister accepts as being essentially employed in the Island where the Minister is satisfied that consent can be "justified" in the best interests of the community.
The 1(1)(j) provision is designed to assist employers with recruitment when no satisfactory local person is available. It is not a retention tool nor an entitlement to having gained a certain professional position or qualification and as such it is not available to existing employees at this time save in exceptional circumstances.
As mentioned above this Regulation is one where the Minister has discretion to grant consent to purchase or rent property or to require such employees to be housed in accommodation or leased by their employer. The Minister has to be consistent in his decisions and to bear in mind the effect of his decisions on his duty to prevent further aggravation of the housing shortage.
> Back to top
10.
Regulation 1(1)(k) - High net worth individual
1(1)(k) category residents are high net worth individuals. The Housing Minister can issue a consent under Regulation 1(1)(k) where he is satisfied that consent can be justified on social and economic grounds.
Effectively a (k) resident must pay at least £100,000 income tax per annum which is assessed on the following basis:
- All Jersey arising income is charged at 20%
- The first £1,000,000 non Jersey income is charged at a rate of 20%
- The next £500,000 non Jersey income is charged at a rate of 10%
- The balance above £1,500,000 of non Jersey income is charged at the rate of 1%
The Housing Minister has regard to the following factors:
- The individual’s contribution to tax revenues.
- The business/social background of the applicant and the benefit that could arise for Jersey as a result of him/her taking up residence in the Island.
- Any other general benefits that the Island may obtain if the applicant takes up residence in the Island.
All applications for 1(1)(k) status are made through Nigel Philpott, the Director of High Value Residency. www.reflectonjersey.com has helpful information in this regard.
> Back to top
11.
Regulation 1(1)(l) - Trust or Association registered with Royal Court
This Regulation relates to an association or trust known as a fidei commis incorporated by the Royal Court.
> Back to top
12.
Regulation 1(1)(m) - religious bodies
This relates to recognised religious bodies.
> Back to top
13.
Regulation 1(1)(n) - spouse of residentially qualified person
This Regulation enables a non residentially qualified person to join in the purchase or lease (for more than nine years) of a property with his or her residentially qualified spouse. Consent is granted for a specific transaction and does not bestow upon the non qualified spouse any further residential status under the Regulations.
Any person who is ordinarily resident in the Island and is married to a person qualified under any Regulation except Regulation 1(1)(k) will gain residential qualifications in their own right to rent or purchase property after ten years ordinary residence in the Island with that residentially qualified spouse. Anybody qualifying under this Regulation may lose their residential status if they emigrate from the Island subject to the five year break rule.
> Back to top
14.
Regulation 1A - Renting property
This Regulation relates only to renting property. All persons qualifying to purchase, with the exception of those qualifying under Regulation 1(1)(n) paragraphs (i) and (ii) and Regulation 1(1)(k) also qualify to rent property.
> Back to top
15.
Regulation 2 - the Public, Parishes and Company acquisitions
Under this Regulation the Housing Minister may grant consent to the Public or a Parish or where he is satisfied that to do so will not be detrimental to the interests of the community on Housing grounds to a company. In relation to consents granted to a company this again is another example of where the Housing Minister has discretion under the Housing Law and Regulations.
The following sets out the types of transactions where the Housing Minister will permit a company purchase:
15.1
Where flats are either already on the property or will be constructed thereon and sold individually by way of share transfer.
15.2
Where the company proposes to develop the premises for a building development, provided that a legal undertaking is given that all the houses built will be sold out of the company.
15.3
Acquisition by an approved (j) category essential employee.
15.4
Acquisition by an approved (k) category resident.
> Back to top
16.
Five year break rule
Under Regulation 2(A) introduced in October 1995, and amended in March 2001, a person who has gained their housing qualifications under Regulations 1(1)(b), 1(1)(c), 1(1)(d), 1(1)(e), 1(1)(f) and certain categories of 1(1)(h) can leave the Island for a single period of up to five years without losing their qualifications.
> Back to top
17.
What constitutes Residence?
Residence is principally being physically situated within Jersey. However, there are exceptions such as being on holiday elsewhere or on a training course or on a short job secondment, or at school or university.
In addition, in 1995 the States adopted the principle that local residents in Her Majesty’s Armed Forces and any child living with his parents during that time is deemed to have spent time in the Island for the purposes of the Regulations.
We would stress that the above are very brief summaries of the Regulations and recourse should be had to the Housing Law or Regulations or advice from the Population Office or a legal adviser for a more detailed explanation.
> Back to top
For detailed information on residential qualifications in Jersey, please contact Chris Renouf.
The information and expressions of opinion contained in this guide are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.