February 28, 2010
Article by Gar Knutson and Jeffrey S. Graham
This week the Canada Mortgage and Housing Corporation released a research report entitled “Islamic Housing Finance in Canada”. The report analyses Islamic housing finance in a sampling of countries throughout the world, including common law and civil law jurisdictions, in order to draw parallels with the Canadian legal system. The report then examines the development of Islamic finance in Canada and the potential legal and regulatory obstacles that arise.
The report first surveys the principles of Islamic finance and compares how Islamic finance compares with conventional finance. Next, the report considers the application of Shariah to mortgage lending internationally, noting that it is more state centric and less internationalized than other forms of Islamic finance and investment. It is noted that in recent years a number of companies have begun offering Shariah compliant home financing options in Canada and that the Canadian experience is not unique and that the experience of other countries applying Shariah principles to mortgage lending are illustrative of how the product develops. The report finds that in certain jurisdictions such as the UK and New Zealand governments have passed laws to facilitate Islamic housing financing while in others, notably the US, Australia and France, these finance instruments are being offered without significant legislative changes. Further it is noted that there are no significant differences among states with English common law systems, including the UK, the US and Australia, and states with civil law based legal systems, including France, Turkey and Lebanon.
The state of Islamic housing finance in Canada is surveyed. It is noted that the Shariah complaint mortgages were first offered in Canada by housing cooperative organizations. More recently, the market has been serviced by specialized lending institutions that have obtained funding from third parties such as conventional financial institutions and on-lent those funds by way of Islamic mortgages. It is noted that the interface of Shariah law with the Canadian legal system does not, in and of itself, create any particular issues and that Canadian real property law would continue to apply to the property that was the object of the transaction. Further, it is noted that there are no contract or other requirements that cannot be met using conventionally drafted legal instruments that are fully enforceable under the laws governing the contract, if such law is the law of a Canadian province. Depending on the structure, landlord-tenant laws may be implicated and certain of the rights of the parties determined in accordance with the requirements of that legal regime. In addition, the report discusses briefly the application of land transfer, commodity and capital gains taxation in the context of Islamic mortgages.
The report also considers the ability of banking organizations in Canada to provide Islamic housing finance. It concludes that most product offerings in the realm of housing finance would not be prohibited within the existing regulatory regime for Canadian chartered banks and other federally regulated financial institutions.
It is fair to say that there is growing interest in the topic of Islamic finance in Canada. With a prominent and growing Canadian Muslim community and strong and innovative financial sector, there is every reason to believe that Islamic finance will continue to grow in relative terms in Canada. Among the developments that can be anticipated, it should be noted that an Islamic Finance Working Group (IFWG) has been established by the Toronto Financial Services Alliance, a unique public-private partnership with a mandate to enhance and promote the competitiveness of Toronto as a premier international financial centre. The IFWG is considering the opportunities and challenges in helping to promote the development of Islamic finance in Canada. The report of the IFWG is expected to be released in the coming weeks.
Source : mondaq
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