During
recent years, Panama has become a top destination for tourists, investors
and retirees from all over the world. Most retirees or "pensionados"
come looking for more friendly, secure and affordable communities,
such as Boquete, Volcan, the Caribbean islands of Bocas del Toro,
the Pacific beaches and, of course, cosmopolitan Panama City.
Incentives
for tourism investments were first granted by means of Law 8 of June
14, 1994. The enactment of this law began the process of branding
Panama as a tourism destination, attracting investors and tourists
alike, but mainly in the hospitality sector.
In the
last few years, resort residential communities have taken off and
entrepreneurs have identified islands such as the Archipelago of Bocas
del Toro to develop their project, but found that most of the lands
in these areas were yet to be titled, thus making the process of installing
their project more difficult.
As early
as 2003, a group of foreign and Panamanian lawyers and entrepreneurs
identified serious problems with certain land transactions known as
"rights of possession" and started lobbying with Panamanian
authorities and legislators to enact legislation to regulate land
tenure and establish clear rules of the game to title land for tourism
projects and private citizens. The government became aware of the
need for second-home or retirement investors to obtain registered
title to the lands where their projects are to be developed and secure
legal stability for their investments.
With this
in mind, the Cadastral Land Office (locally known as Catastro), headed
by Benjamín Colamarco, promoted a bill early in 2005 which
was approved and enacted by the Legislative Assembly as Law No. 2
of January 7, 2006 "regulating concessions for tourism investment
and the sale of island territory for purposes of tourism development
and other provisions" (and an Executive Decree containing the
enabling regulations for Law No. 2 to be enacted soon), also referred
herein as the "Island Law". This law provides legal security,
clear procedures and continuity to the efforts to promote tourism
investments in Panama, as set forth in Law No. 8 of 1994.
The day
that President Martín Torrijos stamped his signature to Law
2 in the island of Bocas del Toro, an initial group of seven projects
for an estimated amount of US$732 million were unveiled. Now there
are other projects in the pipeline in the Pearl, Veraguas and Paridas
islands, demonstrating that investors were awaiting this law.
Panamanian
law distinguishes between two kinds of property: (a) private or titled
property, and (b) public or state-owned property.
Titled
property is that whose ownership, area, value, boundaries and other
details are dully recorded at the Public Registry of Panama. The Public
Registry of Panama contains a centralized record system of all titled
property in the Republic of Panama.
State-owned
property is all land and territories owned by the Republic of Panama,
which can be used by a private person (individual or company) if an
administrative concession has been granted over the same for a limited
period of time. State-owned properties can also be exploited or used
for agricultural purposes by persons in the event a procession rights
certificate has been granted by the Agrarian Reform of the Ministry
of Agriculture. Rights of possession (in this article referred to
as "RoPs") have been recognized by local authorities such
as municipalities and corregimientos (municipal sub-divisions.) Law
No. 2 of 2006 acknowledges RoPs granted by any of the authorities
identified above, subject to the process established for the issuance
of concessions.
Law No.
2 of 2006 offers tourism investors the opportunity to either obtain
a long-term concession or acquire and title the property where they
will undertake their projects.
CONCESSIONS
Concessions can be defined as leasehold agreements between
the Ministry of Economy and Finance through the Cadastral Office,
a government institution in charge of the management of all state-owned
property, and private citizens or companies for a determined period
of time. Once the concession is granted the person awarded the concession
must pay an agreed lease amount to the Ministry of Economy and Finance.
Law No.
2 provides the following additional characteristics for concessions
over areas located in the tourism zones as defined by the Ministry
of Tourism, whether located on islands, coastal lands and other properties
of the State, to be granted for tourism projects:
Longer
concession periods granted for use of state-owned lands:
Law No.
2 of 2006 establishes concession periods of 40 years with the option
for an extension of 30 years.
-
There
also exists the possibility of a concession for 60 years, with
an extension for an additional 30 years.
-
The
length of the concession will depend on the amount of the investment
and potential for generation of employment, subject to the parameters
to be set by the Ministry of Economics and Finance.
-
The
granting of these concessions will be awarded by means of a public
bidding procedure as it will be more fully detailed in the enabling
regulations.
An express
procedure for the procurement of concessions over lands to be used
for tourism projects.
All improvements
and buildings constructed over concession areas may be titled and
recorded in the Public Registry. This will facilitate procurement
of financing for the investors as well as the option to sell, lease,
transfer, mortgage or in any other manner make use of the concession
granted to him and the improvements attached thereon.
Law No.
2 of 2006 creates an "Express Window" ("Ventanilla
Unica") within the Cadastral Office of the Ministry of Economics
and Finance in charge of receiving all applications as well as processing
all approvals and authorizations required for concessions. This special
department will have representatives from all entities whose approval
is necessary to complete the concession contract and start a project.
To speed up project start-up, and once the developer present all basic
requirements, this Express Window department may issue a provisional
authorization to begin operations, while the developer complete all
remaining requirements for the permanent concession.
Among the
requirements to be provided to the Ministry of Economics and Finance
to obtain the concessions created by this law are:
-
Preliminary
development master plan of the property.
-
Project
budget.
-
Development
program and execution schedule.
-
Evidence
of financial capability of the petitioner.
-
Certificate
issued by the Ministry of Tourism certifying that the requested
area is located within a tourism development zone.
-
Approved
Environmental Impact Study.
-
Certificate that the petitioner is registered before the Tourism
Enterprise Registry of the Ministry of Tourism.
-
Performance bond for 10% of the value of projected works, which
will expire once the improvements are recorded.
DIRECT
PURCHASE
Islands, whose ownership, according to the Constitution
of Panama, up to now, was limited to nationals, have always been an
area of special interest for tourism related investments.
Law No.
2 of 2006 provides the following incentives to foreign or national
individuals or corporations interested in purchasing island territory
for developing a tourism project:
-
Island territory may be sold for tourism related purposes, provided
an affidavit is granted, confirming the purpose of the investment
and the number of jobs to be created.
It is important to repeat that no more than 50% of an island can
be sold to foreigners or foreign interests in a corporation. The
sale of island territory must be submitted to a public bidding
procedure as it will be more fully detailed in the enabling regulations
and obtain the approval of the Ministry of Economics and Finance.
However, projects over RoPs or already initiated or undertaken
on an island before the enactment of Law 2 may request direct
sale of the island property.
-
Individuals or corporations legally occupying island territory
will have the right to obtain concession of the same and be able
to transfer it to a third party.
The contract
for purchase of island territory must include at least the following:
-
Description
of the land granted for sale, including area, measures and boundaries.
-
Value
of the land object of the sale. The price will not be less than
the average of the appraisals made by the Ministry of Economics
and Finance and the Cadastral Office.
-
Estimated
amount and details of the investment, including the amount to
be invested in utilities and infrastructure for the project.
-
Environmental Impact Study and Mitigation Plan.
-
Complete description of the project in its definite phase, including
investment amounts and execution term for the development of the
project.
-
Description of beach easements, which can be no less than 22 meters
-
Precise description of the public domain assets located within
the island territory.
-
A bond of at least 10% of the value of the contract and that will
be valid during the term of the project. This bond will expire
proportionally as the improvements are recorded.
All projects
within these areas must comply with the territorial zoning master
plan to be prepared by government authorities. Until this master plan
is approved, each project may submit its own zoning plan which will
be processed and approved through the Express Window.
The same
"Express Window" ("Ventanilla Unica") within the
Cadastral Office of the Ministry of Economics and Finance will be
in charge of receiving all applications as well as processing all
approvals and authorizations required for direct purchases of island
territories.
RESTRICTIONS
Due to the nature of islands, and for sovereign protection
purposes, the following restrictions have been set for these special
tourism areas:
-
They
cannot be located less than 10 kilometers from the borders.
-
They
must not be designated as historical patrimony or national patrimony.
-
They,
due to their characteristics, cannot be dedicated to the conservation
of the environment or for forest or scientific purposes.
-
They
cannot be part of Indian territory.
The sale of these special tourism areas cannot exceed 50% of the
total territory of each island and ownership cannot be transferred
to another State. Tourism projects pursuant to Law 2 cannot exceed
30% of the total territory of an island.
As an
effort for nature conservancy, the following limitations have been
set for certain areas:
-
The
construction over coral formations is forbidden as well as any
activity that may cause the death or destruction of their ecosystem.
-
The
cutting, use or commerce of swamp forests, their products, parts
or derived products is forbidden, except for tourism projects
after the approval of the respective environmental impact study.
As a final
note regarding restrictions, concessions and sale of beachfront property
may only be granted up to 22 meters as of the line of high tide. The
area of 10 meters as of the line of high tide is considered beachfront
and cannot be granted in concession under any circumstances. The area
of 12 meters as of the beachfront can be granted in concession as
a coastal easement.
SPECIAL
SITUATIONS
Law No. 2 of 2006 cover a special procedure for individuals
domiciled in an area, who have kept a permanent and uninterrupted
possession of national island property, for at least 2 years before
the enactment of the law, and prove that they have used such property
for their own home or agricultural purposes.
These persons
will be granted a concession for a period of 90 years without having
to participate in a public bid process, plus not having to comply
with the requirement of posting a bond and, being exempted from payment
of the concession lease.
A corporation
that properly purchases the RoPs from an individual resident in the
area who proves that he complied with the requirements of Law 2 will
be subrogated in the rights of such person for purposes of obtaining
the concession.
Another
special situation set forth in Law No. 2 of 2006 is the obligation
of concessionaires and investors to hire non-skilled local personnel
from the area during the construction of the project.
2ND
HOME & VACATIONAL HOUSING
In an additional effort to promote residential tourism investments
in Panama, Law No. 2 also provides incentives for "Vacational
or Permanent Residential Units". The purpose for this incentive
is to promote the development of vacation and retirement homes or
buildings, which may be built over concession areas on islands or
coastlands, provided they are located within a tourism development
zone as defined by the government and only one parcel per petitioner.
These projects additionally will enjoy the incentives and benefits
of Law 8 of 1994. Enabling regulations will be enacted to provide
rules for the size of the parcel, costs of constructions and improvements
over the same.
CONCLUSIONS
Law No.
2 of 2006 confirms the decision of the Government of Panama to support,
promote and grant more legal security to tourism investments plus
an orderly development and a better use of the island and coastal
resources of Panama. The implementation of this Law No. 2 of 2006
will definitely result in benefits and profits for both the tourism
industry and the country of Panama and its people.